Another Crime Initiative

On the November 2006 ballot is a new initiative to fight crime. This one concerns sex offenders, so there is a strong likelihood it will be approved by the voters. The initiative, entitled "the Sexual Predators Punishment and Control Act: Jessica's Law," is advertised to require registered sex offenders to live at least 2000 feet from any public or private school or park (sec. 21), and it will make SVP commitments a life-long term (sec. 27). The initiative does much more, however, amending or adding 28 different statutes.

The initiative greatly increases the penalties for "date rape." It requires a life sentence for one committing a sexual act with someone who is intoxicated, regardless of whether the offender administered the intoxicating substance and regardless of whether the victim was intoxicated voluntarily. (Secs. 11, 12; see also sec. 23.) The initiative also requires a life sentence for one who commits sexual assault (Pen. Code, § 220) during a residential burglary. (Sec. 4.) Inevitably, an aggressive prosecutor will allege this crime when a person unsuccessfully gropes at his girlfriend at her home or in a hotel on the theory that he entered her building or room with the intent to have sex with her even if she did not consent.

The initiative revives Penal Code section 667.6, requiring consecutive sentences under that statute whenever Penal Code sections 269, 288.5, 667.61 apply. (Secs. 5, 11, 12.) This provision would supersede, at least in part, the holding in People v. Jones (2001) 25 Cal.4th 98, 107.) The ten year wash-out period for the enhancement under section 667.6 would be eliminated. (Sec. 11.) The difference in the list of offenses leading to a full consecutive term under subdivisions (c) and (d) of section 667.6 would mostly be eliminated. (Ibid.)

The initiative expands the list of crimes that fall under the One Strike Provision of Penal Code section 667.61. It would include rape or spousal rape by threat, violations of section 288.5, and sex crimes in concert. (Sec. 11.) Parole for sex offenders punished under Penal Code section 667.61 or 667.71 could be as long as 15 years. (Sec. 17.) For any sex offender committed under the SVP Act, the period of parole would be tolled until the offender's release. (Ibid.)

Anyone who must register as a sex offender would be required under the initiative to be monitored by a global positioning device for life, and the offender would be required to pay for the monitoring unless he or she is able to convince the state agency of indigence. (Secs. 18, 22.)

Under the initiative, a person could be committed under the SVP Act for committing just one qualifying sex offense, even if the offender was a minor. (Sec. 24.) It increases the burden of proving the person should be released from an SVP commitment. (Sec. 29.) It expands the list of qualifying offenses to include any sex offense by force, violence, duress, menace, fear, or threat; to include sexual assault and kidnapping for sex; and to include any such offense against a minor under the age of 14 years even if there were not substantial sexual conduct. (Secs. 24, 25.) Although the SVP Act would not specifically include attempted sex crimes as a qualifying offense, the inherent ambiguity in the law would lead a prosecutor to allege that an assault with an attempted sex crime would be tantamount to a violation of Penal Code section 220, which would be a qualifying offense.

Since the initiative is advertised to attack Internet child pornography, it would make possession of any child pornography without a prior offense a felony instead of a misdemeanor. (Sec. 8.) It would also increase the list of prior offenses which would require an enhanced penalty. (Ibid.)

(May 10, 2006)

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