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Criminal Law Spring 2017

Amendments to CA Penal Code Following Convictions of Brock Turner, secs. 263.1, 1203.065 (Effective Jan. 1, 2017)

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§ 263.1. Legislative findings and declarations; nonconsensual sexual assault considered to be rape for certain purposes
 
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(a) The Legislature finds and declares that all forms of nonconsensual sexual assault may be considered rape for purposes of the gravity of the offense and the support of survivors.
 
(b) This section is declarative of existing law.
 
§ 1203.065. Probation and suspension of sentence prohibited for certain sex offenses
 
(a) Notwithstanding any other law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, a person who is convicted of violating paragraph (2), (3), (4), or (6) of subdivision (a) of Section 261, Section 264.1, 266h, 266i, 266j, or 269, paragraph (2) or (3) of subdivision (c), or subdivision (d), (f), or (i) of Section 286, paragraph (2) or (3) of subdivision (c), or subdivision (d), (f), or (i) of Section 288a, Section 288.7, subdivision (a), (d), or (e) of Section 289, or subdivision (b) of Section 311.4.
 
(b)
(1) Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to a person who is convicted of violating paragraph (7) of subdivision (a) of Section 261, subdivision (k) of Section 286, subdivision (k) of Section 288a, subdivision (g) of Section 289, or Section 220 for assault with intent to commit a specified sexual offense.
 
(2) If probation is granted, the court shall specify on the record and shall enter on the minutes the circumstances indicating that the interests of justice would best be served by the disposition.
 
 
 
For reference:
 
§ 286. Sodomy; punishment
 
(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.
 
(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.
 
§ 288a. Oral copulation; punishment
 
(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.
 
(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.