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AB 871 Crimes: obscenity: wholesale distribution.

BILL NUMBER: AB 871 AMENDED 04/17/95

     AMENDED IN ASSEMBLY APRIL 17, 1995

INTRODUCED BY Assembly Members Baldwin, Alby, Conroy, Harvey, House,
Knowles, and Richter (Coauthors: Senators Haynes, Hurtt, and Monteith)

FEBRUARY 22, 1995

An act to amend Sections 311, 311.2, 311.3, 311.4, and 311.9 of the Penal
Code, relating to crimes.

LEGISLATIVE COUNSEL'S DIGEST

AB 871, as amended, Baldwin. Crimes: obscenity: wholesale distribution.

(1) Existing law provides definitions of certain terms for purposes of
prohibiting various acts relating to obscene matter, harmful matter, and
obscene live conduct.

This bill would expand the definition of "matter" to include any negative,
videotape, or computer disc.

(2) Existing law governs, among other things, the sale, distribution,
possession, and forfeiture of, and prescribes punishment for violations of
the law relating to, obscene matter.

This bill would increase the punishment prescribed for various offenses
relating to obscene matter. The bill would specify that every person who
possesses 10 or more units of the same obscene videotape and "video
distribution equipment," as defined, is guilty of wholesale distribution of
obscene matter and shall be punished by imprisonment in the state prison for
16 months, or 2 or 3 years and by a fine not exceeding $10,000, or by both,
or by imprisonment in a county jail not to exceed one year or by a fine of
not more than $1,000, or by both. By expanding the scope of existing crimes,
this bill would impose a state-mandated local program.

(3) Existing law prohibits a person from knowingly sending or causing to be
sent, or bringing or causing to be brought, into this state for sale or
distribution, or in this state from possessing, preparing, publishing,
producing, developing, duplicating, or printing, with intent to distribute
or to exhibit to, or to exchange with, a person under 18 years of age, or
from offering to distribute, distributing, or exhibiting to, or exchanging
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, a violation of which is a
felony.

This bill would extend these provisions to prohibit advertising the
above-mentioned matter.

(4) Existing law prohibits sexual exploitation of a child, which is
knowingly developing, duplicating, printing, or exchanging any film,
photograph, videotape, negative, or slide in which a person under the age of
18 years is engaged in an act of sexual conduct, as defined.

This bill would also add any computer disc, video laser disc, recording, and
any mechanical, electrical, or chemical reproduction to the means of
reproduction enumerated in these provisions.

(5) Existing law prohibits specified activities by a person with regard to a
minor under the age of 18 years relating to permitting the minor to engage
in either posing or modeling alone or with others for purposes of preparing
a film, photograph, negative, slide, or live performance involving sexual
conduct by a minor under the age of 18 years, alone or with other persons or
animals. Existing law makes it a felony to engage in these activities for
commercial purposes.

This bill would also add any computer disc, videotape, video laser disc,
recording, and any mechanical, electrical, or chemical reproduction to the
means of reproduction enumerated in these provisions.

(6) The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the state.
Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a
specified reason.

(7) The bill would provide that it shall become operative only if AB 1881 of
the 1995-96 Regular Session is chaptered and becomes effective on or before
January 1, 1996.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated
local program: yes.

SECTION 1. Section 311 of the Penal Code is amended to read:

311. As used in this chapter, the following definitions shall control the
meaning of the respective terms:

(a) "Obscene 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.

(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, this 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.

(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 which can be
considered in making that determination.

(b) "Matter" means any book, magazine, newspaper or other printed or written
material or any picture, drawing, photograph, negative, motion picture,
videotape, computer disc, 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 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 or live
conduct.

(f) "Exhibit" means to 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, which to the average person, applying contemporary
statewide standards to the prurient interest and is conduct 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.

(1) When 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, where 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 can
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 which
can be considered in making that determination.

SEC. 2. Section 311.2 of the Penal Code is amended to read:

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 been previously
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, 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
who is 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 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, develops, duplicates, produces, or
prints, with intent to distribute or exhibit to, or to exchange with, a
person who is 18 years of age or older, or who offers to distribute,
distributes, or exhibits to, or exchanges with, a person who is 18 years of
age or older any matter, knowing that the matter depicts a person who is
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 a county jail for not more than one year, or 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 and shall be punished by imprisonment in the
state prison for two, three, or four years.

(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,
advertises, or prints, with intent to distribute or exhibit to, or to
exchange with, a person who is under 18 years of age, or who offers to
distribute, distributes, or exhibits to, or exchanges with, a person who is
under 18 years of age any matter, knowing that the matter depicts a person
who is 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 four years. It is not necessary to prove commercial consideration
or that the matter is obscene in order to establish a violation of this
subdivision.

(e) (1) Every person who knowingly possesses 10 or more units of the same
obscene videotape, and possesses "video distribution equipment," defined to
include, but not be limited to, videotapes for use in reproduction, master
tapes, reproduction equipment, mailing lists, mailing paraphernalia, and
similar objects, who transfers possession of an obscene videotape to others
is guilty of wholesale distribution of obscene matter and shall be punished
by imprisonment in the state prison for 16 months, or two or three years or
by a fine of not more than ten thousand dollars ($10,000), or by both, or by
imprisonment in a county jail not to exceed one year or by a fine of not
more than one thousand dollars ($1,000), or by both.

(2) For the purposes of this subdivision, "matter" means videotapes.

(f) Subdivisions (a) to (e), inclusive, shall 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.

(g) This section shall not apply to matter that depicts a child who is under
the age of 18, where the child is legally emancipated, including lawful
conduct between spouses when one or both are under the age of 18.

(h) 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.

SEC. 3. Section 311.3 of the Penal Code is amended to read:

311.3. (a) A person is guilty of sexual exploitation of a child when he or
she knowingly develops, duplicates, prints or exchanges any film,
photograph, videotape, video laser disc, negative, computer disc, slide,
recording, or any mechanical, electrical, or chemical reproduction in which
a person who is under the age of 18 years is 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) shall not apply to the activities of law enforcement and
prosecution agencies in the investigation and prosecution of criminal
offenses, to legitimate medical, scientific, or educational activities, or
to lawful conduct between spouses.

(d) Every person who violates subdivision (a) shall be punished by
imprisonment in a county jail for not more than one year, or in the state
prison. 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 for two, three, or four years.

(e) This section shall 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.

SEC. 4. Section 311.4 of the Penal Code is amended to read:

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, for a first offense, be punished by imprisonment in the state prison
or in a county jail. If the person has been previously convicted of any
violation of this section, he or she shall be punished by imprisonment in
the state prison for two, three, or four years and by a fine not exceeding
fifty thousand dollars ($50,000).

(b) Every person who, with knowledge that a person is a minor who is 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 who is
under the age of 18 years, knowingly promotes, employs, uses, persuades,
induces, or coerces that minor who is under the age of 18 years, or any
parent or guardian of that minor who is under the age of 18 years and who is
under his or her control and 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 a film, photograph, negative, computer disc,
slide, videotape, video laser disc, recording, or any mechanical,
electrical, or chemical reproduction or live performance involving sexual
conduct by a minor who is 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 who is 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 who is
under the age of 18 years, knowingly promotes, employs, uses, persuades,
induces, or coerces that minor who is under the age of 18 years, or any
parent or guardian of that minor who is under the age of 18 years and who is
under his or her control and 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 a film, photograph, negative, computer disc,
slide, videotape, video laser disc, recording, or any mechanical,
electrical, or chemical reproduction or live performance involving sexual
conduct by a minor who is under the age of 18 years alone or with other
persons or animals, is guilty of a felony and shall be punished by
imprisonment in the state prison for two, three, or four years. It shall not
be necessary to prove commercial purposes in order to establish a violation
of this subdivision.

(d) 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 the 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.

(e) This section shall not apply where the minor is legally emancipated,
including lawful conduct between spouses when one or both are under the age
of 18 years.

(f) In every prosecution under this section involving a minor who is 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 shall not be 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.

SEC. 5. Section 311.9 of the Penal Code is amended to read:

311.9. (a) Every person who violates Section 311.2 or 311.5, except
subdivision (b), (c), or (d) of Section 311.2, shall be punished by a 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 and which is involved in the offense, not to exceed ten thousand
dollars ($10,000), or by imprisonment in a 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, these basic
maximum and additional days not to exceed 360 days in a county jail, or by
both that fine and imprisonment. If the person has previously been convicted
of any offense in this chapter, or of a violation of Section 313.1, a
violation of Section 311.2 or 311.5, except subdivision (b) of Section
311.2, shall be punished as a felony.

(b) Every person who violates Section 311.7 shall be punished by a fine of
not more than one thousand dollars ($1,000), by imprisonment in a 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), by imprisonment in a 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 shall be punished as a felony.

SEC. 6. No reimbursement is required by this act pursuant to Section 6 of
Article XIIIB of the California Constitution because the only costs that may
be incurred by a local agency or school district will be incurred because
this act creates a new crime or infraction, eliminates a crime or
infraction, or changes the penalty for a crime or infraction, within the
meaning of Section 17556 of the Government Code, or changes the definition
of a crime within the meaning of Section 6 of Article XIIIB of the
California Constitution.

Notwithstanding Section 17580 of the Government Code, unless otherwise
specified, the provisions of this act shall become operative on the same
date that the act takes effect pursuant to the California Constitution.

SEC. 7. This bill shall become operative only if Assembly Bill 1881 of the
1995-96 Regular Session is chaptered and becomes effective on or before
January 1, 1996.
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