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CALIFORNIA Legislation
Cal. Pen. Code § 264
Punishment for rape; AIDS education fine; Punishment for rape of child or other minor
(a) Except as provided in subdivision (c), rape, as defined in Section 261 or former Section 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 a person who violates Section 261 or former Section 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 the defendant’s inability to pay the fine permitted under this subdivision.
(c)
(1) A 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) A 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 law.
Amendment History:
1913 Amendment:
Substituted the section for the former section which read: “Rape is punishable by imprisonment in the State Prison not more than fifty years, except where the offense is under subdivision 1 of section 261 of the Penal Code and the female is over the age of sixteen years and under the age of eighteen years in which case the punishment shall be by imprisonment in the county jail for not more than one year or in the State Prison for not more than fifty years, and in such case the jury shall determine by their verdict whether the punishment shall be by imprisonment in the county jail or in the State Prison.”
1923 Amendment:
Substituted the section for the former section which read: “Rape is punishable by imprisonment in the state prison not more than fifty years, except where the offense is under subdivision one of section two hundred sixty-one of the Penal Code, in which case the punishment shall be either by imprisonment in the county jail for not more than one year or in the state prison for not more than fifty years, and in such case the jury shall recommend by their verdict whether the punishment shall be by imprisonment in the county jail or in the state prison; provided, that when the defendant pleads guilty of an offense under subdivision one of Section 261 of the Penal Code the punishment shall be in the discretion of the trial court, either by imprisonment in the county jail for not more than one year or in the state prison for not more than fifty years.”
1952 Amendment:
Substituted “less than three years” for “more than fifty years” after “in the State prison not”.
1967 Amendment:
Added the second paragraph to read: “The preceding provisions of this section notwithstanding, in any case in which defendant committed rape and, in the course of commission of a rape other than as defined in subdivision 1 of Section 261, with the intent to inflict such injury, inflicted great bodily injury on the victim of the rape, such 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, defendant shall suffer confinement in the state prison from 15 years to life.”
1970 Amendment:
Substituted the section for the former section which read: “Rape, as defined in Section 261, is punishable by imprisonment in the state prison for not less than three years. Unlawful sexual intercourse, as defined in Section 261.5, is punishable either by imprisonment in the county jail for not more than one year or in the state prison for not more than 50 years, and in such case the jury shall recommend by their verdict whether the punishment shall be by imprisonment in the county jail or in the state prison; provided, that when the defendant pleads guilty to an offense under Section 261.5 the punishment shall be in the discretion of the trial court, either by imprisonment in the county jail for not more than one year or in the state prison for not more than 50 years. “The preceding provisions of this section notwithstanding, in any case in which the defendant committed rape as defined in Section 261, and in the course of commission of the rape, with the intent to inflict such injury, inflicted great bodily injury on the victim of the rape, such 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, defendant shall suffer confinement in the state prison from 15 years to life.”
1976 Amendment:
(1) Substituted “three, four or five” for “not less than three” in the first sentence; (2) deleted “for not more than 50 years” after “state prison” the first and third time it appears in the second sentence; and (3) deleted the former second paragraph.
1978 Amendment:
Substituted “six, or eight years” for “four or five years” in the first sentence.
1979 Amendment:
Added the second sentence.
1981 Amendment:
Deleted “, and in such case the jury shall recommend by their verdict whether the punishment shall be by imprisonment in the county jail or in the state prison; provided, that when the defendant pleads guilty to an offense under Section 261.5 the punishment shall be in the discretion of the trial court, either by imprisonment in the county jail for not more than one year or in the state prison” at the end of the section.
1988 Amendment:
(1) Designated the former section to be subd (a); and (2) added subd (b).
1993 Amendment:
Amended subd (a) by (1) substituting Section 261 or 262” for “Section 261” in the first sentence; and (2) deleting the former second sentence which read: “Rape, as defined in Section 262, is punishable either by imprisonment in the county jail for not more than one year or in the state prison for three, six, or eight years.”
1999 Amendment:
(1) Deleted the former last sentence of subd (a) which read: “Unlawful sexual intercourse, as defined in Section 261.5, is punishable either by imprisonment in a county jail for not more than one year or in the state prison.”; and (2) amended the first sentence of subd (b) by deleting (a) the comma after “under this section”; and (b) “, 261.5,” after “Section 261”.
2010 Amendment:
Added (1) “Except as provided in subdivision (c),” in subd (a); and (2) subd (c).
2021 Amendment (ch 626):
Added “former Section” in (a); in (b), substituted “a person” for “any person”, added “former Section” and substituted “the defendant’s inability” for “his or her inability”; substituted “A person” for “Any person” in (c)(1) and (c)(2); and deleted “provision of” preceding “law” in (c)(3).
Source: LexisNexis