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AB 1734 Obscene matter.
BILL NUMBER: AB 1734
INTRODUCED   02/24/95
                               BILL TEXT

INTRODUCED BY  Assembly Member Frusetta

                        FEBRUARY 24, 1995

   An act to amend Sections 311.2, 311.3, 311.4, 311.9, 311.10,
311.11, and 312.3 of the Penal Code, relating to obscene matter.

                      LEGISLATIVE COUNSEL'S DIGEST

   AB 1734, as introduced, Frusetta.  Obscene matter.
   (1) 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, as defined.
   This bill would increase the punishment prescribed for
various offenses relating to obscene matter.
   (2) 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, as specified.  Because
this bill would create a new crime, it would impose a
state-mandated local program.
   (3) The bill would specify that every person who knowingly
possesses 10 or more units of the same obscene videotape and
"video distribution equipment," as defined, who transfers
possession of an obscene videotape to others is guilty of
wholesale distribution of obscenity and shall be punished by
imprisonment in the state prison for 16 months, or 2 or 3 years
or 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. Because this bill
would create new crimes, it would impose a state-mandated local
program.
   (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.
   The bill would add any computer disc, video laser disc,
recording, and any mechanical, electrical, or chemical
reproduction to the means of reproduction enumerated in these
provisions.  Because this bill would expand the scope of a
crime, it would impose a state-mandated local program.
   (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.
   The bill would 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.  Because this bill would expand the scope of a
crime, it would impose a state-mandated local program.
   (6) This bill would make technical, nonsubstantive changes to
existing law.
  (7) The California Constitution requires the state to
reimburse local agencies and school districts for certain costs
mandated by the state.  Statutory provisions establish
procedures for making that reimbursement.
   This bill would provide that no reimbursement is required by
this act for a specified reason.
   Vote:  majority.  Appropriation:  no.  Fiscal committee:
yes. State-mandated local program:  yes.





  SECTION 1. 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 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, 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 {+ 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 {- such a -} {+ that
+} fine, or by both such 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, with intent to
distribute or {- to -} 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, {- is guilty of a
misdemeanor and -} 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 such fine and imprisonment
-} {+ 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 {- to -} 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) {- Subdivisions (a) to (d) -} {+ (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 obscenity 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 that 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) Subdivision (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.  {-
   (f) -} {+
   (g) +} This section shall not apply to matter {- which -} {+
that +} depicts a child {+ who is +} under the age of 18, {-
which -} {+ where the +} child is legally emancipated, including
lawful conduct between spouses when one or both are under the
age of 18.  {-
   (g) -} {+
   (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. 2. 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 {- develop, duplicate, print, or
exchange -} {+ develops, duplicates, prints, or exchanges +} any
film, photograph, {- video tape, negative, or slide in which a
person -} {+ 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 {- areas -} {+ 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 {- or -} {+ , +} to legitimate
medical, scientific, or educational activities, or to lawful
conduct between spouses.
   (d) Every person who violates subdivision (a) {- is
punishable by a fine of not more than two thousand dollars
($2,000) or by imprisonment in the -} {+ shall be punished by
imprisonment in a +} county jail for not more than one year, or
{- by both such fine and imprisonment.  If such -} {+ 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 {- is punishable -} {+ shall be punished +} by
imprisonment in the state prison {+ for two, three, or four
years +} .
   (e) {- The provisions of this -} {+ 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. 3. 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, {- is -} {+
shall +} , for a first offense, {- guilty of a misdemeanor -} {+
be punished by imprisonment in the state prison or in a county
jail +} .  If the person has {+ been +} previously {- been -}
convicted of any violation of this section, {- the court may, in
addition to the punishment authorized in Section 311.9, impose
-} {+ 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 {- a -} {+ that +} minor {+ who
is +} under the age of 18 years, or any parent or guardian of {-
a -} {+ 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 {- a -} {+ that +} minor {+ who
is +} under the age of 18 years, or any parent or guardian of {-
a -} {+ 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 -}
{+ 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 {- 647a -}
{+ 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. 4. 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) {- of Section 311.2, is punishable by -}
{+ , (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 {- the -} {+ 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, such basic
maximum and additional days not to exceed 360 days in {- the -}
{+ a +} county jail, or by both {- such -} {+ that +} fine and
imprisonment.  If {- such -} {+ the +} person has {+ been +}
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, {- is
punishable -} {+ shall be punished +} as a felony.
   (b) Every person who violates Section {- 311.4 is punishable
by -} {+ 311.7 shall be punished by a +} fine of not more than
{- two -} {+ one +} thousand dollars {- ($2,000) or -} {+
($1,000), +} by imprisonment in {- the -} {+ a +} county jail
for not more than {- one year, or by both such fine and such
imprisonment.  If such person has been previously convicted of a
violation of former Section 311.3 or Section 311.4 he is
punishable by imprisonment in the state prison.
   (c) Every person who violates Section 311.7 is punishable by
-} {+ 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 {- one -} {+ two +} thousand dollars {-
($1,000) or -} {+ ($2,000), +} by imprisonment in {- the -} {+
a +} county jail for not more than {- six months -} {+ one year
+} , or by both {- such -} {+ that +} fine and imprisonment. {-
For a second and subsequent offense he 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 such fine and imprisonment.  If such person has been
twice convicted of a violation of this chapter, a violation of
Section 311.7 is punishable -} {+ 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. 5. Section 311.10 of the Penal Code is amended to read:

   311.10.  (a) Any person who advertises for sale or
distribution any obscene matter knowing that it 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 {- is punishable -} {+ shall be
punished +} by imprisonment in the state prison for two, three,
or four years {- , or in a county jail not exceeding one year,
or -} {+ and +} 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.
  SEC. 6. Section 311.11 of the Penal Code is amended to read:

   311.11.  (a) Every person who knowingly possesses or controls
any matter, the production of which involves the use of a
person {+ who is +} under the age of 18 years, knowing that the
matter depicts a person {+ who is +} under the age of 18 years
personally engaging in or simulating sexual conduct, as defined
in subdivision (d) of Section 311.4, {- is guilty of a public
offense and -} shall be punished by imprisonment in {- the
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 -} {+ a county jail for not more than one year, or
in the state prison +} .
   (b) If a person has been previously convicted of a violation
of this section, he or she is guilty of a felony and shall be
punished by imprisonment{- of -} {+ in the state prison for +}
two, four, or six years.
   (c) It is not necessary to prove that the matter is obscene
in order to establish a violation of this section.
   (d) For purposes of this section, matter {+ , +} as defined
in subdivision (b) of Section 311, also includes developed or
undeveloped film, negatives, photocopies, filmstrips, slides,
and  videotapes, the production of which involves the use of a
{- child -} {+ person who is +} under the age of 18 years.  This
section shall not apply to drawings, figurines, statues, or any
film rated by the Motion Picture Association of America, nor
shall it apply to live or recorded telephone messages when
transmitted, disseminated, or distributed as part of a
commercial transaction.
  SEC. 7. Section 312.3 of the Penal Code is amended to read:

   312.3.  (a) Matter which 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 {+
, +} and which 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, which 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 notices 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 shall be on the petitioner to prove  beyond a
reasonable doubt that matter is subject to forfeiture pursuant
to this section.
   (f) It shall not be 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) which 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 which 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.
   (i) This section shall not apply where the minor {+ who is +}
depicted is lawfully emancipated, including lawful conduct
between spouses when one or more are under the age of 18 {+
years +} .
   (j) It shall be a defense in any forfeiture proceeding that
the matter seized was lawfully possessed in aid of legitimate
scientific or educational purposes.
  SEC. 8. No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution
because the only costs which may be incurred by a local agency
or school district will be incurred because this act creates a
new crime or infraction, changes the definition of a crime or
infraction, changes the penalty for a crime or infraction, or
eliminates a crime or infraction.  Notwithstanding Section 17580
of the Government Code, unless otherwise specified in this act,
the provisions of this act shall become operative on the same
date that the act takes effect pursuant to the California
Constitution.


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