TITLE 9. OF CRIMES AGAINST THE PERSON INVOLVING SEXUAL
ASSAULT, AND CRIMES AGAINST PUBLIC DECENCY AND GOOD
MORALS
CHAPTER 1. RAPE, ABDUCTION, CARNAL ABUSE OF CHILDREN, AND SEDUCTION
PENAL CODE
SECTION 261-269
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) Where a person is 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. 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
consent.
(2) Where 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) Where 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) Where 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 any 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) Where a person submits under the belief that the person
committing the act is someone known to the victim other than the
accused, and this belief is induced by any artifice, pretense, or
concealment practiced by the accused, with intent to induce the
belief.
(6) 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. 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) 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. 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, “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.
(c) As used in this section, “menace” means any threat,
declaration, or act which shows an intention to inflict an injury
upon another.
261.5. (a) Unlawful sexual intercourse is an act of sexual
intercourse accomplished with a person who is not the spouse of the
perpetrator, if the person is a minor. For the purposes of this
section, a “minor” is a person under the age of 18 years and an
“adult” is a person who is at least 18 years of age.
(b) Any person who engages in an act of unlawful sexual
intercourse with a minor who is not more than three years older or
three years younger than the perpetrator, is guilty of a misdemeanor.
(c) Any person who engages in an act of unlawful sexual
intercourse with a minor who is more than three years younger than
the perpetrator is guilty of either a misdemeanor or a felony, and
shall be punished by imprisonment in a county jail not exceeding one
year, or by imprisonment pursuant to subdivision (h) of Section 1170.
(d) Any person 21 years of age or older who engages in an act of
unlawful sexual intercourse with a minor who is under 16 years of age
is guilty of either a misdemeanor or a felony, and shall be punished
by imprisonment in a county jail not exceeding one year, or by
imprisonment pursuant to subdivision (h) of Section 1170 for two,
three, or four years.
(e) (1) Notwithstanding any other provision of this section, an
adult who engages in an act of sexual intercourse with a minor in
violation of this section may be liable for civil penalties in the
following amounts:
(A) An adult who engages in an act of unlawful sexual intercourse
with a minor less than two years younger than the adult is liable for
a civil penalty not to exceed two thousand dollars ($2,000).
(B) An adult who engages in an act of unlawful sexual intercourse
with a minor at least two years younger than the adult is liable for
a civil penalty not to exceed five thousand dollars ($5,000).
(C) An adult who engages in an act of unlawful sexual intercourse
with a minor at least three years younger than the adult is liable
for a civil penalty not to exceed ten thousand dollars ($10,000).
(D) An adult over the age of 21 years who engages in an act of
unlawful sexual intercourse with a minor under 16 years of age is
liable for a civil penalty not to exceed twenty-five thousand dollars
($25,000).
(2) The district attorney may bring actions to recover civil
penalties pursuant to this subdivision. From the amounts collected
for each case, an amount equal to the costs of pursuing the action
shall be deposited with the treasurer of the county in which the
judgment was entered, and the remainder shall be deposited in the
Underage Pregnancy Prevention Fund, which is hereby created in the
State Treasury. Amounts deposited in the Underage Pregnancy
Prevention Fund may be used only for the purpose of preventing
underage pregnancy upon appropriation by the Legislature.
(3) 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.
261.6. In prosecutions under Section 261, 262, 286, 288a, or 289,
in which consent is at issue, “consent” shall be defined to mean
positive cooperation in act or attitude pursuant to an exercise of
free will. The person must act freely and voluntarily and have
knowledge of the nature of the act or transaction involved.
A current or previous dating or marital relationship shall not be
sufficient to constitute consent where consent is at issue in a
prosecution under Section 261, 262, 286, 288a, or 289.
Nothing in this section shall affect the admissibility of evidence
or the burden of proof on the issue of consent.
261.7. In prosecutions under Section 261, 262, 286, 288a, or 289,
in which consent is at issue, evidence that the victim suggested,
requested, or otherwise communicated to the defendant that the
defendant use a condom or other birth control device, without
additional evidence of consent, is not sufficient to constitute
consent.
261.9. (a) Any person convicted of seeking to procure or procuring
the sexual services of a prostitute in violation of subdivision (b)
of Section 647, if the prostitute is under 18 years of age, shall be
ordered by the court, in addition to any other penalty or fine
imposed, to pay an additional fine in an amount not to exceed
twenty-five thousand dollars ($25,000).
(b) Every fine imposed and collected pursuant to this section
shall, upon appropriation by the Legislature, be available to fund
programs and services for commercially sexually exploited minors in
the counties where the underlying offenses are committed.
262. (a) Rape of a person who is the spouse of the perpetrator is
an act of sexual intercourse accomplished under any of the following
circumstances:
(1) Where 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.
(2) Where 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.
(3) Where 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.
(4) 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. 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.
(5) 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. 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, “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 apprising
the existence of duress.
(c) As used in this section, “menace” means any threat,
declaration, or act that shows an intention to inflict an injury upon
another.
(d) If probation is granted upon conviction of a violation of this
section, the conditions of probation may include, in lieu of a fine,
one or both of the following requirements:
(1) That the defendant make payments to a battered women’s
shelter, up to a maximum of one thousand dollars ($1,000).
(2) That the defendant reimburse the victim for reasonable costs
of counseling and other reasonable expenses that the court finds are
the direct result of the defendant’s offense.
For any order to pay a fine, make payments to a battered women’s
shelter, or pay restitution as a condition of probation under this
subdivision, the court shall make a determination of the defendant’s
ability to pay. In no event shall any order to make payments to a
battered women’s shelter be made if it would impair the ability of
the defendant to pay direct restitution to the victim or
court-ordered child support. Where the injury to a married person is
caused in whole or in part by the criminal acts of his or her spouse
in violation of this section, the community property may not be used
to discharge the liability of the offending spouse for restitution to
the injured spouse, required by Section 1203.04, as operative on or
before August 2, 1995, or Section 1202.4, or to a shelter for costs
with regard to the injured spouse and dependents, required by this
section, until all separate property of the offending spouse is
exhausted.
263. The essential guilt of rape consists in the outrage to the
person and feelings of the victim of the rape. Any sexual
penetration, however slight, is sufficient to complete the crime.
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
any 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) Any 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) Any 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.
264.1. (a) The provisions of Section 264 notwithstanding, in any
case in which the defendant, voluntarily acting in concert with
another person, by force or violence and against the will of the
victim, committed an act described in Section 261, 262, or 289,
either personally or by aiding and abetting the other person, that
fact shall be charged in the indictment or information and if found
to be true by the jury, upon a jury trial, or if found to be true by
the court, upon a court trial, or if admitted by the defendant, the
defendant shall suffer confinement in the state prison for five,
seven, or nine years.
(b) (1) If the victim of an offense described in subdivision (a)
is a child who is under 14 years of age, the defendant shall be
punished by imprisonment in the state prison for 10, 12, or 14 years.
(2) If the victim of an offense described in subdivision (a) is a
minor who is 14 years of age or older, the defendant 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.
264.2. (a) Whenever there is an alleged violation or violations of
subdivision (e) of Section 243, or Section 261, 261.5, 262, 273.5,
286, 288a, or 289, the law enforcement officer assigned to the case
shall immediately provide the victim of the crime with the “Victims
of Domestic Violence” card, as specified in subparagraph (G) of
paragraph (9) of subdivision (c) of Section 13701.
(b) (1) The law enforcement officer, or his or her agency, shall
immediately notify the local rape victim counseling center, whenever
a victim of an alleged violation of Section 261, 261.5, 262, 286,
288a, or 289 is transported to a hospital for any medical evidentiary
or physical examination. The victim shall have the right to have a
sexual assault counselor, as defined in Section 1035.2 of the
Evidence Code, and a support person of the victim’s choosing present
at any medical evidentiary or physical examination.
(2) Prior to the commencement of any initial medical evidentiary
or physical examination arising out of a sexual assault, a victim
shall be notified orally or in writing by the medical provider that
the victim has the right to have present a sexual assault counselor
and at least one other support person of the victim’s choosing.
(3) The hospital may verify with the law enforcement officer, or
his or her agency, whether the local rape victim counseling center
has been notified, upon the approval of the victim.
(4) A support person may be excluded from a medical evidentiary or
physical examination if the law enforcement officer or medical
provider determines that the presence of that individual would be
detrimental to the purpose of the examination.
265. Every person who takes any woman unlawfully, against her will,
and by force, menace or duress, compels her to marry him, or to
marry any other person, or to be defiled, is punishable by
imprisonment pursuant to subdivision (h) of Section 1170.
266. Every person who inveigles or entices any unmarried female, of
previous chaste character, under the age of 18 years, into any house
of ill fame, or of assignation, or elsewhere, for the purpose of
prostitution, or to have illicit carnal connection with any man; and
every person who aids or assists in such inveiglement or enticement;
and every person who, by any false pretenses, false representation,
or other fraudulent means, procures any female to have illicit carnal
connection with any man, is punishable by imprisonment in the state
prison, or by imprisonment in a county jail not exceeding one year,
or by a fine not exceeding two thousand dollars ($2,000), or by both
such fine and imprisonment.
266a. Every person who, within this state, takes any person against
his or her will and without his or her consent, or with his or her
consent procured by fraudulent inducement or misrepresentation, for
the purpose of prostitution, as defined in subdivision (b) of Section
647, is punishable by imprisonment in the state prison, and a fine
not exceeding two thousand dollars ($2,000).
266b. Every person who takes any other person unlawfully, and
against his or her will, and by force, menace, or duress, compels him
or her to live with such person in an illicit relation, against his
or her consent, or to so live with any other person, is punishable by
imprisonment pursuant to subdivision (h) of Section 1170.
266c. Every person who induces any other person to engage in sexual
intercourse, sexual penetration, oral copulation, or sodomy when his
or her consent is procured by false or fraudulent representation or
pretense that is made with the intent to create fear, and which does
induce fear, and that would cause a reasonable person in like
circumstances to act contrary to the person’s free will, and does
cause the victim to so act, is punishable by imprisonment in a county
jail for not more than one year or in the state prison for two,
three, or four years.
As used in this section, “fear” means the fear of physical injury
or death to the person or to any relative of the person or member of
the person’s family.
266d. Any person who receives any money or other valuable thing for
or on account of placing in custody any other person for the purpose
of causing the other person to cohabit with any person to whom the
other person is not married, is guilty of a felony.
266e. Every person who purchases, or pays any money or other
valuable thing for, any person for the purpose of prostitution as
defined in subdivision (b) of Section 647, or for the purpose of
placing such person, for immoral purposes, in any house or place
against his or her will, is guilty of a felony punishable by
imprisonment in the state prison for 16 months, or two or three
years.
266f. Every person who sells any person or receives any money or
other valuable thing for or on account of his or her placing in
custody, for immoral purposes, any person, whether with or without
his or her consent, is guilty of a felony punishable by imprisonment
in the state prison for 16 months, or two or three years.
266g. Every man who, by force, intimidation, threats, persuasion,
promises, or any other means, places or leaves, or procures any other
person or persons to place or leave, his wife in a house of
prostitution, or connives at or consents to, or permits, the placing
or leaving of his wife in a house of prostitution, or allows or
permits her to remain therein, is guilty of a felony and punishable
by imprisonment pursuant to subdivision (h) of Section 1170 for two,
three or four years; and in all prosecutions under this section a
wife is a competent witness against her husband.
266h. (a) Except as provided in subdivision (b), any person who,
knowing another person is a prostitute, lives or derives support or
maintenance in whole or in part from the earnings or proceeds of the
person’s prostitution, or from money loaned or advanced to or charged
against that person by any keeper or manager or inmate of a house or
other place where prostitution is practiced or allowed, or who
solicits or receives compensation for soliciting for the person, is
guilty of pimping, a felony, and shall be punishable by imprisonment
in the state prison for three, four, or six years.
(b) Any person who, knowing another person is a prostitute, lives
or derives support or maintenance in whole or in part from the
earnings or proceeds of the person’s prostitution, or from money
loaned or advanced to or charged against that person by any keeper or
manager or inmate of a house or other place where prostitution is
practiced or allowed, or who solicits or receives compensation for
soliciting for the person, when the prostitute is a minor, is guilty
of pimping a minor, a felony, and shall be punishable as follows:
(1) If the person engaged in prostitution is a minor 16 years of
age or older, the offense is punishable by imprisonment in the state
prison for three, four, or six years.
(2) If the person engaged in prostitution is under 16 years of
age, the offense is punishable by imprisonment in the state prison
for three, six, or eight years.
266i. (a) Except as provided in subdivision (b), any person who
does any of the following is guilty of pandering, a felony, and shall
be punishable by imprisonment in the state prison for three, four,
or six years:
(1) Procures another person for the purpose of prostitution.
(2) By promises, threats, violence, or by any device or scheme,
causes, induces, persuades, or encourages another person to become a
prostitute.
(3) Procures for another person a place as an inmate in a house of
prostitution or as an inmate of any place in which prostitution is
encouraged or allowed within this state.
(4) By promises, threats, violence, or by any device or scheme,
causes, induces, persuades, or encourages an inmate of a house of
prostitution, or any other place in which prostitution is encouraged
or allowed, to remain therein as an inmate.
(5) By fraud or artifice, or by duress of person or goods, or by
abuse of any position of confidence or authority, procures another
person for the purpose of prostitution, or to enter any place in
which prostitution is encouraged or allowed within this state, or to
come into this state or leave this state for the purpose of
prostitution.
(6) Receives or gives, or agrees to receive or give, any money or
thing of value for procuring, or attempting to procure, another
person for the purpose of prostitution, or to come into this state or
leave this state for the purpose of prostitution.
(b) Any person who does any of the acts described in subdivision
(a) with another person who is a minor is guilty of pandering, a
felony, and shall be punishable as follows:
(1) If the other person is a minor 16 years of age or older, the
offense is punishable by imprisonment in the state prison for three,
four, or six years.
(2) If the other person is under 16 years of age, the offense is
punishable by imprisonment in the state prison for three, six, or
eight years.
266j. Any person who intentionally gives, transports, provides, or
makes available, or who offers to give, transport, provide, or make
available to another person, a child under the age of 16 for the
purpose of any lewd or lascivious act as defined in Section 288, or
who causes, induces, or persuades a child under the age of 16 to
engage in such an act with another person, is guilty of a felony and
shall be imprisoned in the state prison for a term of three, six, or
eight years, and by a fine not to exceed fifteen thousand dollars
($15,000).
266k. (a) Upon the conviction of any person for a violation of
Section 266h or 266i, the court may, in addition to any other penalty
or fine imposed, order the defendant to pay an additional fine not
to exceed five thousand dollars ($5,000). 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 and
the circumstances of its commission, whether the defendant derived
any economic gain as the result of the crime, and the extent to which
the victim suffered 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 under Section 13837.
(b) Upon the conviction of any person for a violation of Section
266j or 267, the court may, in addition to any other penalty or fine
imposed, order the defendant to pay an additional fine not to exceed
twenty thousand dollars ($20,000).
(c) Fifty percent of the fines collected pursuant to subdivision
(b) and deposited in the Victim-Witness Assistance Fund pursuant to
subdivision (a) shall be granted to community-based organizations
that serve minor victims of human trafficking.
(d) If the court orders a fine to be imposed pursuant to this
section, 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.
267. Every person who takes away any other person under the age of
18 years from the father, mother, guardian, or other person having
the legal charge of the other person, without their consent, for the
purpose of prostitution, is punishable by imprisonment in the state
prison, and a fine not exceeding two thousand dollars ($2,000).
269. (a) Any person who commits any of the following acts upon a
child who is under 14 years of age and seven or more years younger
than the person is guilty of aggravated sexual assault of a child:
(1) Rape, in violation of paragraph (2) or (6) of subdivision (a)
of Section 261.
(2) Rape or sexual penetration, in concert, in violation of
Section 264.1.
(3) Sodomy, in violation of paragraph (2) or (3) of subdivision
(c), or subdivision (d), of Section 286.
(4) Oral copulation, in violation of paragraph (2) or (3) of
subdivision (c), or subdivision (d), of Section 288a.
(5) Sexual penetration, in violation of subdivision (a) of Section
289.
(b) Any person who violates this section is guilty of a felony and
shall be punished by imprisonment in the state prison for 15 years
to life.
(c) The court shall impose a consecutive sentence for each offense
that results in a conviction under this section if the crimes
involve separate victims or involve the same victim on separate
occasions as defined in subdivision (d) of Section 667.6.
CHAPTER 2. ABANDONMENT AND NEGLECT OF CHILDREN
PENAL CODE
SECTION 270-273.75
270. If a parent of a minor child willfully omits, without lawful
excuse, to furnish necessary clothing, food, shelter or medical
attendance, or other remedial care for his or her child, he or she is
guilty of a misdemeanor punishable by a fine not exceeding two
thousand dollars ($2,000), or by imprisonment in the county jail not
exceeding one year, or by both such fine and imprisonment. If a court
of competent jurisdiction has made a final adjudication in either a
civil or a criminal action that a person is the parent of a minor
child and the person has notice of such adjudication and he or she
then willfully omits, without lawful excuse, to furnish necessary
clothing, food, shelter, medical attendance or other remedial care
for his or her child, this conduct is punishable by imprisonment in
the county jail not exceeding one year or in a state prison for a
determinate term of one year and one day, or by a fine not exceeding
two thousand dollars ($2,000), or by both such fine and imprisonment.
This statute shall not be construed so as to relieve such parent
from the criminal liability defined herein for such omission merely
because the other parent of such child is legally entitled to the
custody of such child nor because the other parent of such child or
any other person or organization voluntarily or involuntarily
furnishes such necessary food, clothing, shelter or medical
attendance or other remedial care for such child or undertakes to do
so.
Proof of abandonment or desertion of a child by such parent, or
the omission by such parent to furnish necessary food, clothing,
shelter or medical attendance or other remedial care for his or her
child is prima facie evidence that such abandonment or desertion or
omission to furnish necessary food, clothing, shelter or medical
attendance or other remedial care is willful and without lawful
excuse.
The court, in determining the ability of the parent to support his
or her child, shall consider all income, including social insurance
benefits and gifts.
The provisions of this section are applicable whether the parents
of such child are or were ever married or divorced, and regardless of
any decree made in any divorce action relative to alimony or to the
support of the child. A child conceived but not yet born is to be
deemed an existing person insofar as this section is concerned.
The husband of a woman who bears a child as a result of artificial
insemination shall be considered the father of that child for the
purpose of this section, if he consented in writing to the artificial
insemination.
If a parent provides a minor with treatment by spiritual means
through prayer alone in accordance with the tenets and practices of a
recognized church or religious denomination, by a duly accredited
practitioner thereof, such treatment shall constitute “other remedial
care”, as used in this section.
270.1. (a) A parent or guardian of a pupil of six years of age or
more who is in kindergarten or any of grades 1 to 8, inclusive, and
who is subject to compulsory full-time education or compulsory
continuation education, whose child is a chronic truant as defined in
Section 48263.6 of the Education Code, who has failed to reasonably
supervise and encourage the pupil’s school attendance, and who has
been offered language accessible support services to address the
pupil’s truancy, is guilty of a misdemeanor punishable by a fine not
exceeding two thousand dollars ($2,000), or by imprisonment in a
county jail not exceeding one year, or by both that fine and
imprisonment. A parent or guardian guilty of a misdemeanor under this
subdivision may participate in the deferred entry of judgment
program defined in subdivision (b).
(b) A superior court may establish a deferred entry of judgment
program that includes the components listed in paragraphs (1) to (7),
inclusive, to adjudicate cases involving parents or guardians of
elementary school pupils who are chronic truants as defined in
Section 48263.6 of the Education Code:
(1) A dedicated court calendar.
(2) Leadership by a judge of the superior court in that county.
(3) Meetings, scheduled and held periodically, with school
district representatives designated by the chronic truant’s school
district of enrollment. Those representatives may include school
psychologists, school counselors, teachers, school administrators, or
other educational service providers deemed appropriate by the school
district.
(4) Service referrals for parents or guardians, as appropriate to
each case that may include, but are not limited to, all of the
following:
(A) Case management.
(B) Mental and physical health services.
(C) Parenting classes and support.
(D) Substance abuse treatment.
(E) Child care and housing.
(5) A clear statement that, in lieu of trial, the court may grant
deferred entry of judgment with respect to the current crime or
crimes charged if the defendant pleads guilty to each charge and
waives time for the pronouncement of judgment and that, upon the
defendant’s compliance with the terms and conditions set forth by the
court and agreed to by the defendant upon the entry of his or her
plea, and upon the motion of the prosecuting attorney, the court will
dismiss the charge or charges against the defendant and the same
procedures specified for successful completion of a drug diversion
program or a deferred entry of judgment program pursuant to Section
851.90 and the provisions of Section 1203.4 shall apply.
(6) A clear statement that failure to comply with any condition
under the program may result in the prosecuting attorney or the court
making a motion for entry of judgment, whereupon the court will
render a finding of guilty to the charge or charges pled, enter
judgment, and schedule a sentencing hearing as otherwise provided in
this code.
(7) An explanation of criminal record retention and disposition
resulting from participation in the deferred entry of judgment
program and the defendant’s rights relative to answering questions
about his or her arrest and deferred entry of judgment following
successful completion of the program.
(c) Funding for the deferred entry of judgment program pursuant to
this section shall be derived solely from nonstate sources.
(d) A parent or guardian of an elementary school pupil who is a
chronic truant, as defined in Section 48263.6 of the Education Code,
may not be punished for a violation of both this section and the
provisions of Section 272 that involve criminal liability for parents
and guardians of truant children.
(e) If any district attorney chooses to charge a defendant with a
violation of subdivision (a) and the defendant is found by the
prosecuting attorney to be eligible or ineligible for deferred entry
of judgment, the prosecuting attorney shall file with the court a
declaration in writing, or state for the record, the grounds upon
which that determination is based.
270.5. (a) Every parent who refuses, without lawful excuse, to
accept his or her minor child into the parent’s home, or, failing to
do so, to provide alternative shelter, upon being requested to do so
by a child protective agency and after being informed of the duty
imposed by this statute to do so, is guilty of a misdemeanor and
shall be punished by a fine of not more than five hundred dollars
($500).
(b) For purposes of this section, “child protective agency” means
a police or sheriff’s department, a county probation department, or a
county welfare department.
(c) For purposes of this section, “lawful excuse” shall include,
but not be limited to, a reasonable fear that the minor child’s
presence in the home will endanger the safety of the parent or other
persons residing in the home.
270.6. If a court of competent jurisdiction has made a temporary or
permanent order awarding spousal support that a person must pay, the
person has notice of that order, and he or she then leaves the state
with the intent to willfully omit, without lawful excuse, to furnish
the spousal support, he or she is punishable by imprisonment in a
county jail for a period not exceeding one year, a fine not exceeding
two thousand dollars ($2,000), or both that imprisonment and fine.
270a. Every individual who has sufficient ability to provide for
his or her spouse’s support, or who is able to earn the means of such
spouse’s support, who willfully abandons and leaves his or her
spouse in a destitute condition, or who refuses or neglects to
provide such spouse with necessary food, clothing, shelter, or
medical attendance, unless by such spouse’s conduct the individual
was justified in abandoning such spouse, is guilty of a misdemeanor.
270b. After arrest and before plea or trial, or after conviction or
plea of guilty and before sentence under either Section 270 or 270a,
if the defendant shall appear before the court and enter into an
undertaking with sufficient sureties to the people of the State of
California in such penal sum as the court may fix, to be approved by
the court, and conditioned that the defendant will pay to the person
having custody of such child or to such spouse, such sum per month as
may be fixed by the court in order to thereby provide such minor
child or such spouse as the case may be, with necessary food,
shelter, clothing, medical attendance, or other remedial care, then
the court may suspend proceedings or sentence therein; and such
undertaking is valid and binding for two years, or such lesser time
which the court shall fix; and upon the failure of defendant to
comply with such undertaking, the defendant may be ordered to appear
before the court and show cause why further proceedings should not be
had in such action or why sentence should not be imposed, whereupon
the court may proceed with such action, or pass sentence, or for good
cause shown may modify the order and take a new undertaking and
further suspend proceedings or sentence for a like period.
270c. Except as provided in Chapter 2 (commencing with Section
4410) of Part 4 of Division 9 of the Family Code, every adult child
who, having the ability so to do, fails to provide necessary food,
clothing, shelter, or medical attendance for an indigent parent, is
guilty of a misdemeanor.
270d. In any case where there is a conviction and sentence under
the provisions of either Section 270 or Section 270a, should a fine
be imposed, such fine shall be directed by the court to be paid in
whole or in part to the spouse of the defendant or guardian or
custodian of the child or children of such defendant, except as
follows:
If the children are receiving public assistance, all fines,
penalties or forfeitures imposed and all funds collected from the
defendant shall be paid to the county department. Money so paid shall
be applied first to support for the calendar month following its
receipt by the county department and any balance remaining shall be
applied to future needs, or be treated as reimbursement for past
support furnished from public assistance funds.
270e. No other evidence shall be required to prove marriage of
husband and wife, or that a person is the lawful father or mother of
a child or children, than is or shall be required to prove such facts
in a civil action. In all prosecutions under either Section 270a or
270 of this code, Sections 970, 971, and 980 of the Evidence Code do
not apply, and both husband and wife shall be competent to testify to
any and all relevant matters, including the fact of marriage and the
parentage of a child or children. Proof of the abandonment and
nonsupport of a spouse, or of the omission to furnish necessary food,
clothing, shelter, or of medical attendance for a child or children
is prima facie evidence that such abandonment and nonsupport or
omission to furnish necessary food, clothing, shelter or medical
attendance is willful. In any prosecution under Section 270, it shall
be competent for the people to prove nonaccess of husband to wife or
any other fact establishing nonpaternity of a husband. In any
prosecution pursuant to Section 270, the final establishment of
paternity or nonpaternity in another proceeding shall be admissible
as evidence of paternity or nonpaternity.
270f. Where, under the provisions of this chapter, a report is
filed by a parent of a child with the district attorney averring:
(1) That the other parent has failed to provide necessary support
and
(2) That neither the child in need of assistance nor another on
his behalf is receiving public assistance, the district attorney
shall immediately investigate the verity of such report and determine
the defaulting parent’s location and financial ability to provide
the needed support, and upon a finding that the report is true shall
immediately take all steps necessary to obtain support for the child
in need of assistance.
270g. A review of each report filed with the district attorney
under Section 270f shall be made at 90-day intervals unless the
support payments have been legally terminated, the parties involved
are permanently located beyond county jurisdiction, or the defaulting
parent is complying with the provisions of this chapter.
270h. In any case where there is a conviction under either Section
270 or 270a and there is an order granting probation which includes
an order for support, the court may:
(a) Issue an execution on the order for the support payments that
accrue during the time the probation order is in effect, in the same
manner as on a judgment in a civil action for support payments. This
remedy shall apply only when there is no existing civil order of this
state or a foreign court order that has been reduced to a judgment
of this state for support of the same person or persons included in
the probation support order.
(b) Issue an earnings assignment order for support pursuant to
Chapter 8 (commencing with Section 5200) of Part 5 of Division 9 of
the Family Code as a condition of probation. This remedy shall apply
only when there is no existing civil order for support of the same
person or persons included in the probation support order upon which
an assignment order has been entered pursuant to Chapter 8
(commencing with Section 5200) of Part 5 of Division 9 of the Family
Code or pursuant to former Chapter 5 (commencing with Section 4390)
of Title 1.5 of Part 5 of Division 4 of the Civil Code.
These remedies are in addition to any other remedies available to
the court.
271. Every parent of any child under the age of 14 years, and every
person to whom any such child has been confided for nurture, or
education, who deserts such child in any place whatever with intent
to abandon it, is punishable by imprisonment pursuant to subdivision
(h) of Section 1170 or in the county jail not exceeding one year or
by fine not exceeding one thousand dollars ($1,000) or by both.
271a. Every person who knowingly and willfully abandons, or who,
having ability so to do, fails or refuses to maintain his or her
minor child under the age of 14 years, or who falsely, knowing the
same to be false, represents to any manager, officer or agent of any
orphan asylum or charitable institution for the care of orphans, that
any child for whose admission into that asylum or institution
application has been made is an orphan, is punishable by imprisonment
pursuant to subdivision (h) of Section 1170, or in the county jail
not exceeding one year, or by fine not exceeding one thousand dollars
($1,000), or by both.
271.5. (a) No parent or other individual having lawful custody of a
minor child 72 hours old or younger may be prosecuted for a
violation of Section 270, 270.5, 271, or 271a if he or she
voluntarily surrenders physical custody of the child to personnel on
duty at a safe-surrender site.
(b) For purposes of this section, “safe-surrender site” has the
same meaning as defined in paragraph (1) of subdivision (a) of
Section 1255.7 of the Health and Safety Code.
(c) (1) For purposes of this section, “lawful custody” has the
same meaning as defined in subdivision (j) of Section 1255.7 of the
Health and Safety Code.
(2) For purposes of this section, “personnel” has the same meaning
as defined in paragraph (3) of subdivision (a) of Section 1255.7 of
the Health and Safety Code.
272. (a) (1) Every person who commits any act or omits the
performance of any duty, which act or omission causes or tends to
cause or encourage any person under the age of 18 years to come
within the provisions of Section 300, 601, or 602 of the Welfare and
Institutions Code or which act or omission contributes thereto, or
any person who, by any act or omission, or by threats, commands, or
persuasion, induces or endeavors to induce any person under the age
of 18 years or any ward or dependent child of the juvenile court to
fail or refuse to conform to a lawful order of the juvenile court, or
to do or to perform any act or to follow any course of conduct or to
so live as would cause or manifestly tend to cause that person to
become or to remain a person within the provisions of Section 300,
601, or 602 of the Welfare and Institutions Code, is guilty of a
misdemeanor and upon conviction thereof shall be punished by a fine
not exceeding two thousand five hundred dollars ($2,500), or by
imprisonment in the county jail for not more than one year, or by
both fine and imprisonment in a county jail, or may be released on
probation for a period not exceeding five years.
(2) For purposes of this subdivision, a parent or legal guardian
to any person under the age of 18 years shall have the duty to
exercise reasonable care, supervision, protection, and control over
their minor child.
(b) (1) An adult stranger who is 21 years of age or older, who
knowingly contacts or communicates with a minor who is under 14 years
of age, who knew or reasonably should have known that the minor is
under 14 years of age, for the purpose of persuading and luring, or
transporting, or attempting to persuade and lure, or transport, that
minor away from the minor’s home or from any location known by the
minor’s parent, legal guardian, or custodian, to be a place where the
minor is located, for any purpose, without the express consent of
the minor’s parent or legal guardian, and with the intent to avoid
the consent of the minor’s parent or legal guardian, is guilty of an
infraction or a misdemeanor, subject to subdivision (d) of Section
17.
(2) This subdivision shall not apply in an emergency situation.
(3) As used in this subdivision, the following terms are defined
to mean:
(A) “Emergency situation” means a situation where the minor is
threatened with imminent bodily harm, emotional harm, or
psychological harm.
(B) “Contact” or “communication” includes, but is not limited to,
the use of a telephone or the Internet, as defined in Section 17538
of the Business and Professions Code.
(C) “Stranger” means a person of casual acquaintance with whom no
substantial relationship exists, or an individual with whom a
relationship has been established or promoted for the primary purpose
of victimization, as defined in subdivision (e) of Section 6600 of
the Welfare and Institutions Code.
(D) “Express consent” means oral or written permission that is
positive, direct, and unequivocal, requiring no inference or
implication to supply its meaning.
(4) This section shall not be interpreted to criminalize acts of
persons contacting minors within the scope and course of their
employment, or status as a volunteer of a recognized civic or
charitable organization.
(5) This section is intended to protect minors and to help parents
and legal guardians exercise reasonable care, supervision,
protection, and control over minor children.
273. (a) It is a misdemeanor for any person or agency to pay, offer
to pay, or to receive money or anything of value for the placement
for adoption or for the consent to an adoption of a child. This
subdivision shall not apply to any fee paid for adoption services
provided by the State Department of Social Services, a licensed
adoption agency, adoption services providers, as defined in Section
8502 of the Family Code, or an attorney providing adoption legal
services.
(b) This section shall not make it unlawful to pay or receive the
maternity-connected medical or hospital and necessary living expenses
of the mother preceding and during confinement as an act of charity,
as long as the payment is not contingent upon placement of the child
for adoption, consent to the adoption, or cooperation in the
completion of the adoption.
(c) It is a misdemeanor punishable by imprisonment in a county
jail not exceeding one year or by a fine not exceeding two thousand
five hundred dollars ($2,500) for any parent to obtain the financial
benefits set forth in subdivision (b) with the intent to receive
those financial benefits where there is an intent to do either of the
following:
(1) Not complete the adoption.
(2) Not consent to the adoption.
(d) It is a misdemeanor punishable by imprisonment in a county
jail not exceeding one year or by a fine not exceeding two thousand
five hundred dollars ($2,500) for any parent to obtain the financial
benefits set forth in subdivision (b) from two or more prospective
adopting families or persons, if either parent does both of the
following:
(1) Knowingly fails to disclose to those families or persons that
there are other prospective adopting families or persons interested
in adopting the child, with knowledge that there is an obligation to
disclose that information.
(2) Knowingly accepts the financial benefits set forth in
subdivision (b) if the aggregate amount exceeds the reasonable
maternity-connected medical or hospital and necessary living expenses
of the mother preceding and during the pregnancy.
(e) Any person who has been convicted previously of an offense
described in subdivision (c) or (d), who is separately tried and
convicted of a subsequent violation of subdivision (c) or (d), is
guilty of a public offense punishable by imprisonment in a county
jail or in the state prison.
(f) Nothing in this section shall be construed to prohibit the
prosecution of any person for a misdemeanor or felony pursuant to
Section 487 or any other provision of law in lieu of prosecution
pursuant to this section.
273a. (a) Any person who, under circumstances or conditions likely
to produce great bodily harm or death, willfully causes or permits
any child to suffer, or inflicts thereon unjustifiable physical pain
or mental suffering, or having the care or custody of any child,
willfully causes or permits the person or health of that child to be
injured, or willfully causes or permits that child to be placed in a
situation where his or her person or health is endangered, shall be
punished by imprisonment in a county jail not exceeding one year, or
in the state prison for two, four, or six years.
(b) Any person who, under circumstances or conditions other than
those likely to produce great bodily harm or death, willfully causes
or permits any child to suffer, or inflicts thereon unjustifiable
physical pain or mental suffering, or having the care or custody of
any child, willfully causes or permits the person or health of that
child to be injured, or willfully causes or permits that child to be
placed in a situation where his or her person or health may be
endangered, is guilty of a misdemeanor.
(c) If a person is convicted of violating this section and
probation is granted, the court shall require the following minimum
conditions of probation:
(1) A mandatory minimum period of probation of 48 months.
(2) A criminal court protective order protecting the victim from
further acts of violence or threats, and, if appropriate, residence
exclusion or stay-away conditions.
(3) (A) Successful completion of no less than one year of a child
abuser’s treatment counseling program approved by the probation
department. The defendant shall be ordered to begin participation in
the program immediately upon the grant of probation. The counseling
program shall meet the criteria specified in Section 273.1. The
defendant shall produce documentation of program enrollment to the
court within 30 days of enrollment, along with quarterly progress
reports.
(B) The terms of probation for offenders shall not be lifted until
all reasonable fees due to the counseling program have been paid in
full, but in no case shall probation be extended beyond the term
provided in subdivision (a) of Section 1203.1. If the court finds
that the defendant does not have the ability to pay the fees based on
the defendant’s changed circumstances, the court may reduce or waive
the fees.
(4) If the offense was committed while the defendant was under the
influence of drugs or alcohol, the defendant shall abstain from the
use of drugs or alcohol during the period of probation and shall be
subject to random drug testing by his or her probation officer.
(5) The court may waive any of the above minimum conditions of
probation upon a finding that the condition would not be in the best
interests of justice. The court shall state on the record its reasons
for any waiver.
273ab. (a) Any person, having the care or custody of a child who is
under eight years of age, who assaults the child by means of force
that to a reasonable person would be likely to produce great bodily
injury, resulting in the child’s death, shall be punished by
imprisonment in the state prison for 25 years to life. Nothing in
this section shall be construed as affecting the applicability of
subdivision (a) of Section 187 or Section 189.
(b) Any person, having the care or custody of a child who is under
eight years of age, who assaults the child by means of force that to
a reasonable person would be likely to produce great bodily injury,
resulting in the child becoming comatose due to brain injury or
suffering paralysis of a permanent nature, shall be punished by
imprisonment in the state prison for life with the possibility of
parole. As used in this subdivision, “paralysis” means a major or
complete loss of motor function resulting from injury to the nervous
system or to a muscular mechanism.
273b. No child under the age of 16 years shall be placed in any
courtroom, or in any vehicle for transportation to any place, in
company with adults charged with or convicted of crime, except in the
presence of a proper official.
273c. All fines, penalties, and forfeitures imposed and collected
under the provisions of Sections 270, 271, 271a, 273a, and 273b, or
under the provisions of any law relating to, or affecting, children,
in every case where the prosecution is instituted or conducted by a
society incorporated under the laws of this state for the prevention
of cruelty to children, inure to such society in aid of the purposes
for which it is incorporated.
273d. (a) Any person who willfully inflicts upon a child any cruel
or inhuman corporal punishment or an injury resulting in a traumatic
condition is guilty of a felony and shall be punished by imprisonment
pursuant to subdivision (h) of Section 1170 for two, four, or six
years, or in a county jail for not more than one year, by a fine of
up to six thousand dollars ($6,000), or by both that imprisonment and
fine.
(b) Any person who is found guilty of violating subdivision (a)
shall receive a four-year enhancement for a prior conviction of that
offense provided that no additional term shall be imposed under this
subdivision for any prison term or term imposed under the provisions
of subdivision (h) of Section 1170 served prior to a period of 10
years in which the defendant remained free of both the commission of
an offense that results in a felony conviction and prison custody or
custody in a county jail under the provisions of subdivision (h) of
Section 1170.
(c) If a person is convicted of violating this section and
probation is granted, the court shall require the following minimum
conditions of probation:
(1) A mandatory minimum period of probation of 36 months.
(2) A criminal court protective order protecting the victim from
further acts of violence or threats, and, if appropriate, residence
exclusion or stay-away conditions.
(3) (A) Successful completion of no less than one year of a child
abuser’s treatment counseling program. The defendant shall be ordered
to begin participation in the program immediately upon the grant of
probation. The counseling program shall meet the criteria specified
in Section 273.1. The defendant shall produce documentation of
program enrollment to the court within 30 days of enrollment, along
with quarterly progress reports.
(B) The terms of probation for offenders shall not be lifted until
all reasonable fees due to the counseling program have been paid in
full, but in no case shall probation be extended beyond the term
provided in subdivision (a) of Section 1203.1. If the court finds
that the defendant does not have the ability to pay the fees based on
the defendant’s changed circumstances, the court may reduce or waive
the fees.
(4) If the offense was committed while the defendant was under the
influence of drugs or alcohol, the defendant shall abstain from the
use of drugs or alcohol during the period of probation and shall be
subject to random drug testing by his or her probation officer.
(5) The court may waive any of the above minimum conditions of
probation upon a finding that the condition would not be in the best
interests of justice. The court shall state on the record its reasons
for any waiver.
273e. Every telephone, special delivery company or association, and
every other corporation or person engaged in the delivery of
packages, letters, notes, messages, or other matter, and every
manager, superintendent, or other agent of such person, corporation,
or association, who sends any minor in the employ or under the
control of any such person, corporation, association, or agent, to
the keeper of any house of prostitution, variety theater, or other
place of questionable repute, or to any person connected with, or any
inmate of, such house, theater, or other place, or who permits such
minor to enter such house, theater, or other place, is guilty of a
misdemeanor.
273f. Any person, whether as parent, guardian, employer, or
otherwise, and any firm or corporation, who as employer or otherwise,
shall send, direct, or cause to be sent or directed to any saloon,
gambling house, house of prostitution, or other immoral place, any
minor, is guilty of a misdemeanor.
273g. Any person who in the presence of any child indulges in any
degrading, lewd, immoral or vicious habits or practices, or who is
habitually drunk in the presence of any child in his care, custody or
control, is guilty of a misdemeanor.
273h. In all prosecutions under the provisions of either section
270, section 270a, section 270b, section 271 or section 271a, of this
code, where a conviction is had and sentence of imprisonment in the
county jail or in the city jail is imposed, the court may direct that
the person so convicted shall be compelled to work upon the public
roads or highways, or any other public work, in the county or in the
city where such conviction is had, during the term of such sentence.
And it shall be the duty of the board of supervisors of the county
where such person is imprisoned in the county jail, and of the city
council of the city where such person is imprisoned in the city jail,
where such conviction and sentence are had and where such work is
performed by a person under sentence to the county jail or to the
city jail, to allow and order the payment out of any funds available,
to the wife or to the guardian, or to the custodian of a child or
children, or to an organization, or to an individual, appointed by
the court as trustee, at the end of each calendar month, for the
support of such wife or children, a sum not to exceed two dollars for
each day’s work of such person so imprisoned.
273i. (a) Any person who publishes information describing or
depicting a child, the physical appearance of a child, the location
of a child, or locations where children may be found with the intent
that another person imminently use the information to commit a crime
against a child and the information is likely to aid in the imminent
commission of a crime against a child, is guilty of a misdemeanor,
punishable by imprisonment in a county jail for not more than one
year, a fine of not more than one thousand dollars ($1,000), or by
both a fine and imprisonment.
(b) For purposes of this section, “publishes” means making the
information available to another person through any medium,
including, but not limited to, the Internet, the World Wide Web, or
e-mail.
(c) For purposes of this section, “child” means a person who is 14
years of age or younger.
(d) For purposes of this section, “information” includes, but is
not limited to, an image, film, filmstrip, photograph, negative,
slide, photocopy, videotape, video laser disc, or any other
computer-generated image.
(e) Any parent or legal guardian of a child about whom information
is published in violation of subdivision (a) may seek a preliminary
injunction enjoining any further publication of that information.
273j. (a) (1) Any parent or guardian having the care, custody, or
control of a child under 14 years of age who knows or should have
known that the child has died shall notify a public safety agency, as
defined in Section 53102 of the Government Code, within 24 hours of
the time that the parent or guardian knew or should have known that
the child has died.
(2) This subdivision shall not apply when a child is otherwise
under the immediate care of a physician at the time of death, or if a
public safety agency, a coroner, or a medical examiner is otherwise
aware of the death.
(b) (1) Any parent or guardian having the care, custody, or
control of a child under 14 years of age shall notify law enforcement
within 24 hours of the time that the parent or guardian knows or
should have known that the child is a missing person and there is
evidence that the child is a person at risk, as those terms are
defined in Section 14213.
(2) This subdivision shall not apply if law enforcement is
otherwise aware that the child is a missing person.
(c) A violation of this section is a misdemeanor punishable by
imprisonment in a county jail for not more than one year, or by a
fine not exceeding one thousand dollars ($1,000), or by both that
fine and imprisonment.
(d) Nothing in this section shall preclude prosecution under any
other provision of law.
273.1. (a) Any treatment program to which a child abuser convicted
of a violation of Section 273a or 273d is referred as a condition of
probation shall meet the following criteria:
(1) Substantial expertise and experience in the treatment of
victims of child abuse and the families in which abuse and violence
have occurred.
(2) Staff providing direct service are therapists licensed to
practice in this state or are under the direct supervision of a
therapist licensed to practice in this state.
(3) Utilization of a treatment regimen designed to specifically
address the offense, including methods of preventing and breaking the
cycle of family violence, anger management, and parenting education
that focuses, among other things, on means of identifying the
developmental and emotional needs of the child.
(4) Utilization of group and individual therapy and counseling,
with groups no larger than 12 persons.
(5) Capability of identifying substance abuse and either treating
the abuse or referring the offender to a substance abuse program, to
the extent that the court has not already done so.
(6) Entry into a written agreement with the defendant that
includes an outline of the components of the program, the attendance
requirements, a requirement to attend group session free of chemical
influence, and a statement that the defendant may be removed from the
program if it is determined that the defendant is not benefiting
from the program or is disruptive to the program.
(7) The program may include, on the recommendation of the
treatment counselor, family counseling. However, no child victim
shall be compelled or required to participate in the program,
including family counseling, and no program may condition a defendant’
s enrollment on participation by the child victim. The treatment
counselor shall privately advise the child victim that his or her
participation is voluntary.
(b) If the program finds that the defendant is unsuitable, the
program shall immediately contact the probation department or the
court. The probation department or court shall either recalendar the
case for hearing or refer the defendant to an appropriate alternative
child abuser’s treatment counseling program.
(c) Upon request by the child abuser’s treatment counseling
program, the court shall provide the defendant’s arrest report, prior
incidents of violence, and treatment history to the program.
(d) The child abuser’s treatment counseling program shall provide
the probation department and the court with periodic progress reports
at least every three months that include attendance, fee payment
history, and program compliance. The program shall submit a final
evaluation that includes the program’s evaluation of the defendant’s
progress, and recommendation for either successful or unsuccessful
termination of the program.
(e) The defendant shall pay for the full costs of the treatment
program, including any drug testing. However, the court may waive any
portion or all of that financial responsibility upon a finding of an
inability to pay. Upon the request of the defendant, the court shall
hold a hearing to determine the defendant’s ability to pay for the
treatment program. At the hearing the court may consider all relevant
information, but shall consider the impact of the costs of the
treatment program on the defendant’s ability to provide food,
clothing, and shelter for the child injured by a violation of Section
273a or 273d. If the court finds that the defendant is unable to pay
for any portion of the costs of the treatment program, its reasons
for that finding shall be stated on the record. In the event of this
finding, the program fees or a portion thereof shall be waived.
(f) All programs accepting referrals of child abusers pursuant to
this section shall accept offenders for whom fees have been partially
or fully waived. However, the court shall require each qualifying
program to serve no more than its proportionate share of those
offenders who have been granted fee waivers, and require all
qualifying programs to share equally in the cost of serving those
offenders with fee waivers.
273.4. (a) If the act constituting a felony violation of
subdivision (a) of Section 273a was female genital mutilation, as
defined in subdivision (b), the defendant shall be punished by an
additional term of imprisonment in the state prison for one year, in
addition and consecutive to the punishment prescribed by Section
273a.
(b) “Female genital mutilation” means the excision or infibulation
of the labia majora, labia minora, clitoris, or vulva, performed for
nonmedical purposes.
(c) Nothing in this section shall preclude prosecution under
Section 203, 205, or 206 or any other provision of law.
273.5. (a) Any person who willfully inflicts corporal injury
resulting in a traumatic condition upon a victim described in
subdivision (b) is guilty of a felony, and upon conviction thereof
shall be punished by imprisonment in the state prison for two, three,
or four years, or in a county jail for not more than one year, or by
a fine of up to six thousand dollars ($6,000) or by both that fine
and imprisonment.
(b) Subdivision (a) shall apply if the victim is or was one or
more of the following:
(1) The offender’s spouse or former spouse.
(2) The offender’s cohabitant or former cohabitant.
(3) The offender’s fiancé or fiancée, or someone with whom the
offender has, or previously had, an engagement or dating
relationship, as defined in paragraph (10) of subdivision (f) of
Section 243.
(4) The mother or father of the offender’s child.
(c) Holding oneself out to be the husband or wife of the person
with whom one is cohabiting is not necessary to constitute
cohabitation as the term is used in this section.
(d) As used in this section, “traumatic condition” means a
condition of the body, such as a wound, or external or internal
injury, including, but not limited to, injury as a result of
strangulation or suffocation, whether of a minor or serious nature,
caused by a physical force. For purposes of this section,
“strangulation” and “suffocation” include impeding the normal
breathing or circulation of the blood of a person by applying
pressure on the throat or neck.
(e) For the purpose of this section, a person shall be considered
the father or mother of another person’s child if the alleged male
parent is presumed the natural father under Sections 7611 and 7612 of
the Family Code.
(f) (1) Any person convicted of violating this section for acts
occurring within seven years of a previous conviction under
subdivision (a), or subdivision (d) of Section 243, or Section 243.4,
244, 244.5, or 245, shall be punished by imprisonment in a county
jail for not more than one year, or by imprisonment in the state
prison for two, four, or five years, or by both imprisonment and a
fine of up to ten thousand dollars ($10,000).
(2) Any person convicted of a violation of this section for acts
occurring within seven years of a previous conviction under
subdivision (e) of Section 243 shall be punished by imprisonment in
the state prison for two, three, or four years, or in a county jail
for not more than one year, or by a fine of up to ten thousand
dollars ($10,000), or by both that imprisonment and fine.
(g) If probation is granted to any person convicted under
subdivision (a), the court shall impose probation consistent with the
provisions of Section 1203.097.
(h) If probation is granted, or the execution or imposition of a
sentence is suspended, for any defendant convicted under subdivision
(a) who has been convicted of any prior offense specified in
subdivision (f), the court shall impose one of the following
conditions of probation:
(1) If the defendant has suffered one prior conviction within the
previous seven years for a violation of any offense specified in
subdivision (f), it shall be a condition thereof, in addition to the
provisions contained in Section 1203.097, that he or she be
imprisoned in a county jail for not less than 15 days.
(2) If the defendant has suffered two or more prior convictions
within the previous seven years for a violation of any offense
specified in subdivision (f), it shall be a condition of probation,
in addition to the provisions contained in Section 1203.097, that he
or she be imprisoned in a county jail for not less than 60 days.
(3) The court, upon a showing of good cause, may find that the
mandatory imprisonment required by this subdivision shall not be
imposed and shall state on the record its reasons for finding good
cause.
(i) If probation is granted upon conviction of a violation of
subdivision (a), the conditions of probation may include, consistent
with the terms of probation imposed pursuant to Section 1203.097, in
lieu of a fine, one or both of the following requirements:
(1) That the defendant make payments to a battered women’s
shelter, up to a maximum of five thousand dollars ($5,000), pursuant
to Section 1203.097.
(2) (A) That the defendant reimburse the victim for reasonable
costs of counseling and other reasonable expenses that the court
finds are the direct result of the defendant’s offense.
(B) For any order to pay a fine, make payments to a battered women’
s shelter, or pay restitution as a condition of probation under this
subdivision, the court shall make a determination of the defendant’s
ability to pay. In no event shall any order to make payments to a
battered women’s shelter be made if it would impair the ability of
the defendant to pay direct restitution to the victim or
court-ordered child support. If the injury to a married person is
caused in whole or in part by the criminal acts of his or her spouse
in violation of this section, the community property may not be used
to discharge the liability of the offending spouse for restitution to
the injured spouse, required by Section 1203.04, as operative on or
before August 2, 1995, or Section 1202.4, or to a shelter for costs
with regard to the injured spouse and dependents, required by this
section, until all separate property of the offending spouse is
exhausted.
(j) Upon conviction under subdivision (a), the sentencing court
shall also consider issuing an order restraining the defendant from
any contact with the victim, which may be valid for up to 10 years,
as determined by the court. It is the intent of the Legislature that
the length of any restraining order be based upon the seriousness of
the facts before the court, the probability of future violations, and
the safety of the victim and his or her immediate family. This
protective order may be issued by the court whether the defendant is
sentenced to state prison, county jail, or if imposition of sentence
is suspended and the defendant is placed on probation.
(k) If a peace officer makes an arrest for a violation of this
section, the peace officer is not required to inform the victim of
his or her right to make a citizen’s arrest pursuant to subdivision
(b) of Section 836.
273.6. (a) Any intentional and knowing violation of a protective
order, as defined in Section 6218 of the Family Code, or of an order
issued pursuant to Section 527.6, 527.8, or 527.85 of the Code of
Civil Procedure, or Section 15657.03 of the Welfare and Institutions
Code, is a misdemeanor punishable by a fine of not more than one
thousand dollars ($1,000), or by imprisonment in a county jail for
not more than one year, or by both that fine and imprisonment.
(b) In the event of a violation of subdivision (a) that results in
physical injury, the person shall be punished by a fine of not more
than two thousand dollars ($2,000), or by imprisonment in a county
jail for not less than 30 days nor more than one year, or by both
that fine and imprisonment. However, if the person is imprisoned in a
county jail for at least 48 hours, the court may, in the interest of
justice and for reasons stated on the record, reduce or eliminate
the 30-day minimum imprisonment required by this subdivision. In
determining whether to reduce or eliminate the minimum imprisonment
pursuant to this subdivision, the court shall consider the
seriousness of the facts before the court, whether there are
additional allegations of a violation of the order during the
pendency of the case before the court, the probability of future
violations, the safety of the victim, and whether the defendant has
successfully completed or is making progress with counseling.
(c) Subdivisions (a) and (b) shall apply to the following court
orders:
(1) Any order issued pursuant to Section 6320 or 6389 of the
Family Code.
(2) An order excluding one party from the family dwelling or from
the dwelling of the other.
(3) An order enjoining a party from specified behavior that the
court determined was necessary to effectuate the order described in
subdivision (a).
(4) Any order issued by another state that is recognized under
Part 5 (commencing with Section 6400) of Division 10 of the Family
Code.
(d) A subsequent conviction for a violation of an order described
in subdivision (a), occurring within seven years of a prior
conviction for a violation of an order described in subdivision (a)
and involving an act of violence or “a credible threat” of violence,
as defined in subdivision (c) of Section 139, is punishable by
imprisonment in a county jail not to exceed one year, or pursuant to
subdivision (h) of Section 1170.
(e) In the event of a subsequent conviction for a violation of an
order described in subdivision (a) for an act occurring within one
year of a prior conviction for a violation of an order described in
subdivision (a) that results in physical injury to a victim, the
person shall be punished by a fine of not more than two thousand
dollars ($2,000), or by imprisonment in a county jail for not less
than six months nor more than one year, by both that fine and
imprisonment, or by imprisonment pursuant to subdivision (h) of
Section 1170. However, if the person is imprisoned in a county jail
for at least 30 days, the court may, in the interest of justice and
for reasons stated in the record, reduce or eliminate the six-month
minimum imprisonment required by this subdivision. In determining
whether to reduce or eliminate the minimum imprisonment pursuant to
this subdivision, the court shall consider the seriousness of the
facts before the court, whether there are additional allegations of a
violation of the order during the pendency of the case before the
court, the probability of future violations, the safety of the
victim, and whether the defendant has successfully completed or is
making progress with counseling.
(f) The prosecuting agency of each county shall have the primary
responsibility for the enforcement of orders described in
subdivisions (a), (b), (d), and (e).
(g) (1) Every person who owns, possesses, purchases, or receives a
firearm knowing he or she is prohibited from doing so by the
provisions of a protective order as defined in Section 136.2 of this
code, Section 6218 of the Family Code, or Section 527.6, 527.8, or
527.85 of the Code of Civil Procedure, or Section 15657.03 of the
Welfare and Institutions Code, shall be punished under Section 29825.
(2) Every person subject to a protective order described in
paragraph (1) shall not be prosecuted under this section for owning,
possessing, purchasing, or receiving a firearm to the extent that
firearm is granted an exemption pursuant to subdivision (f) of
Section 527.9 of the Code of Civil Procedure, or subdivision (h) of
Section 6389 of the Family Code.
(h) If probation is granted upon conviction of a violation of
subdivision (a), (b), (c), (d), or (e), the court shall impose
probation consistent with Section 1203.097, and the conditions of
probation may include, in lieu of a fine, one or both of the
following requirements:
(1) That the defendant make payments to a battered women’s shelter
or to a shelter for abused elder persons or dependent adults, up to
a maximum of five thousand dollars ($5,000), pursuant to Section
1203.097.
(2) That the defendant reimburse the victim for reasonable costs
of counseling and other reasonable expenses that the court finds are
the direct result of the defendant’s offense.
(i) For any order to pay a fine, make payments to a battered women’
s shelter, or pay restitution as a condition of probation under
subdivision (e), the court shall make a determination of the
defendant’s ability to pay. In no event shall any order to make
payments to a battered women’s shelter be made if it would impair the
ability of the defendant to pay direct restitution to the victim or
court-ordered child support. Where the injury to a married person is
caused in whole or in part by the criminal acts of his or her spouse
in violation of this section, the community property may not be used
to discharge the liability of the offending spouse for restitution to
the injured spouse, required by Section 1203.04, as operative on or
before August 2, 1995, or Section 1202.4, or to a shelter for costs
with regard to the injured spouse and dependents, required by this
section, until all separate property of the offending spouse is
exhausted.
273.65. (a) Any intentional and knowing violation of a protective
order issued pursuant to Section 213.5, 304, or 362.4 of the Welfare
and Institutions Code is a misdemeanor punishable by a fine of not
more than one thousand dollars ($1,000), or by imprisonment in a
county jail for not more than one year, or by both the fine and
imprisonment.
(b) In the event of a violation of subdivision (a) which results
in physical injury, the person shall be punished by a fine of not
more than two thousand dollars ($2,000), or by imprisonment in a
county jail for not less than 30 days nor more than one year, or by
both the fine and imprisonment. However, if the person is imprisoned
in a county jail for at least 48 hours, the court may, in the
interests of justice and for reasons stated on the record, reduce or
eliminate the 30-day minimum imprisonment required by this
subdivision. In determining whether to reduce or eliminate the
minimum imprisonment pursuant to this subdivision, the court shall
consider the seriousness of the facts before the court, whether there
are additional allegations of a violation of the order during the
pendency of the case before the court, the probability of future
violations, the safety of the victim, and whether the defendant has
successfully completed or is making progress with counseling.
(c) Subdivisions (a) and (b) shall apply to the following court
orders:
(1) An order enjoining any party from molesting, attacking,
striking, threatening, sexually assaulting, battering, harassing,
contacting repeatedly by mail with the intent to harass, or
disturbing the peace of the other party, or other named family and
household members.
(2) An order excluding one party from the family dwelling or from
the dwelling of the other.
(3) An order enjoining a party from specified behavior which the
court determined was necessary to effectuate the order under
subdivision (a).
(d) A subsequent conviction for a violation of an order described
in subdivision (a), occurring within seven years of a prior
conviction for a violation of an order described in subdivision (a)
and involving an act of violence or “a credible threat” of violence,
as defined in subdivision (c) of Section 139, is punishable by
imprisonment in a county jail not to exceed one year, or pursuant to
subdivision (h) of Section 1170.
(e) In the event of a subsequent conviction for a violation of an
order described in subdivision (a) for an act occurring within one
year of a prior conviction for a violation of an order described in
subdivision (a) which results in physical injury to the same victim,
the person shall be punished by a fine of not more than two thousand
dollars ($2,000), or by imprisonment in a county jail for not less
than six months nor more than one year, by both that fine and
imprisonment, or by imprisonment pursuant to subdivision (h) of
Section 1170. However, if the person is imprisoned in a county jail
for at least 30 days, the court may, in the interests of justice and
for reasons stated in the record, reduce or eliminate the six-month
minimum imprisonment required by this subdivision. In determining
whether to reduce or eliminate the minimum imprisonment pursuant to
this subdivision, the court shall consider the seriousness of the
facts before the court, whether there are additional allegations of a
violation of the order during the pendency of the case before the
court, the probability of future violations, the safety of the
victim, and whether the defendant has successfully completed or is
making progress with counseling.
(f) The prosecuting agency of each county shall have the primary
responsibility for the enforcement of orders issued pursuant to
subdivisions (a), (b), (d), and (e).
(g) The court may order a person convicted under this section to
undergo counseling, and, if appropriate, to complete a batterer’s
treatment program.
(h) If probation is granted upon conviction of a violation of
subdivision (a), (b), or (c), the conditions of probation may
include, in lieu of a fine, one or both of the following
requirements:
(1) That the defendant make payments to a battered women’s
shelter, up to a maximum of five thousand dollars ($5,000), pursuant
to Section 1203.097.
(2) That the defendant reimburse the victim for reasonable costs
of counseling and other reasonable expenses that the court finds are
the direct result of the defendant’s offense.
(i) For any order to pay a fine, make payments to a battered women’
s shelter, or pay restitution as a condition of probation under
subdivision (e), the court shall make a determination of the
defendant’s ability to pay. In no event shall any order to make
payments to a battered women’s shelter be made if it would impair the
ability of the defendant to pay direct restitution to the victim or
court-ordered child support.
273.7. (a) Any person who maliciously publishes, disseminates, or
otherwise discloses the location of any trafficking shelter or
domestic violence shelter or any place designated as a trafficking
shelter or domestic violence shelter, without the authorization of
that trafficking shelter or domestic violence shelter, is guilty of a
misdemeanor.
(b) (1) For purposes of this section, “domestic violence shelter”
means a confidential location that provides emergency housing on a
24-hour basis for victims of sexual assault, spousal abuse, or both,
and their families.
(2) For purposes of this section, “trafficking shelter” means a
confidential location that provides emergency housing on a 24-hour
basis for victims of human trafficking, including any person who is a
victim under Section 236.1.
(3) Sexual assault, spousal abuse, or both, include, but are not
limited to, those crimes described in Sections 240, 242, 243.4, 261,
261.5, 262, 264.1, 266, 266a, 266b, 266c, 266f, 273.5, 273.6, 285,
288, and 289.
(c) Nothing in this section shall apply to confidential
communications between an attorney and his or her client.
273.75. (a) On any charge involving acts of domestic violence as
defined in subdivisions (a) and (b) of Section 13700 of the Penal
Code or Sections 6203 and 6211 of the Family Code, the district
attorney or prosecuting city attorney shall perform or cause to be
performed, by accessing the electronic databases enumerated in
subdivision (b), a thorough investigation of the defendant’s history,
including, but not limited to, prior convictions for domestic
violence, other forms of violence or weapons offenses and any current
protective or restraining order issued by any civil or criminal
court. This information shall be presented for consideration by the
court (1) when setting bond or when releasing a defendant on his or
her own recognizance at the arraignment, if the defendant is in
custody, (2) upon consideration of any plea agreement, and (3) when
issuing a protective order pursuant to Section 136.2 of the Penal
Code, in accordance with subdivision (h) of that section. In
determining bail or release upon a plea agreement, the court shall
consider the safety of the victim, the victim’s children, and any
other person who may be in danger if the defendant is released.
(b) For purposes of this section, the district attorney or
prosecuting city attorney shall search or cause to be searched the
following databases, when readily available and reasonably
accessible:
(1) The Violent Crime Information Network (VCIN).
(2) The Supervised Release File.
(3) State summary criminal history information maintained by the
Department of Justice pursuant to Section 11105 of the Penal Code.
(4) The Federal Bureau of Investigation’s nationwide database.
(5) Locally maintained criminal history records or databases.
However, a record or database need not be searched if the
information available in that record or database can be obtained as a
result of a search conducted in another record or database.
(c) If the investigation required by this section reveals a
current civil protective or restraining order or a protective or
restraining order issued by another criminal court and involving the
same or related parties, and if a protective or restraining order is
issued in the current criminal proceeding, the district attorney or
prosecuting city attorney shall send relevant information regarding
the contents of the order issued in the current criminal proceeding,
and any information regarding a conviction of the defendant, to the
other court immediately after the order has been issued. When
requested, the information described in this subdivision may be sent
to the appropriate family, juvenile, or civil court. When requested,
and upon a showing of a compelling need, the information described in this section may be sent to a court in another state.
CHAPTER 2.5. SPOUSAL ABUSERS
PENAL CODE
SECTION 273.8-273.88
273.8. The Legislature hereby finds that spousal abusers present a
clear and present danger to the mental and physical well-being of the
citizens of the State of California. The Legislature further finds
that the concept of vertical prosecution, in which a specially
trained deputy district attorney, deputy city attorney, or
prosecution unit is assigned to a case after arraignment and
continuing to its completion, is a proven way of demonstrably
increasing the likelihood of convicting spousal abusers and ensuring
appropriate sentences for those offenders. In enacting this chapter,
the Legislature intends to support increased efforts by district
attorneys’ and city attorneys’ offices to prosecute spousal abusers
through organizational and operational techniques that have already
proven their effectiveness in selected cities and counties in this
and other states.
273.81. (a) There is hereby established in the Department of
Justice a program of financial and technical assistance for district
attorneys’ or city attorneys’ offices, designated the Spousal Abuser
Prosecution Program. All funds appropriated to the Department of
Justice for the purposes of this chapter shall be administered and
disbursed by the Attorney General, and shall to the greatest extent
feasible, be coordinated or consolidated with any federal or local
funds that may be made available for these purposes.
The Department of Justice shall establish guidelines for the
provision of grant awards to proposed and existing programs prior to
the allocation of funds under this chapter. These guidelines shall
contain the criteria for the selection of agencies to receive funding
and the terms and conditions upon which the Department of Justice is
prepared to offer grants pursuant to statutory authority. The
guidelines shall not constitute rules, regulations, orders, or
standards of general application.
(b) The Attorney General may allocate and award funds to cities or
counties, or both, in which spousal abuser prosecution units are
established or are proposed to be established in substantial
compliance with the policies and criteria set forth in this chapter.
(c) The allocation and award of funds shall be made upon
application executed by the county’s district attorney or by the city’
s attorney and approved by the county board of supervisors or by the
city council. Funds disbursed under this chapter shall not supplant
local funds that would, in the absence of the California Spousal
Abuser Prosecution Program, be made available to support the
prosecution of spousal abuser cases. Local grant awards made under
this program shall not be subject to review as specified in Section
10295 of the Public Contract Code.
(d) Local government recipients shall provide 20 percent matching
funds for every grant awarded under this program.
273.82. Spousal abuser prosecution units receiving funds under this
chapter shall concentrate enhanced prosecution efforts and resources
upon individuals identified under selection criteria set forth in
Section 273.83. Enhanced prosecution efforts and resources shall
include, but not be limited to, all of the following:
(a) (1) Vertical prosecutorial representation, whereby the
prosecutor who, or prosecution unit that, makes all major court
appearances on that particular case through its conclusion, including
bail evaluation, preliminary hearing, significant law and motion
litigation, trial, and sentencing.
(2) Vertical counselor representation, whereby a trained domestic
violence counselor maintains liaison from initial court appearances
through the case’s conclusion, including the sentencing phase.
(b) The assignment of highly qualified investigators and
prosecutors to spousal abuser cases. “Highly qualified” for the
purposes of this chapter means any of the following:
(1) Individuals with one year of experience in the investigation
and prosecution of felonies.
(2) Individuals with at least two years of experience
CHAPTER 4. CHILD ABDUCTION
PENAL CODE
SECTION 277-280
277. The following definitions apply for the purposes of this
chapter:
(a) “Child” means a person under the age of 18 years.
(b) “Court order” or “custody order” means a custody determination
decree, judgment, or order issued by a court of competent
jurisdiction, whether permanent or temporary, initial or modified,
that affects the custody or visitation of a child, issued in the
context of a custody proceeding. An order, once made, shall continue
in effect until it expires, is modified, is rescinded, or terminates
by operation of law.
(c) “Custody proceeding” means a proceeding in which a custody
determination is an issue, including, but not limited to, an action
for dissolution or separation, dependency, guardianship, termination
of parental rights, adoption, paternity, except actions under Section
11350 or 11350.1 of the Welfare and Institutions Code, or protection
from domestic violence proceedings, including an emergency
protective order pursuant to Part 3 (commencing with Section 6240) of
Division 10 of the Family Code.
(d) “Lawful custodian” means a person, guardian, or public agency
having a right to custody of a child.
(e) A “right to custody” means the right to the physical care,
custody, and control of a child pursuant to a custody order as
defined in subdivision (b) or, in the absence of a court order, by
operation of law, or pursuant to the Uniform Parentage Act contained
in Part 3 (commencing with Section 7600) of Division 12 of the Family
Code. Whenever a public agency takes protective custody or
jurisdiction of the care, custody, control, or conduct of a child by
statutory authority or court order, that agency is a lawful custodian
of the child and has a right to physical custody of the child. In
any subsequent placement of the child, the public agency continues to
be a lawful custodian with a right to physical custody of the child
until the public agency’s right of custody is terminated by an order
of a court of competent jurisdiction or by operation of law.
(f) In the absence of a court order to the contrary, a parent
loses his or her right to custody of the child to the other parent if
the parent having the right to custody is dead, is unable or refuses
to take the custody, or has abandoned his or her family. A natural
parent whose parental rights have been terminated by court order is
no longer a lawful custodian and no longer has a right to physical
custody.
(g) “Keeps” or “withholds” means retains physical possession of a
child whether or not the child resists or objects.
(h) “Visitation” means the time for access to the child allotted
to any person by court order.
(i) “Person” includes, but is not limited to, a parent or an agent
of a parent.
(j) “Domestic violence” means domestic violence as defined in
Section 6211 of the Family Code.
(k) “Abduct” means take, entice away, keep, withhold, or conceal.
278. Every person, not having a right to custody, who maliciously
takes, entices away, keeps, withholds, or conceals any child with the
intent to detain or conceal that child from a lawful custodian shall
be punished by imprisonment in a county jail not exceeding one year,
a fine not exceeding one thousand dollars ($1,000), or both that
fine and imprisonment, or by imprisonment pursuant to subdivision (h)
of Section 1170 for two, three, or four years, a fine not exceeding
ten thousand dollars ($10,000), or both that fine and imprisonment.
278.5. (a) Every person who takes, entices away, keeps, withholds,
or conceals a child and maliciously deprives a lawful custodian of a
right to custody, or a person of a right to visitation, shall be
punished by imprisonment in a county jail not exceeding one year, a
fine not exceeding one thousand dollars ($1,000), or both that fine
and imprisonment, or by imprisonment pursuant to subdivision (h) of
Section 1170 for 16 months, or two or three years, a fine not
exceeding ten thousand dollars ($10,000), or both that fine and
imprisonment.
(b) Nothing contained in this section limits the court’s contempt
power.
(c) A custody order obtained after the taking, enticing away,
keeping, withholding, or concealing of a child does not constitute a
defense to a crime charged under this section.
278.6. (a) At the sentencing hearing following a conviction for a
violation of Section 278 or 278.5, or both, the court shall consider
any relevant factors and circumstances in aggravation, including, but
not limited to, all of the following:
(1) The child was exposed to a substantial risk of physical injury
or illness.
(2) The defendant inflicted or threatened to inflict physical harm
on a parent or lawful custodian of the child or on the child at the
time of or during the abduction.
(3) The defendant harmed or abandoned the child during the
abduction.
(4) The child was taken, enticed away, kept, withheld, or
concealed outside the United States.
(5) The child has not been returned to the lawful custodian.
(6) The defendant previously abducted or threatened to abduct the
child.
(7) The defendant substantially altered the appearance or the name
of the child.
(8) The defendant denied the child appropriate education during
the abduction.
(9) The length of the abduction.
(10) The age of the child.
(b) At the sentencing hearing following a conviction for a
violation of Section 278 or 278.5, or both, the court shall consider
any relevant factors and circumstances in mitigation, including, but
not limited to, both of the following:
(1) The defendant returned the child unharmed and prior to arrest
or issuance of a warrant for arrest, whichever is first.
(2) The defendant provided information and assistance leading to
the child’s safe return.
(c) In addition to any other penalties provided for a violation of
Section 278 or 278.5, a court shall order the defendant to pay
restitution to the district attorney for any costs incurred in
locating and returning the child as provided in Section 3134 of the
Family Code, and to the victim for those expenses and costs
reasonably incurred by, or on behalf of, the victim in locating and
recovering the child. An award made pursuant to this section shall
constitute a final judgment and shall be enforceable as such.
278.7. (a) Section 278.5 does not apply to a person with a right to
custody of a child who, with a good faith and reasonable belief that
the child, if left with the other person, will suffer immediate
bodily injury or emotional harm, takes, entices away, keeps,
withholds, or conceals that child.
(b) Section 278.5 does not apply to a person with a right to
custody of a child who has been a victim of domestic violence who,
with a good faith and reasonable belief that the child, if left with
the other person, will suffer immediate bodily injury or emotional
harm, takes, entices away, keeps, withholds, or conceals that child.
“Emotional harm” includes having a parent who has committed domestic
violence against the parent who is taking, enticing away, keeping,
withholding, or concealing the child.
(c) The person who takes, entices away, keeps, withholds, or
conceals a child shall do all of the following:
(1) Within a reasonable time from the taking, enticing away,
keeping, withholding, or concealing, make a report to the office of
the district attorney of the county where the child resided before
the action. The report shall include the name of the person, the
current address and telephone number of the child and the person, and
the reasons the child was taken, enticed away, kept, withheld, or
concealed.
(2) Within a reasonable time from the taking, enticing away,
keeping, withholding, or concealing, commence a custody proceeding in
a court of competent jurisdiction consistent with the federal
Parental Kidnapping Prevention Act (Section 1738A, Title 28, United
States Code) or the Uniform Child Custody Jurisdiction Act (Part 3
(commencing with Section 3400) of Division 8 of the Family Code).
(3) Inform the district attorney’s office of any change of address
or telephone number of the person and the child.
(d) For the purposes of this article, a reasonable time within
which to make a report to the district attorney’s office is at least
10 days and a reasonable time to commence a custody proceeding is at
least 30 days. This section shall not preclude a person from making a
report to the district attorney’s office or commencing a custody
proceeding earlier than those specified times.
(e) The address and telephone number of the person and the child
provided pursuant to this section shall remain confidential unless
released pursuant to state law or by a court order that contains
appropriate safeguards to ensure the safety of the person and the
child.
279. A violation of Section 278 or 278.5 by a person who was not a
resident of, or present in, this state at the time of the alleged
offense is punishable in this state, whether the intent to commit the
offense is formed within or outside of this state, if any of the
following apply:
(a) The child was a resident of, or present in, this state at the
time the child was taken, enticed away, kept, withheld, or concealed.
(b) The child thereafter is found in this state.
(c) A lawful custodian or a person with a right to visitation is a
resident of this state at the time the child was taken, enticed
away, kept, withheld, or concealed.
279.1. The offenses enumerated in Sections 278 and 278.5 are
continuous in nature, and continue for as long as the minor child is
concealed or detained.
279.5. When a person is arrested for an alleged violation of
Section 278 or 278.5, the court, in setting bail, shall take into
consideration whether the child has been returned to the lawful
custodian, and if not, shall consider whether there is an increased
risk that the child may not be returned, or the defendant may flee
the jurisdiction, or, by flight or concealment, evade the authority
of the court.
279.6. (a) A law enforcement officer may take a child into
protective custody under any of the following circumstances:
(1) It reasonably appears to the officer that a person is likely
to conceal the child, flee the jurisdiction with the child, or, by
flight or concealment, evade the authority of the court.
(2) There is no lawful custodian available to take custody of the
child.
(3) There are conflicting custody orders or conflicting claims to
custody and the parties cannot agree which party should take custody
of the child.
(4) The child is an abducted child.
(b) When a law enforcement officer takes a child into protective
custody pursuant to this section, the officer shall do one of the
following:
(1) Release the child to the lawful custodian of the child, unless
it reasonably appears that the release would cause the child to be
endangered, abducted, or removed from the jurisdiction.
(2) Obtain an emergency protective order pursuant to Part 3
(commencing with Section 6240) of Division 10 of the Family Code
ordering placement of the child with an interim custodian who agrees
in writing to accept interim custody.
(3) Release the child to the social services agency responsible
for arranging shelter or foster care.
(4) Return the child as ordered by a court of competent
jurisdiction.
(c) Upon the arrest of a person for a violation of Section 278 or
278.5, a law enforcement officer shall take possession of an abducted
child who is found in the company of, or under the control of, the
arrested person and deliver the child as directed in subdivision (b).
(d) Notwithstanding any other law, when a person is arrested for
an alleged violation of Section 278 or 278.5, the court shall, at the
time of the arraignment or thereafter, order that the child shall be
returned to the lawful custodian by or on a specific date, or that
the person show cause on that date why the child has not been
returned as ordered. If conflicting custodial orders exist within
this state, or between this state and a foreign state, the court
shall set a hearing within five court days to determine which court
has jurisdiction under the laws of this state and determine which
state has subject matter jurisdiction to issue a custodial order
under the laws of this state, the Uniform Child Custody Jurisdiction
Act (Part 3 (commencing with Section 3400) of Division 8 of the
Family Code), or federal law, if applicable. At the conclusion of the
hearing, or if the child has not been returned as ordered by the
court at the time of arraignment, the court shall enter an order as
to which custody order is valid and is to be enforced. If the child
has not been returned at the conclusion of the hearing, the court
shall set a date within a reasonable time by which the child shall be
returned to the lawful custodian, and order the defendant to comply
by this date, or to show cause on that date why he or she has not
returned the child as directed. The court shall only enforce its
order, or any subsequent orders for the return of the child, under
subdivision (a) of Section 1219 of the Code of Civil Procedure, to
ensure that the child is promptly placed with the lawful custodian.
An order adverse to either the prosecution or defense is reviewable
by a writ of mandate or prohibition addressed to the appropriate
court.
280. Every person who willfully causes or permits the removal or
concealment of any child in violation of Section 8713, 8803, or 8910
of the Family Code shall be punished as follows:
(a) By imprisonment in a county jail for not more than one year if
the child is concealed within the county in which the adoption
proceeding is pending or in which the child has been placed for
adoption, or is removed from that county to a place within this
state.
(b) By imprisonment pursuant to subdivision (h) of Section 1170,
or by imprisonment in a county jail for not more than one year, if
the child is removed from that county to a place outside of this
state.
CHAPTER 5. BIGAMY, INCEST, AND THE CRIME AGAINST NATURE
PENAL CODE
SECTION 281-289.6
281. (a) Every person having a husband or wife living, who marries
any other person, except in the cases specified in Section 282, is
guilty of bigamy.
(b) Upon a trial for bigamy, it is not necessary to prove either
of the marriages by the register, certificate, or other record
evidence thereof, but the marriages may be proved by evidence which
is admissible to prove a marriage in other cases; and when the second
marriage took place out of this state, proof of that fact,
accompanied with proof of cohabitation thereafter in this state, is
sufficient to sustain the charge.
282. Section 281 does not extend to any of the following:
(a) To any person by reason of any former marriage whose husband
or wife by such marriage has been absent for five successive years
without being known to such person within that time to be living.
(b) To any person by reason of any former marriage which has been
pronounced void, annulled, or dissolved by the judgment of a
competent court.
283. Bigamy is punishable by a fine not exceeding ten thousand
dollars ($10,000) or by imprisonment in a county jail not exceeding
one year or in the state prison.
284. Every person who knowingly and willfully marries the husband
or wife of another, in any case in which such husband or wife would
be punishable under the provisions of this chapter, is punishable by
fine not less than five thousand dollars ($5,000), or by imprisonment
pursuant to subdivision (h) of Section 1170.
285. Persons being within the degrees of consanguinity within which
marriages are declared by law to be incestuous and void, who
intermarry with each other, or who being 14 years of age or older,
commit fornication or adultery with each other, are punishable by
imprisonment in the state prison.
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), a 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, 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, that a mental disorder or developmental
or physical disability rendered the alleged victim incapable of
giving consent.
(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
someone known to the victim other than the accused, 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.
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.
(l) As used in subdivisions (c) and (d), “threatening to retaliate”
means a threat to kidnap or falsely imprison, or inflict extreme
pain, serious bodily injury, or death.
(m) 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.
286.5. Any person who sexually assaults any animal protected by
Section 597f for the purpose of arousing or gratifying the sexual
desire of the person is guilty of a misdemeanor.
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 the age of 14 years, 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 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, 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) 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 or 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 dependent person
victim resulting from participation in the court process.
(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.
288.1. Any person convicted of committing any lewd or lascivious
act including any of the acts constituting other crimes provided for
in Part 1 of this code upon or with the body, or any part or member
thereof, of a child under the age of 14 years shall not have his or
her sentence suspended until the court obtains a report from a
reputable psychiatrist, from a reputable psychologist who meets the
standards set forth in Section 1027, as to the mental condition of
that person.
288.2. (a) (1) Every person who knows, should have known, or
believes that another person is a minor, and who knowingly
distributes, sends, causes to be sent, exhibits, or offers to
distribute or exhibit by any means, including by physical delivery,
telephone, electronic communication, or in person, any harmful matter
that depicts a minor or minors engaging in sexual conduct, to the
other person with the intent of arousing, appealing to, or gratifying
the lust or passions or sexual desires of that person or of the
minor, and with the intent or for the purposes of engaging in sexual
intercourse, sodomy, or oral copulation with the other person, or
with the intent that either person touch an intimate body part of the
other, is guilty of a misdemeanor, punishable by imprisonment in a
county jail not exceeding one year, or is guilty of a felony,
punishable by imprisonment in the state prison for two, three, or
five years.
(2) If the matter used by the person is harmful matter but does
not include a depiction or depictions of a minor or minors engaged in
sexual conduct, the offense is punishable by imprisonment in a
county jail not exceeding one year, or by imprisonment in the state
prison for 16 months, or two or three years.
(3) For purposes of this subdivision, the offense described in
paragraph (2) shall include all of the elements described in
paragraph (1), except as to the element modified in paragraph (2).
(b) For purposes of this section, “sexual conduct” has the same
meaning as defined in subdivision (d) of Section 311.4.
(c) For purposes of this section, “harmful matter” has the same
meaning as defined in Section 313.
(d) For purposes of this section, an intimate body part includes
the sexual organ, anus, groin, or buttocks of any person, or the
breasts of a female.
(e) Prosecution under this section shall not preclude prosecution
under any other provision of law.
(f) It shall be a defense to any prosecution under this section
that a parent or guardian committed the act charged in aid of
legitimate sex education.
(g) It shall be a defense in any prosecution under this section
that the act charged was committed in aid of legitimate scientific or
educational purposes.
(h) It does not constitute a violation of this section for a
telephone corporation, as defined in Section 234 of the Public
Utilities Code, a cable television company franchised pursuant to
Section 53066 of the Government Code, or any of its affiliates, an
Internet service provider, or commercial online service provider, to
carry, broadcast, or transmit messages described in this section or
perform related activities in providing telephone, cable television,
Internet, or commercial online services.
288.3. (a) Every person who contacts or communicates with a minor,
or attempts to contact or communicate with a minor, who knows or
reasonably should know that the person is a minor, with intent to
commit an offense specified in Section 207, 209, 261, 264.1, 273a,
286, 288, 288a, 288.2, 289, 311.1, 311.2, 311.4 or 311.11 involving
the minor shall be punished by imprisonment in the state prison for
the term prescribed for an attempt to commit the intended offense.
(b) As used in this section, “contacts or communicates with” shall
include direct and indirect contact or communication that may be
achieved personally or by use of an agent or agency, any print
medium, any postal service, a common carrier or communication common
carrier, any electronic communications system, or any
telecommunications, wire, computer, or radio communications device or
system.
(c) A person convicted of a violation of subdivision (a) who has
previously been convicted of a violation of subdivision (a) shall be
punished by an additional and consecutive term of imprisonment in the
state prison for five years.
288.4. (a) (1) Every person who, motivated by an unnatural or
abnormal sexual interest in children, arranges a meeting with a minor
or a person he or she believes to be a minor for the purpose of
exposing his or her genitals or pubic or rectal area, having the
child expose his or her genitals or pubic or rectal area, or engaging
in lewd or lascivious behavior, shall be punished by a fine not
exceeding five thousand dollars ($5,000), by imprisonment in a county
jail not exceeding one year, or by both the fine and imprisonment.
(2) Every person who violates this subdivision after a prior
conviction for an offense listed in subdivision (c) of Section 290
shall be punished by imprisonment in the state prison.
(b) Every person described in paragraph (1) of subdivision (a) who
goes to the arranged meeting place at or about the arranged time,
shall be punished by imprisonment in the state prison for two, three,
or four years.
(c) Nothing in this section shall preclude or prohibit prosecution
under any other provision of law.
288.5. (a) Any person who either resides in the same home with the
minor child or has recurring access to the child, who over a period
of time, not less than three months in duration, engages in three or
more acts of substantial sexual conduct with a child under the age of
14 years at the time of the commission of the offense, as defined in
subdivision (b) of Section 1203.066, or three or more acts of lewd
or lascivious conduct, as defined in Section 288, with a child under
the age of 14 years at the time of the commission of the offense is
guilty of the offense of continuous sexual abuse of a child and shall
be punished by imprisonment in the state prison for a term of 6, 12,
or 16 years.
(b) To convict under this section the trier of fact, if a jury,
need unanimously agree only that the requisite number of acts
occurred not on which acts constitute the requisite number.
(c) No other act of substantial sexual conduct, as defined in
subdivision (b) of Section 1203.066, with a child under 14 years of
age at the time of the commission of the offenses, or lewd and
lascivious acts, as defined in Section 288, involving the same victim
may be charged in the same proceeding with a charge under this
section unless the other charged offense occurred outside the time
period charged under this section or the other offense is charged in
the alternative. A defendant may be charged with only one count under
this section unless more than one victim is involved in which case a
separate count may be charged for each victim.
288.7. (a) Any person 18 years of age or older who engages in
sexual intercourse or sodomy with a child who is 10 years of age or
younger is guilty of a felony and shall be punished by imprisonment
in the state prison for a term of 25 years to life.
(b) Any person 18 years of age or older who engages in oral
copulation or sexual penetration, as defined in Section 289, with a
child who is 10 years of age or younger is guilty of a felony and
shall be punished by imprisonment in the state prison for a term of
15 years to life.
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 21 years of
age 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 (A) 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 (B) 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 (C) where 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, 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), that a mental disorder or developmental or physical
disability rendered the alleged victim incapable of giving legal
consent.
(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), 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, 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,
that a mental disorder or developmental or physical disability
rendered the alleged victim incapable of giving consent.
(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
someone known to the victim other than the accused, 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.
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.
(l) 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.
(m) 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.
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), 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, 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, that a mental disorder or developmental or physical disability
rendered the alleged victim incapable of giving legal consent.
(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 someone known to the victim other
than the accused, 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 a county jail for a period of not more than one year.
(i) Except as provided in Section 288, any person over 21 years of
age 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) “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.
(2) “Foreign object, substance, instrument, or device” shall
include any part of the body, except a sexual organ.
(3) “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.
289.5. (a) Every person who flees to this state with the intent to
avoid prosecution for an offense which, if committed or attempted in
this state, would have been punishable as one or more of the offenses
described in subdivision (c) of Section 290, and who has been
charged with that offense under the laws of the jurisdiction from
which the person fled, is guilty of a misdemeanor.
(b) Every person who flees to this state with the intent to avoid
custody or confinement imposed for conviction of an offense under the
laws of the jurisdiction from which the person fled, which offense,
if committed or attempted in this state, would have been punishable
as one or more of the offenses described in subdivision (c) of
Section 290, is guilty of a misdemeanor.
(c) No person shall be charged and prosecuted for an offense under
this section unless the prosecutor has requested the other
jurisdiction to extradite the person and the other jurisdiction has
refused to do so.
(d) Any person who is convicted of any felony sex offense
described in subdivision (c) of Section 290, that is committed after
fleeing to this state under the circumstances described in
subdivision (a) or (b) of this section, shall, in addition and
consecutive to the punishment for that conviction, receive an
additional term of two years’ imprisonment.
289.6. (a) (1) An employee or officer of a public entity health
facility, or an employee, officer, or agent of a private person or
entity that provides a health facility or staff for a health facility
under contract with a public entity, who engages in sexual activity
with a consenting adult who is confined in a health facility is
guilty of a public offense. As used in this paragraph, “health
facility” means a health facility as defined in subdivisions (b),
(e), (g), (h), and (j) of, and subparagraph (C) of paragraph (2) of
subdivision (i) of, Section 1250 of the Health and Safety Code, in
which the victim has been confined involuntarily.
(2) An employee or officer of a public entity detention facility,
or an employee, officer, agent of a private person or entity that
provides a detention facility or staff for a detention facility, a
person or agent of a public or private entity under contract with a
detention facility, a volunteer of a private or public entity
detention facility, or a peace officer who engages in sexual activity
with a consenting adult who is confined in a detention facility is
guilty of a public offense.
(3) An employee with a department, board, or authority under the
Department of Corrections and Rehabilitation or a facility under
contract with a department, board, or authority under the Department
of Corrections and Rehabilitation, who, during the course of his or
her employment directly provides treatment, care, control, or
supervision of inmates, wards, or parolees, and who engages in sexual
activity with a consenting adult who is an inmate, ward, or parolee,
is guilty of a public offense.
(b) As used in this section, the term “public entity” means the
state, federal government, a city, a county, a city and county, a
joint county jail district, or any entity created as a result of a
joint powers agreement between two or more public entities.
(c) As used in this section, the term “detention facility” means:
(1) A prison, jail, camp, or other correctional facility used for
the confinement of adults or both adults and minors.
(2) A building or facility used for the confinement of adults or
adults and minors pursuant to a contract with a public entity.
(3) A room that is used for holding persons for interviews,
interrogations, or investigations and that is separate from a jail or
located in the administrative area of a law enforcement facility.
(4) A vehicle used to transport confined persons during their
period of confinement, including transporting a person after he or
she has been arrested but has not been booked.
(5) A court holding facility located within or adjacent to a court
building that is used for the confinement of persons for the purpose
of court appearances.
(d) As used in this section, “sexual activity” means:
(1) Sexual intercourse.
(2) Sodomy, as defined in subdivision (a) of Section 286.
(3) Oral copulation, as defined in subdivision (a) of Section
288a.
(4) Sexual penetration, as defined in subdivision (k) of Section
289.
(5) The rubbing or touching of the breasts or sexual organs of
another, or of oneself in the presence of and with knowledge of
another, with the intent of arousing, appealing to, or gratifying the
lust, passions, or sexual desires of oneself or another.
(e) Consent by a confined person or parolee to sexual activity
proscribed by this section is not a defense to a criminal prosecution
for violation of this section.
(f) This section does not apply to sexual activity between
consenting adults that occurs during an overnight conjugal visit that
takes place pursuant to a court order or with the written approval
of an authorized representative of the public entity that operates or
contracts for the operation of the detention facility where the
conjugal visit takes place, to physical contact or penetration made
pursuant to a lawful search, or bona fide medical examinations or
treatments, including clinical treatments.
(g) Any violation of paragraph (1) of subdivision (a), or a
violation of paragraph (2) or (3) of subdivision (a) as described in
paragraph (5) of subdivision (d), is a misdemeanor.
(h) Any violation of paragraph (2) or (3) of subdivision (a), as
described in paragraph (1), (2), (3), or (4) of subdivision (d),
shall be punished by imprisonment in a county jail not exceeding one
year, or in the state prison, or by a fine of not more than ten
thousand dollars ($10,000) or by both that fine and imprisonment.
(i) Any person previously convicted of a violation of this section
shall, upon a subsequent violation, be guilty of a felony.
(j) Anyone who is convicted of a felony violation of this section
who is employed by a department, board, or authority within the
Department of Corrections and Rehabilitation shall be terminated in
accordance with the State Civil Service Act (Part 2 (commencing with
Section 18500) of Division 5 of Title 2 of the Government Code).
Anyone who has been convicted of a felony violation of this section
shall not be eligible to be hired or reinstated by a department,
board, or authority within the Youth and Adult Correctional Agency.
CHAPTER 5.5. SEX OFFENDERS
PENAL CODE
SECTION 290-294
290. (a) Sections 290 to 290.024, inclusive, shall be known and may
be cited as the Sex Offender Registration Act. All references to
“the Act” in those sections are to the Sex Offender Registration Act.
(b) Every person described in subdivision (c), for the rest of his
or her life while residing in California, or while attending school
or working in California, as described in Sections 290.002 and
290.01, shall be required to register with the chief of police of the
city in which he or she is residing, or the sheriff of the county if
he or she is residing in an unincorporated area or city that has no
police department, and, additionally, with the chief of police of a
campus of the University of California, the California State
University, or community college if he or she is residing upon the
campus or in any of its facilities, within five working days of
coming into, or changing his or her residence within, any city,
county, or city and county, or campus in which he or she temporarily
resides, and shall be required to register thereafter in accordance
with the Act.
(c) The following persons shall be required to register:
Any person who, since July 1, 1944, has been or is hereafter
convicted in any court in this state or in any federal or military
court of a violation of Section 187 committed in the perpetration, or
an attempt to perpetrate, rape or any act punishable under Section
286, 288, 288a, or 289, Section 207 or 209 committed with intent to
violate Section 261, 286, 288, 288a, or 289, Section 220, except
assault to commit mayhem, subdivision (b) and (c) of Section 236.1,
Section 243.4, paragraph (1), (2), (3), (4), or (6) of subdivision
(a) of Section 261, paragraph (1) of subdivision (a) of Section 262
involving the use of force or violence for which the person is
sentenced to the state prison, Section 264.1, 266, or 266c,
subdivision (b) of Section 266h, subdivision (b) of Section 266i,
Section 266j, 267, 269, 285, 286, 288, 288a, 288.3, 288.4, 288.5,
288.7, 289, or 311.1, subdivision (b), (c), or (d) of Section 311.2,
Section 311.3, 311.4, 311.10, 311.11, or 647.6, former Section 647a,
subdivision (c) of Section 653f, subdivision 1 or 2 of Section 314,
any offense involving lewd or lascivious conduct under Section 272,
or any felony violation of Section 288.2; any statutory predecessor
that includes all elements of one of the above-mentioned offenses; or
any person who since that date has been or is hereafter convicted of
the attempt or conspiracy to commit any of the above-mentioned
offenses.
290.001. Every person who has ever been adjudicated a sexually
violent predator, as defined in Section 6600 of the Welfare and
Institutions Code, shall register in accordance with the Act.
290.002. Persons required to register in their state of residence
who are out-of-state residents employed, or carrying on a vocation in
California on a full-time or part-time basis, with or without
compensation, for more than 14 days, or for an aggregate period
exceeding 30 days in a calendar year, shall register in accordance
with the Act. Persons described in the Act who are out-of-state
residents enrolled in any educational institution in California, as
defined in Section 22129 of the Education Code, on a full-time or
part-time basis, shall register in accordance with the Act. The place
where the out-of-state resident is located, for purposes of
registration, shall be the place where the person is employed,
carrying on a vocation, or attending school. The out-of-state
resident subject to this section shall, in addition to the
information required pursuant to Section 290.015, provide the
registering authority with the name of his or her place of employment
or the name of the school attended in California, and his or her
address or location in his or her state of residence. The
registration requirement for persons subject to this section shall
become operative on November 25, 2000. The terms “employed or carries
on a vocation” include employment whether or not financially
compensated, volunteered, or performed for government or educational
benefit.
290.003. Any person who, since July 1, 1944, has been or hereafter
is released, discharged, or paroled from a penal institution where he
or she was confined because of the commission or attempted
commission of one of the offenses described in subdivision (c) of
Section 290, shall register in accordance with the Act.
290.004. Any person who, since July 1, 1944, has been or hereafter
is determined to be a mentally disordered sex offender under Article
1 (commencing with Section 6300) of Chapter 2 of Part 2 of Division 6
of the Welfare and Institutions Code, or any person who has been
found guilty in the guilt phase of a trial for an offense for which
registration is required by this section but who has been found not
guilty by reason of insanity in the sanity phase of the trial shall
register in accordance with the Act.
290.005. The following persons shall register in accordance with
the Act:
(a) Except as provided in subdivision (c) or (d), any person who,
since July 1, 1944, has been, or is hereafter convicted in any other
court, including any state, federal, or military court, of any
offense that, if committed or attempted in this state, based on the
elements of the convicted offense or facts admitted by the person or
found true by the trier of fact or stipulated facts in the record of
military proceedings, would have been punishable as one or more of
the offenses described in subdivision (c) of Section 290, including
offenses in which the person was a principal, as defined in Section
31.
(b) Any person ordered by any other court, including any state,
federal, or military court, to register as a sex offender for any
offense, if the court found at the time of conviction or sentencing
that the person committed the offense as a result of sexual
compulsion or for purposes of sexual gratification.
(c) Except as provided in subdivision (d), any person who would be
required to register while residing in the state of conviction for a
sex offense committed in that state.
(d) Notwithstanding any other law, a person convicted in another
state of an offense similar to one of the following offenses who is
required to register in the state of conviction shall not be required
to register in California unless the out-of-state offense, based on
the elements of the conviction offense or proven or stipulated facts
in the record of conviction, contains all of the elements of a
registerable California offense described in subdivision (c) of
Section 290:
(1) Indecent exposure, pursuant to Section 314.
(2) Unlawful sexual intercourse, pursuant to Section 261.5.
(3) Incest, pursuant to Section 285.
(4) Sodomy, pursuant to Section 286, or oral copulation, pursuant
to Section 288a, provided that the offender notifies the Department
of Justice that the sodomy or oral copulation conviction was for
conduct between consenting adults, as described in Section 290.019,
and the department is able, upon the exercise of reasonable
diligence, to verify that fact.
(5) Pimping, pursuant to Section 266h, or pandering, pursuant to
Section 266i.
290.006. Any person ordered by any court to register pursuant to
the Act for any offense not included specifically in subdivision (c)
of Section 290, shall so register, if the court finds at the time of
conviction or sentencing that the person committed the offense as a
result of sexual compulsion or for purposes of sexual gratification.
The court shall state on the record the reasons for its findings and
the reasons for requiring registration.
290.007. Any person required to register pursuant to any provision
of the Act shall register in accordance with the Act, regardless of
whether the person’s conviction has been dismissed pursuant to
Section 1203.4, unless the person obtains a certificate of
rehabilitation and is entitled to relief from registration pursuant
to Section 290.5.
290.008. (a) Any person who, on or after January 1, 1986, is
discharged or paroled from the Department of Corrections and
Rehabilitation to the custody of which he or she was committed after
having been adjudicated a ward of the juvenile court pursuant to
Section 602 of the Welfare and Institutions Code because of the
commission or attempted commission of any offense described in
subdivision (c) shall register in accordance with the Act.
(b) Any person who is discharged or paroled from a facility in
another state that is equivalent to the Division of Juvenile Justice,
to the custody of which he or she was committed because of an
offense which, if committed or attempted in this state, would have
been punishable as one or more of the offenses described in
subdivision (c) shall register in accordance with the Act.
(c) Any person described in this section who committed an offense
in violation of any of the following provisions shall be required to
register pursuant to the Act:
(1) Assault with intent to commit rape, sodomy, oral copulation,
or any violation of Section 264.1, 288, or 289 under Section 220.
(2) Any offense defined in paragraph (1), (2), (3), (4), or (6) of
subdivision (a) of Section 261, Section 264.1, 266c, or 267,
paragraph (1) of subdivision (b) of, or subdivision (c) or (d) of,
Section 286, Section 288 or 288.5, paragraph (1) of subdivision (b)
of, or subdivision (c) or (d) of, Section 288a, subdivision (a) of
Section 289, or Section 647.6.
(3) A violation of Section 207 or 209 committed with the intent to
violate Section 261, 286, 288, 288a, or 289.
(d) Prior to discharge or parole from the Department of
Corrections and Rehabilitation, any person who is subject to
registration under this section shall be informed of the duty to
register under the procedures set forth in the Act. Department
officials shall transmit the required forms and information to the
Department of Justice.
(e) All records specifically relating to the registration in the
custody of the Department of Justice, law enforcement agencies, and
other agencies or public officials shall be destroyed when the person
who is required to register has his or her records sealed under the
procedures set forth in Section 781 of the Welfare and Institutions
Code. This section shall not be construed as requiring the
destruction of other criminal offender or juvenile records relating
to the case that are maintained by the Department of Justice, law
enforcement agencies, the juvenile court, or other agencies and
public officials unless ordered by a court under Section 781 of the
Welfare and Institutions Code.
290.009. Any person required to register under the Act who is
enrolled as a student or is an employee or carries on a vocation,
with or without compensation, at an institution of higher learning in
this state, shall register pursuant to the provisions of the Act.
290.010. If the person who is registering has more than one
residence address at which he or she regularly resides, he or she
shall register in accordance with the Act in each of the
jurisdictions in which he or she regularly resides, regardless of the
number of days or nights spent there. If all of the addresses are
within the same jurisdiction, the person shall provide the
registering authority with all of the addresses where he or she
regularly resides.
290.011. Every person who is required to register pursuant to the
act who is living as a transient shall be required to register for
the rest of his or her life as follows:
(a) He or she shall register, or reregister if the person has
previously registered, within five working days from release from
incarceration, placement or commitment, or release on probation,
pursuant to subdivision (b) of Section 290, except that if the person
previously registered as a transient less than 30 days from the date
of his or her release from incarceration, he or she does not need to
reregister as a transient until his or her next required 30-day
update of registration. If a transient convicted in another
jurisdiction enters the state, he or she shall register within five
working days of coming into California with the chief of police of
the city in which he or she is present or the sheriff of the county
if he or she is present in an unincorporated area or city that has no
police department. If a transient is not physically present in any
one jurisdiction for five consecutive working days, he or she shall
register in the jurisdiction in which he or she is physically present
on the fifth working day following release, pursuant to subdivision
(b) of Section 290. Beginning on or before the 30th day following
initial registration upon release, a transient shall reregister no
less than once every 30 days thereafter. A transient shall register
with the chief of police of the city in which he or she is physically
present within that 30-day period, or the sheriff of the county if
he or she is physically present in an unincorporated area or city
that has no police department, and additionally, with the chief of
police of a campus of the University of California, the California
State University, or community college if he or she is physically
present upon the campus or in any of its facilities. A transient
shall reregister no less than once every 30 days regardless of the
length of time he or she has been physically present in the
particular jurisdiction in which he or she reregisters. If a
transient fails to reregister within any 30-day period, he or she may
be prosecuted in any jurisdiction in which he or she is physically
present.
(b) A transient who moves to a residence shall have five working
days within which to register at that address, in accordance with
subdivision (b) of Section 290. A person registered at a residence
address in accordance with that provision who becomes transient shall
have five working days within which to reregister as a transient in
accordance with subdivision (a).
(c) Beginning on his or her first birthday following registration,
a transient shall register annually, within five working days of his
or her birthday, to update his or her registration with the entities
described in subdivision (a). A transient shall register in
whichever jurisdiction he or she is physically present on that date.
At the 30-day updates and the annual update, a transient shall
provide current information as required on the Department of Justice
annual update form, including the information described in paragraphs
(1) to (3), inclusive, of subdivision (a) of Section 290.015, and
the information specified in subdivision (d).
(d) A transient shall, upon registration and reregistration,
provide current information as required on the Department of Justice
registration forms, and shall also list the places where he or she
sleeps, eats, works, frequents, and engages in leisure activities. If
a transient changes or adds to the places listed on the form during
the 30-day period, he or she does not need to report the new place or
places until the next required reregistration.
(e) Failure to comply with the requirement of reregistering every
30 days following initial registration pursuant to subdivision (a)
shall be punished in accordance with subdivision (g) of Section
290.018. Failure to comply with any other requirement of this section
shall be punished in accordance with either subdivision (a) or (b)
of Section 290.018.
(f) A transient who moves out of state shall inform, in person,
the chief of police in the city in which he or she is physically
present, or the sheriff of the county if he or she is physically
present in an unincorporated area or city that has no police
department, within five working days, of his or her move out of
state. The transient shall inform that registering agency of his or
her planned destination, residence or transient location out of
state, and any plans he or she has to return to California, if known.
The law enforcement agency shall, within three days after receipt of
this information, forward a copy of the change of location
information to the Department of Justice. The department shall
forward appropriate registration data to the law enforcement agency
having local jurisdiction of the new place of residence or location.
(g) For purposes of the act, “transient” means a person who has no
residence. “Residence” means one or more addresses at which a person
regularly resides, regardless of the number of days or nights spent
there, such as a shelter or structure that can be located by a street
address, including, but not limited to, houses, apartment buildings,
motels, hotels, homeless shelters, and recreational and other
vehicles.
(h) The transient registrant’s duty to update his or her
registration no less than every 30 days shall begin with his or her
second transient update following the date this section became
effective.
290.012. (a) Beginning on his or her first birthday following
registration or change of address, the person shall be required to
register annually, within five working days of his or her birthday,
to update his or her registration with the entities described in
subdivision (b) of Section 290. At the annual update, the person
shall provide current information as required on the Department of
Justice annual update form, including the information described in
paragraphs (1) to (5), inclusive of subdivision (a) of Section
290.015. The registering agency shall give the registrant a copy of
the registration requirements from the Department of Justice form.
(b) In addition, every person who has ever been adjudicated a
sexually violent predator, as defined in Section 6600 of the Welfare
and Institutions Code, shall, after his or her release from custody,
verify his or her address no less than once every 90 days and place
of employment, including the name and address of the employer, in a
manner established by the Department of Justice. Every person who, as
a sexually violent predator, is required to verify his or her
registration every 90 days, shall be notified wherever he or she next
registers of his or her increased registration obligations. This
notice shall be provided in writing by the registering agency or
agencies. Failure to receive this notice shall be a defense to the
penalties prescribed in subdivision (f) of Section 290.018.
(c) In addition, every person subject to the Act, while living as
a transient in California, shall update his or her registration at
least every 30 days, in accordance with Section 290.011.
(d) No entity shall require a person to pay a fee to register or
update his or her registration pursuant to this section. The
registering agency shall submit registrations, including annual
updates or changes of address, directly into the Department of
Justice Violent Crime Information Network (VCIN).
290.013. (a) Any person who was last registered at a residence
address pursuant to the Act who changes his or her residence address,
whether within the jurisdiction in which he or she is currently
registered or to a new jurisdiction inside or outside the state,
shall, in person, within five working days of the move, inform the
law enforcement agency or agencies with which he or she last
registered of the move, the new address or transient location, if
known, and any plans he or she has to return to California.
(b) If the person does not know the new residence address or
location at the time of the move, the registrant shall, in person,
within five working days of the move, inform the last registering
agency or agencies that he or she is moving. The person shall later
notify the last registering agency or agencies, in writing, sent by
certified or registered mail, of the new address or location within
five working days of moving into the new residence address or
location, whether temporary or permanent.
(c) The law enforcement agency or agencies shall, within three
working days after receipt of this information, forward a copy of the
change of address information to the Department of Justice. The
Department of Justice shall forward appropriate registration data to
the law enforcement agency or agencies having local jurisdiction of
the new place of residence.
(d) If the person’s new address is in a Department of Corrections
and Rehabilitation facility or state mental institution, an official
of the place of incarceration, placement, or commitment shall, within
90 days of receipt of the person, forward the registrant’s change of
address information to the Department of Justice. The agency need
not provide a physical address for the registrant but shall indicate
that he or she is serving a period of incarceration or commitment in
a facility under the agency’s jurisdiction. This subdivision shall
apply to persons received in a department facility or state mental
institution on or after January 1, 1999. The Department of Justice
shall forward the change of address information to the agency with
which the person last registered.
290.014. (a) If any person who is required to register pursuant to
the Act changes his or her name, the person shall inform, in person,
the law enforcement agency or agencies with which he or she is
currently registered within five working days. The law enforcement
agency or agencies shall forward a copy of this information to the
Department of Justice within three working days of its receipt.
(b) If any person who is required to register pursuant to the Act
adds or changes his or her account with an Internet service provider
or adds or changes an Internet identifier, the person shall send
written notice of the addition or change to the law enforcement
agency or agencies with which he or she is currently registered
within 24 hours. The law enforcement agency or agencies shall make
this information available to the Department of Justice. Each person
to whom this subdivision applies at the time this subdivision becomes
effective shall immediately provide the information required by this
subdivision.
290.015. (a) A person who is subject to the Act shall register, or
reregister if he or she has previously registered, upon release from
incarceration, placement, commitment, or release on probation
pursuant to subdivision (b) of Section 290. This section shall not
apply to a person who is incarcerated for less than 30 days if he or
she has registered as required by the Act, he or she returns after
incarceration to the last registered address, and the annual update
of registration that is required to occur within five working days of
his or her birthday, pursuant to subdivision (a) of Section 290.012,
did not fall within that incarceration period. The registration
shall consist of all of the following:
(1) A statement in writing signed by the person, giving
information as shall be required by the Department of Justice and
giving the name and address of the person’s employer, and the address
of the person’s place of employment if that is different from the
employer’s main address.
(2) The fingerprints and a current photograph of the person taken
by the registering official.
(3) The license plate number of any vehicle owned by, regularly
driven by, or registered in the name of the person.
(4) A list of any and all Internet identifiers established or used
by the person.
(5) A list of any and all Internet service providers used by the
person.
(6) A statement in writing, signed by the person, acknowledging
that the person is required to register and update the information in
paragraphs (4) and (5), as required by this chapter.
(7) Notice to the person that, in addition to the requirements of
the Act, he or she may have a duty to register in any other state
where he or she may relocate.
(8) Copies of adequate proof of residence, which shall be limited
to a California driver’s license, California identification card,
recent rent or utility receipt, printed personalized checks or other
recent banking documents showing that person’s name and address, or
any other information that the registering official believes is
reliable. If the person has no residence and no reasonable
expectation of obtaining a residence in the foreseeable future, the
person shall so advise the registering official and shall sign a
statement provided by the registering official stating that fact.
Upon presentation of proof of residence to the registering official
or a signed statement that the person has no residence, the person
shall be allowed to register. If the person claims that he or she has
a residence but does not have any proof of residence, he or she
shall be allowed to register but shall furnish proof of residence
within 30 days of the date he or she is allowed to register.
(b) Within three days thereafter, the registering law enforcement
agency or agencies shall forward the statement, fingerprints,
photograph, and vehicle license plate number, if any, to the
Department of Justice.
(c) (1) If a person fails to register in accordance with
subdivision (a) after release, the district attorney in the
jurisdiction where the person was to be paroled or to be on probation
may request that a warrant be issued for the person’s arrest and
shall have the authority to prosecute that person pursuant to Section
290.018.
(2) If the person was not on parole or probation at the time of
release, the district attorney in the following applicable
jurisdiction shall have the authority to prosecute that person
pursuant to Section 290.018:
(A) If the person was previously registered, in the jurisdiction
in which the person last registered.
(B) If there is no prior registration, but the person indicated on
the Department of Justice notice of sex offender registration
requirement form where he or she expected to reside, in the
jurisdiction where he or she expected to reside.
(C) If neither subparagraph (A) nor (B) applies, in the
jurisdiction where the offense subjecting the person to registration
pursuant to this Act was committed.
290.015. (a) A person who is subject to the Act shall register, or
reregister if he or she has previously registered, upon release from
incarceration, placement, commitment, or release on probation
pursuant to subdivision (b) of Section 290. This section shall not
apply to a person who is incarcerated for less than 30 days if he or
she has registered as required by the Act, he or she returns after
incarceration to the last registered address, and the annual update
of registration that is required to occur within five working days of
his or her birthday, pursuant to subdivision (a) of Section 290.012,
did not fall within that incarceration period. The registration
shall consist of all of the following:
(1) A statement in writing signed by the person, giving
information as shall be required by the Department of Justice and
giving the name and address of the person’s employer, and the address
of the person’s place of employment if that is different from the
employer’s main address.
(2) The fingerprints and a current photograph of the person taken
by the registering official.
(3) The license plate number of any vehicle owned by, regularly
driven by, or registered in the name of the person.
(4) Notice to the person that, in addition to the requirements of
the Act, he or she may have a duty to register in any other state
where he or she may relocate.
(5) Copies of adequate proof of residence, which shall be limited
to a California driver’s license, California identification card,
recent rent or utility receipt, printed personalized checks or other
recent banking documents showing that person’s name and address, or
any other information that the registering official believes is
reliable. If the person has no residence and no reasonable
expectation of obtaining a residence in the foreseeable future, the
person shall so advise the registering official and shall sign a
statement provided by the registering official stating that fact.
Upon presentation of proof of residence to the registering official
or a signed statement that the person has no residence, the person
shall be allowed to register. If the person claims that he or she has
a residence but does not have any proof of residence, he or she
shall be allowed to register but shall furnish proof of residence
within 30 days of the date he or she is allowed to register.
(b) Within three days thereafter, the registering law enforcement
agency or agencies shall forward the statement, fingerprints,
photograph, and vehicle license plate number, if any, to the
Department of Justice.
(c) (1) If a person fails to register in accordance with
subdivision (a) after release, the district attorney in the
jurisdiction where the person was to be paroled or to be on probation
may request that a warrant be issued for the person’s arrest and
shall have the authority to prosecute that person pursuant to Section
290.018.
(2) If the person was not on parole or probation or on postrelease
community supervision or mandatory supervision at the time of
release, the district attorney in the following applicable
jurisdiction shall have the authority to prosecute that person
pursuant to Section 290.018:
(A) If the person was previously registered, in the jurisdiction
in which the person last registered.
(B) If there is no prior registration, but the person indicated on
the Department of Justice notice of sex offender registration
requirement form where he or she expected to reside, in the
jurisdiction where he or she expected to reside.
(C) If neither subparagraph (A) nor (B) applies, in the
jurisdiction where the offense subjecting the person to registration
pursuant to this Act was committed.
290.016. (a) On or after January 1, 1998, upon incarceration,
placement, or commitment, or prior to release on probation, any
person who is required to register under the Act shall preregister.
The preregistering official shall be the admitting officer at the
place of incarceration, placement, or commitment, or the probation
officer if the person is to be released on probation. The
preregistration shall consist of all of the following:
(1) A preregistration statement in writing, signed by the person,
giving information that shall be required by the Department of
Justice.
(2) The fingerprints and a current photograph of the person.
(3) Any person who is preregistered pursuant to this subdivision
is required to be preregistered only once.
(b) Within three days thereafter, the preregistering official
shall forward the statement, fingerprints, photograph, and vehicle
license plate number, if any, to the Department of Justice.
290.017. (a) Any person who is released, discharged, or paroled
from a jail, state or federal prison, school, road camp, or other
institution where he or she was confined, who is required to register
pursuant to the Act, shall, prior to discharge, parole, or release,
be informed of his or her duty to register under the Act by the
official in charge of the place of confinement or hospital, and the
official shall require the person to read and sign any form that may
be required by the Department of Justice, stating that the duty of
the person to register under the Act has been explained to the
person. The official in charge of the place of confinement or
hospital shall obtain the address where the person expects to reside
upon his or her discharge, parole, or release and shall report the
address to the Department of Justice. The official shall at the same
time forward a current photograph of the person to the Department of
Justice.
(b) The official in charge of the place of confinement or hospital
shall give one copy of the form to the person and shall send one
copy to the Department of Justice and one copy to the appropriate law
enforcement agency or agencies having jurisdiction over the place
the person expects to reside upon discharge, parole, or release. If
the conviction that makes the person subject to the Act is a felony
conviction, the official in charge shall, not later than 45 days
prior to the scheduled release of the person, send one copy to the
appropriate law enforcement agency or agencies having local
jurisdiction where the person expects to reside upon discharge,
parole, or release; one copy to the prosecuting agency that
prosecuted the person; and one copy to the Department of Justice. The
official in charge of the place of confinement or hospital shall
retain one copy.
(c) Any person who is required to register pursuant to the Act
and who is released on probation, shall, prior to release or
discharge, be informed of the duty to register under the Act by the
probation department, and a probation officer shall require the
person to read and sign any form that may be required by the
Department of Justice, stating that the duty of the person to
register has been explained to him or her. The probation officer
shall obtain the address where the person expects to reside upon
release or discharge and shall report within three days the address
to the Department of Justice. The probation officer shall give one
copy of the form to the person, send one copy to the Department of
Justice, and forward one copy to the appropriate law enforcement
agency or agencies having local jurisdiction where the person expects
to reside upon his or her discharge, parole, or release.
(d) Any person who is required to register pursuant to the Act and
who is granted conditional release without supervised probation, or
discharged upon payment of a fine, shall, prior to release or
discharge, be informed of the duty to register under the Act in open
court by the court in which the person has been convicted, and the
court shall require the person to read and sign any form that may be
required by the Department of Justice, stating that the duty of the
person to register has been explained to him or her. If the court
finds that it is in the interest of the efficiency of the court, the
court may assign the bailiff to require the person to read and sign
forms under the Act. The court shall obtain the address where the
person expects to reside upon release or discharge and shall report
within three days the address to the Department of Justice. The court
shall give one copy of the form to the person, send one copy to the
Department of Justice, and forward one copy to the appropriate law
enforcement agency or agencies having local jurisdiction where the
person expects to reside upon his or her discharge, parole, or
release.
290.018. (a) Any person who is required to register under the Act
based on a misdemeanor conviction or juvenile adjudication who
willfully violates any requirement of the act is guilty of a
misdemeanor punishable by imprisonment in a county jail not exceeding
one year.
(b) Except as provided in subdivisions (f), (h), and (j), any
person who is required to register under the act based on a felony
conviction or juvenile adjudication who willfully violates any
requirement of the act or who has a prior conviction or juvenile
adjudication for the offense of failing to register under the act and
who subsequently and willfully violates any requirement of the act
is guilty of a felony and shall be punished by imprisonment in the
state prison for 16 months, or two or three years.
(c) If probation is granted or if the imposition or execution of
sentence is suspended, it shall be a condition of the probation or
suspension that the person serve at least 90 days in a county jail.
The penalty described in subdivision (b) or this subdivision shall
apply whether or not the person has been released on parole or has
been discharged from parole.
(d) Any person determined to be a mentally disordered sex offender
or who has been found guilty in the guilt phase of trial for an
offense for which registration is required under the act, but who has
been found not guilty by reason of insanity in the sanity phase of
the trial, or who has had a petition sustained in a juvenile
adjudication for an offense for which registration is required
pursuant to Section 290.008, but who has been found not guilty by
reason of insanity, who willfully violates any requirement of the act
is guilty of a misdemeanor and shall be punished by imprisonment in
a county jail not exceeding one year. For any second or subsequent
willful violation of any requirement of the act, the person is guilty
of a felony and shall be punished by imprisonment in the state
prison for 16 months, or two or three years.
(e) If, after discharge from parole, the person is convicted of a
felony or suffers a juvenile adjudication as specified in this act,
he or she shall be required to complete parole of at least one year,
in addition to any other punishment imposed under this section. A
person convicted of a felony as specified in this section may be
granted probation only in the unusual case where the interests of
justice would best be served. When probation is granted under this
act, the court shall specify on the record and shall enter into the
minutes the circumstances indicating that the interests of justice
would best be served by the disposition.
(f) Any person who has ever been adjudicated a sexually violent
predator, as defined in Section 6600 of the Welfare and Institutions
Code, and who fails to verify his or her registration every 90 days
as required pursuant to subdivision (b) of Section 290.012, shall be
punished by imprisonment in the state prison or in a county jail not
exceeding one year.
(g) Except as otherwise provided in subdivision (f), any person
who is required to register or reregister pursuant to Section 290.011
and willfully fails to comply with the requirement that he or she
reregister no less than every 30 days is guilty of a misdemeanor and
shall be punished by imprisonment in a county jail for at least 30
days, but not exceeding six months. A person who willfully fails to
comply with the requirement that he or she reregister no less than
every 30 days shall not be charged with this violation more often
than once for a failure to register in any period of 90 days. Any
person who willfully commits a third or subsequent violation of the
requirements of Section 290.011 that he or she reregister no less
than every 30 days shall be punished in accordance with either
subdivision (a) or (b).
(h) Any person who fails to provide proof of residence as required
by paragraph (5) of subdivision (a) of Section 290.015, regardless
of the offense upon which the duty to register is based, is guilty of
a misdemeanor punishable by imprisonment in a county jail not
exceeding six months.
(i) Any person who is required to register under the act who
willfully violates any requirement of the act is guilty of a
continuing offense as to each requirement he or she violated.
(j) In addition to any other penalty imposed under this section,
the failure to provide information required on registration and
reregistration forms of the Department of Justice, or the provision
of false information, is a crime punishable by imprisonment in a
county jail for a period not exceeding one year. Nothing in this
subdivision shall be construed to limit or prevent prosecution under
any applicable provision of law.
(k) Whenever any person is released on parole or probation and is
required to register under the act but fails to do so within the time
prescribed, the parole authority or the court, as the case may be,
shall order the parole or probation of the person revoked. For
purposes of this subdivision, “parole authority” has the same meaning
as described in Section 3000.
290.019. (a) Notwithstanding any other section in the Act, a person
who was convicted before January 1, 1976, under subdivision (a) of
Section 286, or Section 288a, shall not be required to register
pursuant to the Act for that conviction if the conviction was for
conduct between consenting adults that was decriminalized by Chapter
71 of the Statutes of 1975 or Chapter 1139 of the Statutes of 1976.
The Department of Justice shall remove that person from the Sex
Offender Registry, and the person is discharged from his or her duty
to register pursuant to either of the following procedures:
(1) The person submits to the Department of Justice official
documentary evidence, including court records or police reports, that
demonstrate that the person’s conviction pursuant to either of those
sections was for conduct between consenting adults that was
decriminalized.
(2) The person submits to the department a declaration stating
that the person’s conviction pursuant to either of those sections was
for consensual conduct between adults that has been decriminalized.
The declaration shall be confidential and not a public record, and
shall include the person’s name, address, telephone number, date of
birth, and a summary of the circumstances leading to the conviction,
including the date of the conviction and county of the occurrence.
(b) The department shall determine whether the person’s conviction
was for conduct between consensual adults that has been
decriminalized. If the conviction was for consensual conduct between
adults that has been decriminalized, and the person has no other
offenses for which he or she is required to register pursuant to the
Act, the department shall, within 60 days of receipt of those
documents, notify the person that he or she is relieved of the duty
to register, and shall notify the local law enforcement agency with
which the person is registered that he or she has been relieved of
the duty to register. The local law enforcement agency shall remove
the person’s registration from its files within 30 days of receipt of
notification. If the documentary or other evidence submitted is
insufficient to establish the person’s claim, the department shall,
within 60 days of receipt of those documents, notify the person that
his or her claim cannot be established, and that the person shall
continue to register pursuant to the Act. The department shall
provide, upon the person’s request, any information relied upon by
the department in making its determination that the person shall
continue to register pursuant to the Act. Any person whose claim has
been denied by the department pursuant to this subdivision may
petition the court to appeal the department’s denial of the person’s
claim.
290.020. In any case in which a person who would be required to
register pursuant to the Act for a felony conviction is to be
temporarily sent outside the institution where he or she is confined
on any assignment within a city or county including firefighting,
disaster control, or of whatever nature the assignment may be, the
local law enforcement agency having jurisdiction over the place or
places where the assignment shall occur shall be notified within a
reasonable time prior to removal from the institution. This section
shall not apply to any person who is temporarily released under guard
from the institution where he or she is confined.
290.021. Except as otherwise provided by law, the statements,
photographs, and fingerprints required by the Act shall not be open
to inspection by the public or by any person other than a regularly
employed peace officer or other law enforcement officer.
290.022. On or before July 1, 2010, the Department of Justice shall
renovate the VCIN to do the following:
(1) Correct all software deficiencies affecting data integrity and
include designated data fields for all mandated sex offender data.
(2) Consolidate and simplify program logic, thereby increasing
system performance and reducing system maintenance costs.
(3) Provide all necessary data storage, processing, and search
capabilities.
(4) Provide law enforcement agencies with full Internet access to
all sex offender data and photos.
(5) Incorporate a flexible design structure to readily meet future
demands for enhanced system functionality, including public Internet
access to sex offender information pursuant to Section 290.46.
290.023. The registration provisions of the Act are applicable to
every person described in the Act, without regard to when his or her
crime or crimes were committed or his or her duty to register
pursuant to the Act arose, and to every offense described in the Act,
regardless of when it was committed.
290.024. For purposes of this chapter, the following terms apply:
(a) “Internet service provider” means a business, organization, or
other entity providing a computer and communications facility
directly to consumers through which a person may obtain access to the
Internet. An Internet service provider does not include a business,
organization, or other entity that provides only telecommunications
services, cable services, or video services, or any system operated
or services offered by a library or educational institution.
(b) “Internet identifier” means an electronic mail address, user
name, screen name, or similar identifier used for the purpose of
Internet forum discussions, Internet chat room discussions, instant
messaging, social networking, or similar Internet communication.
290.01. (a) (1) Commencing October 28, 2002, every person required
to register pursuant to Sections 290 to 290.009, inclusive, of the
Sex Offender Registration Act who is enrolled as a student of any
university, college, community college, or other institution of
higher learning, or is, with or without compensation, a full-time or
part-time employee of that university, college, community college, or
other institution of higher learning, or is carrying on a vocation
at the university, college, community college, or other institution
of higher learning, for more than 14 days, or for an aggregate period
exceeding 30 days in a calendar year, shall, in addition to the
registration required by the Sex Offender Registration Act, register
with the campus police department within five working days of
commencing enrollment or employment at that university, college,
community college, or other institution of higher learning, on a form
as may be required by the Department of Justice. The terms “employed
or carries on a vocation” include employment whether or not
financially compensated, volunteered, or performed for government or
educational benefit. The registrant shall also notify the campus
police department within five working days of ceasing to be enrolled
or employed, or ceasing to carry on a vocation, at the university,
college, community college, or other institution of higher learning.
(2) For purposes of this section, a campus police department is a
police department of the University of California, California State
University, or California Community College, established pursuant to
Section 72330, 89560, or 92600 of the Education Code, or is a police
department staffed with deputized or appointed personnel with peace
officer status as provided in Section 830.6 of the Penal Code and is
the law enforcement agency with the primary responsibility for
investigating crimes occurring on the college or university campus on
which it is located.
(b) If the university, college, community college, or other
institution of higher learning has no campus police department, the
registrant shall instead register pursuant to subdivision (a) with
the police of the city in which the campus is located or the sheriff
of the county in which the campus is located if the campus is located
in an unincorporated area or in a city that has no police
department, on a form as may be required by the Department of
Justice. The requirements of subdivisions (a) and (b) are in addition
to the requirements of the Sex Offender Registration Act.
(c) A first violation of this section is a misdemeanor punishable
by a fine not to exceed one thousand dollars ($1,000). A second
violation of this section is a misdemeanor punishable by imprisonment
in a county jail for not more than six months, by a fine not to
exceed one thousand dollars ($1,000), or by both that imprisonment
and fine. A third or subsequent violation of this section is a
misdemeanor punishable by imprisonment in a county jail for not more
than one year, by a fine not exceeding one thousand dollars ($1,000),
or by both that imprisonment and fine.
(d) (1) (A) The following information regarding a registered sex
offender on campus as to whom information shall not be made available
to the public via the Internet Web site as provided in Section
290.46 may be released to members of the campus community by any
campus police department or, if the university, college, community
college, or other institution of higher learning has no police
department, the police department or sheriff’s department with
jurisdiction over the campus, and any employees of those agencies, as
required by Section 1092(f)(1)(I) of Title 20 of the United States
Code:
(i) The offender’s full name.
(ii) The offender’s known aliases.
(iii) The offender’s gender.
(iv) The offender’s race.
(v) The offender’s physical description.
(vi) The offender’s photograph.
(vii) The offender’s date of birth.
(viii) Crimes resulting in registration under Section 290.
(ix) The date of last registration or reregistration.
(B) The authority provided in this subdivision is in addition to
the authority of a peace officer or law enforcement agency to provide
information about a registered sex offender pursuant to Section
290.45, and exists notwithstanding Section 290.021 or any other
provision of law.
(2) Any law enforcement entity and employees of any law
enforcement entity listed in paragraph (1) shall be immune from civil
or criminal liability for good faith conduct under this subdivision.
(3) Nothing in this subdivision shall be construed to authorize
campus police departments or, if the university, college, community
college, or other institution has no police department, the police
department or sheriff’s department with jurisdiction over the campus,
to make disclosures about registrants intended to reach persons
beyond the campus community.
(4) (A) Before being provided any information by an agency
pursuant to this subdivision, a member of the campus community who
requests that information shall sign a statement, on a form provided
by the Department of Justice, stating that he or she is not a
registered sex offender, that he or she understands the purpose of
the release of information is to allow members of the campus
community to protect themselves and their children from sex
offenders, and that he or she understands it is unlawful to use
information obtained pursuant to this subdivision to commit a crime
against any registrant or to engage in illegal discrimination or
harassment of any registrant. The signed statement shall be
maintained in a file in the agency’s office for a minimum of five
years.
(B) An agency disseminating printed information pursuant to this
subdivision shall maintain records of the means and dates of
dissemination for a minimum of five years.
(5) For purposes of this subdivision, “campus community” means
those persons present at, and those persons regularly frequenting,
any place associated with an institution of higher education,
including campuses; administrative and educational offices;
laboratories; satellite facilities owned or utilized by the
institution for educational instruction, business, or institutional
events; and public areas contiguous to any campus or facility that
are regularly frequented by students, employees, or volunteers of the
campus.
290.02. (a) Notwithstanding any other law, the Department of
Justice shall identify the names of persons required to register
pursuant to Section 290 from a list of persons provided by the
requesting agency, and provide those names and other information
necessary to verify proper identification, to any state governmental
entity responsible for authorizing or providing publicly funded
prescription drugs or other therapies to treat erectile dysfunction
of those persons. State governmental entities shall use information
received pursuant to this section to protect public safety by
preventing the use of prescription drugs or other therapies to treat
erectile dysfunction by convicted sex offenders.
(b) Use or disclosure of the information disclosed pursuant to
this section is prohibited for any purpose other than that authorized
by this section or Section 14133.225 of the Welfare and Institutions
Code. The Department of Justice may establish a fee for requests,
including all actual and reasonable costs associated with the
service.
(c) Notwithstanding any other provision of law, any state
governmental entity that is responsible for authorizing or providing
publicly funded prescription drugs or other therapies to treat
erectile dysfunction may use the sex offender database authorized by
Section 290.46 to protect public safety by preventing the use of
those drugs or therapies for convicted sex offenders.
290.03. (a) The Legislature finds and declares that a comprehensive
system of risk assessment, supervision, monitoring and containment
for registered sex offenders residing in California communities is
necessary to enhance public safety and reduce the risk of recidivism
posed by these offenders. The Legislature further affirms and
incorporates the following findings and declarations, previously
reflected in its enactment of “Megan’s Law”:
(1) Sex offenders pose a potentially high risk of committing
further sex offenses after release from incarceration or commitment,
and the protection of the public from reoffending by these offenders
is a paramount public interest.
(2) It is a compelling and necessary public interest that the
public have information concerning persons convicted of offenses
involving unlawful sexual behavior collected pursuant to Sections 290
and 290.4 to allow members of the public to adequately protect
themselves and their children from these persons.
(3) Persons convicted of these offenses involving unlawful sexual
behavior have a reduced expectation of privacy because of the public’
s interest in public safety.
(4) In balancing the offenders’ due process and other rights
against the interests of public security, the Legislature finds that
releasing information about sex offenders under the circumstances
specified in the Sex Offender Punishment, Control, and Containment
Act of 2006 will further the primary government interest of
protecting vulnerable populations from potential harm.
(5) The registration of sex offenders, the public release of
specified information about certain sex offenders pursuant to
Sections 290 and 290.4, and public notice of the presence of certain
high risk sex offenders in communities will further the governmental
interests of public safety and public scrutiny of the criminal and
mental health systems that deal with these offenders.
(6) To protect the safety and general welfare of the people of
this state, it is necessary to provide for continued registration of
sex offenders, for the public release of specified information
regarding certain more serious sex offenders, and for community
notification regarding high risk sex offenders who are about to be
released from custody or who already reside in communities in this
state. This policy of authorizing the release of necessary and
relevant information about serious and high risk sex offenders to
members of the general public is a means of assuring public
protection and shall not be construed as punitive.
(7) The Legislature also declares, however, that in making
information available about certain sex offenders to the public, it
does not intend that the information be used to inflict retribution
or additional punishment on any person convicted of a sex offense.
While the Legislature is aware of the possibility of misuse, it finds
that the dangers to the public of nondisclosure far outweigh the
risk of possible misuse of the information. The Legislature is
further aware of studies in Oregon and Washington indicating that
community notification laws and public release of similar information
in those states have resulted in little criminal misuse of the
information and that the enhancement to public safety has been
significant.
(b) In enacting the Sex Offender Punishment, Control, and
Containment Act of 2006, the Legislature hereby creates a
standardized, statewide system to identify, assess, monitor and
contain known sex offenders for the purpose of reducing the risk of
recidivism posed by these offenders, thereby protecting victims and
potential victims from future harm.
290.04. (a) (1) The sex offender risk assessment tools authorized
by this section for use with selected populations shall be known,
with respect to each population, as the State-Authorized Risk
Assessment Tool for Sex Offenders (SARATSO). If a SARATSO has not
been selected for a given population pursuant to this section, no
duty to administer the SARATSO elsewhere in this code shall apply
with respect to that population. Every person required to register as
a sex offender shall be subject to assessment with the SARATSO as
set forth in this section and elsewhere in this code.
(2) A representative of the Department of Corrections and
Rehabilitation, in consultation with a representative of the State
Department of State Hospitals and a representative of the Attorney
General’s office, shall comprise the SARATSO Review Committee. The
purpose of the committee, which shall be staffed by the Department of
Corrections and Rehabilitation, shall be to ensure that the SARATSO
reflects the most reliable, objective, and well-established protocols
for predicting sex offender risk of recidivism, has been
scientifically validated and cross validated, and is, or is
reasonably likely to be, widely accepted by the courts. The committee
shall consult with experts in the fields of risk assessment and the
use of actuarial instruments in predicting sex offender risk, sex
offending, sex offender treatment, mental health, and law, as it
deems appropriate.
(b) (1) Commencing January 1, 2007, the SARATSO for adult males
required to register as sex offenders shall be the STATIC-99 risk
assessment scale, which shall be the SARATSO static tool for adult
males.
(2) The SARATSO Review Committee shall determine whether the
STATIC-99 should be supplemented with an empirically derived
instrument that measures dynamic risk factors or whether the
STATIC-99 should be replaced as the SARATSO with a different risk
assessment tool. The SARATSO Review Committee shall select an
empirically derived instrument that measures dynamic risk factors and
an empirically derived instrument that measures risk of future
violence. The selected instruments shall be the SARATSO dynamic tool
for adult males and the SARATSO future violence tool for adult males.
If the committee unanimously agrees on changes to be made to a
designated SARATSO, it shall advise the Governor and the Legislature
of the changes, and the Department of Corrections and Rehabilitation
shall post the decision on its Internet Web site. Sixty days after
the decision is posted, the selected tool shall become the SARATSO
for adult males.
(c) On or before July 1, 2007, the SARATSO Review Committee shall
research risk assessment tools for adult females required to register
as sex offenders. If the committee unanimously agrees on an
appropriate risk assessment tool to be used to assess this
population, it shall advise the Governor and the Legislature of the
selected tool, and the State Department of Mental Health shall post
the decision on its Internet Web site. Sixty days after the decision
is posted, the selected tool shall become the SARATSO for adult
females.
(d) On or before July 1, 2007, the SARATSO Review Committee shall
research risk assessment tools for male juveniles required to
register as sex offenders. If the committee unanimously agrees on an
appropriate risk assessment tool to be used to assess this
population, it shall advise the Governor and the Legislature of the
selected tool, and the State Department of Mental Health shall post
the decision on its Internet Web site. Sixty days after the decision
is posted, the selected tool shall become the SARATSO for male
juveniles.
(e) On or before July 1, 2007, the SARATSO Review Committee shall
research risk assessment tools for female juveniles required to
register as sex offenders. If the committee unanimously agrees on an
appropriate risk assessment tool to be used to assess this
population, it shall advise the Governor and the Legislature of the
selected tool, and the State Department of Mental Health shall post
the decision on its Internet Web site. Sixty days after the decision
is posted, the selected tool shall become the SARATSO for female
juveniles.
(f) The committee shall periodically evaluate the SARATSO static,
dynamic, and risk of future violence tools for each specified
population. If the committee unanimously agrees on a change to the
SARATSO for any population, it shall advise the Governor and the
Legislature of the selected tool, and the Department of Corrections
and Rehabilitation shall post the decision on its Internet Web site.
Sixty days after the decision is posted, the selected tool shall
become the SARATSO for that population.
(g) The committee shall perform other functions consistent with
the provisions of this act or as may be otherwise required by law,
including, but not limited to, defining tiers of risk based on the
SARATSO. The committee shall be immune from liability for good faith
conduct under this act.
290.05. (a) The SARATSO Training Committee shall be comprised of a
representative of the State Department of State Hospitals, a
representative of the Department of Corrections and Rehabilitation, a
representative of the Attorney General’s Office, and a
representative of the Chief Probation Officers of California.
(b) On or before January 1, 2008, the SARATSO Training Committee,
in consultation with the Corrections Standards Authority and the
Commission on Peace Officer Standards and Training, shall develop a
training program for persons authorized by this code to administer
the static SARATSO, as set forth in Section 290.04.
(c) (1) The Department of Corrections and Rehabilitation shall be
responsible for overseeing the training of persons who will
administer the static SARATSO pursuant to paragraph (1) or (2) of
subdivision (a) of Section 290.06.
(2) The State Department of State Hospitals shall be responsible
for overseeing the training of persons who will administer the static
SARATSO pursuant to paragraph (3) of subdivision (a) of Section
290.06.
(3) The Correction Standards Authority shall be responsible for
developing standards for the training of persons who will administer
the static SARATSO pursuant to paragraph (5) or (6) of subdivision
(a) of Section 290.06.
(4) The Commission on Peace Officer Standards and Training shall
be responsible for developing standards for the training of persons
who will administer the static SARATSO pursuant to subdivision (b) of
Section 290.06.
(d) The training shall be conducted by experts in the field of
risk assessment and the use of actuarial instruments in predicting
sex offender risk. Subject to requirements established by the
committee, the Department of Corrections and Rehabilitation, the
State Department of State Hospitals, probation departments, and
authorized local law enforcement agencies shall designate key persons
within their organizations to attend training and, as authorized by
the department, to train others within their organizations designated
to perform risk assessments as required or authorized by law. Any
person who administers the static SARATSO shall receive training no
less frequently than every two years.
(e) If the agency responsible for scoring the static SARATSO
believes an individual score does not represent the person’s true
risk level, based on factors in the offender’s record, the agency may
submit the case to the experts retained by the SARATSO Review
Committee to monitor the scoring of the SARATSO. Those experts shall
be guided by empirical research in determining whether to raise or
lower the risk level. Agencies that score the static SARATSO shall
develop a protocol for submission of risk level override requests to
the experts retained in accordance with this subdivision.
(f) The static SARATSO may be performed for purposes authorized by
statute only by persons trained pursuant to this section. Persons
who administer the dynamic SARATSO and the future violence SARATSO
shall be trained to administer the dynamic and future violence
SARATSO tools as required in Section 290.09. Probation officers or
parole agents may be trained by SARATSO experts on the dynamic
SARATSO tool and perform assessments on that tool only if authorized
by the SARATSO Training Committee to do so after successful
completion of training.
290.06. The static SARATSO, as set forth in Section 290.04, shall
be administered as follows:
(a) (1) The Department of Corrections and Rehabilitation shall
assess every eligible person who is incarcerated in state prison.
Whenever possible, the assessment shall take place at least four
months, but no sooner than 10 months, prior to release from
incarceration.
(2) The department shall assess every eligible person who is on
parole if the person was not assessed prior to release from state
prison. Whenever possible, the assessment shall take place at least
four months, but no sooner than 10 months, prior to termination of
parole. The department shall record in a database the risk assessment
scores of persons assessed pursuant to this paragraph and paragraph
(1), and any risk assessment score that was submitted to the
department by a probation officer pursuant to Section 1203.
(3) The department shall assess every person on parole transferred
from any other state or by the federal government to this state who
has been, or is hereafter convicted in any other court, including any
state, federal, or military court, of any offense that, if committed
or attempted in this state, would have been punishable as one or
more of the offenses described in subdivision (c) of Section 290. The
assessment required by this paragraph shall occur no later than 60
days after a determination by the Department of Justice that the
person is required to register as a sex offender in California
pursuant to Section 290.005.
(4) The State Department of State Hospitals shall assess every
eligible person who is committed to that department. Whenever
possible, the assessment shall take place at least four months, but
no sooner than 10 months, prior to release from commitment. The State
Department of State Hospitals shall record in a database the risk
assessment scores of persons assessed pursuant to this paragraph and
any risk assessment score that was submitted to the department by a
probation officer pursuant to Section 1203.
(5) Commencing January 1, 2010, the Department of Corrections and
Rehabilitation and the State Department of State Hospitals shall send
the scores obtained in accordance with paragraphs (2), (3), and (4)
to the Department of Justice Sex Offender Tracking Program not later
than 30 days after the date of the assessment. The risk assessment
score of an offender shall be made part of his or her file maintained
by the Department of Justice Sex Offender Tracking Program as soon
as possible without financial impact, but no later than January 1,
2012.
(6) Each probation department shall, prior to sentencing, assess
every eligible person as defined in subdivision (c), whether or not a
report is prepared pursuant to Section 1203.
(7) Each probation department shall assess every eligible person
under its supervision who was not assessed pursuant to paragraph (6).
The assessment shall take place prior to the termination of
probation, but no later than January 1, 2010.
(b) Eligible persons not assessed pursuant to subdivision (a) may
be assessed as follows:
(1) Upon request of the law enforcement agency in the jurisdiction
in which the person is registered pursuant to Sections 290 to
290.023, inclusive, the person shall be assessed. The law enforcement
agency may enter into a memorandum of understanding with a probation
department to perform the assessment. In the alternative, the law
enforcement agency may arrange to have personnel trained to perform
the risk assessment in accordance with subdivision (d) of Section
290.05.
(2) Eligible persons not assessed pursuant to subdivision (a) may
request that a risk assessment be performed. A request form shall be
available at registering law enforcement agencies. The person
requesting the assessment shall pay a fee for the assessment that
shall be sufficient to cover the cost of the assessment. The risk
assessment so requested shall be performed either by the probation
department, if a memorandum of understanding is established between
the law enforcement agency and the probation department, or by
personnel who have been trained to perform risk assessment in
accordance with subdivision (d) of Section 290.05.
(c) For purposes of this section,”eligible person” means a person
who was convicted of an offense that requires him or her to register
as a sex offender pursuant to the Sex Offender Registration Act and
who is eligible for assessment, pursuant to the official Coding Rules
designated for use with the risk assessment instrument by the author
of any risk assessment instrument (SARATSO) selected by the SARATSO
Review Committee.
(d) Persons authorized to perform risk assessments pursuant to
this section, Section 1203, and Section 706 of the Welfare and
Institutions Code shall be immune from liability for good faith
conduct under this act.
290.07. Notwithstanding any other provision of law, a person
authorized by statute to administer the State Authorized Risk
Assessment Tool for Sex Offenders (SARATSO) and trained pursuant to
Section 290.06 or 290.09, and a person acting under authority from
the SARATSO Review Committee as an expert to train, monitor, or
review scoring by persons who administer the SARATSO pursuant to
Section 290.05 or 1203 of this code or Section 706 of the Welfare and
Institutions Code, shall be granted access to all relevant records
pertaining to a registered sex offender, including, but not limited
to, criminal histories, sex offender registration records, police
reports, probation and presentencing reports, judicial records and
case files, juvenile records, psychological evaluations and
psychiatric hospital reports, sexually violent predator treatment
program reports, and records that have been sealed by the courts or
the Department of Justice. Records and information obtained under
this section shall not be subject to the California Public Records
Act, Chapter 3.5 (commencing with Section 6250) of Division 7 of
Title 1 of the Government Code.
290.08. Every district attorney’s office and the Department of
Justice shall retain records relating to a person convicted of an
offense for which registration is required pursuant to Section 290
for a period of 75 years after disposition of the case.
290.09. On or before July 2012, the SARATSO dynamic tool and the
SARATSO future violence tool, as set forth in Section 290.04, shall
be administered as follows:
(a) (1) Every sex offender required to register pursuant to
Sections 290 to 290.023, inclusive, shall, while on parole or formal
probation, participate in an approved sex offender management
program, pursuant to Sections 1203.067 and 3008.
(2) The sex offender management program shall meet the
certification requirements developed by the California Sex Offender
Management Board pursuant to Section 9003. Probation departments and
the Department of Corrections and Rehabilitation shall not employ or
contract with, and shall not allow a sex offender to employ or
contract with, any individual or entity to provide sex offender
evaluation or treatment services pursuant to this section unless the
sex offender evaluation or treatment services to be provided by the
individual or entity conforms with the standards developed pursuant
to Section 9003.
(b) (1) The sex offender management professionals certified by the
California Sex Offender Management Board in accordance with Section
9003 who provide sex offender management programs for any probation
department or the Department of Corrections and Rehabilitation shall
assess each registered sex offender on formal probation or parole
using the SARATSO dynamic tool, when a dynamic risk factor changes,
and shall do a final dynamic assessment within six months of the
offender’s release from supervision. The management professional
shall also assess the sex offenders in the program with the SARATSO
future violence tool.
(2) The certified sex offender management professional shall, as
soon as possible but not later than 30 days after the assessment,
provide the person’s score on the SARATSO dynamic tool and the future
violence tool to the person’s parole agent or probation officer.
Within five working days of receipt of the score, the parole or
probation officer shall send the score to the Department of Justice,
and the score shall be accessible to law enforcement through the
Department of Justice’s Internet Web site for the California Sex and
Arson Registry (CSAR).
(c) The certified sex offender management professional shall
communicate with the offender’s probation officer or parole agent on
a regular basis, but at least once a month, about the offender’s
progress in the program and dynamic risk assessment issues, and shall
share pertinent information with the certified polygraph examiner as
required.
(d) The SARATSO Training Committee shall provide annual training
on the SARATSO dynamic tool and the SARATSO future violence tool.
Certified sex offender management professionals shall attend this
training once to obtain authorization to perform the assessments, and
thereafter attend training updates as required by the SARATSO
Training Committee. If a sex offender management professional is
certified pursuant to Section 9003 to conduct an approved sex
offender management program prior to attending SARATSO training on
the dynamic and violent risk assessment tools, he or she shall
present to the SARATSO Training Committee proof of training on these
tools from a risk assessment expert approved by the SARATSO Training
Committee.
290.3. (a) Every person who is convicted of any offense specified
in subdivision (c) of Section 290 shall, in addition to any
imprisonment or fine, or both, imposed for commission of the
underlying offense, be punished by a fine of three hundred dollars
($300) upon the first conviction or a fine of five hundred dollars
($500) upon the second and each subsequent conviction, unless the
court determines that the defendant does not have the ability to pay
the fine.
An amount equal to all fines collected pursuant to this
subdivision during the preceding month upon conviction of, or upon
the forfeiture of bail by, any person arrested for, or convicted of,
committing an offense specified in subdivision (c) of Section 290,
shall be transferred once a month by the county treasurer to the
Controller for deposit in the General Fund. Moneys deposited in the
General Fund pursuant to this subdivision shall be transferred by the
Controller as provided in subdivision (b).
(b) Except as provided in subdivision (d), out of the moneys
deposited pursuant to subdivision (a) as a result of second and
subsequent convictions of Section 290, one-third shall first be
transferred to the Department of Justice Sexual Habitual Offender
Fund, as provided in paragraph (1) of this subdivision. Out of the
remainder of all moneys deposited pursuant to subdivision (a), 50
percent shall be transferred to the Department of Justice Sexual
Habitual Offender Fund, as provided in paragraph (1), 25 percent
shall be transferred to the DNA Identification Fund, as established
by Section 76104.6 of the Government Code, and 25 percent shall be
allocated equally to counties that maintain a local DNA testing
laboratory, as provided in paragraph (2).
(1) Those moneys so designated shall be transferred to the
Department of Justice Sexual Habitual Offender Fund created pursuant
to paragraph (5) of subdivision (b) of Section 11170 and, when
appropriated by the Legislature, shall be used for the purposes of
Chapter 9.5 (commencing with Section 13885) and Chapter 10
(commencing with Section 13890) of Title 6 of Part 4 for the purpose
of monitoring, apprehending, and prosecuting sexual habitual
offenders.
(2) Those moneys so designated shall be allocated equally and
distributed quarterly to counties that maintain a local DNA testing
laboratory. Before making any allocations under this paragraph, the
Controller shall deduct the estimated costs that will be incurred to
set up and administer the payment of these funds to the counties. Any
funds allocated to a county pursuant to this paragraph shall be used
by that county for the exclusive purpose of testing DNA samples for
law enforcement purposes.
(c) Notwithstanding any other provision of this section, the
Department of Corrections and Rehabilitation may collect a fine
imposed pursuant to this section from a person convicted of a
violation of any offense listed in subdivision (c) of Section 290,
that results in incarceration in a facility under the jurisdiction of
the Department of Corrections and Rehabilitation. All moneys
collected by the Department of Corrections and Rehabilitation under
this subdivision shall be transferred, once a month, to the
Controller for deposit in the General Fund, as provided in
subdivision (a), for transfer by the Controller, as provided in
subdivision (b).
(d) An amount equal to one-third of every first conviction fine
collected and one-fifth of every second conviction fine collected
pursuant to subdivision (a) shall be transferred to the Department of
Corrections and Rehabilitation to help defray the cost of the global
positioning system used to monitor sex offender parolees.
290.4. (a) The department shall operate a service through which
members of the public may provide a list of at least six persons on a
form approved by the Department of Justice and inquire whether any
of those persons is required to register as a sex offender and is
subject to public notification. The Department of Justice shall
respond with information on any person as to whom information may be
available to the public via the Internet Web site as provided in
Section 290.46, to the extent that information may be disclosed
pursuant to Section 290.46. The Department of Justice may establish a
fee for requests, including all actual and reasonable costs
associated with the service.
(b) The income from the operation of the service specified in
subdivision (a) shall be deposited in the Sexual Predator Public
Information Account within the Department of Justice for the purpose
of the implementation of this section by the Department of Justice.
The moneys in the account shall consist of income from the
operation of the service authorized by subdivision (a), and any other
funds made available to the account by the Legislature. Moneys in
the account shall be available to the Department of Justice upon
appropriation by the Legislature for the purpose specified in
subdivision (a).
(c) (1) Any person who uses information disclosed pursuant to this
section to commit a felony shall be punished, in addition and
consecutive to, any other punishment, by a five-year term of
imprisonment pursuant to subdivision (h) of Section 1170.
(2) Any person who, without authorization, uses information
disclosed pursuant to this section to commit a misdemeanor shall be
subject to, in addition to any other penalty or fine imposed, a fine
of not less than five hundred dollars ($500) and not more than one
thousand dollars ($1,000).
(d) (1) A person is authorized to use information disclosed
pursuant to this section only to protect a person at risk.
(2) Except as authorized under paragraph (1) or any other
provision of law, use of any information that is disclosed pursuant
to this section for purposes relating to any of the following is
prohibited:
(A) Health insurance.
(B) Insurance.
(C) Loans.
(D) Credit.
(E) Employment.
(F) Education, scholarships, or fellowships.
(G) Housing or accommodations.
(H) Benefits, privileges, or services provided by any business
establishment.
(3) This section shall not affect authorized access to, or use of,
information pursuant to, among other provisions, Sections 11105 and
11105.3 of this code, Section 226.55 of the Civil Code, Sections
777.5 and 14409.2 of the Financial Code, Sections 1522.01 and
1596.871 of the Health and Safety Code, and Section 432.7 of the
Labor Code.
(4) (A) Any use of information disclosed pursuant to this section
for purposes other than those provided by paragraph (1) or in
violation of paragraph (2) shall make the user liable for the actual
damages, and any amount that may be determined by a jury or a court
sitting without a jury, not exceeding three times the amount of
actual damage, and not less than two hundred fifty dollars ($250),
and attorney’s fees, exemplary damages, or a civil penalty not
exceeding twenty-five thousand dollars ($25,000).
(B) Whenever there is reasonable cause to believe that any person
or group of persons is engaged in a pattern or practice of misuse of
the service specified in subdivision (a), in violation of paragraph
(2), the Attorney General, any district attorney, or city attorney,
or any person aggrieved by the misuse of the service is authorized to
bring a civil action in the appropriate court requesting preventive
relief, including an application for a permanent or temporary
injunction, restraining order, or other order against the person or
group of persons responsible for the pattern or practice of misuse.
The foregoing remedies shall be independent of any other remedies or
procedures that may be available to an aggrieved party under other
provisions of law, including Part 2 (commencing with Section 43) of
Division 1 of the Civil Code.
(e) The Department of Justice and its employees shall be immune
from liability for good faith conduct under this section.
(f) The public notification provisions of this section are
applicable to every person described in subdivision (a), without
regard to when his or her crimes were committed or his or her duty to
register pursuant to Section 290 arose, and to every offense subject
to public notification pursuant to Section 290.46, regardless of
when it was committed.
290.45. (a) (1) Notwithstanding any other provision of law, and
except as provided in paragraph (2), any designated law enforcement
entity may provide information to the public about a person required
to register as a sex offender pursuant to Section 290, by whatever
means the entity deems appropriate, when necessary to ensure the
public safety based upon information available to the entity
concerning that specific person.
(2) The law enforcement entity shall include, with the disclosure,
a statement that the purpose of the release of information is to
allow members of the public to protect themselves and their children
from sex offenders.
(3) Community notification by way of an Internet Web site shall be
governed by Section 290.46, and a designated law enforcement entity
may not post on an Internet Web site any information identifying an
individual as a person required to register as a sex offender except
as provided in that section unless there is a warrant outstanding for
that person’s arrest.
(b) Information that may be provided pursuant to subdivision (a)
may include, but is not limited to, the offender’s name, known
aliases, gender, race, physical description, photograph, date of
birth, address, which shall be verified prior to publication,
description and license plate number of the offender’s vehicles or
vehicles the offender is known to drive, type of victim targeted by
the offender, relevant parole or probation conditions, crimes
resulting in classification under this section, and date of release
from confinement, but excluding information that would identify the
victim.
(c) (1) The designated law enforcement entity may authorize
persons and entities who receive the information pursuant to this
section to disclose information to additional persons only if the
entity determines that disclosure to the additional persons will
enhance the public safety and identifies the appropriate scope of
further disclosure. A law enforcement entity may not authorize any
disclosure of this information by its placement on an Internet Web
site.
(2) A person who receives information from a law enforcement
entity pursuant to paragraph (1) may disclose that information only
in the manner and to the extent authorized by the law enforcement
entity.
(d) (1) A designated law enforcement entity and its employees
shall be immune from liability for good faith conduct under this
section.
(2) Any public or private educational institution, day care
facility, or any child care custodian described in Section 11165.7,
or any employee of a public or private educational institution or day
care facility which in good faith disseminates information as
authorized pursuant to subdivision (c) shall be immune from civil
liability.
(e) (1) Any person who uses information disclosed pursuant to this
section to commit a felony shall be punished, in addition and
consecutive to any other punishment, by a five-year term of
imprisonment pursuant to subdivision (h) of Section 1170.
(2) Any person who uses information disclosed pursuant to this
section to commit a misdemeanor shall be subject to, in addition to
any other penalty or fine imposed, a fine of not less than five
hundred dollars ($500) and not more than one thousand dollars
($1,000).
(f) For purposes of this section, “designated law enforcement
entity” means the Department of Justice, every district attorney, the
Department of Corrections, the Department of the Youth Authority,
and every state or local agency expressly authorized by statute to
investigate or prosecute law violators.
(g) The public notification provisions of this section are
applicable to every person required to register pursuant to Section
290, without regard to when his or her crimes were committed or his
or her duty to register pursuant to Section 290 arose, and to every
offense described in Section 290, regardless of when it was
committed.
290.46. (a) (1) On or before the dates specified in this section,
the Department of Justice shall make available information concerning
persons who are required to register pursuant to Section 290 to the
public via an Internet Web site as specified in this section. The
department shall update the Internet Web site on an ongoing basis.
All information identifying the victim by name, birth date, address,
or relationship to the registrant shall be excluded from the Internet
Web site. The name or address of the person’s employer and the
listed person’s criminal history other than the specific crimes for
which the person is required to register shall not be included on the
Internet Web site. The Internet Web site shall be translated into
languages other than English as determined by the department.
(2) (A) On or before July 1, 2010, the Department of Justice shall
make available to the public, via an Internet Web site as specified
in this section, as to any person described in subdivision (b), (c),
or (d), the following information:
(i) The year of conviction of his or her most recent offense
requiring registration pursuant to Section 290.
(ii) The year he or she was released from incarceration for that
offense.
(iii) Whether he or she was subsequently incarcerated for any
other felony, if that fact is reported to the department. If the
department has no information about a subsequent incarceration for
any felony, that fact shall be noted on the Internet Web site.
However, no year of conviction shall be made available to the
public unless the department also is able to make available the
corresponding year of release of incarceration for that offense, and
the required notation regarding any subsequent felony.
(B) (i) Any state facility that releases from incarceration a
person who was incarcerated because of a crime for which he or she is
required to register as a sex offender pursuant to Section 290
shall, within 30 days of release, provide the year of release for his
or her most recent offense requiring registration to the Department
of Justice in a manner and format approved by the department.
(ii) Any state facility that releases a person who is required to
register pursuant to Section 290 from incarceration whose
incarceration was for a felony committed subsequently to the offense
for which he or she is required to register shall, within 30 days of
release, advise the Department of Justice of that fact.
(iii) Any state facility that, prior to January 1, 2007, released
from incarceration a person who was incarcerated because of a crime
for which he or she is required to register as a sex offender
pursuant to Section 290 shall provide the year of release for his or
her most recent offense requiring registration to the Department of
Justice in a manner and format approved by the department. The
information provided by the Department of Corrections and
Rehabilitation shall be limited to information that is currently
maintained in an electronic format.
(iv) Any state facility that, prior to January 1, 2007, released a
person who is required to register pursuant to Section 290 from
incarceration whose incarceration was for a felony committed
subsequently to the offense for which he or she is required to
register shall advise the Department of Justice of that fact in a
manner and format approved by the department. The information
provided by the Department of Corrections and Rehabilitation shall be
limited to information that is currently maintained in an electronic
format.
(3) The State Department of State Hospitals shall provide to the
Department of Justice Sex Offender Tracking Program the names of all
persons committed to its custody pursuant to Article 4 (commencing
with Section 6600) of Chapter 2 of Part 2 of Division 6 of the
Welfare and Institutions Code, within 30 days of commitment, and
shall provide the names of all of those persons released from its
custody within five working days of release.
(b) (1) On or before July 1, 2005, with respect to a person who
has been convicted of the commission or the attempted commission of
any of the offenses listed in, or who is described in, paragraph (2),
the Department of Justice shall make available to the public via the
Internet Web site his or her name and known aliases, a photograph, a
physical description, including gender and race, date of birth,
criminal history, prior adjudication as a sexually violent predator,
the address at which the person resides, and any other information
that the Department of Justice deems relevant, but not the
information excluded pursuant to subdivision (a). On or before
January 1, 2013, the department shall make available to the public
via the Internet Web site his or her static SARATSO score and
information on an elevated risk level based on the SARATSO future
violence tool.
(2) This subdivision shall apply to the following offenses and
offenders:
(A) Section 187 committed in the perpetration, or an attempt to
perpetrate, rape or any act punishable under Section 286, 288, 288a,
or 289.
(B) Section 207 committed with intent to violate Section 261, 286,
288, 288a, or 289.
(C) Section 209 committed with intent to violate Section 261, 286,
288, 288a, or 289.
(D) Paragraph (2) or (6) of subdivision (a) of Section 261.
(E) Section 264.1.
(F) Section 269.
(G) Subdivision (c) or (d) of Section 286.
(H) Subdivision (a), (b), or (c) of Section 288, provided that the
offense is a felony.
(I) Subdivision (c) or (d) of Section 288a.
(J) Section 288.3, provided that the offense is a felony.
(K) Section 288.4, provided that the offense is a felony.
(L) Section 288.5.
(M) Subdivision (a) or (j) of Section 289.
(N) Section 288.7.
(O) Any person who has ever been adjudicated a sexually violent
predator, as defined in Section 6600 of the Welfare and Institutions
Code.
(P) A felony violation of Section 311.1.
(Q) A felony violation of subdivision (b), (c), or (d) of Section
311.2.
(R) A felony violation of Section 311.3.
(S) A felony violation of subdivision (a), (b), or (c) of Section
311.4.
(T) Section 311.10.
(U) A felony violation of Section 311.11.
(c) (1) On or before July 1, 2005, with respect to a person who
has been convicted of the commission or the attempted commission of
any of the offenses listed in paragraph (2), the Department of
Justice shall make available to the public via the Internet Web site
his or her name and known aliases, a photograph, a physical
description, including gender and race, date of birth, criminal
history, the community of residence and ZIP Code in which the person
resides or the county in which the person is registered as a
transient, and any other information that the Department of Justice
deems relevant, but not the information excluded pursuant to
subdivision (a). On or before July 1, 2006, the Department of Justice
shall determine whether any person convicted of an offense listed in
paragraph (2) also has one or more prior or subsequent convictions
of an offense listed in subdivision (c) of Section 290, and, for
those persons, the Department of Justice shall make available to the
public via the Internet Web site the address at which the person
resides. However, the address at which the person resides shall not
be disclosed until a determination is made that the person is, by
virtue of his or her additional prior or subsequent conviction of an
offense listed in subdivision (c) of Section 290, subject to this
subdivision.
(2) This subdivision shall apply to the following offenses:
(A) Section 220, except assault to commit mayhem.
(B) Paragraph (1), (3), or (4) of subdivision (a) of Section 261.
(C) Paragraph (2) of subdivision (b), or subdivision (f), (g), or
(i), of Section 286.
(D) Paragraph (2) of subdivision (b), or subdivision (f), (g), or
(i), of Section 288a.
(E) Subdivision (b), (d), (e), or (i) of Section 289.
(d) (1) On or before July 1, 2005, with respect to a person who
has been convicted of the commission or the attempted commission of
any of the offenses listed in, or who is described in, this
subdivision, the Department of Justice shall make available to the
public via the Internet Web site his or her name and known aliases, a
photograph, a physical description, including gender and race, date
of birth, criminal history, the community of residence and ZIP Code
in which the person resides or the county in which the person is
registered as a transient, and any other information that the
Department of Justice deems relevant, but not the information
excluded pursuant to subdivision (a) or the address at which the
person resides.
(2) This subdivision shall apply to the following offenses and
offenders:
(A) Subdivision (a) of Section 243.4, provided that the offense is
a felony.
(B) Section 266, provided that the offense is a felony.
(C) Section 266c, provided that the offense is a felony.
(D) Section 266j.
(E) Section 267.
(F) Subdivision (c) of Section 288, provided that the offense is a
misdemeanor.
(G) Section 288.3, provided that the offense is a misdemeanor.
(H) Section 288.4, provided that the offense is a misdemeanor.
(I) Section 626.81.
(J) Section 647.6.
(K) Section 653c.
(L) Any person required to register pursuant to Section 290 based
upon an out-of-state conviction, unless that person is excluded from
the Internet Web site pursuant to subdivision (e). However, if the
Department of Justice has determined that the out-of-state crime, if
committed or attempted in this state, would have been punishable in
this state as a crime described in subdivision (c) of Section 290,
the person shall be placed on the Internet Web site as provided in
subdivision (b) or (c), as applicable to the crime.
(e) (1) If a person has been convicted of the commission or the
attempted commission of any of the offenses listed in this
subdivision, and he or she has been convicted of no other offense
listed in subdivision (b), (c), or (d) other than those listed in
this subdivision, that person may file an application with the
Department of Justice, on a form approved by the department, for
exclusion from the Internet Web site. If the department determines
that the person meets the requirements of this subdivision, the
department shall grant the exclusion and no information concerning
the person shall be made available via the Internet Web site
described in this section. He or she bears the burden of proving the
facts that make him or her eligible for exclusion from the Internet
Web site. However, a person who has filed for or been granted an
exclusion from the Internet Web site is not relieved of his or her
duty to register as a sex offender pursuant to Section 290 nor from
any otherwise applicable provision of law.
(2) This subdivision shall apply to the following offenses:
(A) A felony violation of subdivision (a) of Section 243.4.
(B) Section 647.6, if the offense is a misdemeanor.
(C) A felony violation of Section 311.1, subdivision (b), (c), or
(d) of Section 311.2, or Section 311.3, 311.4, 311.10, or 311.11 if
the person submits to the department a certified copy of a probation
report filed in court that clearly states that all victims involved
in the commission of the offense were at least 16 years of age or
older at the time of the commission of the offense.
(D) (i) An offense for which the offender successfully completed
probation, provided that the offender submits to the department a
certified copy of a probation report, presentencing report, report
prepared pursuant to Section 288.1, or other official court document
that clearly demonstrates that the offender was the victim’s parent,
stepparent, sibling, or grandparent and that the crime did not
involve either oral copulation or penetration of the vagina or rectum
of either the victim or the offender by the penis of the other or by
any foreign object.
(ii) An offense for which the offender is on probation at the time
of his or her application, provided that the offender submits to the
department a certified copy of a probation report, presentencing
report, report prepared pursuant to Section 288.1, or other official
court document that clearly demonstrates that the offender was the
victim’s parent, stepparent, sibling, or grandparent and that the
crime did not involve either oral copulation or penetration of the
vagina or rectum of either the victim or the offender by the penis of
the other or by any foreign object.
(iii) If, subsequent to his or her application, the offender
commits a violation of probation resulting in his or her
incarceration in county jail or state prison, his or her exclusion,
or application for exclusion, from the Internet Web site shall be
terminated.
(iv) For the purposes of this subparagraph, “successfully
completed probation” means that during the period of probation the
offender neither received additional county jail or state prison time
for a violation of probation nor was convicted of another offense
resulting in a sentence to county jail or state prison.
(3) If the department determines that a person who was granted an
exclusion under a former version of this subdivision would not
qualify for an exclusion under the current version of this
subdivision, the department shall rescind the exclusion, make a
reasonable effort to provide notification to the person that the
exclusion has been rescinded, and, no sooner than 30 days after
notification is attempted, make information about the offender
available to the public on the Internet Web site as provided in this
section.
(4) Effective January 1, 2012, no person shall be excluded
pursuant to this subdivision unless the offender has submitted to the
department documentation sufficient for the department to determine
that he or she has a SARATSO risk level of low or moderate-low.
(f) The Department of Justice shall make a reasonable effort to
provide notification to persons who have been convicted of the
commission or attempted commission of an offense specified in
subdivision (b), (c), or (d), that on or before July 1, 2005, the
department is required to make information about specified sex
offenders available to the public via an Internet Web site as
specified in this section. The Department of Justice shall also make
a reasonable effort to provide notice that some offenders are
eligible to apply for exclusion from the Internet Web site.
(g) (1) A designated law enforcement entity, as defined in
subdivision (f) of Section 290.45, may make available information
concerning persons who are required to register pursuant to Section
290 to the public via an Internet Web site as specified in paragraph
(2).
(2) The law enforcement entity may make available by way of an
Internet Web site the information described in subdivision (c) if it
determines that the public disclosure of the information about a
specific offender by way of the entity’s Internet Web site is
necessary to ensure the public safety based upon information
available to the entity concerning that specific offender.
(3) The information that may be provided pursuant to this
subdivision may include the information specified in subdivision (b)
of Section 290.45. However, that offender’s address may not be
disclosed unless he or she is a person whose address is on the
Department of Justice’s Internet Web site pursuant to subdivision (b)
or (c).
(h) For purposes of this section, “offense” includes the statutory
predecessors of that offense, or any offense committed in another
jurisdiction that, if committed or attempted to be committed in this
state, would have been punishable in this state as an offense listed
in subdivision (c) of Section 290.
(i) Notwithstanding Section 6254.5 of the Government Code,
disclosure of information pursuant to this section is not a waiver of
exemptions under Chapter 3.5 (commencing with Section 6250) of Title
1 of Division 7 of the Government Code and does not affect other
statutory restrictions on disclosure in other situations.
(j) (1) Any person who uses information disclosed pursuant to this
section to commit a misdemeanor shall be subject to, in addition to
any other penalty or fine imposed, a fine of not less than ten
thousand dollars ($10,000) and not more than fifty thousand dollars
($50,000).
(2) Any person who uses information disclosed pursuant to this
section to commit a felony shall be punished, in addition and
consecutive to any other punishment, by a five-year term of
imprisonment pursuant to subdivision (h) of Section 1170.
(k) Any person who is required to register pursuant to Section 290
who enters an Internet Web site established pursuant to this section
shall be punished by a fine not exceeding one thousand dollars
($1,000), imprisonment in a county jail for a period not to exceed
six months, or by both that fine and imprisonment.
(l) (1) A person is authorized to use information disclosed
pursuant to this section only to protect a person at risk.
(2) Except as authorized under paragraph (1) or any other
provision of law, use of any information that is disclosed pursuant
to this section for purposes relating to any of the following is
prohibited:
(A) Health insurance.
(B) Insurance.
(C) Loans.
(D) Credit.
(E) Employment.
(F) Education, scholarships, or fellowships.
(G) Housing or accommodations.
(H) Benefits, privileges, or services provided by any business
establishment.
(3) This section shall not affect authorized access to, or use of,
information pursuant to, among other provisions, Sections 11105 and
11105.3, Section 8808 of the Family Code, Sections 777.5 and 14409.2
of the Financial Code, Sections 1522.01 and 1596.871 of the Health
and Safety Code, and Section 432.7 of the Labor Code.
(4) (A) Any use of information disclosed pursuant to this section
for purposes other than those provided by paragraph (1) or in
violation of paragraph (2) shall make the user liable for the actual
damages, and any amount that may be determined by a jury or a court
sitting without a jury, not exceeding three times the amount of
actual damage, and not less than two hundred fifty dollars ($250),
and attorney’s fees, exemplary damages, or a civil penalty not
exceeding twenty-five thousand dollars ($25,000).
(B) Whenever there is reasonable cause to believe that any person
or group of persons is engaged in a pattern or practice of misuse of
the information available via an Internet Web site established
pursuant to this section in violation of paragraph (2), the Attorney
General, any district attorney, or city attorney, or any person
aggrieved by the misuse is authorized to bring a civil action in the
appropriate court requesting preventive relief, including an
application for a permanent or temporary injunction, restraining
order, or other order against the person or group of persons
responsible for the pattern or practice of misuse. The foregoing
remedies shall be independent of any other remedies or procedures
that may be available to an aggrieved party under other provisions of
law, including Part 2 (commencing with Section 43) of Division 1 of
the Civil Code.
(m) The public notification provisions of this section are
applicable to every person described in this section, without regard
to when his or her crimes were committed or his or her duty to
register pursuant to Section 290 arose, and to every offense
described in this section, regardless of when it was committed.
(n) A designated law enforcement entity and its employees shall be
immune from liability for good faith conduct under this section.
(o) The Attorney General, in collaboration with local law
enforcement and others knowledgeable about sex offenders, shall
develop strategies to assist members of the public in understanding
and using publicly available information about registered sex
offenders to further public safety. These strategies may include, but
are not limited to, a hotline for community inquiries, neighborhood
and business guidelines for how to respond to information posted on
this Internet Web site, and any other resource that promotes public
education about these offenders.
290.47. The Department of Justice shall record the address at which
a registered sex offender resides with a unique identifier for the
address. The information for this identifier shall be captured
pursuant to Section 290.015 and the identifier shall consist of a
description of the nature of the dwelling, with the choices of a
single family residence, an apartment/condominium, a motel/hotel, or
a licensed facility. Each address and its association with any
specific registered sex offender shall be stored by the department in
the same database as the registration data recorded pursuant to
Section 290.015. The department shall make that information available
to the State Department of Social Services or any other state agency
when the agency needs the information for law enforcement purposes
relating to investigative responsibilities relative to sex offenders.
This section shall become operative on January 1, 2012.
290.5. (a) (1) A person required to register under Section 290 for
an offense not listed in paragraph (2), upon obtaining a certificate
of rehabilitation under Chapter 3.5 (commencing with Section 4852.01)
of Title 6 of Part 3, shall be relieved of any further duty to
register under Section 290 if he or she is not in custody, on parole,
or on probation.
(2) A person required to register under Section 290, upon
obtaining a certificate of rehabilitation under Chapter 3.5
(commencing with Section 4852.01) of Title 6 of Part 3, shall not be
relieved of the duty to register under Section 290, or of the duty to
register under Section 290 for any offense subject to that section
of which he or she is convicted in the future, if his or her
conviction is for one of the following offenses:
(A) Section 207 or 209 committed with the intent to violate
Section 261, 286, 288, 288a, or 289.
(B) Section 220, except assault to commit mayhem.
(C) Section 243.4, provided that the offense is a felony.
(D) Paragraph (1), (2), (3), (4), or (6) of subdivision (a) of
Section 261.
(E) Section 264.1.
(F) Section 266, provided that the offense is a felony.
(G) Section 266c, provided that the offense is a felony.
(H) Section 266j.
(I) Section 267.
(J) Section 269.
(K) Paragraph (1) of subdivision (b) of Section 286, provided that
the offense is a felony.
(L) Paragraph (2) of subdivision (b) of, or subdivision (c), (d),
(f), (g), (i), (j), or (k) of, Section 286.
(M) Section 288.
(N) Paragraph (1) of subdivision (b) of Section 288a, provided
that the offense is a felony.
(O) Paragraph (2) of subdivision (b) of, or subdivision (c), (d),
(f), (g), (i), (j), or (k) of, Section 288a.
(P) Section 288.5.
(Q) Subdivision (a), (b), (d), (e), (f), (g), or (h) of Section
289, provided that the offense is a felony.
(R) Subdivision (i) or (j) of Section 289.
(S) Section 647.6.
(T) The attempted commission of any of the offenses specified in
this paragraph.
(U) The statutory predecessor of any of the offenses specified in
this paragraph.
(V) Any offense which, if committed or attempted in this state,
would have been punishable as one or more of the offenses specified
in this paragraph.
(b) (1) Except as provided in paragraphs (2) and (3), a person
described in paragraph (2) of subdivision (a) shall not be relieved
of the duty to register until that person has obtained a full pardon
as provided in Chapter 1 (commencing with Section 4800) or Chapter 3
(commencing with Section 4850) of Title 6 of Part 3.
(2) This subdivision does not apply to misdemeanor violations of
Section 647.6.
(3) The court, upon granting a petition for a certificate of
rehabilitation pursuant to Chapter 3.5 (commencing with Section
4852.01) of Title 6 of Part 3, if the petition was granted prior to
January 1, 1998, may relieve a person of the duty to register under
Section 290 for a violation of Section 288 or 288.5, provided that
the person was granted probation pursuant to subdivision (c) of
Section 1203.066, has complied with the provisions of Section 290 for
a continuous period of at least 10 years immediately preceding the
filing of the petition, and has not been convicted of a felony during
that period.
290.6. (a) Fifteen days before the scheduled release date of a
person described in subdivision (b), the Department of Corrections
and Rehabilitation shall provide to local law enforcement all of the
following information regarding the person:
(1) Name.
(2) Community residence and address, including ZIP Code.
(3) Physical description.
(4) Conviction information.
(b) This subdivision shall apply to any person sentenced to the
state prison who is required to register pursuant to Section 290 for
a conviction of an offense specified in subdivision (b), (c), or (d)
of Section 290.46 and to any person described in those subdivisions.
(c) For the purpose of this section, “law enforcement” includes
any agency with which the person will be required to register upon
his or her release pursuant to Section 290 based upon the person’s
community of residence upon release.
(d) If it is not possible for the Department of Corrections and
Rehabilitation to provide the information specified in subdivision
(a) on a date that is 15 days before the scheduled release date, the
information shall be provided on the next business day following that
date.
(e) The Department of Corrections and Rehabilitation shall notify
local law enforcement within 36 hours of learning of the change if
the scheduled release date or any of the required information changes
prior to the scheduled release date.
290.7. The Department of Corrections shall provide samples of blood
and saliva taken from a prison inmate pursuant to the DNA and
Forensic Identification Data Base and Data Bank Act of 1998 (Chapter
6 (commencing with Section 295) of Title 9 of Part 1 of the Penal
Code) to the county in which the inmate is to be released if the
county maintains a local DNA testing laboratory.
290.8. Effective January 1, 1999, any local law enforcement agency
that does not register sex offenders during regular daytime business
hours on a daily basis, excluding weekends and holidays, shall notify
the regional parole office for the Department of Corrections and the
regional parole office for the Department of the Youth Authority of
the days, times, and locations the agency is available for
registration of sex offenders pursuant to Section 290.
290.85. (a) Every person released on probation or parole who is
required to register as a sex offender, pursuant to Section 290,
shall provide proof of registration to his or her probation officer
or parole agent within six working days of release on probation or
parole. The six-day period for providing proof of registration may be
extended only upon determination by the probation officer or parole
agent that unusual circumstances exist relating to the availability
of local law enforcement registration capabilities that preclude the
person’s ability to meet the deadline.
(b) Every person released on probation or parole who is required
to register as a sex offender pursuant to Section 290 shall provide
proof of any change or update to his or her registration information
to his or her probation officer or parole agent within five working
days for so long as he or she is required to be under the supervision
of a probation officer or parole agent.
(c) A probation officer or parole agent who supervises an
individual who is required to register as a sex offender pursuant to
Section 290 shall inform that individual of his or her duties under
this section not fewer than six days prior to the date on which proof
of registration or proof of any change or update to registration
information is to be provided to the probation officer or parole
agent.
(d) For purposes of this section, “proof of registration” means a
photocopy of the actual registration form. A law enforcement agency
that registers an individual as a sex offender pursuant to Section
290 who is released on probation or parole and is therefore subject
to this section shall provide that individual with proof of his or
her registration free of charge when requested by the registrant to
fulfill the requirements of this section or any other provision of
law.
290.9. Notwithstanding any other provision of law, any state or
local governmental agency shall, upon written request, provide to the
Department of Justice the address of any person represented by the
department to be a person who is in violation of his or her duty to
register under Section 290.
290.95. (a) Every person required to register under Section 290,
who applies for or accepts a position as an employee or volunteer
with any person, group, or organization where the registrant would be
working directly and in an unaccompanied setting with minor children
on more than an incidental and occasional basis or have supervision
or disciplinary power over minor children, shall disclose his or her
status as a registrant, upon application or acceptance of a position,
to that person, group, or organization.
(b) Every person required to register under Section 290 who
applies for or accepts a position as an employee or volunteer with
any person, group, or organization where the applicant would be
working directly and in an accompanied setting with minor children,
and the applicant’s work would require him or her to touch the minor
children on more than an incidental basis, shall disclose his or her
status as a registrant, upon application or acceptance of the
position, to that person, group, or organization.
(c) No person who is required to register under Section 290
because of a conviction for a crime where the victim was a minor
under 16 years of age shall be an employer, employee, or independent
contractor, or act as a volunteer with any person, group, or
organization in a capacity in which the registrant would be working
directly and in an unaccompanied setting with minor children on more
than an incidental and occasional basis or have supervision or
disciplinary power over minor children. This subdivision shall not
apply to a business owner or an independent contractor who does not
work directly in an unaccompanied setting with minors.
(d) For purposes of this section, “working directly and in an
unaccompanied setting” includes, but is not limited to, providing
goods or services to minors.
(e) A violation of this section is a misdemeanor punishable by
imprisonment in a county jail for not exceeding six months, by a fine
not exceeding one thousand dollars ($1,000), or by both that
imprisonment and fine, and a violation of this section shall not
constitute a continuing offense.
291. Every sheriff, chief of police, or the Commissioner of the
California Highway Patrol, upon the arrest for any of the offenses
enumerated in Section 290, subdivision (a) of Section 261, or Section
44010 of the Education Code, of any school employee, shall, provided
that he or she knows that the arrestee is a school employee, do
either of the following:
(a) If the school employee is a teacher in any of the public
schools of this state, the sheriff, chief of police, or Commissioner
of the California Highway Patrol shall immediately notify by
telephone the superintendent of schools of the school district
employing the teacher and shall immediately give written notice of
the arrest to the Commission on Teacher Credentialing and to the
superintendent of schools in the county where the person is employed.
Upon receipt of the notice, the county superintendent of schools and
the Commission on Teacher Credentialing shall immediately notify the
governing board of the school district employing the person.
(b) If the school employee is a nonteacher in any of the public
schools of this state, the sheriff, chief of police, or Commissioner
of the California Highway Patrol shall immediately notify by
telephone the superintendent of schools of the school district
employing the nonteacher and shall immediately give written notice of
the arrest to the governing board of the school district employing
the person.
291.1. Every sheriff or chief of police, or Commissioner of the
California Highway Patrol, upon the arrest for any of the offenses
enumerated in Section 290 or Section 44010 of the Education Code, of
any person who is employed as a teacher in any private school of this
state, shall, provided that he or she knows that the arrestee is a
school employee, immediately give written notice of the arrest to the
private school authorities employing the teacher. The sheriff, chief
of police, or Commissioner of the California Highway Patrol,
provided that he or she knows that the arrestee is a school employee,
shall immediately notify by telephone the private school authorities
employing the teacher of the arrest.
291.5. Every sheriff or chief of police, upon the arrest for any of
the offenses enumerated in Section 290 or in subdivision (1) of
Section 261 of any teacher or instructor employed in any community
college district shall immediately notify by telephone the
superintendent of the community college district employing the
teacher or instructor and shall immediately give written notice of
the arrest to the Office of the Chancellor of the California
Community Colleges. Upon receipt of such notice, the district
superintendent shall immediately notify the governing board of the
community college district employing the person.
292. It is the intention of the Legislature in enacting this
section to clarify that for the purposes of subdivisions (b) and (c)
of Section 12 of Article I of the California Constitution, a
violation of paragraph (2) or (6) of subdivision (a) of Section 261,
paragraph (1) or (4) of subdivision (a) of Section 262, Section
264.1, subdivision (c) or (d) of Section 286, subdivision (b) of
Section 288, subdivision (c) or (d) of Section 288a, or subdivision
(a) of Section 289, shall be deemed to be a felony offense involving
an act of violence and a felony offense involving great bodily harm.
293. (a) An employee of a law enforcement agency who personally
receives a report from a person, alleging that the person making the
report has been the victim of a sex offense, or was forced to commit
an act of prostitution because he or she is the victim of human
trafficking, as defined in Section 236.1, shall inform that person
that his or her name will become a matter of public record unless he
or she requests that it not become a matter of public record,
pursuant to Section 6254 of the Government Code.
(b) A written report of an alleged sex offense shall indicate that
the alleged victim has been properly informed pursuant to
subdivision (a) and shall memorialize his or her response.
(c) A law enforcement agency shall not disclose to a person,
except the prosecutor, parole officers of the Department of
Corrections and Rehabilitation, hearing officers of the parole
authority, probation officers of county probation departments, or
other persons or public agencies where authorized or required by law,
the address of a person who alleges to be the victim of a sex
offense or who was forced to commit an act of prostitution because he
or she is the victim of human trafficking, as defined in Section
236.1.
(d) A law enforcement agency shall not disclose to a person,
except the prosecutor, parole officers of the Department of
Corrections and Rehabilitation, hearing officers of the parole
authority, probation officers of county probation departments, or
other persons or public agencies where authorized or required by law,
the name of a person who alleges to be the victim of a sex offense
or who was forced to commit an act of prostitution because he or she
is the victim of human trafficking, as defined in Section 236.1, if
that person has elected to exercise his or her right pursuant to this
section and Section 6254 of the Government Code.
(e) For purposes of this section, sex offense means any crime
listed in paragraph (2) of subdivision (f) of Section 6254 of the
Government Code.
(f) Parole officers of the Department of Corrections and
Rehabilitation, hearing officers of the parole authority, and
probation officers of county probation departments shall be entitled
to receive information pursuant to subdivisions (c) and (d) only if
the person to whom the information pertains alleges that he or she is
the victim of a sex offense or was forced to commit an act of
prostitution because he or she is the victim of human trafficking, as
defined in Section 236.1, the alleged perpetrator of which is a
parolee who is alleged to have committed the offense while on parole,
or in the case of a county probation officer, the person who is
alleged to have committed the offense is a probationer or is under
investigation by a county probation department.
293.5. (a) Except as provided in Chapter 10 (commencing with
Section 1054) of Part 2 of Title 7, or for cases in which the alleged
victim of a sex offense, as specified in subdivision (e) of Section
293, has not elected to exercise his or her right pursuant to Section
6254 of the Government Code, the court, at the request of the
alleged victim, may order the identity of the alleged victim in all
records and during all proceedings to be either Jane Doe or John Doe,
if the court finds that such an order is reasonably necessary to
protect the privacy of the person and will not unduly prejudice the
prosecution or the defense.
(b) If the court orders the alleged victim to be identified as
Jane Doe or John Doe pursuant to subdivision (a) and if there is a
jury trial, the court shall instruct the jury, at the beginning and
at the end of the trial, that the alleged victim is being so
identified only for the purpose of protecting his or her privacy
pursuant to this section.
294. (a) Upon conviction of any person for a violation of Section
273a, 273d, 288.5, 311.2, 311.3, or 647.6, the court may, in addition
to any other penalty or restitution fine imposed, order the
defendant to pay a restitution fine based on the defendant’s ability
to pay not to exceed five thousand dollars ($5,000), upon a felony
conviction, or one thousand dollars ($1,000), upon a misdemeanor
conviction, to be deposited in the Restitution Fund to be transferred
to the county children’s trust fund for the purposes of child abuse
prevention.
(b) Upon conviction of any person for a violation of Section 261,
264.1, 285, 286, 288a, or 289 where the violation is with a minor
under the age of 14 years, the court may, in addition to any other
penalty or restitution fine imposed, order the defendant to pay a
restitution fine based on the defendant’s ability to pay not to
exceed five thousand dollars ($5,000), upon a felony conviction, or
one thousand dollars ($1,000), upon a misdemeanor conviction, to be
deposited in the Restitution Fund to be transferred to the county
children’s trust fund for the purpose of child abuse prevention.
(c) If the perpetrator is a member of the immediate family of the
victim, the court shall consider in its decision to impose a fine
under this section any hardship that may impact the victim from the
imposition of the fine.
(d) If the court orders a fine to be imposed pursuant to this
section, 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.
CHAPTER 6. DNA AND FORENSIC IDENTIFICATION DATA BASE AND
DATA BANK ACT OF 1998
Article 1. Purpose and Administration
PENAL CODE
SECTION 295-295.1
295. (a) This chapter shall be known and may be cited as the DNA
and Forensic Identification Database and Data Bank Act of 1998, as
amended.
(b) The people of the State of California set forth all of the
following:
(1) Deoxyribonucleic acid (DNA) and forensic identification
analysis is a useful law enforcement tool for identifying and
prosecuting criminal offenders and exonerating the innocent.
(2) It is the intent of the people of the State of California, in
order to further the purposes of this chapter, to require DNA and
forensic identification data bank samples from all persons, including
juveniles, for the felony and misdemeanor offenses described in
subdivision (a) of Section 296.
(3) It is necessary to enact this act defining and governing the
state’s DNA and forensic identification database and data bank in
order to clarify existing law and to enable the state’s DNA and
Forensic Identification Database and Data Bank Program to become a
more effective law enforcement tool.
(c) The purpose of the DNA and Forensic Identification Database
and Data Bank Program is to assist federal, state, and local criminal
justice and law enforcement agencies within and outside California
in the expeditious and accurate detection and prosecution of
individuals responsible for sex offenses and other crimes, the
exclusion of suspects who are being investigated for these crimes,
and the identification of missing and unidentified persons,
particularly abducted children.
(d) Like the collection of fingerprints, the collection of DNA
samples pursuant to this chapter is an administrative requirement to
assist in the accurate identification of criminal offenders.
(e) Unless otherwise requested by the Department of Justice,
collection of biological samples for DNA analysis from qualifying
persons under this chapter is limited to collection of inner cheek
cells of the mouth (buccal swab samples).
(f) The Department of Justice DNA Laboratory may obtain through
federal, state, or local law enforcement agencies blood specimens
from qualifying persons as defined in subdivision (a) of Section 296,
and according to procedures set forth in Section 298, when it is
determined in the discretion of the Department of Justice that such
specimens are necessary in a particular case or would aid the
department in obtaining an accurate forensic DNA profile for
identification purposes.
(g) The Department of Justice, through its DNA Laboratory, shall
be responsible for the management and administration of the state’s
DNA and Forensic Identification Database and Data Bank Program and
for liaison with the Federal Bureau of Investigation (FBI) regarding
the state’s participation in a national or international DNA database
and data bank program such as the FBI’s Combined DNA Index System
(CODIS) that allows the storage and exchange of DNA records submitted
by state and local forensic DNA laboratories nationwide.
(h) The Department of Justice shall be responsible for
implementing this chapter.
(1) The Department of Justice DNA Laboratory, and the Department
of Corrections and Rehabilitation may adopt policies and enact
regulations for the implementation of this chapter, as necessary, to
give effect to the intent and purpose of this chapter, and to ensure
that data bank blood specimens, buccal swab samples, and thumb and
palm print impressions as required by this chapter are collected from
qualifying persons in a timely manner, as soon as possible after
arrest, conviction, or a plea or finding of guilty, no contest, or
not guilty by reason of insanity, or upon any disposition rendered in
the case of a juvenile who is adjudicated under Section 602 of the
Welfare and Institutions Code for commission of any of this chapter’s
enumerated qualifying offenses, including attempts, or when it is
determined that a qualifying person has not given the required
specimens, samples or print impressions. Before adopting any policy
or regulation implementing this chapter, the Department of
Corrections and Rehabilitation shall seek advice from and consult
with the Department of Justice DNA Laboratory Director.
(2) Given the specificity of this chapter, and except as provided
in subdivision (c) of Section 298.1, any administrative bulletins,
notices, regulations, policies, procedures, or guidelines adopted by
the Department of Justice and its DNA Laboratory or the Department of
Corrections and Rehabilitation for the purpose of the implementing
this chapter are exempt from the provisions of the Administrative
Procedure Act, Chapter 3.5 (commencing with Section 11340), Chapter 4
(commencing with Section 11370), Chapter 4.5 (commencing with
Section 11400), and Chapter 5 (commencing with Section 11500) of Part
1 of Division 3 of Title 2 of the Government Code.
(3) The Department of Corrections and Rehabilitation shall submit
copies of any of its policies and regulations with respect to this
chapter to the Department of Justice DNA Laboratory Director, and
quarterly shall submit to the director written reports updating the
director as to the status of its compliance with this chapter.
(4) On or before April 1 in the year following adoption of the act
that added this paragraph, and quarterly thereafter, the Department
of Justice DNA Laboratory shall submit a quarterly report to be
published electronically on a Department of Justice Internet Web site
and made available for public review. The quarterly report shall
state the total number of samples received, the number of samples
received from the Department of Corrections and Rehabilitation, the
number of samples fully analyzed for inclusion in the CODIS database,
and the number of profiles uploaded into the CODIS database for the
reporting period. Each quarterly report shall state the total,
annual, and quarterly number of qualifying profiles in the Department
of Justice DNA Laboratory data bank both from persons and case
evidence, and the number of hits and investigations aided, as
reported to the National DNA Index System. The quarterly report shall
also confirm the laboratory’s accreditation status and participation
in CODIS and shall include an accounting of the funds collected,
expended, and disbursed pursuant to subdivision (k).
(5) On or before April 1 in the year following adoption of the act
that added this paragraph, and quarterly thereafter, the Department
of Corrections and Rehabilitation shall submit a quarterly report to
be published electronically on a Department of Corrections and
Rehabilitation Internet Web site and made available for public
review. The quarterly report shall state the total number of inmates
housed in state correctional facilities, including a breakdown of
those housed in state prisons, camps, community correctional
facilities, and other facilities such as prisoner mother facilities.
Each quarterly report shall also state the total, annual, and
quarterly number of inmates who have yet to provide specimens,
samples and print impressions pursuant to this chapter and the number
of specimens, samples and print impressions that have yet to be
forwarded to the Department of Justice DNA Laboratory within 30 days
of collection.
(i) (1) When the specimens, samples, and print impressions
required by this chapter are collected at a county jail or other
county facility, including a private community correctional facility,
the county sheriff or chief administrative officer of the county
jail or other facility shall be responsible for ensuring all of the
following:
(A) The requisite specimens, samples, and print impressions are
collected from qualifying persons immediately following arrest,
conviction, or adjudication, or during the booking or intake or
reception center process at that facility, or reasonably promptly
thereafter.
(B) The requisite specimens, samples, and print impressions are
collected as soon as administratively practicable after a qualifying
person reports to the facility for the purpose of providing
specimens, samples, and print impressions.
(C) The specimens, samples, and print impressions collected
pursuant to this chapter are forwarded immediately to the Department
of Justice, and in compliance with department policies.
(2) The specimens, samples, and print impressions required by this
chapter shall be collected by a person using a collection kit
approved by the Department of Justice and in accordance with the
requirements and procedures set forth in subdivision (b) of Section
298.
(3) The counties shall be reimbursed for the costs of obtaining
specimens, samples, and print impressions subject to the conditions
and limitations set forth by the Department of Justice policies
governing reimbursement for collecting specimens, samples, and print
impressions pursuant to Section 76104.6 of the Government Code.
(j) The trial court may order that a portion of the costs assessed
pursuant to Section 1203.1c, 1203.1e, or 1203.1m include a
reasonable portion of the cost of obtaining specimens, samples, and
print impressions in furtherance of this chapter and the funds
collected pursuant to this subdivision shall be deposited in the DNA
Identification Fund as created by Section 76104.6 of the Government
Code.
(k) The Department of Justice DNA Laboratory shall be known as the
Jan Bashinski DNA Laboratory.
295.1. (a) The Department of Justice shall perform DNA analysis and
other forensic identification analysis pursuant to this chapter only
for identification purposes.
(b) The Department of Justice Bureau of Criminal Identification
and Information shall perform examinations of palm prints pursuant to
this chapter only for identification purposes.
(c) The DNA Laboratory of the Department of Justice shall serve as
a repository for blood specimens and buccal swab and other
biological samples collected, and shall analyze specimens and
samples, and store, compile, correlate, compare, maintain, and use
DNA and forensic identification profiles and records related to the
following:
(1) Forensic casework and forensic unknowns.
(2) Known and evidentiary specimens and samples from crime scenes
or criminal investigations.
(3) Missing or unidentified persons.
(4) Persons required to provide specimens, samples, and print
impressions under this chapter.
(5) Legally obtained samples.
(6) Anonymous DNA records used for training, research, statistical
analysis of populations, quality assurance, or quality control.
(d) The computerized data bank and database of the DNA Laboratory
of the Department of Justice shall include files as necessary to
implement this chapter.
(e) Nothing in this section shall be construed as requiring the
Department of Justice to provide specimens or samples for quality
control or other purposes to those who request specimens or samples.
(f) Submission of samples, specimens, or profiles for the state
DNA Database and Data Bank Program shall include information as
required by the Department of Justice for ensuring search
capabilities and compliance with National DNA Index System (NDIS)
standards.
Article 2. Offenders Subject to Sample Collection
PENAL CODE
SECTION 296-296.2
296. (a) The following persons shall provide buccal swab samples,
right thumbprints, and a full palm print impression of each hand, and
any blood specimens or other biological samples required pursuant to
this chapter for law enforcement identification analysis:
(1) Any person, including any juvenile, who is convicted of or
pleads guilty or no contest to any felony offense, or is found not
guilty by reason of insanity of any felony offense, or any juvenile
who is adjudicated under Section 602 of the Welfare and Institutions
Code for committing any felony offense.
(2) Any adult person who is arrested for or charged with any of
the following felony offenses:
(A) Any felony offense specified in Section 290 or attempt to
commit any felony offense described in Section 290, or any felony
offense that imposes upon a person the duty to register in California
as a sex offender under Section 290.
(B) Murder or voluntary manslaughter or any attempt to commit
murder or voluntary manslaughter.
(C) Commencing on January 1 of the fifth year following enactment
of the act that added this subparagraph, as amended, any adult person
arrested or charged with any felony offense.
(3) Any person, including any juvenile, who is required to
register under Section 290 or 457.1 because of the commission of, or
the attempt to commit, a felony or misdemeanor offense, or any
person, including any juvenile, who is housed in a mental health
facility or sex offender treatment program after referral to such
facility or program by a court after being charged with any felony
offense.
(4) The term “felony” as used in this subdivision includes an
attempt to commit the offense.
(5) Nothing in this chapter shall be construed as prohibiting
collection and analysis of specimens, samples, or print impressions
as a condition of a plea for a non-qualifying offense.
(b) The provisions of this chapter and its requirements for
submission of specimens, samples and print impressions as soon as
administratively practicable shall apply to all qualifying persons
regardless of sentence imposed, including any sentence of death, life
without the possibility of parole, or any life or indeterminate
term, or any other disposition rendered in the case of an adult or
juvenile tried as an adult, or whether the person is diverted, fined,
or referred for evaluation, and regardless of disposition rendered
or placement made in the case of juvenile who is found to have
committed any felony offense or is adjudicated under Section 602 of
the Welfare and Institutions Code.
(c) The provisions of this chapter and its requirements for
submission of specimens, samples, and print impressions as soon as
administratively practicable by qualified persons as described in
subdivision (a) shall apply regardless of placement or confinement in
any mental hospital or other public or private treatment facility,
and shall include, but not be limited to, the following persons,
including juveniles:
(1) Any person committed to a state hospital or other treatment
facility as a mentally disordered sex offender under Article 1
(commencing with Section 6300) of Chapter 2 of Part 2 of Division 6
of the Welfare and Institutions Code.
(2) Any person who has a severe mental disorder as set forth
within the provisions of Article 4 (commencing with Section 2960) of
Chapter 7 of Title 1 of Part 3 of the Penal Code.
(3) Any person found to be a sexually violent predator pursuant to
Article 4 (commencing with Section 6600) of Chapter 2 of Part 2 of
Division 6 of the Welfare and Institutions Code.
(d) The provisions of this chapter are mandatory and apply whether
or not the court advises a person, including any juvenile, that he
or she must provide the data bank and database specimens, samples,
and print impressions as a condition of probation, parole, or any
plea of guilty, no contest, or not guilty by reason of insanity, or
any admission to any of the offenses described in subdivision (a).
(e) If at any stage of court proceedings the prosecuting attorney
determines that specimens, samples, and print impressions required by
this chapter have not already been taken from any person, as defined
under subdivision (a) of Section 296, the prosecuting attorney shall
notify the court orally on the record, or in writing, and request
that the court order collection of the specimens, samples, and print
impressions required by law. However, a failure by the prosecuting
attorney or any other law enforcement agency to notify the court
shall not relieve a person of the obligation to provide specimens,
samples, and print impressions pursuant to this chapter.
(f) Prior to final disposition or sentencing in the case the court
shall inquire and verify that the specimens, samples, and print
impressions required by this chapter have been obtained and that this
fact is included in the abstract of judgment or dispositional order
in the case of a juvenile. The abstract of judgment issued by the
court shall indicate that the court has ordered the person to comply
with the requirements of this chapter and that the person shall be
included in the state’s DNA and Forensic Identification Data Base and
Data Bank program and be subject to this chapter.
However, failure by the court to verify specimen, sample, and
print impression collection or enter these facts in the abstract of
judgment or dispositional order in the case of a juvenile shall not
invalidate an arrest, plea, conviction, or disposition, or otherwise
relieve a person from the requirements of this chapter.
296.1. (a) The specimens, samples, and print impressions required
by this chapter shall be collected from persons described in
subdivision (a) of Section 296 for present and past qualifying
offenses of record as follows:
(1) Collection from any adult person following arrest for a felony
offense as specified in subparagraphs (A), (B), and (C) of paragraph
(2) of subdivision (a) of Section 296:
(A) Each adult person arrested for a felony offense as specified
in subparagraphs (A), (B), and (C) of paragraph (2) of subdivision
(a) of Section 296 shall provide the buccal swab samples and thumb
and palm print impressions and any blood or other specimens required
pursuant to this chapter immediately following arrest, or during the
booking or intake or prison reception center process or as soon as
administratively practicable after arrest, but, in any case, prior to
release on bail or pending trial or any physical release from
confinement or custody.
(B) If the person subject to this chapter did not have specimens,
samples, and print impressions taken immediately following arrest or
during booking or intake procedures or is released on bail or pending
trial or is not confined or incarcerated at the time of sentencing
or otherwise bypasses a prison inmate reception center maintained by
the Department of Corrections and Rehabilitation, the court shall
order the person to report within five calendar days to a county jail
facility or to a city, state, local, private, or other designated
facility to provide the required specimens, samples, and print
impressions in accordance with subdivision (i) of Section 295.
(2) Collection from persons confined or in custody after
conviction or adjudication:
(A) Any person, including any juvenile who is imprisoned or
confined or placed in a state correctional institution, a county
jail, a facility within the jurisdiction of the Department of
Corrections and Rehabilitation, the Corrections Standards Authority,
a residential treatment program, or any state, local, city, private,
or other facility after a conviction of any felony or misdemeanor
offense, or any adjudication or disposition rendered in the case of a
juvenile, whether or not that crime or offense is one set forth in
subdivision (a) of Section 296, shall provide buccal swab samples and
thumb and palm print impressions and any blood or other specimens
required pursuant to this chapter, immediately at intake, or during
the prison reception center process, or as soon as administratively
practicable at the appropriate custodial or receiving institution or
the program in which the person is placed, if:
(i) The person has a record of any past or present conviction or
adjudication as a ward of the court in California of a qualifying
offense described in subdivision (a) of Section 296 or has a record
of any past or present conviction or adjudication in any other court,
including any state, federal, or military court, of any offense
that, if committed or attempted in this state, would have been
punishable as an offense described in subdivision (a) of Section 296;
and
(ii) The person’s blood specimens, buccal swab samples, and thumb
and palm print impressions authorized by this chapter are not in the
possession of the Department of Justice DNA Laboratory or have not
been recorded as part of the department’s DNA databank program.
(3) Collection from persons on probation, parole, or other
release:
(A) Any person, including any juvenile, who has a record of any
past or present conviction or adjudication for an offense set forth
in subdivision (a) of Section 296, and who is on probation, parole,
postrelease community supervision, or mandatory supervision pursuant
to paragraph (5) of subdivision (h) of Section 1170 for any felony or
misdemeanor offense, whether or not that crime or offense is one set
forth in subdivision (a) of Section 296, shall provide buccal swab
samples and thumb and palm print impressions and any blood specimens
required pursuant to this chapter, if:
(i) The person has a record of any past or present conviction or
adjudication as a ward of the court in California of a qualifying
offense described in subdivision (a) of Section 296 or has a record
of any past or present conviction or adjudication in any other court,
including any state, federal, or military court, of any offense
that, if committed or attempted in this state, would have been
punishable as an offense described in subdivision (a) of Section 296;
and
(ii) The person’s blood specimens, buccal swab samples, and thumb
and palm print impressions authorized by this chapter are not in the
possession of the Department of Justice DNA Laboratory or have not
been recorded as part of the department’s DNA databank program.
(B) The person shall have any required specimens, samples, and
print impressions collected within five calendar days of being
notified by the court, or a law enforcement agency or other agency
authorized by the Department of Justice. The specimens, samples, and
print impressions shall be collected in accordance with subdivision
(i) of Section 295 at a county jail facility or a city, state, local,
private, or other facility designated for this collection.
(4) Collection from parole violators and others returned to
custody:
(A) If a person, including any juvenile, who has been released on
parole, furlough, or other release for any offense or crime, whether
or not set forth in subdivision (a) of Section 296, is returned to a
state correctional or other institution for a violation of a
condition of his or her parole, furlough, or other release, or for
any other reason, that person shall provide buccal swab samples and
thumb and palm print impressions and any blood or other specimens
required pursuant to this chapter, at a state correctional or other
receiving institution, if:
(i) The person has a record of any past or present conviction or
adjudication as a ward of the court in California of a qualifying
offense described in subdivision (a) of Section 296 or has a record
of any past or present conviction or adjudication in any other court,
including any state, federal, or military court, of any offense
that, if committed or attempted in this state, would have been
punishable as an offense described in subdivision (a) of Section 296;
and
(ii) The person’s blood specimens, buccal swab samples, and thumb
and palm print impressions authorized by this chapter are not in the
possession of the Department of Justice DNA Laboratory or have not
been recorded as part of the department’s DNA databank program.
(5) Collection from persons accepted into California from other
jurisdictions:
(A) When an offender from another state is accepted into this
state under any of the interstate compacts described in Article 3
(commencing with Section 11175) or Article 4 (commencing with Section
11189) of Chapter 2 of Title 1 of Part 4 of this code, or Chapter 4
(commencing with Section 1400) of Part 1 of Division 2 of the Welfare
and Institutions Code, or under any other reciprocal agreement with
any county, state, or federal agency, or any other provision of law,
whether or not the offender is confined or released, the acceptance
is conditional on the offender providing blood specimens, buccal swab
samples, and palm and thumb print impressions pursuant to this
chapter, if the offender has a record of any past or present
conviction or adjudication in California of a qualifying offense
described in subdivision (a) of Section 296 or has a record of any
past or present conviction or adjudication or had a disposition
rendered in any other court, including any state, federal, or
military court, of any offense that, if committed or attempted in
this state, would have been punishable as an offense described in
subdivision (a) of Section 296.
(B) If the person is not confined, the specimens, samples, and
print impressions required by this chapter must be provided within
five calendar days after the person reports to the supervising agent
or within five calendar days of notice to the person, whichever
occurs first. The person shall report to a county jail facility in
the county where he or she resides or temporarily is located to have
the specimens, samples, and print impressions collected pursuant to
this chapter. The specimens, samples, and print impressions shall be
collected in accordance with subdivision (i) of Section 295.
(C) If the person is confined, he or she shall provide the blood
specimens, buccal swab samples, and thumb and palm print impressions
required by this chapter as soon as practicable after his or her
receipt in a state, county, city, local, private, or other designated
facility.
(6) Collection from persons in federal institutions:
(A) Subject to the approval of the Director of the FBI, persons
confined or incarcerated in a federal prison or federal institution
who have a record of any past or present conviction or juvenile
adjudication for a qualifying offense described in subdivision (a) of
Section 296, or of a similar crime under the laws of the United
States or any other state that would constitute an offense described
in subdivision (a) of Section 296, are subject to this chapter and
shall provide blood specimens, buccal swab samples, and thumb and
palm print impressions pursuant to this chapter if any of the
following apply:
(i) The person committed a qualifying offense in California.
(ii) The person was a resident of California at the time of the
qualifying offense.
(iii) The person has any record of a California conviction for an
offense described in subdivision (a) of Section 296, regardless of
when the crime was committed.
(iv) The person will be released in California.
(B) The Department of Justice DNA Laboratory shall, upon the
request of the United States Department of Justice, forward portions
of the specimens or samples, taken pursuant to this chapter, to the
United States Department of Justice DNA databank laboratory. The
specimens and samples required by this chapter shall be taken in
accordance with the procedures set forth in subdivision (i) of
Section 295. The Department of Justice DNA Laboratory is authorized
to analyze and upload specimens and samples collected pursuant to
this section upon approval of the Director of the FBI.
(b) Paragraphs (2), (3), (4), (5), and (6) of subdivision (a)
shall have retroactive application. Collection shall occur pursuant
to paragraphs (2), (3), (4), (5), and (6) of subdivision (a)
regardless of when the crime charged or committed became a qualifying
offense pursuant to this chapter, and regardless of when the person
was convicted of the qualifying offense described in subdivision (a)
of Section 296 or a similar crime under the laws of the United States
or any other state, or pursuant to the United States Code of
Military Justice, 10 U.S.C., Sections 801 and following, or when a
juvenile petition is sustained for commission of a qualifying offense
described in subdivision (a) of Section 296 or a similar crime under
the laws of the United States or any other state.
296.2. (a) Whenever the DNA Laboratory of the Department of Justice
notifies the Department of Corrections and Rehabilitation or any law
enforcement agency that a biological specimen or sample, or print
impression is not usable for any reason, the person who provided the
original specimen, sample, or print impression shall submit to
collection of additional specimens, samples, or print impressions.
The Department of Corrections and Rehabilitation or other responsible
law enforcement agency shall collect additional specimens, samples,
and print impressions from these persons as necessary to fulfill the
requirements of this chapter, and transmit these specimens, samples,
and print impressions to the appropriate agencies of the Department
of Justice.
(b) If a person, including any juvenile, is convicted of, pleads
guilty or no contest to, is found not guilty by reason of insanity
of, or is adjudged a ward of the court under Section 602 of the
Welfare and Institutions Code for committing, any of the offenses
described in subdivision (a) of Section 296, and has given a blood
specimen or other biological sample or samples to law enforcement for
any purpose, the DNA Laboratory of the Department of Justice is
authorized to analyze the blood specimen and other biological sample
or samples for forensic identification markers, including DNA
markers, and to include the DNA and forensic identification profiles
from these specimens and samples in the state’s DNA and forensic
identification databank and databases.
This subdivision applies whether or not the blood specimen or
other biological sample originally was collected from the sexual or
violent offender pursuant to the databank and database program, and
whether or not the crime committed predated the enactment of the
state’s DNA and forensic identification databank program, or any
amendments thereto. This subdivision does not relieve a person
convicted of a crime described in subdivision (a) of Section 296, or
otherwise subject to this chapter, from the requirement to give blood
specimens, saliva samples, and thumb and palm print impressions for
the DNA and forensic identification databank and database program as
described in this chapter.
(c) Any person who is required to register under the Sex Offender
Registration Act who has not provided the specimens, samples, and
print impressions described in this chapter for any reason including
the release of the person prior to the enactment of the state’s DNA
and forensic identification database and databank program, an
oversight or error, or because of the transfer of the person from
another state, the person, as an additional requirement of
registration or of updating his or her annual registration pursuant
to the Sex Offender Registration Act shall give specimens, samples,
and print impressions as described in this chapter for inclusion in
the state’s DNA and forensic identification database and databank.
At the time the person registers or updates his or her
registration, he or she shall receive an appointment designating a
time and place for the collection of the specimens, samples, and
print impressions described in this chapter, if he or she has not
already complied with the provisions of this chapter.
As specified in the appointment, the person shall report to a
county jail facility in the county where he or she resides or is
temporarily located to have specimens, samples, and print impressions
collected pursuant to this chapter or other facility approved by the
Department of Justice for this collection. The specimens, samples,
and print impressions shall be collected in accordance with
subdivision (f) of Section 295.
If, prior to the time of the annual registration update, a person
is notified by the Department of Justice, a probation or parole
officer, other law enforcement officer, or officer of the court, that
he or she is subject to this chapter, then the person shall provide
the specimens, samples, and print impressions required by this
chapter within 10 calendar days of the notification at a county jail
facility or other facility approved by the department for this
collection.
Article 3. Data Base Applications
PENAL CODE
SECTION 297
297. (a) Subject to the limitations in paragraph (3) of this
subdivision, only the following laboratories are authorized to
analyze crime scene samples and other forensic identification samples
of known and unknown origin and to upload and compare those profiles
against available state and national DNA and forensic identification
databanks and databases in order to establish identity and origin of
samples for forensic identification purposes pursuant to this
chapter:
(1) The DNA laboratories of the Department of Justice that meet
state and federal requirements, including the Federal Bureau of
Investigation (FBI) Quality Assurance Standards, and that are
accredited by an organization approved by the National DNA Index
System (NDIS) Procedures Board.
(2) Public law enforcement crime laboratories designated by the
Department of Justice that meet state and federal requirements,
including the FBI Quality Assurance Standards, and that are
accredited by an organization approved by the NDIS Procedures Board.
(3) Only the laboratories of the Department of Justice that meet
the requirements of paragraph (1) of subdivision (a) are authorized
to upload DNA profiles from arrestees and other qualifying offender
samples collected pursuant to this section, Section 296, and Section
296.2.
(b) The laboratories of the Department of Justice and public law
enforcement crime laboratories that meet the requirements of
subdivision (a) may, subject to the laboratory’s discretion, and the
limitations of paragraph (3) of subdivision (a), upload to available
state and national DNA and forensic identification databanks and
databases qualifying DNA profiles from forensic identification
samples of known and unknown origin that are generated by private
forensic laboratories that meet state and federal requirements,
including the FBI Quality Assurance Standards, and that are
accredited by an organization approved by the NDIS Procedures Board.
Prior to uploading DNA profiles generated by a private laboratory,
the public laboratory shall conduct the quality assessment and review
required by the FBI Quality Assurance Standards.
(c) (1) A biological sample obtained from a suspect in a criminal
investigation for the commission of any crime may be analyzed for
forensic identification profiles, including DNA profiles, by the DNA
Laboratory of the Department of Justice or any law enforcement crime
laboratory or private forensic laboratory that meets all of the FBI
Quality Assurance Standards and accreditation requirements in
paragraphs (1) and (2) of subdivision (a) and then compared by the
Department of Justice in and between as many cases and investigations
as necessary, and searched against the forensic identification
profiles, including DNA profiles, stored in the files of the
Department of Justice DNA databank or database or any available
databanks or databases as part of the Department of Justice DNA
Database and databank Program.
(2) The law enforcement investigating agency submitting a
specimen, sample, or print impression to the DNA Laboratory of the
Department of Justice or law enforcement crime laboratory pursuant to
this section shall inform the Department of Justice DNA Laboratory
within two years whether the person remains a suspect in a criminal
investigation. Upon written notification from a law enforcement
agency that a person is no longer a suspect in a criminal
investigation, the Department of Justice DNA Laboratory shall remove
the suspect sample from its databank files and databases. However,
any identification, warrant, arrest, or prosecution based upon a
databank or database match shall not be invalidated or dismissed due
to a failure to purge or delay in purging records.
(d) All laboratories, including the Department of Justice DNA
laboratories, contributing DNA profiles for inclusion in California’s
DNA databank shall meet state and federal requirements, including
the FBI Quality Assurance Standards and accreditation requirements,
and shall be accredited by an organization approved by the National
DNA Index System (NDIS) Procedures Board. Additionally, each
laboratory shall submit to the Department of Justice for review the
annual report required by the submitting laboratory’s accrediting
organization that documents the laboratory’s adherence to FBI Quality
Assurance Standards and the standards of the accrediting
organization. The requirements of this subdivision do not preclude
DNA profiles developed in California from being searched in the NDIS.
(e) Nothing in this section precludes local law enforcement DNA
laboratories from maintaining local forensic databases and databanks
or performing forensic identification analyses, including DNA
profiling, independently from the Department of Justice DNA
laboratories and Forensic Identification Data Base and databank
Program.
(f) The limitation on the types of offenses set forth in
subdivision (a) of Section 296 as subject to the collection and
testing procedures of this chapter is for the purpose of facilitating
the administration of this chapter by the Department of Justice, and
shall not be considered cause for dismissing an investigation or
prosecution or reversing a verdict or disposition.
(g) The detention, arrest, wardship, adjudication, or conviction
of a person based upon a databank match or database information is
not invalidated if it is determined that the specimens, samples, or
print impressions were obtained or placed or retained in a databank
or database by mistake.
Article 4. Collection and Forwarding of Samples
PENAL CODE
SECTION 298-298.3
298. (a) The Director of Corrections, or the Chief Administrative
Officer of the detention facility, jail, or other facility at which
the blood specimens, buccal swab samples, and thumb and palm print
impressions were collected shall cause these specimens, samples, and
print impressions to be forwarded promptly to the Department of
Justice. The specimens, samples, and print impressions shall be
collected by a person using a Department of Justice approved
collection kit and in accordance with the requirements and procedures
set forth in subdivision (b).
(b) (1) The Department of Justice shall provide all blood specimen
vials, buccal swab collectors, mailing tubes, labels, and
instructions for the collection of the blood specimens, buccal swab
samples, and thumbprints. The specimens, samples, and thumbprints
shall thereafter be forwarded to the DNA Laboratory of the Department
of Justice for analysis of DNA and other forensic identification
markers.
Additionally, the Department of Justice shall provide all full
palm print cards, mailing envelopes, and instructions for the
collection of full palm prints. The full palm prints, on a form
prescribed by the Department of Justice, shall thereafter be
forwarded to the Department of Justice for maintenance in a file for
identification purposes.
(2) The withdrawal of blood shall be performed in a medically
approved manner. Only health care providers trained and certified to
draw blood may withdraw the blood specimens for purposes of this
section.
(3) Buccal swab samples may be procured by law enforcement or
corrections personnel or other individuals trained to assist in
buccal swab collection.
(4) Right thumbprints and a full palm print impression of each
hand shall be taken on forms prescribed by the Department of Justice.
The palm print forms shall be forwarded to and maintained by the
Bureau of Criminal Identification and Information of the Department
of Justice. Right thumbprints also shall be taken at the time of the
collection of samples and specimens and shall be placed on the sample
and specimen containers and forms as directed by the Department of
Justice. The samples, specimens, and forms shall be forwarded to and
maintained by the DNA Laboratory of the Department of Justice.
(5) The law enforcement or custodial agency collecting specimens,
samples, or print impressions is responsible for confirming that the
person qualifies for entry into the Department of Justice DNA
Database and Data Bank Program prior to collecting the specimens,
samples, or print impressions pursuant to this chapter.
(6) The DNA Laboratory of the Department of Justice is responsible
for establishing procedures for entering data bank and database
information.
(c) (1) Persons authorized to draw blood or obtain samples or
print impressions under this chapter for the data bank or database
shall not be civilly or criminally liable either for withdrawing
blood when done in accordance with medically accepted procedures, or
for obtaining buccal swab samples by scraping inner cheek cells of
the mouth, or thumb or palm print impressions when performed in
accordance with standard professional practices.
(2) There is no civil or criminal cause of action against any law
enforcement agency or the Department of Justice, or any employee
thereof, for a mistake in confirming a person’s or sample’s
qualifying status for inclusion within the database or data bank or
in placing an entry in a data bank or a database.
(3) The failure of the Department of Justice or local law
enforcement to comply with Article 4 or any other provision of this
chapter shall not invalidate an arrest, plea, conviction, or
disposition.
298.1. (a) On and after January 1, 1999, any person who refuses to
give any or all of the following, blood specimens, saliva samples, or
thumb or palm print impressions as required by this chapter, once he
or she has received written notice from the Department of Justice,
the Department of Corrections and Rehabilitation, any law enforcement
personnel, or officer of the court that he or she is required to
provide specimens, samples, and print impressions pursuant to this
chapter is guilty of a misdemeanor. The refusal or failure to give
any or all of the following, a blood specimen, saliva sample, or
thumb or palm print impression is punishable as a separate offense by
both a fine of five hundred dollars ($500) and imprisonment of up to
one year in a county jail, or if the person is already imprisoned in
the state prison, by sanctions for misdemeanors according to a
schedule determined by the Department of Corrections and
Rehabilitation.
(b) (1) Notwithstanding subdivision (a), authorized law
enforcement, custodial, or corrections personnel, including peace
officers as defined in Sections 830, 830.1, subdivision (d) of
Section 830.2, Sections 830.38, 830.5, or 830.55, may employ
reasonable force to collect blood specimens, saliva samples, or thumb
or palm print impressions pursuant to this chapter from individuals
who, after written or oral request, refuse to provide those
specimens, samples, or thumb or palm print impressions.
(2) The withdrawal of blood shall be performed in a medically
approved manner in accordance with the requirements of paragraph (2)
of subdivision (b) of Section 298.
(3) The use of reasonable force as provided in this subdivision
shall be carried out in a manner consistent with regulations and
guidelines adopted pursuant to subdivision (c).
(c) (1) The Department of Corrections and Rehabilitation and the
Division of Juvenile Justice shall adopt regulations governing the
use of reasonable force as provided in subdivision (b), which shall
include the following:
(A) “Use of reasonable force” shall be defined as the force that
an objective, trained, and competent correctional employee, faced
with similar facts and circumstances, would consider necessary and
reasonable to gain compliance with this chapter.
(B) The use of reasonable force shall not be authorized without
the prior written authorization of the supervising officer on duty.
The authorization shall include information that reflects the fact
that the offender was asked to provide the requisite specimen,
sample, or impression and refused.
(C) The use of reasonable force shall be preceded by efforts to
secure voluntary compliance with this section.
(D) If the use of reasonable force includes a cell extraction, the
regulations shall provide that the extraction be video recorded.
(2) The Corrections Standards Authority shall adopt guidelines
governing the use of reasonable force as provided in subdivision (b)
for local detention facilities, which shall include the following:
(A) “Use of reasonable force” shall be defined as the force that
an objective, trained and competent correctional employee, faced with
similar facts and circumstances, would consider necessary and
reasonable to gain compliance with this chapter.
(B) The use of reasonable force shall not be authorized without
the prior written authorization of the supervising officer on duty.
The authorization shall include information that reflects the fact
that the offender was asked to provide the requisite specimen,
sample, or impression and refused.
(C) The use of reasonable force shall be preceded by efforts to
secure voluntary compliance with this section.
(D) If the use of reasonable force includes a cell extraction, the
extraction shall be video recorded.
(3) The Department of Corrections and Rehabilitation, the Division
of Juvenile Justice, and the Corrections Standards Authority shall
report to the Legislature not later than January 1, 2005, on the use
of reasonable force pursuant to this section. The report shall
include, but is not limited to, the number of refusals, the number of
incidents of the use of reasonable force under this section, the
type of force used, the efforts undertaken to obtain voluntary
compliance, if any, and whether any medical attention was needed by
the prisoner or personnel as a result of force being used.
298.2. (a) Any person who is required to submit a specimen sample
or print impression pursuant to this chapter who engages or attempts
to engage in any of the following acts is guilty of a felony
punishable by imprisonment in the state prison for two, three, or
four years:
(1) Knowingly facilitates the collection of a wrongfully
attributed blood specimen, buccal swab sample, or thumb or palm print
impression, with the intent that a government agent or employee be
deceived as to the origin of a DNA profile or as to any
identification information associated with a specimen, sample, or
print impression required for submission pursuant to this chapter.
(2) Knowingly tampers with any specimen, sample, print, or the
collection container for any specimen or sample, with the intent that
any government agent or employee be deceived as to the identity of
the person to whom the specimen, sample, or print relates.
298.3. (a) To ensure expeditious and economical processing of
offender specimens and samples for inclusion in the FBI’s CODIS
System and the state’s DNA Database and Data Bank Program, the
Department of Justice DNA Laboratory is authorized to contract with
other laboratories, whether public or private, including law
enforcement laboratories, that have the capability of fully analyzing
offender specimens or samples within 60 days of receipt, for the
anonymous analysis of specimens and samples for forensic
identification testing as provided in this chapter and in accordance
with the quality assurance requirement established by CODIS and
ASCLD/LAB.
(b) Contingent upon the availability of sufficient funds in the
state’s DNA Identification Fund established pursuant to Section
76104.6, the Department of Justice DNA Laboratory shall immediately
contract with other laboratories, whether public or private,
including law enforcement laboratories, for the anonymous analysis of
offender reference specimens or samples and any arrestee reference
specimens or samples collected pursuant to subdivision (a) of Section
296 for forensic identification testing as provided in subdivision
(a) of this section and in accordance with the quality assurance
requirements established by CODIS and ASCLD/LAB for any specimens or
samples that are not fully analyzed and uploaded into the CODIS
database within six months of the receipt of the reference specimens
or samples by the Department of Justice DNA Laboratory.
Article 5. Expungement of Information
PENAL CODE
SECTION 299
299. (a) A person whose DNA profile has been included in the data
bank pursuant to this chapter shall have his or her DNA specimen and
sample destroyed and searchable database profile expunged from the
data bank program pursuant to the procedures set forth in subdivision
(b) if the person has no past or present offense or pending charge
which qualifies that person for inclusion within the state’s DNA and
Forensic Identification Database and Data Bank Program and there
otherwise is no legal basis for retaining the specimen or sample or
searchable profile.
(b) Pursuant to subdivision (a), a person who has no past or
present qualifying offense, and for whom there otherwise is no legal
basis for retaining the specimen or sample or searchable profile, may
make a written request to have his or her specimen and sample
destroyed and searchable database profile expunged from the data bank
program if:
(1) Following arrest, no accusatory pleading has been filed within
the applicable period allowed by law charging the person with a
qualifying offense as set forth in subdivision (a) of Section 296 or
if the charges which served as the basis for including the DNA
profile in the state’s DNA Database and Data Bank Identification
Program have been dismissed prior to adjudication by a trier of fact;
(2) The underlying conviction or disposition serving as the basis
for including the DNA profile has been reversed and the case
dismissed;
(3) The person has been found factually innocent of the underlying
offense pursuant to Section 851.8, or Section 781.5 of the Welfare
and Institutions Code; or
(4) The defendant has been found not guilty or the defendant has
been acquitted of the underlying offense.
(c) (1) The person requesting the data bank entry to be expunged
must send a copy of his or her request to the trial court of the
county where the arrest occurred, or that entered the conviction or
rendered disposition in the case, to the DNA Laboratory of the
Department of Justice, and to the prosecuting attorney of the county
in which he or she was arrested or, convicted, or adjudicated, with
proof of service on all parties. The court has the discretion to
grant or deny the request for expungement. The denial of a request
for expungement is a nonappealable order and shall not be reviewed by
petition for writ.
(2) Except as provided below, the Department of Justice shall
destroy a specimen and sample and expunge the searchable DNA database
profile pertaining to the person who has no present or past
qualifying offense of record upon receipt of a court order that
verifies the applicant has made the necessary showing at a noticed
hearing, and that includes all of the following:
(A) The written request for expungement pursuant to this section.
(B) A certified copy of the court order reversing and dismissing
the conviction or case, or a letter from the district attorney
certifying that no accusatory pleading has been filed or the charges
which served as the basis for collecting a DNA specimen and sample
have been dismissed prior to adjudication by a trier of fact, the
defendant has been found factually innocent, the defendant has been
found not guilty, the defendant has been acquitted of the underlying
offense, or the underlying conviction has been reversed and the case
dismissed.
(C) Proof of written notice to the prosecuting attorney and the
Department of Justice that expungement has been requested.
(D) A court order verifying that no retrial or appeal of the case
is pending, that it has been at least 180 days since the defendant or
minor has notified the prosecuting attorney and the Department of
Justice of the expungement request, and that the court has not
received an objection from the Department of Justice or the
prosecuting attorney.
(d) Upon order from the court, the Department of Justice shall
destroy any specimen or sample collected from the person and any
searchable DNA database profile pertaining to the person, unless the
department determines that the person is subject to the provisions of
this chapter because of a past qualifying offense of record or is or
has otherwise become obligated to submit a blood specimen or buccal
swab sample as a result of a separate arrest, conviction, juvenile
adjudication, or finding of guilty or not guilty by reason of
insanity for an offense described in subdivision (a) of Section 296,
or as a condition of a plea.
The Department of Justice is not required to destroy analytical
data or other items obtained from a blood specimen or saliva, or
buccal swab sample, if evidence relating to another person subject to
the provisions of this chapter would thereby be destroyed or
otherwise compromised.
Any identification, warrant, probable cause to arrest, or arrest
based upon a data bank or database match is not invalidated due to a
failure to expunge or a delay in expunging records.
(e) Notwithstanding any other provision of law, the Department of
Justice DNA Laboratory is not required to expunge DNA profile or
forensic identification information or destroy or return specimens,
samples, or print impressions taken pursuant to this section if the
duty to register under Section 290 or 457.1 is terminated.
(f) Notwithstanding any other provision of law, including Sections
17, 1203.4, and 1203.4a, a judge is not authorized to relieve a
person of the separate administrative duty to provide specimens,
samples, or print impressions required by this chapter if a person
has been found guilty or was adjudicated a ward of the court by a
trier of fact of a qualifying offense as defined in subdivision (a)
of Section 296, or was found not guilty by reason of insanity or
pleads no contest to a qualifying offense as defined in subdivision
(a) of Section 296.
Article 6. Limitations on Disclosure
PENAL CODE
SECTION 299.5-299.7
299.5. (a) All DNA and forensic identification profiles and other
identification information retained by the Department of Justice
pursuant to this chapter are exempt from any law requiring disclosure
of information to the public and shall be confidential except as
otherwise provided in this chapter.
(b) All evidence and forensic samples containing biological
material retained by the Department of Justice DNA Laboratory or
other state law enforcement agency are exempt from any law requiring
disclosure of information to the public or the return of biological
specimens, samples, or print impressions.
(c) Non-DNA forensic identification information may be filed with
the offender’s file maintained by the Sex Registration Unit of the
Department of Justice or in other computerized data bank or database
systems maintained by the Department of Justice.
(d) The DNA and other forensic identification information retained
by the Department of Justice pursuant to this chapter shall not be
included in the state summary criminal history information. However,
nothing in this chapter precludes law enforcement personnel from
entering into a person’s criminal history information or offender
file maintained by the Department of Justice, the fact that the
specimens, samples, and print impressions required by this chapter
have or have not been collected from that person.
(e) The fact that the blood specimens, saliva or buccal swab
samples, and print impressions required by this chapter have been
received by the DNA Laboratory of the Department of Justice shall be
included in the state summary criminal history information as soon as
administratively practicable.
The full palm prints of each hand shall be filed and maintained by
the Automated Latent Print Section of the Bureau of Criminal
Identification and Information of the Department of Justice, and may
be included in the state summary criminal history information.
(f) DNA samples and DNA profiles and other forensic identification
information shall be released only to law enforcement agencies,
including, but not limited to, parole officers of the Department of
Corrections, hearing officers of the parole authority, probation
officers, the Attorney General’s office, district attorneys’ offices,
and prosecuting city attorneys’ offices, unless otherwise
specifically authorized by this chapter. Dissemination of DNA
specimens, samples, and DNA profiles and other forensic
identification information to law enforcement agencies and district
attorneys’ offices outside this state shall be performed in
conformity with the provisions of this chapter.
(g) A defendant’s DNA and other forensic identification
information developed pursuant to this chapter shall be available to
his or her defense counsel upon court order made pursuant to Chapter
10 (commencing with Section 1054) of Title 6 of Part 2.
(h) Except as provided in subdivision (g) and in order to protect
the confidentiality and privacy of database and data bank
information, the Department of Justice and local public DNA
laboratories shall not otherwise be compelled in a criminal or civil
proceeding to provide any DNA profile or forensic identification
database or data bank information or its computer database program
software or structures to any person or party seeking such records or
information whether by subpoena or discovery, or other procedural
device or inquiry.
(i) (1) (A) Any person who knowingly uses an offender specimen,
sample, or DNA profile collected pursuant to this chapter for other
than criminal identification or exclusion purposes, or for other than
the identification of missing persons, or who knowingly discloses
DNA or other forensic identification information developed pursuant
to this section to an unauthorized individual or agency, for other
than criminal identification or exclusion purposes, or for the
identification of missing persons, in violation of this chapter,
shall be punished by imprisonment in a county jail not exceeding one
year or by imprisonment in the state prison for 16 months, or two or
three years.
(B) Any person who, for the purpose of financial gain, knowingly
uses a specimen, sample, or DNA profile collected pursuant to this
chapter for other than criminal identification or exclusion purposes
or for the identification of missing persons or who, for the purpose
of financial gain, knowingly discloses DNA or other forensic
identification information developed pursuant to this section to an
unauthorized individual or agency, for other than criminal
identification or exclusion purposes or for other than the
identification of missing persons, in violation of this chapter,
shall, in addition to the penalty provided in subparagraph (A), be
punished by a criminal fine in an amount three times that of any
financial gain received or ten thousand dollars ($10,000), whichever
is greater.
(2) (A) If any employee of the Department of Justice knowingly
uses a specimen, sample, or DNA profile collected pursuant to this
chapter for other than criminal identification or exclusion purposes,
or knowingly discloses DNA or other forensic identification
information developed pursuant to this section to an unauthorized
individual or agency, for other than criminal identification or
exclusion purposes or for other than the identification of missing
persons, in violation of this chapter, the department shall be liable
in civil damages to the donor of the DNA identification information
in the amount of five thousand dollars ($5,000) for each violation,
plus attorney’s fees and costs. In the event of multiple disclosures,
the total damages available to the donor of the DNA is limited to
fifty thousand dollars ($50,000) plus attorney’s fees and costs.
(B) (i) Notwithstanding any other law, this shall be the sole and
exclusive remedy against the Department of Justice and its employees
available to the donor of the DNA.
(ii) The Department of Justice employee disclosing DNA
identification information in violation of this chapter shall be
absolutely immune from civil liability under this or any other law.
(3) It is not a violation of this section for a law enforcement
agency in its discretion to publicly disclose the fact of a DNA
profile match, or the name of the person identified by the DNA match
when this match is the basis of law enforcement’s investigation,
arrest, or prosecution of a particular person, or the identification
of a missing or abducted person.
(j) It is not a violation of this chapter to furnish DNA or other
forensic identification information of the defendant to his or her
defense counsel for criminal defense purposes in compliance with
discovery.
(k) It is not a violation of this section for law enforcement to
release DNA and other forensic identification information developed
pursuant to this chapter to a jury or grand jury, or in a document
filed with a court or administrative agency, or as part of a judicial
or administrative proceeding, or for this information to become part
of the public transcript or record of proceedings when, in the
discretion of law enforcement, disclosure is necessary because the
DNA information pertains to the basis for law enforcement’s
identification, arrest, investigation, prosecution, or exclusion of a
particular person related to the case.
(l) It is not a violation of this section to include information
obtained from a file in a transcript or record of a judicial
proceeding, or in any other public record when the inclusion of the
information in the public record is authorized by a court, statute,
or decisional law.
(m) It is not a violation of this section for the DNA Laboratory
of the Department of Justice, or an organization retained as an agent
of the Department of Justice, or a local public laboratory to use
anonymous records or criminal history information obtained pursuant
to this chapter for training, research, statistical analysis of
populations, or quality assurance or quality control.
(n) The Department of Justice shall make public the methodology
and procedures to be used in its DNA program prior to the
commencement of DNA testing in its laboratories. The Department of
Justice shall review and consider on an ongoing basis the findings
and results of any peer review and validation studies submitted to
the department by members of the relevant scientific community
experienced in the use of DNA technology. This material shall be
available to criminal defense counsel upon court order made pursuant
to Chapter 10 (commencing with Section 1054) of Title 6 of Part 2.
(o) In order to maintain the computer system security of the
Department of Justice DNA and Forensic Identification Database and
Data Bank Program, the computer software and database structures used
by the DNA Laboratory of the Department of Justice to implement this
chapter are confidential.
299.6. (a) Nothing in this chapter shall prohibit the Department of
Justice, in its sole discretion, from the sharing or disseminating
of population database or data bank information, DNA profile or
forensic identification database or data bank information, analytical
data and results generated for forensic identification database and
data bank purposes, or protocol and forensic DNA analysis methods and
quality assurance or quality control procedures with any of the
following:
(1) Federal, state, or local law enforcement agencies.
(2) Crime laboratories, whether public or private, that serve
federal, state, and local law enforcement agencies that have been
approved by the Department of Justice.
(3) The attorney general’s office of any state.
(4) Any state or federally authorized auditing agent or board that
inspects or reviews the work of the Department of Justice DNA
Laboratory for the purpose of ensuring that the laboratory meets
ASCLD/LAB and FBI standards for accreditation and quality assurance
standards necessary under this chapter and for the state’s
participation in CODIS and other national or international
crime-solving networks.
(5) Any third party that the Department of Justice deems necessary
to assist the department’s crime laboratory with statistical
analyses of population databases, or the analyses of forensic
protocol, research methods, or quality control procedures, or to
assist in the recovery or identification of human remains for
humanitarian purposes, including identification of missing persons.
(b) The population databases and data banks of the DNA Laboratory
of the Department of Justice may be made available to and searched by
the FBI and any other agency participating in the FBI’s CODIS System
or any other national or international law enforcement database or
data bank system.
(c) The Department of Justice may provide portions of biological
samples including blood specimens, saliva samples, and buccal swab
samples collected pursuant to this chapter to local public law
enforcement DNA laboratories for identification purposes provided
that the privacy provisions of this section are followed by the local
public law enforcement laboratory and if each of the following
conditions is met:
(1) The procedures used by the local public DNA laboratory for the
handling of specimens and samples and the disclosure of results are
the same as those established by the Department of Justice pursuant
to Sections 297, 298, and 299.5.
(2) The methodologies and procedures used by the local public DNA
laboratory for DNA or forensic identification analysis are compatible
with those used by the Department of Justice, or otherwise are
determined by the Department of Justice to be valid and appropriate
for identification purposes.
(3) Only tests of value to law enforcement for identification
purposes are performed and a copy of the results of the analysis are
sent to the Department of Justice.
(4) All provisions of this section concerning privacy and security
are followed.
(5) The local public law enforcement DNA laboratory assumes all
costs of securing the specimens and samples and provides appropriate
tubes, labels, and materials necessary to secure the specimens and
samples.
(d) Any local DNA laboratory that produces DNA profiles of known
reference samples for inclusion within the permanent files of the
state’s DNA Data Bank program shall follow the policies of the DNA
Laboratory of the Department of Justice.
299.7. The Department of Justice is authorized to dispose of unused
specimens and samples, unused portions of specimens and samples, and
expired specimens and samples in the normal course of business and
in a reasonable manner as long as the disposal method is designed to
protect the identity and origin of specimens and samples from
disclosure to third persons who are not a part of law enforcement.
Article 7. Construction and Severability
PENAL CODE
SECTION 300-300.3
300. Nothing in this chapter shall limit or abrogate any existing
authority of law enforcement officers to take, maintain, store, and
utilize DNA or forensic identification markers, blood specimens,
buccal swab samples, saliva samples, or thumb or palm print
impressions for identification purposes.
300.1. (a) Nothing in this chapter shall be construed to restrict
the authority of local law enforcement to maintain their own
DNA-related databases or data banks, or to restrict the Department of
Justice with respect to data banks and databases created by other
statutory authority, including, but not limited to, databases related
to fingerprints, firearms and other weapons, child abuse, domestic
violence deaths, child deaths, driving offenses, missing persons,
violent crime information as described in Title 12 (commencing with
Section 14200) of Part 4, and criminal justice statistics permitted
by Section 13305.
(b) Nothing in this chapter shall be construed to limit the
authority of local or county coroners or their agents, in the course
of their scientific investigation, to utilize genetic and DNA
technology to inquire into and determine the circumstances, manner,
and cause of death, or to employ or use outside laboratories,
hospitals, or research institutions that utilize genetic and DNA
technology.
300.2. The provisions of this chapter are severable. If any
provision of this chapter or its application is held invalid, that
invalidity shall not affect other provisions or applications that can
be given effect without the invalid provision or application.
300.2. Any requirement to provide saliva samples pursuant to this
chapter shall be construed as a requirement to provide buccal swab
samples as of the effective date of the act that added this section.
However, the Department of Justice may retain and use previously
collected saliva and other biological samples as part of its database
and databank program and for quality control purposes in conformity
with the provisions of this chapter.
300.3. The duties and requirements of the Department of Corrections
and the Department of the Youth Authority pursuant to this chapter
shall commence on July 1, 1999.
CHAPTER 7. OF CRIMES AGAINST RELIGION AND CONSCIENCE, AND
OTHER OFFENSES AGAINST GOOD MORALS
PENAL CODE
SECTION 302-310.5
302. (a) Every person who intentionally disturbs or disquiets any
assemblage of people met for religious worship at a tax-exempt place
of worship, by profane discourse, rude or indecent behavior, or by
any unnecessary noise, either within the place where the meeting is
held, or so near it as to disturb the order and solemnity of the
meeting, is guilty of a misdemeanor punishable by a fine not
exceeding one thousand dollars ($1,000), or by imprisonment in a
county jail for a period not exceeding one year, or by both that fine
and imprisonment.
(b) A court may require performance of community service of not
less than 50 hours and not exceeding 80 hours as an alternative to
imprisonment or a fine.
(c) In addition to the penalty set forth in subdivision (a), a
person who has suffered a previous conviction of a violation of this
section or Section 403, shall be required to perform community
service of not less than 120 hours and not exceeding 160 hours.
(d) The existence of any fact which would bring a person under
subdivision (c) or (d) shall be alleged in the complaint,
information, or indictment and either:
(1) Admitted by the defendant in open court.
(2) Found to be true by a jury trying the issue of guilt.
(3) Found to be true by the court where guilt is established by a
plea of guilty or nolo contendere.
(4) Found to be true by trial by the court sitting without a jury.
(e) Upon conviction of any person under this section for
disturbances of religious worship, the court may, in accordance with
the performance of community service imposed under this section,
consistent with public safety interests and with the victim’s
consent, order the defendant to perform a portion of, or all of, the
required community service at the place where the disturbance of
religious worship occurred.
(f) The court may waive the mandatory minimum requirements for
community service whenever it is in the interest of justice to do so.
When a waiver is granted, the court shall state on the record all
reasons supporting the waiver.
303. It shall be unlawful for any person engaged in the sale of
alcoholic beverages, other than in the original package, to employ
upon the premises where the alcoholic beverages are sold any person
for the purpose of procuring or encouraging the purchase or sale of
such beverages, or to pay any person a percentage or commission on
the sale of such beverages for procuring or encouraging such purchase
or sale. Violation of this section shall be a misdemeanor.
303a. It shall be unlawful, in any place of business where
alcoholic beverages are sold to be consumed upon the premises, for
any person to loiter in or about said premises for the purpose of
begging or soliciting any patron or customer of, or visitor in, such
premises to purchase any alcoholic beverage for the one begging or
soliciting. Violation of this section shall be a misdemeanor.
307. Every person, firm, or corporation which sells or gives or in
any way furnishes to another person, who is in fact under the age of
21 years, any candy, cake, cookie, or chewing gum which contains
alcohol in excess of 1/2 of 1 percent by weight, is guilty of a
misdemeanor.
308. (a) (1) Every person, firm, or corporation that knowingly or
under circumstances in which it has knowledge, or should otherwise
have grounds for knowledge, sells, gives, or in any way furnishes to
another person who is under the age of 18 years any tobacco,
cigarette, or cigarette papers, or blunts wraps, or any other
preparation of tobacco, or any other instrument or paraphernalia that
is designed for the smoking or ingestion of tobacco, products
prepared from tobacco, or any controlled substance, is subject to
either a criminal action for a misdemeanor or to a civil action
brought by a city attorney, a county counsel, or a district attorney,
punishable by a fine of two hundred dollars ($200) for the first
offense, five hundred dollars ($500) for the second offense, and one
thousand dollars ($1,000) for the third offense.
Notwithstanding Section 1464 or any other law, 25 percent of each
civil and criminal penalty collected pursuant to this subdivision
shall be paid to the office of the city attorney, county counsel, or
district attorney, whoever is responsible for bringing the successful
action, and 25 percent of each civil and criminal penalty collected
pursuant to this subdivision shall be paid to the city or county for
the administration and cost of the community service work component
provided in subdivision (b).
Proof that a defendant, or his or her employee or agent, demanded,
was shown, and reasonably relied upon evidence of majority shall be
defense to any action brought pursuant to this subdivision. Evidence
of majority of a person is a facsimile of or a reasonable likeness of
a document issued by a federal, state, county, or municipal
government, or subdivision or agency thereof, including, but not
limited to, a motor vehicle operator’s license, a registration
certificate issued under the federal Selective Service Act, or an
identification card issued to a member of the Armed Forces.
For purposes of this section, the person liable for selling or
furnishing tobacco products to minors by a tobacco vending machine
shall be the person authorizing the installation or placement of the
tobacco vending machine upon premises he or she manages or otherwise
controls and under circumstances in which he or she has knowledge, or
should otherwise have grounds for knowledge, that the tobacco
vending machine will be utilized by minors.
(2) For purposes of this section, “blunt wraps” means cigar papers
or cigar wrappers of all types that are designed for smoking or
ingestion of tobacco products and contain less than 50 percent
tobacco.
(b) Every person under the age of 18 years who purchases,
receives, or possesses any tobacco, cigarette, or cigarette papers,
or any other preparation of tobacco, or any other instrument or
paraphernalia that is designed for the smoking of tobacco, products
prepared from tobacco, or any controlled substance shall, upon
conviction, be punished by a fine of seventy-five dollars ($75) or 30
hours of community service work.
(c) Every person, firm, or corporation that sells, or deals in
tobacco or any preparation thereof, shall post conspicuously and keep
so posted in his, her, or their place of business at each point of
purchase the notice required pursuant to subdivision (b) of Section
22952 of the Business and Professions Code, and any person failing to
do so shall, upon conviction, be punished by a fine of fifty dollars
($50) for the first offense, one hundred dollars ($100) for the
second offense, two hundred fifty dollars ($250) for the third
offense, and five hundred dollars ($500) for the fourth offense and
each subsequent violation of this provision, or by imprisonment in a
county jail not exceeding 30 days.
(d) For purposes of determining the liability of persons, firms,
or corporations controlling franchises or business operations in
multiple locations for the second and subsequent violations of this
section, each individual franchise or business location shall be
deemed a separate entity.
(e) Notwithstanding subdivision (b), any person under 18 years of
age who purchases, receives, or possesses any tobacco, cigarette, or
cigarette papers, or any other preparation of tobacco, any other
instrument or paraphernalia that is designed for the smoking of
tobacco, or products prepared from tobacco, while participating in
the enforcement activities that comply with the guidelines adopted
pursuant to subdivisions (c) and (d) of Section 22952 of the Business
and Professions Code is immune from prosecution for that purchase,
receipt, or possession.
(f) It is the Legislature’s intent to regulate the subject matter
of this section. As a result, a city, county, or city and county
shall not adopt any ordinance or regulation inconsistent with this
section.
308.1. (a) Notwithstanding any other law, no person shall sell,
offer for sale, distribute, or import any tobacco product commonly
referred to as “bidis” or “beedies,” unless that tobacco product is
sold, offered for sale, or intended to be sold in a business
establishment that prohibits the presence of persons under 18 years
of age on its premises.
(b) For purposes of this section, “bidis” or “beedies” means any
of the following:
(1) A product containing tobacco that is wrapped in temburni leaf
(diospyros melanoxylon) or tendu leaf (diospyros exculpra).
(2) A product that is marketed and sold as “bidis” or “beedies.”
(c) Any person who violates this section is guilty of a
misdemeanor and is also subject to a civil action brought by the
Attorney General, a city attorney, county counsel, or district
attorney for an injunction and a civil penalty of up to two thousand
dollars ($2,000) per violation. This subdivision does not affect any
other remedies available for a violation of this section.
308.2. (a) Every person who sells one or more cigarettes, other
than in a sealed and properly labeled package, is guilty of an
infraction.
(b) “A sealed and properly labeled package,” as used in this
section, means the original packaging or sanitary wrapping of the
manufacturer or importer which conforms to federal labeling
requirements, including the federal warning label.
308.3. (a) A person, firm, corporation, or business may not
manufacture for sale, distribute, sell, or offer to sell any
cigarette, except in a package containing at least 20 cigarettes. A
person, firm, corporation, or business may not manufacture for sale,
distribute, sell, or offer to sell any roll-your-own tobacco, except
in a package containing at least 0.60 ounces of tobacco.
(b) As used in subdivision (a), “cigarette” means any product that
contains nicotine, is intended to be burned or heated under ordinary
conditions of use, and consists of, or contains any of, the
following:
(1) Any roll of tobacco wrapped in paper or in any substance not
containing tobacco.
(2) Tobacco, in any form, that is functional in the product, that,
because of its appearance, the type of tobacco used in the filler,
or its packaging and labeling, is likely to be offered to, or
purchased by, consumers as a cigarette.
(3) Any roll of tobacco wrapped in any substance containing
tobacco which, because of its appearance, the type of tobacco used in
the filler, or its packaging and labeling, is likely to be offered
to, or purchased by, consumers as a cigarette described in this
subdivision.
(c) Any person, firm, corporation, or business that violates this
section is liable for an infraction, or in an action brought by the
Attorney General, a district attorney, a county counsel, or a city
attorney for a civil penalty of two hundred dollars ($200) for the
first violation, five hundred dollars ($500) for the second
violation, and one thousand dollars ($1,000) for each subsequent act
constituting a violation.
308.5. (a) No person or business shall sell, lease, rent, or
provide, or offer to sell, lease, rent, or otherwise offer to the
public or to public establishments in this state, any video game
intended for either private use or for use in a public establishment
and intended primarily for use by any person under the age of 18
years, which contains, in its design and in the on-screen
presentation of the video game, any paid commercial advertisement of
alcoholic beverage or tobacco product containers or other forms of
consumer packaging, particular brand names, trademarks, or
copyrighted slogans of alcoholic beverages or tobacco products.
(b) As used in this section, “video game” means any electronic
amusement device that utilizes a computer, microprocessor, or similar
electronic circuitry and its own cathode ray tube, or is designed to
be used with a television set or a monitor, that interacts with the
user of the device.
(c) A violation of this section is a misdemeanor.
308b. (a) Except as provided in subdivision (b), every person who
knowingly delivers or causes to be delivered to any residence in this
state any tobacco products unsolicited by any person residing
therein is guilty of a misdemeanor.
(b) It is a defense to a violation of this section that the
recipient of the tobacco products is personally known to the
defendant at the time of the delivery.
(c) The distribution of unsolicited tobacco products to residences
in violation of this section is a nuisance within the meaning of
Section 3479 of the Civil Code.
(d) Nothing in this section shall be construed to impose any
liability on any employee of the United States Postal Service for
actions performed in the scope of his employment by the United States
Postal Service.
309. Any proprietor, keeper, manager, conductor, or person having
the control of any house of prostitution, or any house or room
resorted to for the purpose of prostitution, who shall admit or keep
any minor of either sex therein; or any parent or guardian of any
such minor, who shall admit or keep such minor, or sanction, or
connive at the admission or keeping thereof, into, or in any such
house, or room, shall be guilty of a misdemeanor.
310. (a) Any minor under 16 years of age who visits or attends any
prizefight or place where any prizefight is advertised to take place,
and any owner, lessee, or proprietor, or the agent of any owner,
lessee, or proprietor of any place where any prizefight is advertised
or represented to take place who admits any minor to a place where
any prizefight is advertised or represented to take place or who
admits, sells, or gives to any minor a ticket or other paper by which
that minor may be admitted to a place where a prizefight is
advertised to take place, is guilty of a misdemeanor, and is
punishable by a fine not exceeding one hundred dollars ($100) or by
imprisonment in the county jail for not more than 25 days.
(b) Any minor under 16 years of age who visits or attends any
cockfight or place where any cockfight is advertised to take place,
and any owner, lessee, or proprietor, or the agent of any owner,
lessee, or proprietor of any place where any cockfight is advertised
or represented to take place who admits any minor to a place where
any cockfight is advertised or represented to take place or who
admits, sells, or gives to any minor a ticket or other paper by which
that minor may be admitted to a place where a cockfight is
advertised to take place, is guilty of a misdemeanor, and is
punishable by a fine not exceeding five hundred dollars ($500) or by
imprisonment in the county jail for not more than 25 days.
310.2. (a) Any coach, trainer, or other person acting in an
official or nonofficial capacity as an adult supervisor for an
athletic team consisting of minors under the age of 18 who sells,
gives, or otherwise furnishes to any member of that team a diuretic,
diet pill, or laxative with the intent that it be consumed, injected,
or administered for any nonmedical purpose such as loss of weight or
altering the body in any way related to participation on the team or
league, is guilty of a misdemeanor.
(b) Subdivision (a) does not apply to a minor’s parent or
guardian, or any person acting at the written direction of, or with
the written consent of, the parent or guardian, if that person is in
fact acting with that authority. Subdivision (a) does not apply to a
physician.
310.5. (a) Any parent or guardian of a child who enters into an
agreement on behalf of that child which is in violation of Section
1669.5 of the Civil Code, and any alleged perpetrator of an unlawful
sex act upon that child who enters into such an agreement, is guilty
of a misdemeanor.
(b) Every person convicted of a violation of subdivision (a) shall
be punished by a fine of not less than one hundred dollars ($100)
nor more than one thousand dollars ($1,000), by imprisonment in the
county jail for not less than 30 days nor more than six months, or by
both such a fine and imprisonment, at the discretion of the court.
(c) For purposes of this section, “unlawful sex act,” means a
felony sex offense committed against a minor.
CHAPTER 7.5. OBSCENE MATTER
PENAL CODE
SECTION 311-312.7
311. As used in this chapter, the following definitions apply:
(a) “Obscene matter” means matter, taken as a whole, that to the
average person, applying contemporary statewide standards, appeals to
the prurient interest, that, taken as a whole, depicts or describes
sexual conduct in a patently offensive way, and that, taken as a
whole, lacks serious literary, artistic, political, or scientific
value.
(1) If it appears from the nature of the matter or the
circumstances of its dissemination, distribution, or exhibition that
it is designed for clearly defined deviant sexual groups, the appeal
of the matter shall be judged with reference to its intended
recipient group.
(2) In prosecutions under this chapter, if circumstances of
production, presentation, sale, dissemination, distribution, or
publicity indicate that matter is being commercially exploited by the
defendant for the sake of its prurient appeal, this evidence is
probative with respect to the nature of the matter and may justify
the conclusion that the matter lacks serious literary, artistic,
political, or scientific value.
(3) In determining whether the matter taken as a whole lacks
serious literary, artistic, political, or scientific value in
description or representation of those matters, the fact that the
defendant knew that the matter depicts persons under the age of 16
years engaged in sexual conduct, as defined in subdivision (c) of
Section 311.4, is a factor that may be considered in making that
determination.
(b) “Matter” means any book, magazine, newspaper, or other printed
or written material, or any picture, drawing, photograph, motion
picture, or other pictorial representation, or any statue or other
figure, or any recording, transcription, or mechanical, chemical, or
electrical reproduction, or any other article, equipment, machine, or
material. “Matter” also means live or recorded telephone messages if
transmitted, disseminated, or distributed as part of a commercial
transaction.
(c) “Person” means any individual, partnership, firm, association,
corporation, limited liability company, or other legal entity.
(d) “Distribute” means transfer possession of, whether with or
without consideration.
(e) “Knowingly” means being aware of the character of the matter
or live conduct.
(f) “Exhibit” means show.
(g) “Obscene live conduct” means any physical human body activity,
whether performed or engaged in alone or with other persons,
including but not limited to singing, speaking, dancing, acting,
simulating, or pantomiming, taken as a whole, that to the average
person, applying contemporary statewide standards, appeals to the
prurient interest and is conduct that, taken as a whole, depicts or
describes sexual conduct in a patently offensive way and that, taken
as a whole, lacks serious literary, artistic, political, or
scientific value.
(1) If it appears from the nature of the conduct or the
circumstances of its production, presentation, or exhibition that it
is designed for clearly defined deviant sexual groups, the appeal of
the conduct shall be judged with reference to its intended recipient
group.
(2) In prosecutions under this chapter, if circumstances of
production, presentation, advertising, or exhibition indicate that
live conduct is being commercially exploited by the defendant for the
sake of its prurient appeal, that evidence is probative with respect
to the nature of the conduct and may justify the conclusion that the
conduct lacks serious literary, artistic, political, or scientific
value.
(3) In determining whether the live conduct taken as a whole lacks
serious literary, artistic, political, or scientific value in
description or representation of those matters, the fact that the
defendant knew that the live conduct depicts persons under the age of
16 years engaged in sexual conduct, as defined in subdivision (c) of
Section 311.4, is a factor that may be considered in making that
determination.
(h) The Legislature expresses its approval of the holding of
People v. Cantrell, 7 Cal. App. 4th 523, that, for the purposes of
this chapter, matter that “depicts a person under the age of 18 years
personally engaging in or personally simulating sexual conduct” is
limited to visual works that depict that conduct.
311.1. (a) Every person who knowingly sends or causes to be sent,
or brings or causes to be brought, into this state for sale or
distribution, or in this state possesses, prepares, publishes,
produces, develops, duplicates, or prints any representation of
information, data, or image, including, but not limited to, any film,
filmstrip, photograph, negative, slide, photocopy, videotape, video
laser disc, computer hardware, computer software, computer floppy
disc, data storage media, CD-ROM, or computer-generated equipment or
any other computer-generated image that contains or incorporates in
any manner, any film or filmstrip, with intent to distribute or to
exhibit to, or to exchange with, others, or who offers to distribute,
distributes, or exhibits to, or exchanges with, others, any obscene
matter, knowing that the matter depicts a person under the age of 18
years personally engaging in or personally simulating sexual conduct,
as defined in Section 311.4, shall be punished either by
imprisonment in the county jail for up to one year, by a fine not to
exceed one thousand dollars ($1,000), or by both the fine and
imprisonment, or by imprisonment in the state prison, by a fine not
to exceed ten thousand dollars ($10,000), or by the fine and
imprisonment.
(b) This section does not apply to the activities of law
enforcement and prosecuting agencies in the investigation and
prosecution of criminal offenses or to legitimate medical,
scientific, or educational activities, or to lawful conduct between
spouses.
(c) This section does not apply to matter which depicts a child
under the age of 18, which child is legally emancipated, including
lawful conduct between spouses when one or both are under the age of
18.
(d) It does not constitute a violation of this section for a
telephone corporation, as defined by Section 234 of the Public
Utilities Code, to carry or transmit messages described in this
chapter or perform related activities in providing telephone
services.
311.2. (a) Every person who knowingly sends or causes to be sent,
or brings or causes to be brought, into this state for sale or
distribution, or in this state possesses, prepares, publishes,
produces, or prints, with intent to distribute or to exhibit to
others, or who offers to distribute, distributes, or exhibits to
others, any obscene matter is for a first offense, guilty of a
misdemeanor. If the person has previously been convicted of any
violation of this section, the court may, in addition to the
punishment authorized in Section 311.9, impose a fine not exceeding
fifty thousand dollars ($50,000).
(b) Every person who knowingly sends or causes to be sent, or
brings or causes to be brought, into this state for sale or
distribution, or in this state possesses, prepares, publishes,
produces, develops, duplicates, or prints any representation of
information, data, or image, including, but not limited to, any film,
filmstrip, photograph, negative, slide, photocopy, videotape, video
laser disc, computer hardware, computer software, computer floppy
disc, data storage media, CD-ROM, or computer-generated equipment or
any other computer-generated image that contains or incorporates in
any manner, any film or filmstrip, with intent to distribute or to
exhibit to, or to exchange with, others for commercial consideration,
or who offers to distribute, distributes, or exhibits to, or
exchanges with, others for commercial consideration, any obscene
matter, knowing that the matter depicts a person under the age of 18
years personally engaging in or personally simulating sexual conduct,
as defined in Section 311.4, is guilty of a felony and shall be
punished by imprisonment in the state prison for two, three, or six
years, or by a fine not exceeding one hundred thousand dollars
($100,000), in the absence of a finding that the defendant would be
incapable of paying that fine, or by both that fine and imprisonment.
(c) Every person who knowingly sends or causes to be sent, or
brings or causes to be brought, into this state for sale or
distribution, or in this state possesses, prepares, publishes,
produces, develops, duplicates, or prints any representation of
information, data, or image, including, but not limited to, any film,
filmstrip, photograph, negative, slide, photocopy, videotape, video
laser disc, computer hardware, computer software, computer floppy
disc, data storage media, CD-ROM, or computer-generated equipment or
any other computer-generated image that contains or incorporates in
any manner, any film or filmstrip, with intent to distribute or
exhibit to, or to exchange with, a person 18 years of age or older,
or who offers to distribute, distributes, or exhibits to, or
exchanges with, a person 18 years of age or older any matter, knowing
that the matter depicts a person under the age of 18 years
personally engaging in or personally simulating sexual conduct, as
defined in Section 311.4, shall be punished by imprisonment in the
county jail for up to one year, or by a fine not exceeding two
thousand dollars ($2,000), or by both that fine and imprisonment, or
by imprisonment in the state prison. It is not necessary to prove
commercial consideration or that the matter is obscene in order to
establish a violation of this subdivision. If a person has been
previously convicted of a violation of this subdivision, he or she is
guilty of a felony.
(d) Every person who knowingly sends or causes to be sent, or
brings or causes to be brought, into this state for sale or
distribution, or in this state possesses, prepares, publishes,
produces, develops, duplicates, or prints any representation of
information, data, or image, including, but not limited to, any film,
filmstrip, photograph, negative, slide, photocopy, videotape, video
laser disc, computer hardware, computer software, computer floppy
disc, data storage media, CD-ROM, or computer-generated equipment or
any other computer-generated image that contains or incorporates in
any manner, any film or filmstrip, with intent to distribute or
exhibit to, or to exchange with, a person under 18 years of age, or
who offers to distribute, distributes, or exhibits to, or exchanges
with, a person under 18 years of age any matter, knowing that the
matter depicts a person under the age of 18 years personally engaging
in or personally simulating sexual conduct, as defined in Section
311.4, is guilty of a felony. It is not necessary to prove commercial
consideration or that the matter is obscene in order to establish a
violation of this subdivision.
(e) Subdivisions (a) to (d), inclusive, do not apply to the
activities of law enforcement and prosecuting agencies in the
investigation and prosecution of criminal offenses, to legitimate
medical, scientific, or educational activities, or to lawful conduct
between spouses.
(f) This section does not apply to matter that depicts a legally
emancipated child under the age of 18 years or to lawful conduct
between spouses when one or both are under the age of 18 years.
(g) It does not constitute a violation of this section for a
telephone corporation, as defined by Section 234 of the Public
Utilities Code, to carry or transmit messages described in this
chapter or to perform related activities in providing telephone
services.
311.3. (a) A person is guilty of sexual exploitation of a child if
he or she knowingly develops, duplicates, prints, or exchanges any
representation of information, data, or image, including, but not
limited to, any film, filmstrip, photograph, negative, slide,
photocopy, videotape, video laser disc, computer hardware, computer
software, computer floppy disc, data storage media, CD-ROM, or
computer-generated equipment or any other computer-generated image
that contains or incorporates in any manner, any film or filmstrip
that depicts a person under the age of 18 years engaged in an act of
sexual conduct.
(b) As used in this section, “sexual conduct” means any of the
following:
(1) Sexual intercourse, including genital-genital, oral-genital,
anal-genital, or oral-anal, whether between persons of the same or
opposite sex or between humans and animals.
(2) Penetration of the vagina or rectum by any object.
(3) Masturbation for the purpose of sexual stimulation of the
viewer.
(4) Sadomasochistic abuse for the purpose of sexual stimulation of
the viewer.
(5) Exhibition of the genitals or the pubic or rectal area of any
person for the purpose of sexual stimulation of the viewer.
(6) Defecation or urination for the purpose of sexual stimulation
of the viewer.
(c) Subdivision (a) does not apply to the activities of law
enforcement and prosecution agencies in the investigation and
prosecution of criminal offenses or to legitimate medical,
scientific, or educational activities, or to lawful conduct between
spouses.
(d) Every person who violates subdivision (a) shall be punished by
a fine of not more than two thousand dollars ($2,000) or by
imprisonment in a county jail for not more than one year, or by both
that fine and imprisonment. If the person has been previously
convicted of a violation of subdivision (a) or any section of this
chapter, he or she shall be punished by imprisonment in the state
prison.
(e) The provisions of this section do not apply to an employee of
a commercial film developer who is acting within the scope of his or
her employment and in accordance with the instructions of his or her
employer, provided that the employee has no financial interest in the
commercial developer by which he or she is employed.
(f) Subdivision (a) does not apply to matter that is unsolicited
and is received without knowledge or consent through a facility,
system, or network over which the person or entity has no control.
311.4. (a) Every person who, with knowledge that a person is a
minor, or who, while in possession of any facts on the basis of which
he or she should reasonably know that the person is a minor, hires,
employs, or uses the minor to do or assist in doing any of the acts
described in Section 311.2, shall be punished by imprisonment in the
county jail for up to one year, or by a fine not exceeding two
thousand dollars ($2,000), or by both that fine and imprisonment, or
by imprisonment in the state prison. If the person has previously
been convicted of any violation of this section, the court may, in
addition to the punishment authorized in Section 311.9, impose a fine
not exceeding fifty thousand dollars ($50,000).
(b) Every person who, with knowledge that a person is a minor
under the age of 18 years, or who, while in possession of any facts
on the basis of which he or she should reasonably know that the
person is a minor under the age of 18 years, knowingly promotes,
employs, uses, persuades, induces, or coerces a minor under the age
of 18 years, or any parent or guardian of a minor under the age of 18
years under his or her control who knowingly permits the minor, to
engage in or assist others to engage in either posing or modeling
alone or with others for purposes of preparing any representation of
information, data, or image, including, but not limited to, any film,
filmstrip, photograph, negative, slide, photocopy, videotape, video
laser disc, computer hardware, computer software, computer floppy
disc, data storage media, CD-ROM, or computer-generated equipment or
any other computer-generated image that contains or incorporates in
any manner, any film, filmstrip, or a live performance involving,
sexual conduct by a minor under the age of 18 years alone or with
other persons or animals, for commercial purposes, is guilty of a
felony and shall be punished by imprisonment in the state prison for
three, six, or eight years.
(c) Every person who, with knowledge that a person is a minor
under the age of 18 years, or who, while in possession of any facts
on the basis of which he or she should reasonably know that the
person is a minor under the age of 18 years, knowingly promotes,
employs, uses, persuades, induces, or coerces a minor under the age
of 18 years, or any parent or guardian of a minor under the age of 18
years under his or her control who knowingly permits the minor, to
engage in or assist others to engage in either posing or modeling
alone or with others for purposes of preparing any representation of
information, data, or image, including, but not limited to, any film,
filmstrip, photograph, negative, slide, photocopy, videotape, video
laser disc, computer hardware, computer software, computer floppy
disc, data storage media, CD-ROM, or computer-generated equipment or
any other computer-generated image that contains or incorporates in
any manner, any film, filmstrip, or a live performance involving,
sexual conduct by a minor under the age of 18 years alone or with
other persons or animals, is guilty of a felony. It is not necessary
to prove commercial purposes in order to establish a violation of
this subdivision.
(d) (1) As used in subdivisions (b) and (c), “sexual conduct”
means any of the following, whether actual or simulated: sexual
intercourse, oral copulation, anal intercourse, anal oral copulation,
masturbation, bestiality, sexual sadism, sexual masochism,
penetration of the vagina or rectum by any object in a lewd or
lascivious manner, exhibition of the genitals or pubic or rectal area
for the purpose of sexual stimulation of the viewer, any lewd or
lascivious sexual act as defined in Section 288, or excretory
functions performed in a lewd or lascivious manner, whether or not
any of the above conduct is performed alone or between members of the
same or opposite sex or between humans and animals. An act is
simulated when it gives the appearance of being sexual conduct.
(2) As used in subdivisions (b) and (c), “matter” means any film,
filmstrip, photograph, negative, slide, photocopy, videotape, video
laser disc, computer hardware, computer software, computer floppy
disc, or any other computer-related equipment or computer-generated
image that contains or incorporates in any manner, any film,
filmstrip, photograph, negative, slide, photocopy, videotape, or
video laser disc.
(e) This section does not apply to a legally emancipated minor or
to lawful conduct between spouses if one or both are under the age of
18.
(f) In every prosecution under this section involving a minor
under the age of 14 years at the time of the offense, the age of the
victim shall be pled and proven for the purpose of the enhanced
penalty provided in Section 647.6. Failure to plead and prove that
the victim was under the age of 14 years at the time of the offense
is not a bar to prosecution under this section if it is proven that
the victim was under the age of 18 years at the time of the offense.
311.5. Every person who writes, creates, or solicits the
publication or distribution of advertising or other promotional
material, or who in any manner promotes, the sale, distribution, or
exhibition of matter represented or held out by him to be obscene, is
guilty of a misdemeanor.
311.6. Every person who knowingly engages or participates in,
manages, produces, sponsors, presents or exhibits obscene live
conduct to or before an assembly or audience consisting of at least
one person or spectator in any public place or in any place exposed
to public view, or in any place open to the public or to a segment
thereof, whether or not an admission fee is charged, or whether or
not attendance is conditioned upon the presentation of a membership
card or other token, is guilty of a misdemeanor.
311.7. Every person who, knowingly, as a condition to a sale,
allocation, consignment, or delivery for resale of any paper,
magazine, book, periodical, publication or other merchandise,
requires that the purchaser or consignee receive any obscene matter
or who denies or threatens to deny a franchise, revokes or threatens
to revoke, or imposes any penalty, financial or otherwise, by reason
of the failure of any person to accept obscene matter, or by reason
of the return of such obscene matter, is guilty of a misdemeanor.
311.8. (a) It shall be a defense in any prosecution for a violation
of this chapter that the act charged was committed in aid of
legitimate scientific or educational purposes.
(b) It shall be a defense in any prosecution for a violation of
this chapter by a person who knowingly distributed any obscene matter
by the use of telephones or telephone facilities to any person under
the age of 18 years that the defendant has taken either of the
following measures to restrict access to the obscene matter by
persons under 18 years of age:
(1) Required the person receiving the obscene matter to use an
authorized access or identification code, as provided by the
information provider, before transmission of the obscene matter
begins, where the defendant has previously issued the code by mailing
it to the applicant therefor after taking reasonable measures to
ascertain that the applicant was 18 years of age or older and has
established a procedure to immediately cancel the code of any person
after receiving notice, in writing or by telephone, that the code has
been lost, stolen, or used by persons under the age of 18 years or
that the code is no longer desired.
(2) Required payment by credit card before transmission of the
matter.
(c) Any list of applicants or recipients compiled or maintained by
an information-access service provider for purposes of compliance
with subdivision (b) is confidential and shall not be sold or
otherwise disseminated except upon order of the court.
311.9. (a) Every person who violates subdivision (a) of Section
311.2 or Section 311.5 is punishable by fine of not more than one
thousand dollars ($1,000) plus five dollars ($5) for each additional
unit of material coming within the provisions of this chapter, which
is involved in the offense, not to exceed ten thousand dollars
($10,000), or by imprisonment in the county jail for not more than
six months plus one day for each additional unit of material coming
within the provisions of this chapter, and which is involved in the
offense, not to exceed a total of 360 days in the county jail, or by
both that fine and imprisonment. If that person has previously been
convicted of any offense in this chapter, or of a violation of
Section 313.1, a violation of subdivision (a) of Section 311.2 or
Section 311.5 is punishable as a felony by imprisonment pursuant to
subdivision (h) of Section 1170.
(b) Every person who violates subdivision (a) of Section 311.4 is
punishable by fine of not more than two thousand dollars ($2,000) or
by imprisonment in the county jail for not more than one year, or by
both that fine and imprisonment, or by imprisonment pursuant to
subdivision (h) of Section 1170. If that person has been previously
convicted of a violation of former Section 311.3 or Section 311.4 he
or she is punishable by imprisonment pursuant to subdivision (h) of
Section 1170.
(c) Every person who violates Section 311.7 is punishable by fine
of not more than one thousand dollars ($1,000) or by imprisonment in
the county jail for not more than six months, or by both that fine
and imprisonment. For a second and subsequent offense he or she shall
be punished by a fine of not more than two thousand dollars
($2,000), or by imprisonment in the county jail for not more than one
year, or by both that fine and imprisonment. If the person has been
twice convicted of a violation of this chapter, a violation of
Section 311.7 is punishable as a felony by imprisonment pursuant to
subdivision (h) of Section 1170.
311.10. (a) Any person who advertises for sale or distribution any
obscene matter knowing that it depicts a person under the age of 18
years personally engaging in or personally simulating sexual conduct,
as defined in Section 311.4, is guilty of a felony and is punishable
by imprisonment in the state prison for two, three, or four years,
or in a county jail not exceeding one year, or by a fine not
exceeding fifty thousand dollars ($50,000), or by both such fine and
imprisonment.
(b) Subdivision (a) shall not apply to the activities of law
enforcement and prosecution agencies in the investigation and
prosecution of criminal offenses.
311.11. (a) Every person who knowingly possesses or controls any
matter, representation of information, data, or image, including, but
not limited to, any film, filmstrip, photograph, negative, slide,
photocopy, videotape, video laser disc, computer hardware, computer
software, computer floppy disc, data storage media, CD-ROM, or
computer-generated equipment or any other computer-generated image
that contains or incorporates in any manner, any film or filmstrip,
the production of which involves the use of a person under 18 years
of age, knowing that the matter depicts a person under 18 years of
age personally engaging in or simulating sexual conduct, as defined
in subdivision (d) of Section 311.4, is guilty of a felony and shall
be punished by imprisonment in the state prison, or a county jail for
up to one year, or by a fine not exceeding two thousand five hundred
dollars ($2,500), or by both the fine and imprisonment.
(b) Every person who commits a violation of subdivision (a), and
who has been previously convicted of a violation of this section, an
offense requiring registration under the Sex Offender Registration
Act, or an attempt to commit any of the above-mentioned offenses, is
guilty of a felony and shall be punished by imprisonment in the state
prison for two, four, or six years.
(c) Each person who commits a violation of subdivision (a) shall
be punished by imprisonment in the state prison for 16 months, or two
or five years, or shall be punished by imprisonment in a county jail
for up to one year, or by a fine not exceeding two thousand five
hundred dollars ($2,500), or by both the fine and imprisonment, if
one of the following factors exists:
(1) The matter contains more than 600 images that violate
subdivision (a), and the matter contains 10 or more images involving
a prepubescent minor or a minor who has not attained 12 years of age.
(2) The matter portrays sexual sadism or sexual masochism
involving a person under 18 years of age. For purposes of this
section, “sexual sadism” means the intentional infliction of pain for
purposes of sexual gratification or stimulation. For purposes of
this section, “sexual masochism” means intentionally experiencing
pain for purposes of sexual gratification or stimulation.
(d) It is not necessary to prove that the matter is obscene in
order to establish a violation of this section.
(e) This section does not apply to drawings, figurines, statues,
or any film rated by the Motion Picture Association of America, nor
does it apply to live or recorded telephone messages when
transmitted, disseminated, or distributed as part of a commercial
transaction.
(f) For purposes of determining the number of images under
paragraph (1) of subdivision (c), the following shall apply:
(1) Each photograph, picture, computer, or computer-generated
image, or any similar visual depiction shall be considered to be one
image.
(2) Each video, video-clip, movie, or similar visual depiction
shall be considered to have 50 images.
311.12. (a) (1) Every person who is convicted of a violation of
Section 311.1, 311.2, 311.3, 311.10, or 311.11 in which the offense
involves the production, use, possession, control, or advertising of
matter or image that depicts a person under 18 years of age
personally engaging in or simulating sexual conduct, as defined in
subdivision (d) of Section 311.4, in which the violation is committed
on, or via, a government-owned computer or via a government-owned
computer network, shall, in addition to any imprisonment or fine
imposed for the commission of the underlying offense, be punished by
a fine not exceeding two thousand dollars ($2,000), unless the court
determines that the defendant does not have the ability to pay.
(2) Every person who is convicted of a violation of Section 311.1,
311.2, 311.3, 311.10, or 311.11 in which the offense involves the
production, use, possession, control, or advertising of matter or
image that depicts a person under 18 years of age personally engaging
in or simulating sexual conduct, as defined in subdivision (d) of
Section 311.4, in which the production, transportation, or
distribution of which involves the use, possession, or control of
government-owned property shall, in addition to any imprisonment or
fine imposed for the commission of the underlying offense, be
punished by a fine not exceeding two thousand dollars ($2,000),
unless the court determines that the defendant does not have the
ability to pay.
(b) The fines in subdivision (a) shall not be subject to the
provisions of Sections 70372, 76000, 76000.5, and 76104.6 of the
Government Code, or Sections 1464 and 1465.7 of this code.
(c) Revenue from any fines collected pursuant to this section
shall be deposited into a county fund established for that purpose
and allocated as follows, and a county may transfer all or part of
any of those allocations to another county for the allocated use:
(1) One-third for sexual assault investigator training.
(2) One-third for public agencies and nonprofit corporations that
provide shelter, counseling, or other direct services for victims of
human trafficking.
(3) One-third for multidisciplinary teams.
(d) As used in this section:
(1) “Computer” includes any computer hardware, computer software,
computer floppy disk, data storage medium, or CD-ROM.
(2) “Government-owned” includes property and networks owned or
operated by state government, city government, city and county
government, county government, a public library, or a public college
or university.
(3) “Multidisciplinary teams” means a child-focused,
facility-based program in which representatives from many
disciplines, including law enforcement, child protection,
prosecution, medical and mental health, and victim and child advocacy
work together to conduct interviews and make team decisions about
the investigation, treatment, management, and prosecution of child
abuse cases, including child sexual abuse cases. It is the intent of
the Legislature that this multidisciplinary team approach will
protect victims of child abuse from multiple interviews, result in a
more complete understanding of case issues, and provide the most
effective child and family-focused system response possible.
(e) Nothing in this section shall be construed to require any
government or government entity to retain data in violation of any
provision of state or federal law.
312. Upon the conviction of the accused, the court may, when the
conviction becomes final, order any matter or advertisement, in
respect whereof the accused stands convicted, and which remains in
the possession or under the control of the district attorney or any
law enforcement agency, to be destroyed, and the court may cause to
be destroyed any such material in its possession or under its
control.
312.1. In any prosecution for a violation of the provisions of this
chapter or of Chapter 7.6 (commencing with Section 313), neither the
prosecution nor the defense shall be required to introduce expert
witness testimony concerning the obscene or harmful character of the
matter or live conduct which is the subject of the prosecution. Any
evidence which tends to establish contemporary community standards of
appeal to prurient interest or of customary limits of candor in the
description or representation of nudity, sex, or excretion, or which
bears upon the question of significant literary, artistic, political,
educational, or scientific value shall, subject to the provisions of
the Evidence Code, be admissible when offered by either the
prosecution or by the defense.
312.3. (a) Matter that depicts a person under the age of 18 years
personally engaging in or personally simulating sexual conduct as
defined in Section 311.4 and that is in the possession of any city,
county, city and county, or state official or agency is subject to
forfeiture pursuant to this section.
(b) An action to forfeit matter described in subdivision (a) may
be brought by the Attorney General, the district attorney, county
counsel, or the city attorney. Proceedings shall be initiated by a
petition of forfeiture filed in the superior court of the county in
which the matter is located.
(c) The prosecuting agency shall make service of process of a
notice regarding that petition upon every individual who may have a
property interest in the alleged proceeds. The notice shall state
that any interested party may file a verified claim with the superior
court stating the amount of their claimed interest and an
affirmation or denial of the prosecuting agency’s allegation. If the
notice cannot be given by registered mail or personal delivery, the
notice shall be published for at least three successive weeks in a
newspaper of general circulation in the county where the property is
located. All notices shall set forth the time within which a claim of
interest in the property seized is required to be filed.
(d) (1) Any person claiming an interest in the property or
proceeds may, at any time within 30 days from the date of the first
publication of the notice of seizure, or within 30 days after receipt
of actual notice, file with the superior court of the county in
which the action is pending a verified claim stating his or her
interest in the property or proceeds. A verified copy of the claim
shall be given by the claimant to the Attorney General or district
attorney, county counsel, or city attorney, as appropriate.
(2) If, at the end of the time set forth in paragraph (1), an
interested person has not filed a claim, the court, upon motion,
shall declare that the person has defaulted upon his or her alleged
interest, and it shall be subject to forfeiture upon proof of
compliance with subdivision (c).
(e) The burden is on the petitioner to prove beyond a reasonable
doubt that matter is subject to forfeiture pursuant to this section.
(f) It is not necessary to seek or obtain a criminal conviction
prior to the entry of an order for the destruction of matter pursuant
to this section. Any matter described in subdivision (a) that is in
the possession of any city, county, city and county, or state
official or agency, including found property, or property obtained as
the result of a case in which no trial was had or that has been
disposed of by way of dismissal or otherwise than by way of
conviction may be ordered destroyed.
(g) A court order for destruction of matter described in
subdivision (a) may be carried out by a police or sheriff’s
department or by the Department of Justice. The court order shall
specify the agency responsible for the destruction.
(h) As used in this section, “matter” means any book, magazine,
newspaper, or other printed or written material or any picture,
drawing, photograph, motion picture, or other pictorial
representation, or any statue or other figure, or any recording,
transcription or mechanical, chemical or electrical reproduction, or
any other articles, equipment, machines, or materials. “Matter” also
means any representation of information, data, or image, including,
but not limited to, any film, filmstrip, photograph, negative, slide,
photocopy, videotape, video laser disc, computer hardware, computer
software, computer floppy disc, data storage media, CD-ROM, or
computer-generated equipment or any other computer-generated image
that contains or incorporates in any manner any film or filmstrip.
(i) This section does not apply to a depiction of a legally
emancipated minor or to lawful conduct between spouses if one or both
are under the age of 18.
(j) It is a defense in any forfeiture proceeding that the matter
seized was lawfully possessed in aid of legitimate scientific or
educational purposes.
312.5. If any phrase, clause, sentence, section or provision of
this chapter or application thereof to any person or circumstance is
held invalid, such invalidity shall not affect any other phrase,
clause, sentence, section, provision or application of this chapter,
which can be given effect without the invalid phrase, clause,
sentence, section, provision or application and to this end the
provisions of this chapter are declared to be severable.
312.6. (a) It does not constitute a violation of this chapter for a
person or entity solely to provide access or connection to or from a
facility, system, or network over which that person or entity has no
control, including related capabilities that are incidental to
providing access or connection. This subdivision does not apply to an
individual or entity that is owned or controlled by, or a
conspirator with, an entity actively involved in the creation,
editing, or knowing distribution of communications that violate this
chapter.
(b) An employer is not liable under this chapter for the actions
of an employee or agent unless the employee’s or agent’s conduct is
within the scope of his or her employment or agency and the employer
has knowledge of, authorizes, or ratifies the employee’s or agent’s
conduct.
(c) It is a defense to prosecution under this chapter and in any
civil action that may be instituted based on a violation of this
chapter that a person has taken reasonable, effective, and
appropriate actions in good faith to restrict or prevent the
transmission of, or access to, a communication specified in this
chapter.
312.7. Nothing in this chapter shall be construed to apply to
interstate services or to any other activities or actions for which
states are prohibited from imposing liability pursuant to Paragraph
(4) of subsection (g) of Section 223 of Title 47 of the United States
Code.
CHAPTER 7.6. HARMFUL MATTER
PENAL CODE
SECTION 313-313.5
313. As used in this chapter:
(a) “Harmful matter” means matter, taken as a whole, which to the
average person, applying contemporary statewide standards, appeals to
the prurient interest, and is matter which, taken as a whole,
depicts or describes in a patently offensive way sexual conduct and
which, taken as a whole, lacks serious literary, artistic, political,
or scientific value for minors.
(1) When it appears from the nature of the matter or the
circumstances of its dissemination, distribution or exhibition that
it is designed for clearly defined deviant sexual groups, the appeal
of the matter shall be judged with reference to its intended
recipient group.
(2) In prosecutions under this chapter, where circumstances of
production, presentation, sale, dissemination, distribution, or
publicity indicate that matter is being commercially exploited by the
defendant for the sake of its prurient appeal, that evidence is
probative with respect to the nature of the matter and can justify
the conclusion that the matter lacks serious literary, artistic,
political, or scientific value for minors.
(b) “Matter” means any book, magazine, newspaper, video recording,
or other printed or written material or any picture, drawing,
photograph, motion picture, or other pictorial representation or any
statue or other figure, or any recording, transcription, or
mechanical, chemical, or electrical reproduction or any other
articles, equipment, machines, or materials. “Matter” also includes
live or recorded telephone messages when transmitted, disseminated,
or distributed as part of a commercial transaction.
(c) “Person” means any individual, partnership, firm, association,
corporation, limited liability company, or other legal entity.
(d) “Distribute” means to transfer possession of, whether with or
without consideration.
(e) “Knowingly” means being aware of the character of the matter.
(f) “Exhibit” means to show.
(g) “Minor” means any natural person under 18 years of age.
313.1. (a) Every person who, with knowledge that a person is a
minor, or who fails to exercise reasonable care in ascertaining the
true age of a minor, knowingly sells, rents, distributes, sends,
causes to be sent, exhibits, or offers to distribute or exhibit by
any means, including, but not limited to, live or recorded telephone
messages, any harmful matter to the minor shall be punished as
specified in Section 313.4.
It does not constitute a violation of this section for a telephone
corporation, as defined by Section 234 of the Public Utilities Code,
to carry or transmit messages described in this chapter or to
perform related activities in providing telephone services.
(b) Every person who misrepresents himself or herself to be the
parent or guardian of a minor and thereby causes the minor to be
admitted to an exhibition of any harmful matter shall be punished as
specified in Section 313.4.
(c) (1) Any person who knowingly displays, sells, or offers to
sell in any coin-operated or slug-operated vending machine or
mechanically or electronically controlled vending machine that is
located in a public place, other than a public place from which
minors are excluded, any harmful matter displaying to the public view
photographs or pictorial representations of the commission of any of
the following acts shall be punished as specified in Section 313.4:
sodomy, oral copulation, sexual intercourse, masturbation,
bestiality, or a photograph of an exposed penis in an erect and
turgid state.
(2) Any person who knowingly displays, sells, or offers to sell in
any coin-operated vending machine that is not supervised by an adult
and that is located in a public place, other than a public place
from which minors are excluded, any harmful matter, as defined in
subdivision (a) of Section 313, shall be punished as specified in
Section 313.4.
(d) Nothing in this section invalidates or prohibits the adoption
of an ordinance by a city, county, or city and county that restricts
the display of material that is harmful to minors, as defined in this
chapter, in a public place, other than a public place from which
minors are excluded, by requiring the placement of devices commonly
known as blinder racks in front of the material, so that the lower
two-thirds of the material is not exposed to view.
(e) Any person who sells or rents video recordings of harmful
matter shall create an area within his or her business establishment
for the placement of video recordings of harmful matter and for any
material that advertises the sale or rental of these video
recordings. This area shall be labeled “adults only.” The failure to
create and label the area is an infraction, punishable by a fine not
to exceed one hundred dollars ($100). The failure to place a video
recording or advertisement, regardless of its content, in this area
shall not constitute an infraction. Any person who sells or
distributes video recordings of harmful matter to others for resale
purposes shall inform the purchaser of the requirements of this
section. This subdivision shall not apply to public libraries as
defined in Section 18710 of the Education Code.
(f) Any person who rents a video recording and alters the video
recording by adding harmful material, and who then returns the video
recording to a video rental store, shall be guilty of a misdemeanor.
It shall be a defense in any prosecution for a violation of this
subdivision that the video rental store failed to post a sign,
reasonably visible to all customers, delineating the provisions of
this subdivision.
(g) It shall be a defense in any prosecution for a violation of
subdivision (a) by a person who knowingly distributed any harmful
matter by the use of telephones or telephone facilities to any person
under the age of 18 years that the defendant has taken either of the
following measures to restrict access to the harmful matter by
persons under 18 years of age:
(1) Required the person receiving the harmful matter to use an
authorized access or identification code, as provided by the
information provider, before transmission of the harmful matter
begins, where the defendant previously has issued the code by mailing
it to the applicant after taking reasonable measures to ascertain
that the applicant was 18 years of age or older and has established a
procedure to immediately cancel the code of any person after
receiving notice, in writing or by telephone, that the code has been
lost, stolen, or used by persons under the age of 18 years or that
the code is no longer desired.
(2) Required payment by credit card before transmission of the
matter.
(h) It shall be a defense in any prosecution for a violation of
paragraph (2) of subdivision (c) that the defendant has taken either
of the following measures to restrict access to the harmful matter by
persons under 18 years of age:
(1) Required the person receiving the harmful matter to use an
authorized access or identification card to the vending machine after
taking reasonable measures to ascertain that the applicant was 18
years of age or older and has established a procedure to immediately
cancel the card of any person after receiving notice, in writing or
by telephone, that the code has been lost, stolen, or used by persons
under the age of 18 years or that the card is no longer desired.
(2) Required the person receiving the harmful matter to use a
token in order to utilize the vending machine after taking reasonable
measures to ascertain that the person was 18 years of age or older.
(i) Any list of applicants or recipients compiled or maintained by
an information-access service provider for purposes of compliance
with paragraph (1) of subdivision (g) is confidential and shall not
be sold or otherwise disseminated except upon order of the court.
313.2. (a) Nothing in this chapter shall prohibit any parent or
guardian from distributing any harmful matter to his child or ward or
permitting his child or ward to attend an exhibition of any harmful
matter if the child or ward is accompanied by him.
(b) Nothing in this chapter shall prohibit any person from
exhibiting any harmful matter to any of the following:
(1) A minor who is accompanied by his parent or guardian.
(2) A minor who is accompanied by an adult who represents himself
to be the parent or guardian of the minor and whom the person, by the
exercise of reasonable care, does not have reason to know is not the
parent or guardian of the minor.
313.3. It shall be a defense in any prosecution for a violation of
this chapter that the act charged was committed in aid of legitimate
scientific or educational purposes.
313.4. Every person who violates Section 313.1, other than
subdivision (e), is punishable by fine of not more than two thousand
dollars ($2,000), by imprisonment in the county jail for not more
than one year, or by both that fine and imprisonment. However, if the
person has been previously convicted of a violation of Section
313.1, other than subdivision (e), or of any section of Chapter 7.5
(commencing with Section 311) of Title 9 of Part 1 of this code, the
person shall be punished by imprisonment pursuant to subdivision (h)
of Section 1170.
313.5. If any phrase, clause, sentence, section or provision of
this chapter or application thereof to any person or circumstance is
held invalid, such invalidity shall not affect any other phrase,
clause, sentence, section, provision or application of this chapter,
which can be given effect without the invalid phrase, clause,
sentence, section, provision or application and to this end the
provisions of this chapter are declared to be severable.
CHAPTER 8. INDECENT EXPOSURE, OBSCENE EXHIBITIONS, AND BAWDY
AND OTHER DISORDERLY HOUSES
PENAL CODE
SECTION 314-318.6
314. Every person who willfully and lewdly, either:
1. Exposes his person, or the private parts thereof, in any
public place, or in any place where there are present other persons
to be offended or annoyed thereby; or,
2. Procures, counsels, or assists any person so to expose himself
or take part in any model artist exhibition, or to make any other
exhibition of himself to public view, or the view of any number of
persons, such as is offensive to decency, or is adapted to excite to
vicious or lewd thoughts or acts,
is guilty of a misdemeanor.
Every person who violates subdivision 1 of this section after
having entered, without consent, an inhabited dwelling house, or
trailer coach as defined in Section 635 of the Vehicle Code, or the
inhabited portion of any other building, is punishable by
imprisonment in the state prison, or in the county jail not exceeding
one year.
Upon the second and each subsequent conviction under subdivision 1
of this section, or upon a first conviction under subdivision 1 of
this section after a previous conviction under Section 288, every
person so convicted is guilty of a felony, and is punishable by
imprisonment in state prison.
315. Every person who keeps a house of ill-fame in this state,
resorted to for the purposes of prostitution or lewdness, or who
willfully resides in such house, is guilty of a misdemeanor; and in
all prosecutions for keeping or resorting to such a house common
repute may be received as competent evidence of the character of the
house, the purpose for which it is kept or used, and the character of
the women inhabiting or resorting to it.
316. Every person who keeps any disorderly house, or any house for
the purpose of assignation or prostitution, or any house of public
resort, by which the peace, comfort, or decency of the immediate
neighborhood is habitually disturbed, or who keeps any inn in a
disorderly manner; and every person who lets any apartment or
tenement, knowing that it is to be used for the purpose of
assignation or prostitution, is guilty of a misdemeanor.
318. Whoever, through invitation or device, prevails upon any
person to visit any room, building, or other places kept for the
purpose of illegal gambling or prostitution, is guilty of a
misdemeanor, and, upon conviction thereof, shall be confined in the
county jail not exceeding six months, or fined not exceeding five
hundred dollars ($500), or be punished by both that fine and
imprisonment.
318.5. (a) Nothing in this code shall invalidate an ordinance of,
or be construed to prohibit the adoption of an ordinance by, a county
or city, if that ordinance directly regulates the exposure of the
genitals or buttocks of any person, or the breasts of any female
person, who acts as a waiter, waitress, or entertainer, whether or
not the owner of the establishment in which the activity is performed
employs or pays any compensation to that person to perform the
activity, in an adult or sexually oriented business. For purposes of
this section, an “adult or sexually oriented business” includes any
establishment that regularly features live performances which are
distinguished or characterized by an emphasis on the exposure of the
genitals or buttocks of any person, or the breasts of any female
person, or specified sexual activities that involve the exposure of
the genitals or buttocks of any person, or the breasts of any female
person.
(b) The provisions of this section shall not be construed to apply
to any adult or sexually oriented business, as defined herein, that
has been adjudicated by a court of competent jurisdiction to be, or
by action of a local body such as issuance of an adult entertainment
establishment license or permit allowing the business to operate on
or before July 1, 1998, as, a theater, concert hall, or similar
establishment primarily devoted to theatrical performances for
purposes of this section.
This section shall be known and may be cited as the “Quimby-Walsh
Act.”
318.6. (a) Nothing in this code shall invalidate an ordinance of,
or be construed to prohibit the adoption of an ordinance by, a city
or county, if that ordinance relates to any live acts,
demonstrations, or exhibitions occurring within adult or sexually
oriented businesses and involve the exposure of the genitals or
buttocks of any participant or the breasts of any female participant,
and if that ordinance prohibits an act or acts which are not
expressly authorized or prohibited by this code.
(b) For purposes of this section, an “adult or sexually oriented
business” includes any establishment that regularly features live
performances which are distinguished or characterized by an emphasis
on the exposure of the genitals or buttocks of any person, or the
breasts of any female person or sexual activities that involve the
exposure of the genitals or buttocks of any person, or the breasts of
any female person.
(c) The provisions of this section shall not be construed to apply
to any adult or sexually oriented business, as defined herein, that
has been adjudicated by a court of competent jurisdiction to be, or
by action of a local body such as issuance of an adult entertainment
establishment license or permit allowing the business to operate on
or before July 1, 1998, as, a theater, concert hall, or similar
establishment primarily devoted to theatrical performances for
purposes of this section.
(d) This section shall not be construed to preempt the legislative
body of any city or county from regulating an adult or sexually
oriented business, or similar establishment, in the manner and to the
extent permitted by the United States Constitution and the
California Constitution.
CHAPTER 9. LOTTERIES
PENAL CODE
SECTION 319-329
319. A lottery is any scheme for the disposal or distribution of
property by chance, among persons who have paid or promised to pay
any valuable consideration for the chance of obtaining such property
or a portion of it, or for any share or any interest in such
property, upon any agreement, understanding, or expectation that it
is to be distributed or disposed of by lot or chance, whether called
a lottery, raffle, or gift enterprise, or by whatever name the same
may be known.
319.3. (a) In addition to Section 319, a lottery also shall include
a grab bag game which is a scheme whereby, for the disposal or
distribution of sports trading cards by chance, a person pays
valuable consideration to purchase a sports trading card grab bag
with the understanding that the purchaser has a chance to win a
designated prize or prizes listed by the seller as being contained in
one or more, but not all, of the grab bags.
(b) For purposes of this section, the following definitions shall
apply:
(1) “Sports trading card grab bag” means a sealed package which
contains one or more sports trading cards that have been removed from
the manufacturer’s original packaging. A “sports trading card grab
bag” does not include a sweepstakes, or procedure for the
distribution of any sports trading card of value by lot or by chance,
which is not unlawful under other provisions of law.
(2) “Sports trading card” means any card produced for use in
commerce that contains a company name or logo, or both, and an image,
representation, or facsimile of one or more players or other team
member or members in any pose, and that is produced pursuant to an
appropriate licensing agreement.
319.5. Neither this chapter nor Chapter 10 (commencing with Section
330) applies to the possession or operation of a reverse vending
machine. As used in this section a reverse vending machine is a
machine in which empty beverage containers are deposited for
recycling and which provides a payment of money, merchandise,
vouchers, or other incentives at a frequency less than upon each
deposit. The pay out of a reverse vending machine is made on a
deposit selected at random within the designated number of required
deposits.
The deposit of an empty beverage container in a reverse vending
machine does not constitute consideration within the definition of
lottery in Section 319.
320. Every person who contrives, prepares, sets up, proposes, or
draws any lottery, is guilty of a misdemeanor.
320.5. (a) Nothing in this chapter applies to any raffle conducted
by an eligible organization as defined in subdivision (c) for the
purpose of directly supporting beneficial or charitable purposes or
financially supporting another private, nonprofit, eligible
organization that performs beneficial or charitable purposes if the
raffle is conducted in accordance with this section.
(b) For purposes of this section, “raffle” means a scheme for the
distribution of prizes by chance among persons who have paid money
for paper tickets that provide the opportunity to win these prizes,
where all of the following are true:
(1) Each ticket is sold with a detachable coupon or stub, and both
the ticket and its associated coupon or stub are marked with a
unique and matching identifier.
(2) Winners of the prizes are determined by draw from among the
coupons or stubs described in paragraph (1) that have been detached
from all tickets sold for entry in the draw.
(3) The draw is conducted in California under the supervision of a
natural person who is 18 years of age or older.
(4) (A) At least 90 percent of the gross receipts generated from
the sale of raffle tickets for any given draw are used by the
eligible organization conducting the raffle to benefit or provide
support for beneficial or charitable purposes, or it may use those
revenues to benefit another private, nonprofit organization, provided
that an organization receiving these funds is itself an eligible
organization as defined in subdivision (c). As used in this section,
“beneficial purposes” excludes purposes that are intended to benefit
officers, directors, or members, as defined by Section 5056 of the
Corporations Code, of the eligible organization. In no event shall
funds raised by raffles conducted pursuant to this section be used to
fund any beneficial, charitable, or other purpose outside of
California. This section does not preclude an eligible organization
from using funds from sources other than the sale of raffle tickets
to pay for the administration or other costs of conducting a raffle.
(B) An employee of an eligible organization who is a direct seller
of raffle tickets shall not be treated as an employee for purposes
of workers’ compensation under Section 3351 of the Labor Code if the
following conditions are satisfied:
(i) Substantially all of the remuneration (whether or not paid in
cash) for the performance of the service of selling raffle tickets is
directly related to sales rather than to the number of hours worked.
(ii) The services performed by the person are performed pursuant
to a written contract between the seller and the eligible
organization and the contract provides that the person will not be
treated as an employee with respect to the selling of raffle tickets
for workers’ compensation purposes.
(C) For purposes of this section, employees selling raffle tickets
shall be deemed to be direct sellers as described in Section 650 of
the Unemployment Insurance Code as long as they meet the requirements
of that section.
(c) For purposes of this section, “eligible organization” means a
private, nonprofit organization that has been qualified to conduct
business in California for at least one year prior to conducting a
raffle and is exempt from taxation pursuant to Sections 23701a,
23701b, 23701d, 23701e, 23701f, 23701g, 23701k, 23701l, 23701t, or
23701w of the Revenue and Taxation Code.
(d) Any person who receives compensation in connection with the
operation of the raffle shall be an employee of the eligible
organization that is conducting the raffle, and in no event may
compensation be paid from revenues required to be dedicated to
beneficial or charitable purposes.
(e) No raffle otherwise permitted under this section may be
conducted by means of, or otherwise utilize, any gaming machine,
apparatus, or device, whether or not that machine, apparatus, or
device meets the definition of slot machine contained in Section
330a, 330b, or 330.1.
(f) (1) No raffle otherwise permitted under this section may be
conducted, nor may tickets for a raffle be sold, within an operating
satellite wagering facility or racetrack inclosure licensed pursuant
to the Horse Racing Law (Chapter 4 (commencing with Section 19400) of
Division 8 of the Business and Professions Code) or within a
gambling establishment licensed pursuant to the Gambling Control Act
(Chapter 5 (commencing with Section 19800) of Division 8 of the
Business and Professions Code).
(2) A raffle may not be operated or conducted in any manner over
the Internet, nor may raffle tickets be sold, traded, or redeemed
over the Internet. For purposes of this paragraph, an eligible
organization shall not be deemed to operate or conduct a raffle over
the Internet, or sell raffle tickets over the Internet, if the
eligible organization advertises its raffle on the Internet or
permits others to do so. Information that may be conveyed on an
Internet Web site pursuant to this paragraph includes, but is not
limited to, all of the following:
(A) Lists, descriptions, photographs, or videos of the raffle
prizes.
(B) Lists of the prize winners.
(C) The rules of the raffle.
(D) Frequently asked questions and their answers.
(E) Raffle entry forms, which may be downloaded from the Internet
Web site for manual completion by raffle ticket purchasers, but shall
not be submitted to the eligible organization through the Internet.
(F) Raffle contact information, including the eligible
organization’s name, address, telephone number, facsimile number, or
e-mail address.
(g) No individual, corporation, partnership, or other legal entity
shall hold a financial interest in the conduct of a raffle, except
the eligible organization that is itself authorized to conduct that
raffle, and any private, nonprofit, eligible organizations receiving
financial support from that charitable organization pursuant to
subdivisions (a) and (b).
(h) (1) An eligible organization may not conduct a raffle
authorized under this section, unless it registers annually with the
Department of Justice. The department shall furnish a registration
form via the Internet or upon request to eligible nonprofit
organizations. The department shall, by regulation, collect only the
information necessary to carry out the provisions of this section on
this form. This information shall include, but is not limited to, the
following:
(A) The name and address of the eligible organization.
(B) The federal tax identification number, the corporate number
issued by the Secretary of State, the organization number issued by
the Franchise Tax Board, or the California charitable trust
identification number of the eligible organization.
(C) The name and title of a responsible fiduciary of the
organization.
(2) The department may require an eligible organization to pay an
annual registration fee of ten dollars ($10) to cover the actual
costs of the department to administer and enforce this section. The
department may, by regulation, adjust the annual registration fee as
needed to ensure that revenues willfully offset, but do not exceed,
the actual costs incurred by the department pursuant to this section.
The fee shall be deposited by the department into the General Fund.
(3) The department shall receive General Fund moneys for the costs
incurred pursuant to this section subject to an appropriation by the
Legislature.
(4) The department shall adopt regulations necessary to effectuate
this section, including emergency regulations, pursuant to the
Administrative Procedure Act (Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code).
(5) The department shall maintain an automated database of all
registrants. Each local law enforcement agency shall notify the
department of any arrests or investigation that may result in an
administrative or criminal action against a registrant. The
department may audit the records and other documents of a registrant
to ensure compliance with this section.
(6) Once registered, an eligible organization must file annually
thereafter with the department a report that includes the following:
(A) The aggregate gross receipts from the operation of raffles.
(B) The aggregate direct costs incurred by the eligible
organization from the operation of raffles.
(C) The charitable or beneficial purposes for which proceeds of
the raffles were used, or identify the eligible recipient
organization to which proceeds were directed, and the amount of those
proceeds.
(7) The department shall annually furnish to registrants a form to
collect this information.
(8) The registration and reporting provisions of this section do
not apply to any religious corporation sole or other religious
corporation or organization that holds property for religious
purposes, to a cemetery corporation regulated under Chapter 19 of
Division 3 of the Business and Professions Code, or to any committee
as defined in Section 82013 that is required to and does file any
statement pursuant to the provisions of Article 2 (commencing with
Section 84200) of Chapter 4 of Title 9, or to a charitable
corporation organized and operated primarily as a religious
organization, educational institution, hospital, or a health care
service plan licensed pursuant to Section 1349 of the Health and
Safety Code.
(i) The department may take legal action against a registrant if
it determines that the registrant has violated this section or any
regulation adopted pursuant to this section, or that the registrant
has engaged in any conduct that is not in the best interests of the
public’s health, safety, or general welfare. Any action taken
pursuant to this subdivision does not prohibit the commencement of an
administrative or criminal action by the Attorney General, a
district attorney, city attorney, or county counsel.
(j) Each action and hearing conducted to deny, revoke, or suspend
a registry, or other administrative action taken against a registrant
shall be conducted pursuant to the Administrative Procedure Act
(Chapters 4.5 (commencing with Section 11400) and 5 (commencing with
Section 11500) of Part 1 of Division 3 of Title 2 of the Government
Code). The department may seek recovery of the costs incurred in
investigating or prosecuting an action against a registrant or
applicant in accordance with those procedures specified in Section
125.3 of the Business and Professions Code. A proceeding conducted
under this subdivision is subject to judicial review pursuant to
Section 1094.5 of the Code of Civil Procedure.
(k) The Department of Justice shall conduct a study and report to
the Legislature by December 31, 2003, on the impact of this section
on raffle practices in California. Specifically, the study shall
include, but not be limited to, information on whether the number of
raffles has increased, the amount of money raised through raffles and
whether this amount has increased, whether there are consumer
complaints, and whether there is increased fraud in the operation of
raffles.
(l) This section shall become operative on July 1, 2001.
(m) A raffle shall be exempt from this section if it satisfies all
of the following requirements:
(1) It involves a general and indiscriminate distribution of the
tickets.
(2) The tickets are offered on the same terms and conditions as
the tickets for which a donation is given.
(3) The scheme does not require any of the participants to pay for
a chance to win.
321. Every person who sells, gives, or in any manner whatever,
furnishes or transfers to or for any other person any ticket, chance,
share, or interest, or any paper, certificate, or instrument
purporting or understood to be or to represent any ticket, chance,
share, or interest in, or depending upon the event of any lottery, is
guilty of a misdemeanor.
322. Every person who aids or assists, either by printing, writing,
advertising, publishing, or otherwise in setting up, managing, or
drawing any lottery, or in selling or disposing of any ticket,
chance, or share therein, is guilty of a misdemeanor.
323. Every person who opens, sets up, or keeps, by himself or by
any other person, any office or other place for the sale of, or for
registering the number of any ticket in any lottery, or who, by
printing, writing, or otherwise, advertises or publishes the setting
up, opening, or using of any such office, is guilty of a misdemeanor.
324. Every person who insures or receives any consideration for
insuring for or against the drawing of any ticket in any lottery
whatever, whether drawn or to be drawn within this State or not, or
who receives any valuable consideration upon any agreement to repay
any sum, or deliver the same, or any other property, if any lottery
ticket or number of any ticket in any lottery shall prove fortunate
or unfortunate, or shall be drawn or not be drawn, at any particular
time or in any particular order, or who promises or agrees to pay any
sum of money, or to deliver any goods, things in action, or
property, or to forbear to do anything for the benefit of any person,
with or without consideration, upon any event or contingency
dependent on the drawing of any ticket in any lottery, or who
publishes any notice or proposal of any of the purposes aforesaid, is
guilty of a misdemeanor.
325. All moneys and property offered for sale or distribution in
violation of any of the provisions of this chapter are forfeited to
the state, and may be recovered by information filed, or by an action
brought by the Attorney General, or by any district attorney, in the
name of the state. Upon the filing of the information or complaint,
the clerk of the court must issue an attachment against the property
mentioned in the complaint or information, which attachment has the
same force and effect against such property, and is issued in the
same manner as attachments issued from the superior courts in civil
cases.
326. Every person who lets, or permits to be used, any building or
vessel, or any portion thereof, knowing that it is to be used for
setting up, managing, or drawing any lottery, or for the purpose of
selling or disposing of lottery tickets, is guilty of a misdemeanor.
326.3. (a) The Legislature finds and declares all of the following:
(1) Nonprofit organizations provide important and essential
educational, philanthropic, and social services to the people of the
state.
(2) One of the great strengths of California is a vibrant
nonprofit sector.
(3) Nonprofit and philanthropic organizations touch the lives of
every Californian through service and employment.
(4) Many of these services would not be available if nonprofit
organizations did not provide them.
(5) There is a need to provide methods of fundraising to nonprofit
organizations to enable them to provide these essential services.
(6) Historically, many nonprofit organizations have used
charitable bingo as one of their key fundraising strategies to
promote the mission of the charity.
(7) Legislation is needed to provide greater revenues for
nonprofit organizations to enable them to fulfill their charitable
purposes, and especially to meet their increasing social service
obligations.
(8) Legislation is also needed to clarify that existing law
requires that all charitable bingo must be played using a tangible
card and that the only permissible electronic devices to be used by
charitable bingo players are card-minding devices.
(b) Neither the prohibition on gambling in this chapter nor in
Chapter 10 (commencing with Section 330) applies to any remote caller
bingo game that is played or conducted in a city, county, or city
and county pursuant to an ordinance enacted under Section 19 of
Article IV of the California Constitution, if the ordinance allows a
remote caller bingo game to be played or conducted only in accordance
with this section, including the following requirements:
(1) The game may be conducted only by the following organizations:
(A) An organization that is exempted from the payment of the taxes
imposed under the Corporation Tax Law by Section 23701a, 23701b,
23701d, 23701e, 23701f, 23701g, 23701k, 23701l, or 23701w of the
Revenue and Taxation Code.
(B) A mobilehome park association.
(C) A senior citizens’ organization.
(D) Charitable organizations affiliated with a school district.
(2) The organization conducting the game shall have been
incorporated or in existence for three years or more.
(3) The organization conducting the game shall be licensed
pursuant to subdivision (l) of Section 326.5.
(4) The receipts of the game shall be used only for charitable
purposes. The organization conducting the game shall determine the
disbursement of the net receipts of the game.
(5) The operation of bingo may not be the primary purpose for
which the organization is organized.
(c) (1) A city, county, or city and county may adopt an ordinance
in substantially the following form to authorize remote caller bingo
in accordance with the requirements of subdivision (b):
Sec. _.01. Legislative Authorization.
This chapter is adopted pursuant to Section 19 of Article IV of
the California Constitution, as implemented by Sections 326.3 and
326.4 of the Penal Code.
Sec. _.02. Remote Caller Bingo Authorized.
Remote Caller Bingo may be lawfully played in the [City, County,
or City and County] pursuant to the provisions of Sections 326.3 and
326.4 of the Penal Code, and this chapter, and not otherwise.
Sec. _.03. Qualified Applicants: Applicants for Licensure.
(a) The following organizations are qualified to apply to the
License Official for a license to operate a bingo game if the
receipts of those games are used only for charitable purposes:
(1) An organization exempt from the payment of the taxes imposed
under the Corporation Tax Law by Section 23701a, 23701b, 23701d,
23701e, 23701f, 23701g, 23701k, 23701l, or 23701w of the Revenue and
Taxation Code.
(2) A mobilehome park association of a mobilehome park that is
situated in the [City, County, or City and County].
(3) Senior citizen organizations.
(4) Charitable organizations affiliated with a school district.
(b) The application shall be in a form prescribed by the License
Official and shall be accompanied by a nonrefundable filing fee in an
amount determined by resolution of the [Governing Body of the City,
County, or City and County] from time to time. The following
documentation shall be attached to the application, as applicable:
(1) A certificate issued by the Franchise Tax Board certifying
that the applicant is exempt from the payment of the taxes imposed
under the Corporation Tax Law pursuant to Section 23701a, 23701b,
23701d, 23701e, 23701f, 23701g, 23701k, 23701l, or 23701w of the
Revenue and Taxation Code. In lieu of a certificate issued by the
Franchise Tax Board, the License Official may refer to the Franchise
Tax Board’s Internet Web site to verify that the applicant is exempt
from the payment of the taxes imposed under the Corporation Tax Law.
(2) Other evidence as the License Official determines is necessary
to verify that the applicant is a duly organized mobilehome park
association of a mobilehome park situated in the [City, County, or
City and County].
Sec. _.04. License Application: Verification.
The license shall not be issued until the License Official has
verified the facts stated in the application and determined that the
applicant is qualified.
Sec. _.05. Annual Licenses.
A license issued pursuant to this chapter shall be valid until the
end of the calendar year, at which time the license shall expire. A
new license shall only be obtained upon filing a new application and
payment of the license fee. The fact that a license has been issued
to an applicant creates no vested right on the part of the licensee
to continue to offer bingo for play. The [Governing Body of the City,
County, or City and County] expressly reserves the right to amend or
repeal this chapter at any time by resolution. If this chapter is
repealed, all licenses issued pursuant to this chapter shall cease to
be effective for any purpose on the effective date of the repealing
resolution.
Sec. _.06. Conditions of Licensure.
(a) Any license issued pursuant to this chapter shall be subject
to the conditions contained in Sections 326.3 and 326.4 of the Penal
Code, and each licensee shall comply with the requirements of those
provisions.
(b) Each license issued pursuant to this chapter shall be subject
to the following additional conditions:
(1) Bingo games shall not be conducted by any licensee on more
than two days during any week, except that a licensee may hold one
additional game, at its election, in each calendar quarter.
(2) The licensed organization is responsible for ensuring that the
conditions of this chapter and Sections 326.3 and 326.4 of the Penal
Code are complied with by the organization and its officers and
members. A violation of any one or more of those conditions or
provisions shall constitute cause for the revocation of the
organization’s license. At the request of the organization, the
[Governing Body of the City, County, or City and County] shall hold a
public hearing before revoking any license issued pursuant to this
chapter.
(3) This section shall not require a city, county, or city and
county to use this model ordinance in order to authorize remote
caller bingo.
(d) It is a misdemeanor for any person to receive or pay a profit,
wage, or salary from any remote caller bingo game, provided that
administrative, managerial, technical, financial, and security
personnel employed by the organization conducting the bingo game may
be paid reasonable fees for services rendered from the revenues of
bingo games, as provided in subdivision (l), except that fees paid
under those agreements shall not be determined as a percentage of
receipts or other revenues from, or be dependent on the outcome of,
the game.
(e) A violation of subdivision (d) shall be punishable by a fine
not to exceed ten thousand dollars ($10,000), which fine shall be
deposited in the general fund of the city, county, or city and county
that enacted the ordinance authorizing the remote caller bingo game.
A violation of any provision of this section, other than subdivision
(d), is a misdemeanor.
(f) The city, county, or city and county that enacted the
ordinance authorizing the remote caller bingo game, or the Attorney
General, may bring an action to enjoin a violation of this section.
(g) No minors shall be allowed to participate in any remote caller
bingo game.
(h) A remote caller bingo game shall include only sites that are
located within this state.
(i) An organization authorized to conduct a remote caller bingo
game pursuant to subdivision (b) shall conduct the game only on
property that is owned or leased by the organization, or the use of
which is donated to the organization. This subdivision shall not be
construed to require that the property that is owned or leased by, or
the use of which is donated to, the organization be used or leased
exclusively by, or donated exclusively to, that organization.
(j) (1) All remote caller bingo games shall be open to the public,
and shall not be limited to the members of the authorized
organization.
(2) No more than 750 players may participate in a remote caller
bingo game in a single location.
(3) If the Governor or the President declares a state of emergency
in response to a natural disaster or other public catastrophe
occurring in California, an organization authorized to conduct remote
caller bingo games may, while that declaration is in effect, conduct
a remote caller bingo game pursuant to this section with more than
750 participants in a single venue if the net proceeds of the game,
after deduction of prizes and overhead expenses, are donated to or
expended exclusively for the relief of the victims of the disaster or
catastrophe, and the organization gives, for each participating
remote caller bingo site, the department and local law enforcement at
least 10 days’ written notice of the intent to conduct that game.
(4) For each participating remote caller bingo site, an
organization authorized by the commission to conduct remote caller
bingo games shall provide the department and local law enforcement
with at least 30 days’ advance written notice of its intent to
conduct a remote caller bingo game. That notice shall include all of
the following:
(A) The legal name of the organization and the address of record
of the agent upon whom legal notice may be served.
(B) The locations of the caller and remote players, whether the
property is owned by the organization or donated, and if donated, by
whom.
(C) The name of the licensed caller and site manager.
(D) The names of administrative, managerial, technical, financial,
and security personnel employed.
(E) The name of the vendor and any person or entity maintaining
the equipment used to operate and transmit the game.
(F) The name of the person designated as having a fiduciary
responsibility for the game pursuant to paragraph (2) of subdivision
(k).
(G) The license numbers of all persons specified in subparagraphs
(A) to (F), inclusive, who are required to be licensed.
(H) A copy of the local ordinance for any city, county, or city
and county in which the game will be played. The department shall
post the ordinance on its Internet Web site.
(I) A copy of the license issued to the organization by the
governing body of the city, county, or city and county pursuant to
subdivision (b).
(k) (1) A remote caller bingo game shall be operated and staffed
only by members of the authorized organization that organized it.
Those members shall not receive a profit, wage, or salary from any
remote caller bingo game. Only the organization authorized to conduct
a remote caller bingo game shall operate that game, or participate
in the promotion, supervision, or any other phase of a remote caller
bingo game. Subject to subdivision (m), this subdivision shall not
preclude the employment of administrative, managerial, technical,
financial, or security personnel who are not members of the
authorized organization at a location participating in the remote
caller bingo game by the organization conducting the game.
Notwithstanding any other law, exclusive or other agreements between
the authorized organization and other entities or persons to provide
services in the administration, management, or conduct of the game
shall not be considered a violation of the prohibition against
holding a legally cognizable financial interest in the conduct of the
remote caller bingo game by persons or entities other than the
charitable organization, or other entity authorized to conduct the
remote caller bingo games, if those persons or entities obtain the
gambling licenses, the key employee licenses, or the work permits
required by, and otherwise comply with, Chapter 5 (commencing with
Section 19800) of Division 8 of the Business and Professions Code.
Fees to be paid under those agreements shall be reasonable and shall
not be determined as a percentage of receipts or other revenues from,
or be dependent on the outcome of, the game.
(2) An organization that conducts a remote caller bingo game shall
designate a person as having fiduciary responsibility for the game.
(l) No individual, corporation, partnership, or other legal
entity, except the organization authorized to conduct or participate
in a remote caller bingo game, shall hold a legally cognizable
financial interest in the conduct of that game.
(m) An organization authorized to conduct a remote caller bingo
game pursuant to this section shall not have overhead costs exceeding
20 percent of gross sales, except that the limitations of this
section shall not apply to one-time, nonrecurring capital
acquisitions. For purposes of this subdivision, “overhead costs”
includes, but is not limited to, amounts paid for rent and equipment
leasing and the reasonable fees authorized to be paid to
administrative, managerial, technical, financial, and security
personnel employed by the organization pursuant to subdivision (d).
For the purpose of keeping its overhead costs below 20 percent of
gross sales, an authorized organization may elect to deduct all or a
portion of the fees paid to financial institutions for the use and
processing of credit card sales from the amount of gross revenues
awarded for prizes. In that case, the redirected fees for the use and
processing of credit card sales shall not be included in “overhead
costs” as defined in the California Remote Caller Bingo Act.
Additionally, fees paid to financial institutions for the use and
processing of credit card sales shall not be deducted from the
proceeds retained by the charitable organization.
(n) A person shall not be allowed to participate in a remote
caller bingo game unless the person is physically present at the time
and place where the remote caller bingo game is being conducted. A
person shall be deemed to be physically present at the place where
the remote caller bingo game is being conducted if he or she is
present at any of the locations participating in the remote caller
bingo game in accordance with this section.
(o) (1) An organization shall not cosponsor a remote caller bingo
game with one or more other organizations unless one of the following
is true:
(A) All of the cosponsors are affiliated under the master charter
or articles and bylaws of a single organization.
(B) All of the cosponsors are affiliated through an organization
described in paragraph (1) of subdivision (b), and have the same
Internal Revenue Service activity code.
(2) Notwithstanding paragraph (1), a maximum of 10 unaffiliated
organizations described in paragraph (1) of subdivision (b) may enter
into an agreement to cosponsor a remote caller game, but that game
shall have no more than 10 locations.
(3) An organization shall not conduct remote caller bingo more
than two days per week.
(4) Before sponsoring or operating any game authorized under
paragraph (1) or (2), each of the cosponsoring organizations shall
have entered into a written agreement, a copy of which shall be
provided to the department, setting forth how the expenses and
proceeds of the game are to be allocated among the participating
organizations, the bank accounts into which all receipts are to be
deposited and from which all prizes are to be paid, and how game
records are to be maintained and subjected to annual audit.
(p) The value of prizes awarded during the conduct of any remote
caller bingo game shall not exceed 37 percent of the gross receipts
for that game. When an authorized organization elects to deduct fees
paid for the use and processing of credit card sales from the amount
of gross revenues for that game awarded for prizes, the maximum
amount of gross revenues that may be awarded for prizes shall not
exceed 37 percent of the gross receipts for that game, less the
amount of redirected fees paid for the use and processing of credit
card sales. Every remote caller bingo game shall be played until a
winner is declared. Progressive prizes are prohibited. The declared
winner of a remote caller bingo game shall provide his or her
identifying information and a mailing address to the onsite manager
of the remote caller bingo game. Prizes shall be paid only by check;
no cash prizes shall be paid. The organization conducting the remote
caller bingo game may issue a check to the winner at the time of the
game, or may send a check to the declared winner by United States
Postal Service certified mail, return receipt requested. All prize
money exceeding state and federal exemption limits on prize money
shall be subject to income tax reporting and withholding requirements
under applicable state and federal laws and regulations and those
reports and withholding shall be forwarded, within 10 business days,
to the appropriate state or federal agency on behalf of the winner. A
report shall accompany the amount withheld identifying the person on
whose behalf the money is being sent. Any game interrupted by a
transmission failure, electrical outage, or act of God shall be
considered void in the location that was affected. A refund for a
canceled game or games shall be provided to the purchasers.
(q) (1) The commission shall require the licensure of the
following:
(A) Any person who contracts to conduct remote caller bingo on
behalf of an organization described in subdivision (b) or who is
identified as having fiduciary responsibility for the game pursuant
to subdivision (k).
(B) Any person who directly or indirectly manufactures,
distributes, supplies, vends, leases, or otherwise provides supplies,
devices, services, or other equipment designed for use in the
playing of a remote caller bingo game by any organization described
in subdivision (b).
(C) Beginning January 31, 2009, or a later date as may be
established by the commission, all persons described in subparagraph
(A) or (B) may submit to the commission a letter of intent to submit
an application for licensure. The letter shall clearly identify the
principal applicant, all categories under which the application will
be filed, and the names of all those particular individuals who are
applying. Each charitable organization shall provide an estimate of
the frequency with which it plans to conduct remote caller bingo
operations, including the number of locations. The letter of intent
may be withdrawn or updated at any time.
(2) (A) Background investigations related to remote caller bingo
conducted by the department shall be in accordance with the Gambling
Control Act (Chapter 5 (commencing with Section 19800) of Division 8
of the Business and Professions Code) and as specified in regulations
promulgated by the commission or the department.
(B) Fees to cover background investigation costs shall be paid and
accounted for in accordance with Section 19867 of the Business and
Professions Code.
(3) (A) Every application for a license or approval by a person
described in subparagraph (A) of paragraph (1) shall be submitted to
the department and accompanied by a nonrefundable fee.
(B) Fees and revenue collected pursuant to this paragraph shall be
deposited in the California Bingo Fund, which is hereby created in
the State Treasury. The funds deposited in the California Bingo Fund
shall be available, upon appropriation by the Legislature, for
expenditure by the commission and the department exclusively for the
support of the commission and department in carrying out their duties
and responsibilities under this section and Section 326.5.
(C) A loan is hereby authorized from the Gambling Control Fund to
the California Bingo Fund on or after January 1, 2009, in an amount
of up to five hundred thousand dollars ($500,000) to fund operating,
personnel, and other startup costs incurred by the commission and
department relating to this section. Funds from the California Bingo
Fund shall be available to the commission and department upon
appropriation by the Legislature in the annual Budget Act. The loan
shall be subject to all of the following conditions:
(i) The loan shall be repaid to the Gambling Control Fund as soon
as there is sufficient money in the California Bingo Fund to repay
the amount loaned, but no later than July 1, 2019.
(ii) Interest on the loan shall be paid from the California Bingo
Fund at the rate accruing to moneys in the Pooled Money Investment
Account.
(iii) The terms and conditions of the loan are approved, prior to
the transfer of funds, by the Department of Finance pursuant to
appropriate fiscal standards.
The commission and department may assess and collect reasonable
fees and deposits as necessary to defray the costs of regulation and
oversight.
(D) Notwithstanding any other law, the loan authorized by
Provision 1 of Item 0855-001-0567 of the Budget Act of 2009, in the
amount of four hundred fifty-seven thousand dollars ($457,000), shall
be repaid no later than July 1, 2019.
(E) The licensing fee for any person or entity that directly or
indirectly manufactures, distributes, supplies, vends, leases, or
otherwise provides supplies, devices, services, or other equipment
designed for use in the playing of a remote caller bingo game by any
nonprofit organization shall be in an amount determined by the
department, not to exceed the reasonable regulatory costs to the
department and in accordance with regulations adopted pursuant to
this chapter. Prior to the adoption of the regulations, the
nonrefundable license fee shall be the amount of the reasonable
regulatory costs to the department, not to exceed three thousand
dollars ($3,000) per year.
(r) The administrative, managerial, technical, financial, and
security personnel employed by an organization that conducts remote
caller bingo games shall apply for, obtain, and thereafter maintain
valid work permits, as defined in Section 19805 of the Business and
Professions Code.
(s) An organization that conducts remote caller bingo games shall
retain records in connection with the remote caller bingo game for
five years.
(t) (1) All equipment used for remote caller bingo shall be
certified as compliant with regulations adopted by the department by
a manufacturing expert recognized by the department. Certifications
shall be submitted to the department prior to the use of any
equipment subject to this subdivision.
(2) The department may monitor operation of the transmission and
other equipment used for remote caller bingo, and monitor the game.
(u) (1) As used in this section, “remote caller bingo game” means
a game of bingo, as defined in subdivision (o) of Section 326.5, in
which the numbers or symbols on randomly drawn plastic balls are
announced by a natural person present at the site at which the live
game is conducted, and the organization conducting the bingo game
uses audio and video technology to link any of its in-state
facilities for the purpose of transmitting the remote calling of a
live bingo game from a single location to multiple locations owned,
leased, or rented by that organization, or as described in
subdivision (o) of this section. The audio or video technology used
to link the facilities may include cable, Internet, satellite,
broadband, or telephone technology, or any other means of electronic
transmission that ensures the secure, accurate, and simultaneous
transmission of the announcement of numbers or symbols in the game
from the location at which the game is called by a natural person to
the remote location or locations at which players may participate in
the game. The drawing of each ball bearing a number or symbol by the
natural person calling the game shall be visible to all players as
the ball is drawn, including through a simultaneous live video feed
at remote locations at which players may participate in the game.
(2) The caller in the live game must be licensed by the California
Gambling Control Commission. A game may be called by a nonlicensed
caller if the drawing of balls and calling of numbers or symbols by
that person is observed and personally supervised by a licensed
caller.
(3) Remote caller bingo games shall be played using traditional
paper or other tangible bingo cards and daubers, and shall not be
played by using electronic devices, except card-minding devices, as
described in paragraph (1) of subdivision (p) of Section 326.5.
(4) Prior to conducting a remote caller bingo game, the
organization that conducts remote caller bingo shall submit to the
department the controls, methodology, and standards of game play,
which shall include, but not be limited to, the equipment used to
select bingo numbers and create or originate cards, control or
maintenance, distribution to participating locations, and
distribution to players. Those controls, methodologies, and standards
shall be subject to prior approval by the department, provided that
the controls shall be deemed approved by the department after 90 days
from the date of submission unless disapproved.
(v) A location shall not be eligible to participate in a remote
caller bingo game if bingo games are conducted at that location in
violation of Section 326.5 or any regulation adopted by the
commission pursuant to Section 19841 of the Business and Professions
Code, including, but not limited to, a location at which unlawful
electronic devices are used.
(w) (1) The vendor of the equipment used in a remote caller bingo
game shall have its books and records audited at least annually by an
independent California certified public accountant and shall submit
the results of that audit to the department within 120 days after the
close of the vendor’s fiscal year. In addition, the department may
audit the books and records of the vendor at any time.
(2) An authorized organization that conducts remote caller bingo
games shall be audited by an independent California certified public
accountant at least annually and copies of the audit reports shall be
provided to the department within 60 days of completion of the audit
report. A city, county, or city and county shall be provided a full
copy of the audit or an audit report upon request. The audit report
shall account for the annual amount of fees paid to financial
institutions for the use and processing of credit card sales by the
authorized organization and the amount of fees for the use and
processing of credit card sales redirected from “overhead costs” and
deducted from the amount of gross revenues awarded for prizes.
(3) The costs of the licensing and audits required by this section
shall be borne by the person or entity required to be licensed or
audited. The audit shall enumerate the receipts for remote caller
bingo, the prizes disbursed, the overhead costs, and the amount
retained by the nonprofit organization. The department may audit the
books and records of an organization that conducts remote caller
bingo games at any time.
(4) If the department identifies practices in violation of this
section, the license for the audited entity may be suspended pending
review and hearing before the commission for a final determination.
(x) (1) The provisions of this section are severable. If any
provision of this section or its application is held invalid, that
invalidity shall not affect other provisions or applications that can
be given effect without the invalid provision or application.
(2) Notwithstanding paragraph (1), if paragraph (1) or (3) of
subdivision (u), or the application of either of those provisions, is
held invalid, this entire section shall be invalid.
(y) The department shall submit a report to the Legislature, on or
before January 1, 2016, on the fundraising effectiveness and
regulation of remote caller bingo, and other matters that are
relevant to the public interest regarding remote caller bingo.
(z) The following definitions apply for purposes of this section:
(1) “Commission” means the California Gambling Control Commission.
(2) “Department” means the Department of Justice.
(3) “Person” includes a natural person, corporation, limited
liability company, partnership, trust, joint venture, association, or
any other business organization.
(aa) This section shall become inoperative on July 1, 2016, and,
as of January 1, 2017, is repealed, unless a later enacted statute,
that becomes operative on or before January 1, 2017, deletes or
extends the dates on which it becomes inoperative and is repealed.
326.4. (a) Consistent with the Legislature’s finding that
card-minding devices, as described in subdivision (p) of Section
326.5, are the only permissible electronic devices to be used by
charity bingo players, and in an effort to ease the transition to
remote caller bingo on the part of those nonprofit organizations
that, as of July 1, 2008, used electronic devices other than
card-minding devices to conduct games in reliance on an ordinance of
a city, county, or city and county that, as of July 1, 2008,
expressly recognized the operation of electronic devices other than
card-minding devices by organizations purportedly authorized to
conduct bingo in the city, county, or city and county, there is
hereby created the Charity Bingo Mitigation Fund.
(b) The Charity Bingo Mitigation Fund shall be administered by the
Department of Justice.
(c) Mitigation payments to be made by the Charity Bingo Mitigation
Fund shall not exceed five million dollars ($5,000,000) in the
aggregate.
(d) (1) To allow the Charity Bingo Mitigation Fund to become
immediately operable, five million dollars ($5,000,000) shall be
loaned from the accrued interest in the Indian Gaming Special
Distribution Fund to the Charity Bingo Mitigation Fund on or after
January 1, 2009, to make mitigation payments to eligible nonprofit
organizations. Five million dollars ($5,000,000) of this loan amount
is hereby appropriated to the California Gambling Control Commission
for the purposes of providing mitigation payments to certain
charitable organizations, as described in subdivision (e). Pursuant
to Section 16304 of the Government Code, after three years the
unexpended balance shall revert back to the Charity Bingo Mitigation
Fund.
(2) To reimburse the Special Distribution Fund, those nonprofit
organizations that conduct a remote caller bingo game pursuant to
Section 326.3 shall pay to the Department of Justice an amount equal
to 5 percent of the gross revenues of each remote caller bingo game
played until that time as the full advanced amount plus interest on
the loan at the rate accruing to moneys in the Pooled Money
Investment Account is reimbursed.
(e) (1) An organization meeting the requirements in subdivision
(a) shall be eligible to receive mitigation payments from the Charity
Bingo Mitigation Fund only if the city, county, or city and county
in which the organization is located maintained official records of
the net revenues generated for the fiscal year ending June 30, 2008,
by the organization from the use of electronic devices or the
organization maintained audited financial records for the fiscal year
ending June 30, 2008, which show the net revenues generated from the
use of electronic devices.
(2) In addition, an organization applying for mitigation payments
shall provide proof that its board of directors has adopted a
resolution and its chief executive officer has signed a statement
executed under penalty of perjury stating that, as of January 1,
2009, the organization has ceased using electronic devices other than
card-minding devices, as described in subdivision (p) of Section
326.5, as a fundraising tool.
(3) Each eligible organization may apply to the California
Gambling Control Commission no later than January 31, 2009, for the
mitigation payments in the amount equal to net revenues from the
fiscal year ending June 30, 2008, by filing an application, including
therewith documents and other proof of eligibility, including any
and all financial records documenting the organization’s net revenues
for the fiscal year ending June 30, 2008, as the California Gambling
Control Commission may require. The California Gambling Control
Commission is authorized to access and examine the financial records
of charities requesting funding in order to confirm the legitimacy of
the request for funding. In the event that the total of those
requests exceeds five million dollars ($5,000,000), payments to all
eligible applicants shall be reduced in proportion to each requesting
organization’s reported or audited net revenues from the operation
of electronic devices.
326.45. Up to five hundred thousand dollars ($500,000), as
determined by order of the Director of Finance, is hereby
appropriated from the California Bingo Fund to the California
Gambling Control Commission for use in the 2008-09 fiscal year for
the purposes described in subparagraph (C) of paragraph (3) of
subdivision (q) of Section 326.3.
326.5. (a) Neither the prohibition on gambling in this chapter nor
in Chapter 10 (commencing with Section 330) applies to any bingo game
that is conducted in a city, county, or city and county pursuant to
an ordinance enacted under Section 19 of Article IV of the State
Constitution, if the ordinance allows games to be conducted only in
accordance with this section and only by organizations exempted from
the payment of the bank and corporation tax by Sections 23701a,
23701b, 23701d, 23701e, 23701f, 23701g, 23701k, 23701w, and 23701l of
the Revenue and Taxation Code and by mobilehome park associations,
senior citizens organizations, and charitable organizations
affiliated with a school district; and if the receipts of those games
are used only for charitable purposes.
(b) It is a misdemeanor for any person to receive or pay a profit,
wage, or salary from any bingo game authorized by Section 19 of
Article IV of the State Constitution. Security personnel employed by
the organization conducting the bingo game may be paid from the
revenues of bingo games, as provided in subdivisions (j) and (k).
(c) A violation of subdivision (b) shall be punishable by a fine
not to exceed ten thousand dollars ($10,000), which fine is deposited
in the general fund of the city, county, or city and county that
enacted the ordinance authorizing the bingo game. A violation of any
provision of this section, other than subdivision (b), is a
misdemeanor.
(d) The city, county, or city and county that enacted the
ordinance authorizing the bingo game may bring an action to enjoin a
violation of this section.
(e) Minors shall not be allowed to participate in any bingo game.
(f) An organization authorized to conduct bingo games pursuant to
subdivision (a) shall conduct a bingo game only on property owned or
leased by it, or property whose use is donated to the organization,
and which property is used by that organization for an office or for
performance of the purposes for which the organization is organized.
Nothing in this subdivision shall be construed to require that the
property owned or leased by, or whose use is donated to, the
organization be used or leased exclusively by, or donated exclusively
to, that organization.
(g) All bingo games shall be open to the public, not just to the
members of the authorized organization.
(h) A bingo game shall be operated and staffed only by members of
the authorized organization that organized it. Those members shall
not receive a profit, wage, or salary from any bingo game. Only the
organization authorized to conduct a bingo game shall operate such a
game, or participate in the promotion, supervision, or any other
phase of a bingo game. This subdivision does not preclude the
employment of security personnel who are not members of the
authorized organization at a bingo game by the organization
conducting the game.
(i) Any individual, corporation, partnership, or other legal
entity, except the organization authorized to conduct a bingo game,
shall not hold a financial interest in the conduct of a bingo game.
(j) With respect to organizations exempt from payment of the bank
and corporation tax by Section 23701d of the Revenue and Taxation
Code, all profits derived from a bingo game shall be kept in a
special fund or account and shall not be commingled with any other
fund or account. Those profits shall be used only for charitable
purposes.
(k) With respect to other organizations authorized to conduct
bingo games pursuant to this section, all proceeds derived from a
bingo game shall be kept in a special fund or account and shall not
be commingled with any other fund or account. Proceeds are the
receipts of bingo games conducted by organizations not within
subdivision (j). Those proceeds shall be used only for charitable
purposes, except as follows:
(1) The proceeds may be used for prizes.
(2) (A) Except as provided in subparagraph (B), a portion of the
proceeds, not to exceed 20 percent of the proceeds before the
deduction for prizes, or two thousand dollars ($2,000) per month,
whichever is less, may be used for the rental of property and for
overhead, including the purchase of bingo equipment, administrative
expenses, security equipment, and security personnel.
(B) For the purposes of bingo games conducted by the Lake Elsinore
Elks Lodge, a portion of the proceeds, not to exceed 20 percent of
the proceeds before the deduction for prizes, or three thousand
dollars ($3,000) per month, whichever is less, may be used for the
rental of property and for overhead, including the purchase of bingo
equipment, administrative expenses, security equipment, and security
personnel. Any amount of the proceeds that is additional to that
permitted under subparagraph (A), up to one thousand dollars
($1,000), shall be used for the purpose of financing the rebuilding
of the facility and the replacement of equipment that was destroyed
by fire in 2007. The exception to subparagraph (A) that is provided
by this subparagraph shall remain in effect only until the cost of
rebuilding the facility is repaid, or January 1, 2019, whichever
occurs first.
(3) The proceeds may be used to pay license fees.
(4) A city, county, or city and county that enacts an ordinance
permitting bingo games may specify in the ordinance that if the
monthly gross receipts from bingo games of an organization within
this subdivision exceed five thousand dollars ($5,000), a minimum
percentage of the proceeds shall be used only for charitable purposes
not relating to the conducting of bingo games and that the balance
shall be used for prizes, rental of property, overhead,
administrative expenses, and payment of license fees. The amount of
proceeds used for rental of property, overhead, and administrative
expenses is subject to the limitations specified in paragraph (2).
(l) (1) A city, county, or city and county may impose a license
fee on each organization that it authorizes to conduct bingo games.
The fee, whether for the initial license or renewal, shall not exceed
fifty dollars ($50) annually, except as provided in paragraph (2).
If an application for a license is denied, one-half of any license
fee paid shall be refunded to the organization.
(2) In lieu of the license fee permitted under paragraph (1), a
city, county, or city and county may impose a license fee of fifty
dollars ($50) paid upon application. If an application for a license
is denied, one-half of the application fee shall be refunded to the
organization. An additional fee for law enforcement and public safety
costs incurred by the city, county, or city and county that are
directly related to bingo activities may be imposed and shall be
collected monthly by the city, county, or city and county issuing the
license; however, the fee shall not exceed the actual costs incurred
in providing the service.
(m) A person shall not be allowed to participate in a bingo game,
unless the person is physically present at the time and place where
the bingo game is being conducted.
(n) The total value of prizes available to be awarded during the
conduct of any bingo games shall not exceed five hundred dollars
($500) in cash or kind, or both, for each separate game which is
held.
(o) As used in this section, “bingo” means a game of chance in
which prizes are awarded on the basis of designated numbers or
symbols that are marked or covered by the player on a tangible card
in the player’s possession and that conform to numbers or symbols,
selected at random and announced by a live caller. Notwithstanding
Section 330c, as used in this section, the game of bingo includes
tangible cards having numbers or symbols that are concealed and
preprinted in a manner providing for distribution of prizes.
Electronics or video displays shall not be used in connection with
the game of bingo, except in connection with the caller’s drawing of
numbers or symbols and the public display of that drawing, and except
as provided in subdivision (p). The winning cards shall not be known
prior to the game by any person participating in the playing or
operation of the bingo game. All preprinted cards shall bear the
legend, “for sale or use only in a bingo game authorized under
California law and pursuant to local ordinance.” Only a covered or
marked tangible card possessed by a player and presented to an
attendant may be used to claim a prize. It is the intention of the
Legislature that bingo as defined in this subdivision applies
exclusively to this section and shall not be applied in the
construction or enforcement of any other provision of law.
(p) (1) Players who are physically present at a bingo game may use
hand-held, portable card-minding devices, as described in this
subdivision, to assist in monitoring the numbers or symbols announced
by a live caller as those numbers or symbols are called in a live
game. Card-minding devices may not be used in connection with any
game where a bingo card may be sold or distributed after the start of
the ball draw for that game. A card-minding device shall do all of
the following:
(A) Be capable of storing in the memory of the device bingo faces
of tangible cards purchased by a player.
(B) Provide a means for bingo players to input manually each
individual number or symbol announced by a live caller.
(C) Compare the numbers or symbols entered by the player to the
bingo faces previously stored in the memory of the device.
(D) Identify winning bingo patterns that exist on the stored bingo
faces.
(2) A card-minding device shall perform no functions involving the
play of the game other than those described in paragraph (1).
Card-minding devices shall not do any of the following:
(A) Be capable of accepting or dispensing any coins, currency, or
other representative of value or on which value has been encoded.
(B) Be capable of monitoring any bingo card face other than the
faces of the tangible bingo card or cards purchased by the player for
that game.
(C) Display or represent the game result through any means,
including, but not limited to, video or mechanical reels or other
slot machine or casino game themes, other than highlighting the
winning numbers or symbols marked or covered on the tangible bingo
cards or giving an audio alert that the player’s card has a
prize-winning pattern.
(D) Determine the outcome of any game or be physically or
electronically connected to any component that determines the outcome
of a game or to any other bingo equipment, including, but not
limited to, the ball call station, or to any other card-minding
device. No other player-operated or player-activated electronic or
electromechanical device or equipment is permitted to be used in
connection with a bingo game.
(3) (A) A card-minding device shall be approved in advance by the
department as meeting the requirements of this section and any
additional requirements stated in regulations adopted by the
department. Any proposed material change to the device, including any
change to the software used by the device, shall be submitted to the
department and approved by the department prior to implementation.
(B) In accordance with Chapter 5 (commencing with Section 19800)
of Division 8 of the Business and Professions Code, the commission
shall establish reasonable criteria for, and require the licensure
of, any person that directly or indirectly manufactures, distributes,
supplies, vends, leases, or otherwise provides card-minding devices
or other supplies, equipment, or services related to card-minding
devices designed for use in the playing of bingo games by any
nonprofit organization.
(C) A person or entity that supplies or services any card-minding
device shall meet all licensing requirements established by the
commission in regulations.
(4) The costs of any testing, certification, license, or
determination required by this subdivision shall be borne by the
person or entity seeking it.
(5) On and after January 1, 2010, the Department of Justice may
inspect all card-minding devices at any time without notice, and may
immediately prohibit the use of any device that does not comply with
the requirements established by the department in regulations. The
Department of Justice may at any time, without notice, impound any
device the use of which has been prohibited by the commission.
(6) The Department of Justice shall issue regulations to implement
the requirements of this subdivision, and the California Gambling
Control Commission may issue regulations regarding the means by which
the operator of a bingo game, as required by applicable law, may
offer assistance to a player with disabilities in order to enable
that player to participate in a bingo game, provided that the means
of providing that assistance shall not be through any electronic,
electromechanical, or other device or equipment that accepts the
insertion of any coin, currency, token, credit card, or other means
of transmitting value, and does not constitute or is not a part of a
system that constitutes a video lottery terminal, slot machine, or
device prohibited by Chapter 10 (commencing with Section 330).
(7) The following definitions apply for purposes of this
subdivision:
(A) “Commission” means the California Gambling Control Commission.
(B) “Department” means the Department of Justice.
(C) “Person” includes a natural person, corporation, limited
liability company, partnership, trust, joint venture, association, or
any other business organization.
327. Every person who contrives, prepares, sets up, proposes, or
operates any endless chain is guilty of a public offense, and is
punishable by imprisonment in the county jail not exceeding one year
or in state prison for 16 months, two, or three years.
As used in this section, an “endless chain” means any scheme for
the disposal or distribution of property whereby a participant pays a
valuable consideration for the chance to receive compensation for
introducing one or more additional persons into participation in the
scheme or for the chance to receive compensation when a person
introduced by the participant introduces a new participant.
Compensation, as used in this section, does not mean or include
payment based upon sales made to persons who are not participants in
the scheme and who are not purchasing in order to participate in the
scheme.
328. Nothing in this chapter shall make unlawful the printing or
other production of any advertisements for, or any ticket, chance, or
share in a lottery conducted in any other state or nation where such
lottery is not prohibited by the laws of such state or nation; or
the sale of such materials by the manufacturer thereof to any person
or entity conducting or participating in the conduct of such a
lottery in any such state or nation. This section does not authorize
any advertisement within California relating to lotteries, or the
sale or resale within California of lottery tickets, chances, or
shares to individuals, or acts otherwise in violation of any laws of
the state.
329. Upon a trial for the violation of any of the provisions of
this chapter, it is not necessary to prove the existence of any
lottery in which any lottery ticket purports to have been issued, or
to prove the actual signing of any such ticket or share, or pretended
ticket or share, of any pretended lottery, nor that any lottery
ticket, share, or interest was signed or issued by the authority of
any manager, or of any person assuming to have authority as manager;
but in all cases proof of the sale, furnishing, bartering, or
procuring of any ticket, share, or interest therein, or of any
instrument purporting to be a ticket, or part or share of any such
ticket, is evidence that such share or interest was signed and issued
according to the purport thereof.
CHAPTER 10. GAMING
PENAL CODE
SECTION 330-337z
330. Every person who deals, plays, or carries on, opens, or causes
to be opened, or who conducts, either as owner or employee, whether
for hire or not, any game of faro, monte, roulette, lansquenet, rouge
et noire, rondo, tan, fan-tan, seven-and-a-half, twenty-one,
hokey-pokey, or any banking or percentage game played with cards,
dice, or any device, for money, checks, credit, or other
representative of value, and every person who plays or bets at or
against any of those prohibited games, is guilty of a misdemeanor,
and shall be punishable by a fine not less than one hundred dollars
($100) nor more than one thousand dollars ($1,000), or by
imprisonment in the county jail not exceeding six months, or by both
the fine and imprisonment.
330a. (a) Every person, who has in his or her possession or under
his or her control, either as owner, lessee, agent, employee,
mortgagee, or otherwise, or who permits to be placed, maintained, or
kept in any room, space, inclosure, or building owned, leased, or
occupied by him or her, or under his or her management or control,
any slot or card machine, contrivance, appliance or mechanical
device, upon the result of action of which money or other valuable
thing is staked or hazarded, and which is operated, or played, by
placing or depositing therein any coins, checks, slugs, balls, or
other articles or device, or in any other manner and by means
whereof, or as a result of the operation of which any merchandise,
money, representative or articles of value, checks, or tokens,
redeemable in or exchangeable for money or any other thing of value,
is won or lost, or taken from or obtained from the machine, when the
result of action or operation of the machine, contrivance, appliance,
or mechanical device is dependent upon hazard or chance, and every
person, who has in his or her possession or under his or her control,
either as owner, lessee, agent, employee, mortgagee, or otherwise,
or who permits to be placed, maintained, or kept in any room, space,
inclosure, or building owned, leased, or occupied by him or her, or
under his or her management or control, any card dice, or any dice
having more than six faces or bases each, upon the result of action
of which any money or other valuable thing is staked or hazarded, or
as a result of the operation of which any merchandise, money,
representative or article of value, check or token, redeemable in or
exchangeable for money or any other thing of value, is won or lost or
taken, when the result of action or operation of the dice is
dependent upon hazard or chance, is guilty of a misdemeanor.
(b) A first violation of this section shall be punishable by a
fine of not less than five hundred dollars ($500) nor more than one
thousand dollars ($1,000), or by imprisonment in a county jail not
exceeding six months, or by both that fine and imprisonment.
(c) A second offense shall be punishable by a fine of not less
than one thousand dollars ($1,000) nor more than ten thousand dollars
($10,000), or by imprisonment in a county jail not exceeding six
months, or by both that fine and imprisonment.
(d) A third or subsequent offense shall be punishable by a fine of
not less than ten thousand dollars ($10,000) nor more than
twenty-five thousand dollars ($25,000), or by imprisonment in a
county jail not exceeding one year, or by both that fine and
imprisonment.
(e) If the offense involved more than one machine or more than one
location, an additional fine of not less than one thousand dollars
($1,000) nor more than five thousand dollars ($5,000) shall be
imposed per machine and per location.
330b. (a) It is unlawful for any person to manufacture, repair,
own, store, possess, sell, rent, lease, let on shares, lend or give
away, transport, or expose for sale or lease, or to offer to repair,
sell, rent, lease, let on shares, lend or give away, or permit the
operation, placement, maintenance, or keeping of, in any place, room,
space, or building owned, leased, or occupied, managed, or
controlled by that person, any slot machine or device, as defined in
this section.
It is unlawful for any person to make or to permit the making of
an agreement with another person regarding any slot machine or
device, by which the user of the slot machine or device, as a result
of the element of hazard or chance or other unpredictable outcome,
may become entitled to receive money, credit, allowance, or other
thing of value or additional chance or right to use the slot machine
or device, or to receive any check, slug, token, or memorandum
entitling the holder to receive money, credit, allowance, or other
thing of value.
(b) The limitations of subdivision (a), insofar as they relate to
owning, storing, possessing, or transporting any slot machine or
device, do not apply to any slot machine or device located upon or
being transported by any vessel regularly operated and engaged in
interstate or foreign commerce, so long as the slot machine or device
is located in a locked compartment of the vessel, is not accessible
for use, and is not used or operated within the territorial
jurisdiction of this state.
(c) The limitations of subdivision (a) do not apply to a
manufacturer’s business activities that are conducted in accordance
with the terms of a license issued by a tribal gaming agency pursuant
to the tribal-state gaming compacts entered into in accordance with
the Indian Gaming Regulatory Act (18 U.S.C. Sec. 1166 to 1168,
inclusive, and 25 U.S.C. Sec. 2701 et seq.).
(d) For purposes of this section, “slot machine or device” means a
machine, apparatus, or device that is adapted, or may readily be
converted, for use in a way that, as a result of the insertion of any
piece of money or coin or other object, or by any other means, the
machine or device is caused to operate or may be operated, and by
reason of any element of hazard or chance or of other outcome of
operation unpredictable by him or her, the user may receive or become
entitled to receive any piece of money, credit, allowance, or thing
of value, or additional chance or right to use the slot machine or
device, or any check, slug, token, or memorandum, whether of value or
otherwise, which may be exchanged for any money, credit, allowance,
or thing of value, or which may be given in trade, irrespective of
whether it may, apart from any element of hazard or chance or
unpredictable outcome of operation, also sell, deliver, or present
some merchandise, indication of weight, entertainment, or other thing
of value.
(e) Every person who violates this section is guilty of a
misdemeanor.
(1) A first violation of this section shall be punishable by a
fine of not less than five hundred dollars ($500) nor more than one
thousand dollars ($1,000), or by imprisonment in a county jail not
exceeding six months, or by both that fine and imprisonment.
(2) A second offense shall be punishable by a fine of not less
than one thousand dollars ($1,000) nor more than ten thousand dollars
($10,000), or by imprisonment in a county jail not exceeding six
months, or by both that fine and imprisonment.
(3) A third or subsequent offense shall be punishable by a fine of
not less than ten thousand dollars ($10,000) nor more than
twenty-five thousand dollars ($25,000), or by imprisonment in a
county jail not exceeding one year, or by both that fine and
imprisonment.
(4) If the offense involved more than one machine or more than one
location, an additional fine of not less than one thousand dollars
($1,000) nor more than five thousand dollars ($5,000) shall be
imposed per machine and per location.
(f) Pinball and other amusement machines or devices, which are
predominantly games of skill, whether affording the opportunity of
additional chances or free plays or not, are not included within the
term slot machine or device, as defined in this section.
330c. A punchboard as hereinafter defined is hereby declared to be
a slot machine or device within the meaning of Section 330b of this
code and shall be subject to the provisions thereof. For the purposes
of this section, a punchboard is any card, board or other device
which may be played or operated by pulling, pressing, punching out or
otherwise removing any slip, tab, paper or other substance therefrom
to disclose any concealed number, name or symbol.
330.1. (a) Every person who manufactures, owns, stores, keeps,
possesses, sells, rents, leases, lets on shares, lends or gives away,
transports, or exposes for sale or lease, or offers to sell, rent,
lease, let on shares, lend or give away or who permits the operation
of or permits to be placed, maintained, used, or kept in any room,
space, or building owned, leased, or occupied by him or her or under
his or her management or control, any slot machine or device as
hereinafter defined, and every person who makes or permits to be made
with any person any agreement with reference to any slot machine or
device as hereinafter defined, pursuant to which agreement the user
thereof, as a result of any element of hazard or chance, may become
entitled to receive anything of value or additional chance or right
to use that slot machine or device, or to receive any check, slug,
token, or memorandum, whether of value or otherwise, entitling the
holder to receive anything of value, is guilty of a misdemeanor.
(b) A first violation of this section shall be punishable by a
fine of not more than one thousand dollars ($1,000), or by
imprisonment in a county jail not exceeding six months, or by both
that fine and imprisonment.
(c) A second offense shall be punishable by a fine of not less
than one thousand dollars ($1,000) nor more than ten thousand dollars
($10,000), or by imprisonment in a county jail not exceeding six
months, or by both that fine and imprisonment.
(d) A third or subsequent offense shall be punishable by a fine of
not less than ten thousand dollars ($10,000) nor more than
twenty-five thousand dollars ($25,000), or by imprisonment in a
county jail not exceeding one year, or by both that fine and
imprisonment.
(e) If the offense involved more than one machine or more than one
location, an additional fine of not less than one thousand dollars
($1,000) nor more than five thousand dollars ($5,000) shall be
imposed per machine and per location.
(f) A slot machine or device within the meaning of Sections 330.1
to 330.5, inclusive, of this code is one that is, or may be, used or
operated in such a way that, as a result of the insertion of any
piece of money or coin or other object the machine or device is
caused to operate or may be operated or played, mechanically,
electrically, automatically, or manually, and by reason of any
element of hazard or chance, the user may receive or become entitled
to receive anything of value or any check, slug, token, or
memorandum, whether of value or otherwise, which may be given in
trade, or the user may secure additional chances or rights to use
such machine or device, irrespective of whether it may, apart from
any element of hazard or chance, also sell, deliver, or present some
merchandise, indication of weight, entertainment, or other thing of
value.
330.2. As used in Sections 330.1 to 330.5, inclusive, of this code
a “thing of value” is defined to be any money, coin, currency, check,
chip, allowance, token, credit, merchandise, property, or any
representative of value.
330.3. In addition to any other remedy provided by law any slot
machine or device may be seized by any of the officers designated by
Sections 335 and 335a of the Penal Code, and in such cases shall be
disposed of, together with any and all money seized in or in
connection with such machine or device, as provided in Section 335a
of the Penal Code.
330.4. It is specifically declared that the mere possession or
control, either as owner, lessee, agent, employee, mortgagor, or
otherwise of any slot machine or device, as defined in Section 330.1
of this code, is prohibited and penalized by the provisions of
Sections 330.1 to 330.5, inclusive, of this code.
It is specifically declared that every person who permits to be
placed, maintained or kept in any room, space, enclosure, or building
owned, leased or occupied by him, or under his management or
control, whether for use or operation or for storage, bailment,
safekeeping or deposit only, any slot machine or device, as defined
in Section 330.1 of this code, is guilty of a misdemeanor and
punishable as provided in Section 330.1 of this code.
It is further declared that the provisions of this section
specifically render any slot machine or device as defined in Section
330.1 of this code subject to confiscation as provided in Section
335a of this code.
330.5. It is further expressly provided that Sections 330.1 to
330.4, inclusive, of this code shall not apply to music machines,
weighing machines and machines which vend cigarettes, candy, ice
cream, food, confections or other merchandise, in which there is
deposited an exact consideration and from which in every case the
customer obtains that which he purchases; and it is further expressly
provided that with respect to the provisions of Sections 330.1 to
330.4, inclusive, only, of this code, pin ball, and other amusement
machines or devices which are predominantly games of skill, whether
affording the opportunity of additional chances or free plays or not,
are not intended to be and are not included within the term slot
machine or device as defined within Sections 330.1 to 330.4,
inclusive, of this code.
330.6. The provisions of Sections 330.1 to 330.5, inclusive, of
this code, with respect to owning, storing, keeping, possessing, or
transporting any slot machine or device as therein defined, shall not
apply to any slot machine or device as therein defined, located upon
or being transported by any vessel regularly operated and engaged in
interstate or foreign commerce, so long as such slot machine or
device is located in a locked compartment of the vessel, is not
accessible for use and is not used or operated within the territorial
jurisdiction of this State.
330.7. (a) It shall be a defense to any prosecution under this
chapter relating to slot machines, as defined in subdivision (d) of
Section 330b, if the defendant shows that the slot machine is an
antique slot machine and was not operated for gambling purposes while
in the defendant’s possession. For the purposes of this section, the
term “antique slot machine” means a slot machine that is over 25
years of age.
(b) Notwithstanding Section 335a, whenever the defense provided by
subdivision (a) is offered, no slot machine seized from a defendant
shall be destroyed or otherwise altered until after a final court
determination that the defense is not applicable. If the defense is
applicable, the machine shall be returned pursuant to provisions of
law providing for the return of property.
(c) It is the purpose of this section to protect the collection
and restoration of antique slot machines not presently utilized for
gambling purposes because of their aesthetic interest and importance
in California history.
330.8. Notwithstanding Sections 330a, 330b, and 330.1 to 330.5,
inclusive, the sale, transportation, storage, and manufacture of
gambling devices, as defined in Section 330.1, including the
acquisition of essential parts therefor and the assembly of such
parts, is permitted, provided those devices are sold, transported,
stored, and manufactured only for subsequent transportation in
interstate or foreign commerce when that transportation is not
prohibited by any applicable federal law. Those activities may be
conducted only by persons who have registered with the United States
government pursuant to Chapter 24 (commencing with Section 1171) of
Title 15 of the United States Code, as amended. Those gambling
devices shall not be displayed to the general public or sold for use
in California regardless of where purchased, nor held nor
manufactured in violation of any applicable federal law. A violation
of this section is a misdemeanor.
330.9. (a) Notwithstanding Sections 330a, 330b, 330.1 to 330.5,
inclusive, or any other provision of law, it shall be lawful for any
person to transport and possess any slot machine or device for
display at a trade show, conference, or convention being held within
this state, or if used solely as a prop for a motion picture,
television, or video production.
(b) Subdivision (a) shall apply only if the slot machine or device
is adjusted to render the machine or device inoperable, or if the
slot machine or device is set on demonstration mode.
(c) This section is intended to constitute a state exemption as
provided in Section 1172 of Title 15 of the United States Code.
(d) For purposes of this section:
(1) “Demonstration mode” means that the programming or settings of
a slot machine or device have been programmed, set, or selected to
operate normally, but to not accept or pay out cash or any other
consideration.
(2) “Slot machine or device” has the same meaning as “slot machine
or device” as defined in Section 330.1, or “gambling device” as
defined in paragraph (1) of subsection (a) of Section 1171 of Title
15 of the United States Code.
330.11. “Banking game” or “banked game” does not include a
controlled game if the published rules of the game feature a
player-dealer position and provide that this position must be
continuously and systematically rotated amongst each of the
participants during the play of the game, ensure that the
player-dealer is able to win or lose only a fixed and limited wager
during the play of the game, and preclude the house, another entity,
a player, or an observer from maintaining or operating as a bank
during the course of the game. For purposes of this section it is not
the intent of the Legislature to mandate acceptance of the deal by
every player if the division finds that the rules of the game render
the maintenance of or operation of a bank impossible by other means.
The house shall not occupy the player-dealer position.
331. Every person who knowingly permits any of the games mentioned
in Sections 330 and 330a to be played, conducted, or dealt in any
house owned or rented by such person, in whole or in part, is
punishable as provided in Sections 330 and 330a.
332. (a) Every person who by the game of “three card monte,”
so-called, or any other game, device, sleight of hand, pretensions to
fortune telling, trick, or other means whatever, by use of cards or
other implements or instruments, or while betting on sides or hands
of any play or game, fraudulently obtains from another person money
or property of any description, shall be punished as in the case of
larceny of property of like value for the first offense, except that
the fine may not exceed more than five thousand dollars ($5,000). A
second offense of this section is punishable, as in the case of
larceny, except that the fine shall not exceed ten thousand dollars
($10,000), or both imprisonment and fine.
(b) For the purposes of this section, “fraudulently obtains”
includes, but is not limited to, cheating, including, for example,
gaining an unfair advantage for any player in any game through a
technique or device not sanctioned by the rules of the game.
(c) For the purposes of establishing the value of property under
this section, poker chips, tokens, or markers have the monetary value
assigned to them by the players in any game.
333. Every person duly summoned as a witness for the prosecution,
on any proceedings had under this Chapter, who neglects or refuses to
attend, as required, is guilty of a misdemeanor.
334. (a) Every person who owns or operates any concession, and who
fraudulently obtains money from another by means of any hidden
mechanical device or obstruction with intent to diminish the chance
of any patron to win a prize, or by any other fraudulent means, shall
be punished as in the case of theft of property of like value.
(b) Any person who manufactures or sells any mechanical device or
obstruction for a concession which he knows or reasonably should know
will be fraudulently used to diminish the chance of any patron to
win a prize is guilty of a misdemeanor.
(c) Any person who owns or operates any game, at a fair or
carnival of a type known as razzle-dazzle is guilty of a misdemeanor.
As used in this subdivision, “razzle-dazzle” means a series of
games of skill or chance in which the player pays money or other
valuable consideration in return for each opportunity to make
successive attempts to obtain points by the use of dice, darts,
marbles or other implements, and where such points are accumulated in
successive games by the player toward a total number of points,
determined by the operator, which is required for the player to win a
prize or other valuable consideration.
(d) As used in this section, “concession” means any game or
concession open to the public and operated for profit in which the
patron pays a fee for participating and may receive a prize upon a
later happening.
(e) Nothing in this section shall be construed to prohibit or
preempt more restrictive regulation of any concession at a fair or
carnival by any local governmental entity.
335. Every district attorney, sheriff, or police officer must
inform against and diligently prosecute persons whom they have
reasonable cause to believe offenders against the provisions of this
chapter, and every officer refusing or neglecting so to do, is guilty
of a misdemeanor.
335a. In addition to any other remedy provided by law any machine
or other device the possession or control of which is penalized by
the laws of this State prohibiting lotteries or gambling may be
seized by any peace officer, and a notice of intention summarily to
destroy such machine or device as provided in this section must be
posted in a conspicuous place upon the premises in or upon which such
machine or device was seized. Such machine or device shall be held
by such officer for 30 days after such posting, and if no action is
commenced to recover possession of such machine or device, within
such time, the same shall be summarily destroyed by such officer, or
if such machine or device shall be held by the court, in any such
action, to be in violation of such laws, or any of them, the same
shall be summarily destroyed by such officer immediately after the
decision of the court has become final.
The superior court shall have jurisdiction of any such actions or
proceedings commenced to recover the possession of such machine or
device or any money seized in connection therewith.
Any and all money seized in or in connection with such machine or
device shall, immediately after such machine or device has been so
destroyed, be paid into the treasury of the city or county, as the
case may be, where seized, said money to be deposited in the general
fund.
336. Every owner, lessee, or keeper of any house used in whole, or
in part, as a saloon or drinking place, who knowingly permits any
person under 18 years of age to play at any game of chance therein,
is guilty of a misdemeanor.
336.5. Gaming chips may be used on the gaming floor by a patron of
a gambling establishment, as defined in subdivision (o) of Section
19805 of the Business and Professions Code, to pay for food and
beverage items that are served at the table.
336.9. (a) Notwithstanding Section 337a, and except as provided in
subdivision (b), any person who, not for gain, hire, or reward other
than that at stake under conditions available to every participant,
knowingly participates in any of the ways specified in paragraph (2),
(3), (4), (5), or (6) of subdivision (a) of Section 337a in any bet,
bets, wager, wagers, or betting pool or pools made between the
person and any other person or group of persons who are not acting
for gain, hire, or reward, other than that at stake under conditions
available to every participant, upon the result of any lawful trial,
or purported trial, or contest, or purported contest, of skill,
speed, or power of endurance of person or animal, or between persons,
animals, or mechanical apparatus, is guilty of an infraction,
punishable by a fine not to exceed two hundred fifty dollars ($250).
(b) Subdivision (a) does not apply to either of the following
situations:
(1) Any bet, bets, wager, wagers, or betting pool or pools made
online.
(2) Betting pools with more than two thousand five hundred dollars
($2,500) at stake.
337. Every state, county, city, city and county, town, or judicial
district officer, or other person who shall ask for, receive, or
collect any money, or other valuable consideration, either for his
own or the public use, for and with the understanding that he will
aid, exempt, or otherwise assist any person from arrest or conviction
for a violation of Section 330 of the Penal Code; or who shall
issue, deliver, or cause to be given or delivered to any person or
persons, any license, permit, or other privilege, giving, or
pretending to give, any authority or right to any person or persons
to carry on, conduct, open, or cause to be opened, any game or games
which are forbidden or prohibited by Section 330 of said code; and
any of such officer or officers who shall vote for the passage of any
ordinance or by-law, giving, granting, or pretending to give or
grant to any person or persons any authority or privilege to open,
carry on, conduct, or cause to be opened, carried on, or conducted,
any game or games prohibited by said Section 330 of the Penal Code,
is guilty of a felony.
337a. (a) Except as provided in Section 336.9, every person who
engages in one of the following offenses, shall be punished for a
first offense by imprisonment in a county jail for a period of not
more than one year or in the state prison, or by a fine not to exceed
five thousand dollars ($5,000), or by both imprisonment and fine:
(1) Pool selling or bookmaking, with or without writing, at any
time or place.
(2) Whether for gain, hire, reward, or gratuitously, or otherwise,
keeps or occupies, for any period of time whatsoever, any room,
shed, tenement, tent, booth, building, float, vessel, place, stand or
enclosure, of any kind, or any part thereof, with a book or books,
paper or papers, apparatus, device or paraphernalia, for the purpose
of recording or registering any bet or bets, any purported bet or
bets, wager or wagers, any purported wager or wagers, selling pools,
or purported pools, upon the result, or purported result, of any
trial, purported trial, contest, or purported contest, of skill,
speed or power of endurance of person or animal, or between persons,
animals, or mechanical apparatus, or upon the result, or purported
result, of any lot, chance, casualty, unknown or contingent event
whatsoever.
(3) Whether for gain, hire, reward, or gratuitously, or otherwise,
receives, holds, or forwards, or purports or pretends to receive,
hold, or forward, in any manner whatsoever, any money, thing or
consideration of value, or the equivalent or memorandum thereof,
staked, pledged, bet or wagered, or to be staked, pledged, bet or
wagered, or offered for the purpose of being staked, pledged, bet or
wagered, upon the result, or purported result, of any trial, or
purported trial, or contest, or purported contest, of skill, speed or
power of endurance of person or animal, or between persons, animals,
or mechanical apparatus, or upon the result, or purported result, of
any lot, chance, casualty, unknown or contingent event whatsoever.
(4) Whether for gain, hire, reward, or gratuitously, or otherwise,
at any time or place, records, or registers any bet or bets, wager
or wagers, upon the result, or purported result, of any trial, or
purported trial, or contest, or purported contest, of skill, speed or
power of endurance of person or animal, or between persons, animals,
or mechanical apparatus, or upon the result, or purported result, of
any lot, chance, casualty, unknown or contingent event whatsoever.
(5) Being the owner, lessee or occupant of any room, shed,
tenement, tent, booth, building, float, vessel, place, stand,
enclosure or grounds, or any part thereof, whether for gain, hire,
reward, or gratuitously, or otherwise, permits that space to be used
or occupied for any purpose, or in any manner prohibited by paragraph
(1), (2), (3), or (4).
(6) Lays, makes, offers or accepts any bet or bets, or wager or
wagers, upon the result, or purported result, of any trial, or
purported trial, or contest, or purported contest, of skill, speed or
power of endurance of person or animal, or between persons, animals,
or mechanical apparatus.
(b) In any accusatory pleading charging a violation of this
section, if the defendant has been once previously convicted of a
violation of any subdivision of this section, the previous conviction
shall be charged in the accusatory pleading, and, if the previous
conviction is found to be true by the jury, upon a jury trial, or by
the court, upon a court trial, or is admitted by the defendant, the
defendant shall, if he or she is not imprisoned in the state prison,
be imprisoned in the county jail for a period of not more than one
year and pay a fine of not less than one thousand dollars ($1,000)
and not to exceed ten thousand dollars ($10,000). Nothing in this
paragraph shall prohibit a court from placing a person subject to
this subdivision on probation. However, that person shall be required
to pay a fine of not less than one thousand dollars ($1,000) nor
more than ten thousand dollars ($10,000) or be imprisoned in the
county jail for a period of not more than one year, as a condition
thereof. In no event does the court have the power to absolve a
person convicted pursuant to this subdivision from either being
imprisoned or from paying a fine of not less than one thousand
dollars ($1,000) and not more than ten thousand dollars ($10,000).
(c) In any accusatory pleading charging a violation of this
section, if the defendant has been previously convicted two or more
times of a violation of any subdivision of this section, each
previous conviction shall be charged in the accusatory pleadings. If
two or more of the previous convictions are found to be true by the
jury, upon a jury trial, or by the court, upon a court trial, or are
admitted by the defendant, the defendant shall, if he or she is not
imprisoned in the state prison, be imprisoned in the county jail for
a period of not more than one year or pay a fine of not less than one
thousand dollars ($1,000) nor more than fifteen thousand dollars
($15,000), or be punished by both imprisonment and fine. Nothing in
this paragraph shall prohibit a court from placing a person subject
to this subdivision on probation. However, that person shall be
required to pay a fine of not less than one thousand dollars ($1,000)
nor more than fifteen thousand dollars ($15,000), or be imprisoned
in the county jail for a period of not more than one year as a
condition thereof. In no event does the court have the power to
absolve a person convicted and subject to this subdivision from
either being imprisoned or from paying a fine of not more than
fifteen thousand dollars ($15,000).
(d) Except where the existence of a previous conviction of any
subdivision of this section was not admitted or not found to be true
pursuant to this section, or the court finds that a prior conviction
was invalid, the court shall not strike or dismiss any prior
convictions alleged in the information or indictment.
(e) This section applies not only to persons who commit any of the
acts designated in paragraphs (1) to (6), inclusive, of subdivision
(a), as a business or occupation, but also applies to every person
who in a single instance engages in any one of the acts specified in
paragraphs (1) to (6), inclusive, of subdivision (a).
337b. Any person who gives, or offers or promises to give, or
attempts to give or offer, any money, bribe, or thing of value, to
any participant or player, or to any prospective participant or
player, in any sporting event, contest, or exhibition of any kind
whatsoever, except a wrestling exhibition as defined in Section 18626
of the Business and Professions Code, and specifically including,
but without being limited to, such sporting events, contests, and
exhibitions as baseball, football, basketball, boxing, horse racing,
and wrestling matches, with the intention or understanding or
agreement that such participant or player or such prospective
participant or player shall not use his or her best efforts to win
such sporting event, contest, or exhibition, or shall so conduct
himself or herself in such sporting event, contest, or exhibition
that any other player, participant or team of players or participants
shall thereby be assisted or enabled to win such sporting event,
contest, or exhibition, or shall so conduct himself or herself in
such sporting event, contest, or exhibition as to limit his or her or
his or her team’s margin of victory in such sporting event, contest,
or exhibition, is guilty of a felony, and shall be punished by
imprisonment pursuant to subdivision (h) of Section 1170, or by a
fine not exceeding five thousand dollars ($5,000), or by both that
fine and imprisonment.
337c. Any person who accepts, or attempts to accept, or offers to
accept, or agrees to accept, any money, bribe or thing of value, with
the intention or understanding or agreement that he or she will not
use his or her best efforts to win any sporting event, contest, or
exhibition of any kind whatsoever, except a wrestling exhibition as
defined in Section 18626 of the Business and Professions Code, and
specifically including, but without being limited to, such sporting
events, contests, or exhibitions as baseball, football, basketball,
boxing, horse racing, and wrestling matches, in which he or she is
playing or participating or is about to play or participate in, or
will so conduct himself or herself in such sporting event, contest,
or exhibition that any other player or participant or team of players
or participants shall thereby be assisted or enabled to win such
sporting event, contest, or exhibition, or will so conduct himself or
herself in such sporting event, contest, or exhibition as to limit
his or her or his or her team’s margin of victory in such sporting
event, contest, or exhibition, is guilty of a felony, and shall be
punished by imprisonment pursuant to subdivision (h) of Section 1170,
or by a fine not exceeding five thousand dollars ($5,000), or by
both that fine and imprisonment.
337d. Any person who gives, offers to give, promises to give, or
attempts to give, any money, bribe, or thing of value to any person
who is umpiring, managing, directing, refereeing, supervising,
judging, presiding, or officiating at, or who is about to umpire,
manage, direct, referee, supervise, judge, preside, or officiate at
any sporting event, contest, or exhibition of any kind whatsoever,
including, but not limited to, sporting events, contests, and
exhibitions such as baseball, football, boxing, horse racing, and
wrestling matches, with the intention or agreement or understanding
that the person shall corruptly or dishonestly umpire, manage,
direct, referee, supervise, judge, preside, or officiate at, any
sporting event, contest, or exhibition, or the players or
participants thereof, with the intention or purpose that the result
of the sporting event, contest, or exhibition will be affected or
influenced thereby, is guilty of a felony and shall be punished by
imprisonment pursuant to subdivision (h) of Section 1170 or by a fine
of not more than ten thousand dollars ($10,000), or by imprisonment
and fine. A second offense of this section is a felony and shall be
punished by imprisonment pursuant to subdivision (h) of Section 1170
or by a fine of not more than fifteen thousand dollars ($15,000), or
by both that imprisonment and fine.
337e. Any person who as umpire, manager, director, referee,
supervisor, judge, presiding officer or official receives or agrees
to receive, or attempts to receive any money, bribe or thing of
value, with the understanding or agreement that such umpire, manager,
director, referee, supervisor, judge, presiding officer, or official
shall corruptly conduct himself or shall corruptly umpire, manage,
direct, referee, supervise, judge, preside, or officiate at, any
sporting event, contest, or exhibition of any kind whatsoever, and
specifically including, but without being limited to, such sporting
events, contests, and exhibitions as baseball, football, boxing,
horse racing, and wrestling matches, or any player or participant
thereof, with the intention or purpose that the result of the
sporting event, contest, or exhibition will be affected or influenced
thereby, is guilty of a felony and shall be punished by imprisonment
pursuant to subdivision (h) of Section 1170, or by a fine not
exceeding five thousand dollars ($5,000), or by both that fine and
imprisonment.
337f. (a) Any person who does any of the following is punishable by
a fine not exceeding five thousand dollars ($5,000), or by
imprisonment in a county jail not exceeding one year, or by
imprisonment pursuant to subdivision (h) of Section 1170, or by both
that fine and imprisonment:
(1) Influences, or induces, or conspires with, any owner, trainer,
jockey, groom, or other person associated with or interested in any
stable, horse, or race in which a horse participates, to affect the
result of that race by stimulating or depressing a horse through the
administration of any drug to that horse, or by the use of any
electrical device or any electrical equipment or by any mechanical or
other device not generally accepted as regulation racing equipment,
or so stimulates or depresses a horse.
(2) Knowingly enters any horse in any race within a period of 24
hours after any drug has been administered to that horse for the
purpose of increasing or retarding the speed of that horse.
(3) Willfully or unjustifiably enters or races any horse in any
running or trotting race under any name or designation other than the
name or designation assigned to that horse by and registered with
the Jockey Club or the United States Trotting Association or
willfully sets on foot, instigates, engages in or in any way furthers
any act by which any horse is entered or raced in any running or
trotting race under any name or designation other than the name or
designation duly assigned by and registered with the Jockey Club or
the United States Trotting Association.
(b) For purposes of this section, the term “drug” includes all
substances recognized as having the power of stimulating or
depressing the central nervous system, respiration, or blood pressure
of an animal, such as narcotics, hypnotics, benzedrine or its
derivatives, but shall not include recognized vitamins or
supplemental feeds approved by or in compliance with the rules and
regulations or policies of the California Horse Racing Board.
337g. The possession, transport or use of any local anaesthetic of
the cocaine group, including but not limited to natural or synthetic
drugs of this group, such as allocaine, apothesine, alypine, benzyl
carbinol, butyn, procaine, nupercaine, beta-eucaine, novol or
anestubes, within the racing inclosure is prohibited, except upon a
bona fide veterinarian’s prescription with complete statement of uses
and purposes of same on the container. A copy of such prescription
shall be filed with the stewards, and such substances may be used
only with approval of the stewards and under the supervision of the
veterinarian representing the board.
337h. Any person who, except for medicinal purposes, administers
any poison, drug, medicine, or other noxious substance, to any horse,
stud, mule, ass, mare, horned cattle, neat cattle, gelding, colt,
filly, dog, animals, or other livestock, entered or about to be
entered in any race or upon any race course, or entered or about to
be entered at or with any agricultural park, or association, race
course, or corporation, or other exhibition for competition for
prize, reward, purse, premium, stake, sweepstakes, or other reward,
or who exposes any poison, drug, medicine, or noxious substance, with
intent that it shall be taken, inhaled, swallowed, or otherwise
received by any of these animals or other livestock, with intent to
impede or affect its speed, endurance, sense, health, physical
condition, or other character or quality, or who causes to be taken
by or placed upon or in the body of any of these animals or other
livestock, entered or about to be entered in any race or competition
described in this section any sponge, wood, or foreign substance of
any kind, with intent to impede or affect its speed, endurance,
sense, health, or physical condition, is guilty of a misdemeanor.
337i. Every person who knowingly transmits information as to the
progress or results of a horserace, or information as to wagers,
betting odds, changes in betting odds, post or off times, jockey or
player changes in any contest or trial, or purported contest or
trial, involving humans, beasts, or mechanical apparatus by any means
whatsoever including, but not limited to telephone, telegraph,
radio, and semaphore when such information is transmitted to or by a
person or persons engaged in illegal gambling operations, is
punishable by imprisonment in the county jail for a period of not
more than one year or in the state prison.
This section shall not be construed as prohibiting a newspaper
from printing such results or information as news, or any television
or radio station from telecasting or broadcasting such results or
information as news. This section shall not be so construed as to
place in jeopardy any common carrier or its agents performing
operations within the scope of a public franchise, or any gambling
operation authorized by law.
337j. (a) It is unlawful for any person, as owner, lessee, or
employee, whether for hire or not, either solely or in conjunction
with others, to do any of the following without having first procured
and thereafter maintained in effect all federal, state, and local
licenses required by law:
(1) To deal, operate, carry on, conduct, maintain, or expose for
play in this state any controlled game.
(2) To receive, directly or indirectly, any compensation or reward
or any percentage or share of the revenue, for keeping, running, or
carrying on any controlled game.
(3) To manufacture, distribute, or repair any gambling equipment
within the boundaries of this state, or to receive, directly or
indirectly, any compensation or reward for the manufacture,
distribution, or repair of any gambling equipment within the
boundaries of this state.
(b) It is unlawful for any person to knowingly permit any
controlled game to be conducted, operated, dealt, or carried on in
any house or building or other premises that he or she owns or
leases, in whole or in part, if that activity is undertaken by a
person who is not licensed as required by state law, or by an
employee of that person.
(c) It is unlawful for any person to knowingly permit any gambling
equipment to be manufactured, stored, or repaired in any house or
building or other premises that the person owns or leases, in whole
or in part, if that activity is undertaken by a person who is not
licensed as required by state law, or by an employee of that person.
(d) Any person who violates, attempts to violate, or conspires to
violate this section shall be punished by imprisonment in a county
jail for not more than one year or by a fine of not more than ten
thousand dollars ($10,000), or by both imprisonment and fine. A
second offense of this section is punishable by imprisonment in a
county jail for a period of not more than one year or in the state
prison or by a fine of not more than ten thousand dollars ($10,000),
or by both imprisonment and fine.
(e) (1) As used in this section, “controlled game” means any poker
or Pai Gow game, and any other game played with cards or tiles, or
both, and approved by the Department of Justice, and any game of
chance, including any gambling device, played for currency, check,
credit, or any other thing of value that is not prohibited and made
unlawful by statute or local ordinance.
(2) As used in this section, “controlled game” does not include
any of the following:
(A) The game of bingo conducted pursuant to Section 326.3 or
326.5.
(B) Parimutuel racing on horse races regulated by the California
Horse Racing Board.
(C) Any lottery game conducted by the California State Lottery.
(D) Games played with cards in private homes or residences, in
which no person makes money for operating the game, except as a
player.
(f) This subdivision is intended to be dispositive of the law
relating to the collection of player fees in gambling establishments.
A fee may not be calculated as a fraction or percentage of wagers
made or winnings earned. The amount of fees charged for all wagers
shall be determined prior to the start of play of any hand or round.
However, the gambling establishment may waive collection of the fee
or portion of the fee in any hand or round of play after the hand or
round has begun pursuant to the published rules of the game and the
notice provided to the public. The actual collection of the fee may
occur before or after the start of play. Ample notice shall be
provided to the patrons of gambling establishments relating to the
assessment of fees. Flat fees on each wager may be assessed at
different collection rates, but no more than five collection rates
may be established per table. However, if the gambling establishment
waives its collection fee, this fee does not constitute one of the
five collection rates.
337k. (a) It is unlawful for any person to advertise, or to
facilitate the advertisement of, nonparimutuel wagering on horse
races.
(b) Violation of this section is an infraction punishable by a
fine of five hundred dollars ($500). A second conviction for a
violation of this section is a misdemeanor punishable by a fine of up
to ten thousand dollars ($10,000).
337s. (a) This section applies only in counties with a population
exceeding 4,000,000.
(b) Every person who deals, plays, or carries on, opens, or causes
to be opened, or who conducts, either as owner or employee, whether
for hire or not, any game of draw poker, including lowball poker, is
guilty of a misdemeanor.
(c) Subdivision (b) shall become operative in a county only if the
board of supervisors thereof by resolution directs that there be
placed on the ballot at a designated county election the question
whether draw poker, including lowball poker, shall be prohibited in
the county and a majority of electors voting thereon vote
affirmatively. The question shall appear on the ballot in
substantially the following form:
“Shall draw poker, including lowball poker, be prohibited in ____
County? Yes ____ No ____”
If a majority of electors voting thereon vote affirmatively, draw
poker shall be prohibited in the unincorporated territory in the
county.
(d) Any county ordinance in any county prohibiting, restricting,
or regulating the playing of draw poker and other acts relating to
draw poker shall not be superseded until, pursuant to subdivision
(c), the electorate of the county determines that subdivision (b)
shall be operative in the county.
(e) The Legislature finds that in counties with a large,
concentrated population, problems incident to the playing of draw
poker are, in part, qualitatively, as well as quantitatively,
different from the problems in smaller counties.
The Legislature finds that counties with a population exceeding
4,000,000 constitute a special problem, and it is reasonable
classification to adopt prohibitory legislation applicable only to
such counties.
(f) If any provision of this section is held invalid, the entire
section shall be invalid. The provisions of this section are not
severable.
337t. The following definitions govern the construction of this
section and Sections 337u, 337w, 337x, and 337y:
(a) “Associated equipment” means any equipment or mechanical,
electromechanical, or electronic contrivance, component or machine
used remotely or directly in connection with gaming or any game that
would not otherwise be classified as a gaming device, including dice,
playing cards, links which connect to progressive slot machines,
equipment which affects the proper reporting of gross revenue,
computerized systems for monitoring slot machines and devices for
weighing or counting money.
(b) “Cashless wagering system” means a method of wagering and
accounting in which the validity and value of a wagering instrument
or wagering credits are determined, monitored, and retained by a
computer that is operated and maintained by a licensee and that
maintains a record of each transaction involving the wagering
instrument or wagering credits, exclusive of the game or gaming
device on which wagers are being made. The term includes computerized
systems which facilitate electronic transfers of money directly to
or from a game or gaming device.
(c) “Cheat” means to alter the normal elements of chance, method
of selection, or criteria, excluding those alterations to the game
generally done by the casino to provide variety to games and that are
known, or should be known, by the wagering players, which determine
any of the following:
(1) The result of a gambling game.
(2) The amount or frequency of payment in a gambling game.
(3) The value of a wagering instrument.
(4) The value of a wagering credit.
(d) “Drop box” means the box that serves as a repository for cash,
chips, tokens, or other wagering instruments.
(e) “Gambling establishment” means any premises wherein or whereon
any gaming is done.
(f) “Gambling game device” means any equipment or mechanical,
electromechanical, or electronic contrivance, component or machine
used remotely or directly in connection with gaming or any game which
affects the result of a wager by determining win or loss. The term
includes any of the following:
(1) A slot machine.
(2) A collection of two or more of the following components:
(A) An assembled electronic circuit which cannot be reasonably
demonstrated to have any use other than in a slot machine.
(B) A cabinet with electrical wiring and provisions for mounting a
coin, token, or currency acceptor and provisions for mounting a
dispenser of coins, tokens, or anything of value.
(C) A storage medium containing the source language or executable
code of a computer program that cannot be reasonably demonstrated to
have any use other than in a slot machine.
(D) An assembled video display unit.
(E) An assembled mechanical or electromechanical display unit
intended for use in gambling.
(F) An assembled mechanical or electromechanical unit which cannot
be demonstrated to have any use other than in a slot machine.
(3) Any mechanical, electrical, or other device that may be
connected to or used with a slot machine to alter the normal criteria
of random selection or affect the outcome of a game.
(4) A system for the accounting or management of any game in which
the result of the wager is determined electronically by using any
combination of hardware or software for computers.
(5) Any combination of one of the components set forth in
subparagraphs (A) to (F), inclusive, of paragraph (2) and any other
component that the commission determines, by regulation, to be a
machine used directly or remotely in connection with gaming or any
game which affects the results of a wager by determining a win or
loss.
(g) “Past-posting” means the placing of a wager by an individual
at a game after having knowledge of the result or outcome of that
game.
(h) “Pinching wagers” means to reduce the amount wagered or to
cancel the wager after acquiring knowledge of the outcome of the game
or other event that is the subject of the wager.
(i) “Pressing wagers” means to increase a wager after acquiring
knowledge of the outcome of the game or other event that is the
subject of the wager.
(j) “Tribal Gaming Agency” means the person, agency, board,
committee, commission, or council designated under tribal law,
including, but not limited to, an intertribal gaming regulatory
agency approved to fulfill those functions by the National Indian
Gaming Commission, as primarily responsible for carrying out the
regulatory responsibilities of the tribe under the Indian Gaming and
Regulatory Act (25 U.S.C. Sec. 2701) and a tribal gaming ordinance.
(k) “Wagering credit” means a representative of value, other than
a chip, token, or wagering instrument, that is used for wagering at a
game or gaming device and is obtained by the payment of cash or a
cash equivalent, the use of a wagering instrument or the electronic
transfer of money.
(l) “Wagering instrument” means a representative of value, other
than a chip or token, that is issued by a licensee and approved by
the California Gambling Control Commission or a tribal gaming agency,
for use in a cashless wagering system.
337u. It is unlawful for any person to commit any of the following
acts:
(a) To alter or misrepresent the outcome of a gambling game or
other event on which wagers lawfully have been made after the outcome
is determined, but before it is revealed to the players.
(b) To place, increase, or decrease a wager or to determine the
course of play after acquiring knowledge, not available to all
players, of the outcome of the gambling game or any event that
affects the outcome of the gambling game or which is the subject of
the wager or to aid anyone in acquiring that knowledge for the
purpose of placing, increasing, or decreasing a wager or determining
the course of play contingent upon that event or outcome.
(c) To claim, collect, or take, or attempt to claim, collect, or
take, money or anything of value in or from a gambling game, with
intent to defraud, without having made a wager contingent on the
game, or to claim, collect, or take an amount greater than the amount
actually won.
(d) Knowingly to entice or induce another to go to any place where
a gambling game is being conducted or operated in violation of this
section, or Section 337v, 337w, 337x, or 337y, with the intent that
the other person play or participate in that gambling game.
(e) To place or increase a wager after acquiring knowledge of the
outcome of the gambling game or other event which is the subject of
the wager, including past-posting and pressing wagers.
(f) To reduce the amount wagered or cancel the wager after
acquiring knowledge of the outcome of the gambling game or other
event which is the subject of the bet, including pinching wagers.
(g) To manipulate, with the intent to cheat, any component of a
gambling game device in a manner contrary to the designed and normal
operational purpose for the component, including, but not limited to,
varying the pull of the handle of a slot machine, with knowledge
that the manipulation affects the outcome of the gambling game or
with knowledge of any event that affects the outcome of the gambling
game.
337v. It is unlawful for any person at a gambling establishment to
use, or to possess with the intent to use, any device to assist in
any of the following:
(a) In projecting the outcome of the gambling game.
(b) In keeping track of the cards played.
(c) In analyzing the probability of the occurrence of an event
relating to the gambling game.
(d) In analyzing the strategy for playing or wagering to be used
in the gambling game, except as permitted by the California Gambling
Control Commission or a tribal gaming agency.
337w. (a) It is unlawful for any person to use counterfeit chips,
counterfeit debit instruments, or other counterfeit wagering
instruments in a gambling game, the equipment associated with a
gambling game, or a cashless wagering system.
(b) It is unlawful for any person, in playing or using any
gambling game, the equipment associated with a gambling game, or a
cashless wagering system designed to be played with, receive, or be
operated by chips, tokens, wagering credits or other wagering
instruments approved by the California Gambling Control Commission or
a tribal gaming agency, or by lawful coin of the United States of
America to either:
(1) Knowingly use chips, tokens, wagering credits, or other
wagering instruments not approved by the California Gambling Control
Commission or a tribal gaming agency, or lawful coin, legal tender of
the United States of America, or use coins or tokens not of the same
denomination as the coins or tokens intended to be used in that
gambling game, associated equipment, or cashless wagering system.
(2) Use any device or means to violate this section or Section
337u, 337v, 337x, or 337y.
(c) It is unlawful for any person, not a duly authorized employee
of a gambling establishment acting in furtherance of his or her
employment within that establishment, to possess any device intended
to be used to violate this section or Section 337u, 337v, 337x, or
337y.
(d) It is unlawful for any person, not a duly authorized employee
of a gambling establishment acting in furtherance of his or her
employment within that establishment, to possess any key or device
known to have been designed for the purpose of, and suitable for,
opening, entering, or affecting the operation of any gambling game,
cashless wagering system, or dropbox, or for removing money or other
contents from the game, system, or box.
(e) It is unlawful for any person to possess any paraphernalia for
manufacturing slugs. As used in this subdivision, “paraphernalia for
manufacturing slugs” means the equipment, products, and materials
that are intended for use or designed for use in manufacturing,
producing, fabricating, preparing, testing, analyzing, packaging,
storing, or concealing a counterfeit facsimile of the chips, tokens,
debit instruments, or other wagering instruments approved by the
California Gambling Control Commission or a tribal gaming agency, or
a lawful coin of the United States, the use of which is unlawful
pursuant to subdivision (b). The term “paraphernalia for
manufacturing slugs” includes, but is not limited to, any of the
following:
(1) Lead or lead alloys.
(2) Molds, forms, or similar equipment capable of producing a
likeness of a gaming token or lawful coin of the United States.
(3) Melting pots or other receptacles.
(4) Torches.
(5) Tongs, trimming tools, or other similar equipment.
(6) Equipment which can be reasonably demonstrated to manufacture
facsimiles of debit instruments or wagering instruments approved by
the California Gambling Control Commission or a tribal gaming agency.
337x. It is unlawful to cheat at any gambling game in a gambling
establishment.
337y. It is unlawful to do either of the following:
(a) Manufacture, sell, or distribute any cards, chips, dice, game,
or device which is intended to be used to violate Section 337u,
337v, 337w, or 337x.
(b) Mark, alter, or otherwise modify any gambling game device or
associated equipment in a manner that either:
(1) Affects the result of a wager by determining win or loss.
(2) Alters the normal criteria of random selection, which affects
the operation of a gambling game or which determines the outcome of a
game.
(c) It is unlawful for any person to instruct another in cheating
or in the use of any device for that purpose, with the knowledge or
intent that the information or use conveyed may be employed to
violate Section 337u, 337v, 337w, or 337x.
337z. (a) Any person who violates Section 337u, 337v, 337w, 337x,
or 337y shall be punished as follows:
(1) For the first violation, by imprisonment in a county jail for
a term not to exceed one year, or by a fine of not more than ten
thousand dollars ($10,000), or by both imprisonment and fine.
(2) For a second or subsequent violation of any of those sections,
by imprisonment in a county jail for a term not to exceed one year
or by a fine of not more than fifteen thousand dollars ($15,000), or
by both imprisonment and fine.
(b) A person who attempts to violate Section 337u, 337v, 337w,
337x, or 337y shall be punished in the same manner as the underlying
crime.
(c) This section does not preclude prosecution under Section 332
or any other provision of law.
CHAPTER 10.5. HORSE RACING