BILL NUMBER: AB 2055 CHAPTERED
BILL TEXT
CHAPTER 1059
FILED WITH SECRETARY OF STATE SEPTEMBER 29, 2002
APPROVED BY GOVERNOR SEPTEMBER 29, 2002
PASSED THE ASSEMBLY AUGUST 28, 2002
PASSED THE SENATE AUGUST 27, 2002
AMENDED IN SENATE AUGUST 19, 2002
AMENDED IN SENATE AUGUST 5, 2002
AMENDED IN SENATE JUNE 19, 2002
AMENDED IN SENATE JUNE 12, 2002
AMENDED IN ASSEMBLY MAY 15, 2002
AMENDED IN ASSEMBLY APRIL 16, 2002
INTRODUCED BY Assembly Member Robert Pacheco
FEBRUARY 19, 2002
An act to amend Section 2018 of the Code of Civil Procedure, and
to amend Sections 803 and 1524 of the Penal Code, relating to
attorney work product, and declaring the urgency thereof, to take
effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
AB 2055, Robert Pacheco. Attorney work product.
(1) Under existing law, an attorney's work product, material
prepared by or for a lawyer for planned or pending litigation, is
generally exempt from discovery or compelled disclosure unless a
court finds prejudice to a party seeking discovery or injustice.
Under existing law, the work product protection for an attorney's
impressions, conclusions, opinions, or legal research or theories is
complete. However, existing law places certain matters outside of
the work product rule, as where work product is relevant in an action
between an attorney and client, or when the State Bar is
investigating an attorney discipline case, as provided. Under
existing law, although attorneys suspected of criminal activity are
not entitled to the protection of the work product doctrine directly,
they are obligated to assert it on behalf of their clients, when
appropriate.
This bill would eliminate the protection of work product in
existing law when a lawyer is suspected of knowingly participating in
a crime or fraud in any official investigation or proceeding or
action brought by a public prosecutor in the name of the People of
the State of California, if the services of the lawyer were sought or
obtained to enable or aid anyone to commit or plan to commit a crime
or fraud.
(2) Under existing law, when records are to be seized from an
attorney pursuant to a search warrant, a procedure involving the
appointment of a special master, an opportunity for the attorney to
object to the release of the records, and an in camera review of the
records must be followed. Under existing law, there are various
specified limitations of time after which crimes may not be filed
against defendants. Existing law permits those times to be extended
for various specified reasons.
This bill would extend any limitation of time for filing charges
as to a crime, the proof of which depends substantially upon any
evidence seized from an attorney under a warrant, by the amount of
time it takes to resolve any claims of privilege or work product, as
specified.
(3) Attorney work product and attorney-client privilege can both
be asserted when records are to be seized from an attorney pursuant
to a search warrant. The burden of proof for release of evidence
otherwise protected by the attorney-client privilege is that the
party opposing the privilege, generally the prosecutor, must
establish a prima facie case of fraud, and a reasonable relationship
between the fraud and the attorney-client communication. However,
case law provides that it is the burden of the party asserting the
work product privilege to prove that the material in question is work
product, and therefore protected.
This bill would specify that burden of proof, and require a court
to deny any work product claim where there is probable cause to
believe that a lawyer is engaging or has engaged in criminal activity
relating to seized documents unless it is established at the hearing
that the services of the lawyer were not sought or obtained to
facilitate a crime or fraud.
(4) This bill would also provide, with regard to the provisions
concerning the special master procedure and the work product
protections, that nothing in those provisions of law is intended to
limit an attorney's ability to request an in camera hearing, as
approved in a specified Supreme Court case.
(5) This bill would incorporate additional amendments to Section
1524 of the Penal Code as proposed by SB 1637 and SB 1980, contingent
upon the prior enactment of one or both of those bills.
(6) This bill would declare that it is to take effect immediately
as an urgency statute.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 2018 of the Code of Civil Procedure is amended
to read:
2018. (a) It is the policy of the state to: (1) preserve the
rights of attorneys to prepare cases for trial with that degree of
privacy necessary to encourage them to prepare their cases thoroughly
and to investigate not only the favorable but the unfavorable
aspects of those cases; and (2) to prevent attorneys from taking
undue advantage of their adversary's industry and efforts.
(b) Subject to subdivision (c), the work product of an attorney is
not discoverable unless the court determines that denial of
discovery will unfairly prejudice the party seeking discovery in
preparing that party's claim or defense or will result in an
injustice.
(c) Any writing that reflects an attorney's impressions,
conclusions, opinions, or legal research or theories shall not be
discoverable under any circumstances.
(d) This section is intended to be a restatement of existing law
relating to protection of work product. It is not intended to expand
or reduce the extent to which work product is discoverable under
existing law in any action. However, when a lawyer is suspected of
knowingly participating in a crime or fraud, there is no protection
of work product under this section in any official investigation by a
law enforcement agency or proceeding or action brought by a public
prosecutor in the name of the People of the State of California if
the services of the lawyer were sought or obtained to enable or aid
anyone to commit or plan to commit a crime or fraud. Nothing in this
section is intended to limit an attorney's ability to request an in
camera hearing as provided for in People v. Superior Court (Laff)
(2001) 25 Cal.4th 703.
(e) The State Bar may discover the work product of an attorney
against whom disciplinary charges are pending when it is relevant to
issues of breach of duty by the lawyer, subject to applicable client
approval and to a protective order, where requested and for good
cause, to ensure the confidentiality of work product except for its
use by the State Bar in disciplinary investigations and its
consideration under seal in State Bar Court proceedings. For
purposes of this section, whenever a client has initiated a complaint
against an attorney, the requisite client approval shall be deemed
to have been granted.
(f) In an action between an attorney and his or her client or
former client, no work product privilege under this section exists if
the work product is relevant to an issue of breach by the attorney
of a duty to the attorney's client arising out of the attorney-client
relationship.
For purposes of this section, "client" means a client as defined
in Section 951 of the Evidence Code.
SEC. 2. Section 803 of the Penal Code is amended to read:
803. (a) Except as provided in this section, a limitation of time
prescribed in this chapter is not tolled or extended for any reason.
(b) No time during which prosecution of the same person for the
same conduct is pending in a court of this state is a part of a
limitation of time prescribed in this chapter.
(c) A limitation of time prescribed in this chapter does not
commence to run until the discovery of an offense described in this
subdivision. This subdivision applies to an offense punishable by
imprisonment in the state prison, a material element of which is
fraud or breach of a fiduciary obligation, the commission of the
crimes of theft or embezzlement upon an elder or dependent adult, or
the basis of which is misconduct in office by a public officer,
employee, or appointee, including, but not limited to, the following
offenses:
(1) Grand theft of any type, forgery, falsification of public
records, or acceptance of a bribe by a public official or a public
employee.
(2) A violation of Section 72, 118, 118a, 132, or 134.
(3) A violation of Section 25540, of any type, or Section 25541 of
the Corporations Code.
(4) A violation of Section 1090 or 27443 of the Government Code.
(5) Felony welfare fraud or Medi-Cal fraud in violation of Section
11483 or 14107 of the Welfare and Institutions Code.
(6) Felony insurance fraud in violation of Section 548 or 550 of
this code or former Section 1871.1, or Section 1871.4, of the
Insurance Code.
(7) A violation of Section 580, 581, 582, 583, or 584 of the
Business and Professions Code.
(8) A violation of Section 22430 of the Business and Professions
Code.
(9) A violation of Section 10690 of the Health and Safety Code.
(10) A violation of Section 529a.
(11) A violation of subdivision (d) or (e) of Section 368.
(d) If the defendant is out of the state when or after the offense
is committed, the prosecution may be commenced as provided in
Section 804 within the limitations of time prescribed by this
chapter, and no time up to a maximum of three years during which the
defendant is not within the state shall be a part of those
limitations.
(e) A limitation of time prescribed in this chapter does not
commence to run until the offense has been discovered, or could have
reasonably been discovered, with regard to offenses under Division 7
(commencing with Section 13000) of the Water Code, under Chapter 6.5
(commencing with Section 25100) of, Chapter 6.7 (commencing with
Section 25280) of, or Chapter 6.8 (commencing with Section 25300) of,
Division 20 of, or Part 4 (commencing with Section 41500) of
Division 26 of, the Health and Safety Code, or under Section 386, or
offenses under Chapter 5 (commencing with Section 2000) of Division 2
of, Chapter 9 (commencing with Section 4000) of Division 2 of,
Chapter 10 (commencing with Section 7301) of Division 3 of, or
Chapter 19.5 (commencing with Section 22440) of Division 8 of, the
Business and Professions Code.
(f) (1) Notwithstanding any other limitation of time described in
this chapter, a criminal complaint may be filed within one year of
the date of a report to a responsible adult or agency by a child
under 18 years of age that the child is a victim of a crime described
in Section 261, 286, 288, 288a, 288.5, 289, or 289.5.
(2) For purposes of this subdivision, a "responsible adult" or
"agency" means a person or agency required to report pursuant to
Section 11166. This subdivision applies only if both of the
following occur:
(A) The limitation period specified in Section 800 or 801 has
expired.
(B) The defendant has committed at least one violation of Section
261, 286, 288, 288a, 288.5, 289, or 289.5 against the same victim
within the limitation period specified for that crime in either
Section 800 or 801.
(3) (A) This subdivision applies to a cause of action arising
before, on, or after January 1, 1990, the effective date of this
subdivision, and it shall revive any cause of action barred by
Section 800 or 801 if any of the following occurred or occurs:
(i) The complaint or indictment was filed on or before January 1,
1997, and it was filed within the time period specified in this
subdivision.
(ii) The complaint or indictment is or was filed subsequent to
January 1, 1997, and it is or was filed within the time period
specified within this subdivision.
(iii) The victim made the report required by this subdivision to a
responsible adult or agency after January 1, 1990, and a complaint
or indictment was not filed within the time period specified in this
subdivision, but a complaint or indictment is filed no later than 180
days after the date on which either a published opinion of the
California Supreme Court, deciding whether retroactive application of
this section is constitutional, becomes final or the United States
Supreme Court files an opinion deciding the question of whether
retroactive application of this subdivision is constitutional,
whichever occurs first.
(iv) The victim made the report required by this subdivision to a
responsible adult or agency after January 1, 1990, and a complaint or
indictment was filed within the time period specified in this
subdivision, but the indictment, complaint, or subsequently filed
information was dismissed, but a new complaint or indictment is or
was filed no later than 180 days after the date on which either a
published opinion of the California Supreme Court, deciding whether
retroactive application of this section is constitutional, becomes
final or the United States Supreme Court files an opinion deciding
the question of whether retroactive application of this subdivision
is constitutional, whichever occurs first.
(B) (i) If the victim made the report required by this subdivision
to a responsible adult or agency after January 1, 1990, and a
complaint or indictment was filed within the time period specified in
this subdivision, but the indictment, complaint, or subsequently
filed information was dismissed, a new complaint or indictment may be
filed notwithstanding any other provision of law, including, but not
limited to, subdivision (c) of Section 871.5 and subdivision (b) of
Section 1238.
(ii) An order dismissing an action filed under this subdivision,
which is entered or becomes effective at any time prior to 180 days
after the date on which either a published opinion of the California
Supreme Court, deciding the question of whether retroactive
application of this section is constitutional, becomes final or the
United States Supreme Court files an opinion deciding the question of
whether retroactive application of this subdivision is
constitutional, whichever occurs first, shall not be considered an
order terminating an action within the meaning of Section 1387.
(iii) Any ruling regarding the retroactivity of this subdivision
or its constitutionality made in the course of the previous
proceeding, including any review proceeding, shall not be binding
upon refiling.
(g) (1) Notwithstanding any other limitation of time described in
this chapter, a criminal complaint may be filed within one year of
the date of a report to a California law enforcement agency by a
person of any age alleging that he or she, while under the age of 18
years, was the victim of a crime described in Section 261, 286, 288,
288a, 288.5, 289, or 289.5.
(2) This subdivision applies only if both of the following occur:
(A) The limitation period specified in Section 800 or 801 has
expired.
(B) The crime involved substantial sexual conduct, as described in
subdivision (b) of Section 1203.066, excluding masturbation that is
not mutual, and there is independent evidence that clearly and
convincingly corroborates the victim's allegation. No evidence may
be used to corroborate the victim's allegation that otherwise would
be inadmissible during trial. Independent evidence does not include
the opinions of mental health professionals.
(3) (A) This subdivision applies to a cause of action arising
before, on, or after January 1, 1994, the effective date of this
subdivision, and it shall revive any cause of action barred by
Section 800 or 801 if any of the following occurred or occurs:
(i) The complaint or indictment was filed on or before January 1,
1997, and it was filed within the time period specified in this
subdivision.
(ii) The complaint or indictment is or was filed subsequent to
January 1, 1997, and it is or was filed within the time period
specified within this subdivision.
(iii) The victim made the report required by this subdivision to a
law enforcement agency after January 1, 1994, and a complaint or
indictment was not filed within the time period specified in this
subdivision, but a complaint or indictment is filed no later than 180
days after the date on which either a published opinion of the
California Supreme Court, deciding the question of whether
retroactive application of this subdivision is constitutional,
becomes final or the United States Supreme Court files an opinion
deciding the question of whether retroactive application of this
subdivision is constitutional, whichever occurs first.
(iv) The victim made the report required by this subdivision to a
law enforcement agency after January 1, 1994, and a complaint or
indictment was filed within the time period specified in this
subdivision, but the indictment, complaint, or subsequently filed
information was dismissed, but a new complaint or indictment is filed
no later than 180 days after the date on which either a published
opinion of the California Supreme Court, deciding the question of
whether retroactive application of this subdivision is
constitutional, becomes final or the United States Supreme Court
files an opinion deciding the question of whether retroactive
application of this subdivision is constitutional, whichever occurs
first.
(B) (i) If the victim made the report required by this subdivision
to a law enforcement agency after January 1, 1994, and a complaint
or indictment was filed within the time period specified in this
subdivision, but the indictment, complaint, or subsequently filed
information was dismissed, a new complaint or indictment may be filed
notwithstanding any other provision of law, including, but not
limited to, subdivision (c) of Section 871.5 and subdivision (b) of
Section 1238.
(ii) An order dismissing an action filed under this subdivision,
which is entered or becomes effective at any time prior to 180 days
after the date on which either a published opinion of the California
Supreme Court, deciding the question of whether retroactive
application of this section is constitutional, becomes final or the
United States Supreme Court files an opinion deciding the question of
whether retroactive application of this subdivision is
constitutional, whichever occurs first, shall not be considered an
order terminating an action within the meaning of Section 1387.
(iii) Any ruling regarding the retroactivity of this subdivision
or its constitutionality made in the course of the previous
proceeding, by any trial court or any intermediate appellate court,
shall not be binding upon refiling.
(h) (1) Notwithstanding any other limitation of time described in
this chapter, a criminal complaint may be filed within one year of
the date of a report to a California law enforcement agency by a
person under 21 years of age, alleging that he or she, while under 18
years of age, was the victim of a crime described in Section 261,
286, 288, 288a, 288.5, 289, or 289.5.
(2) This subdivision applies only if both of the following occur:
(A) The limitation period specified in Section 800 or 801 has
expired.
(B) The crime involved substantial sexual conduct, as described in
subdivision (b) of Section 1203.066, excluding masturbation that is
not mutual, and there is independent evidence that corroborates the
victim's allegation. No evidence may be used to corroborate the
victim's allegation that otherwise would be inadmissible during
trial. Independent evidence does not include the opinions of mental
health professionals.
(3) This subdivision applies to a cause of action arising before,
on, or after January 1, 2002, the effective date of this subdivision,
and it shall revive any cause of action barred by Section 800 or 801
if the complaint or indictment was filed within the time period
specified by this subdivision.
(i) (1) Notwithstanding the limitation of time described in
Section 800, the limitations period for commencing prosecution for a
felony offense described in subparagraph (A) of paragraph (2) of
subdivision (a) of Section 290, where the limitations period set
forth in Section 800 has not expired as of January 1, 2001, or the
offense is committed on or after January 1, 2001, shall be 10 years
from the commission of the offense, or one year from the date on
which the identity of the suspect is conclusively established by DNA
testing, whichever is later, provided, however, that the one-year
period from the establishment of the identity of the suspect shall
only apply when either of the following conditions is met:
(A) For an offense committed prior to January 1, 2001, biological
evidence collected in connection with the offense is analyzed for DNA
type no later than January 1, 2004.
(B) For an offense committed on or after January 1, 2001,
biological evidence collected in connection with the offense is
analyzed for DNA type no later than two years from the date of the
offense.
(2) In the event the conditions set forth in subparagraph (A) or
(B) of paragraph (1) are not met, the limitations period for
commencing prosecution for a felony offense described in subparagraph
(A) of paragraph (2) of subdivision (a) of Section 290, where the
limitations period set forth in Section 800 has not expired as of
January 1, 2001, or the offense is committed on or after January 1,
2001, shall be 10 years from the commission of the offense.
(3) For purposes of this section, "DNA" means deoxyribonucleic
acid.
(j) For any crime, the proof of which depends substantially upon
evidence that was seized under a warrant, but which is unavailable to
the prosecuting authority under the procedures described in People
v. Superior Court (Laff) (2001) 25 Cal.4th 703, People v. Superior
Court (Bauman & Rose) (1995) 37 Cal.App.4th 1757, or subdivision (c)
of Section 1524, relating to claims of evidentiary privilege or
attorney work product, the limitation of time prescribed in this
chapter shall be tolled from the time of the seizure until final
disclosure of the evidence to the prosecuting authority. Nothing in
this section otherwise affects the definition or applicability of any
evidentiary privilege or attorney work product.
(k) As used in subdivisions (f), (g), and (h), Section 289.5
refers to the statute enacted by Chapter 293 of the Statutes of 1991
relating to penetration by an unknown object.
SEC. 3. Section 1524 of the Penal Code is amended to read:
1524. (a) A search warrant may be issued upon any of the
following grounds:
(1) When the property was stolen or embezzled.
(2) When the property or things were used as the means of
committing a felony.
(3) When the property or things are in the possession of any
person with the intent to use them as a means of committing a public
offense, or in the possession of another to whom he or she may have
delivered them for the purpose of concealing them or preventing their
being discovered.
(4) When the property or things to be seized consist of any item
or constitute any evidence that tends to show a felony has been
committed, or tends to show that a particular person has committed a
felony.
(5) When the property or things to be seized consist of evidence
that tends to show that sexual exploitation of a child, in violation
of Section 311.3, or possession of matter depicting sexual conduct of
a person under the age of 18 years, in violation of Section 311.11,
has occurred or is occurring.
(6) When there is a warrant to arrest a person.
(b) The property or things or person or persons described in
subdivision (a) may be taken on the warrant from any place, or from
any person in whose possession the property or things may be.
(c) Notwithstanding subdivision (a) or (b), no search warrant
shall issue for any documentary evidence in the possession or under
the control of any person, who is a lawyer as defined in Section 950
of the Evidence Code, a physician as defined in Section 990 of the
Evidence Code, a psychotherapist as defined in Section 1010 of the
Evidence Code, or a clergyman as defined in Section 1030 of the
Evidence Code, and who is not reasonably suspected of engaging or
having engaged in criminal activity related to the documentary
evidence for which a warrant is requested unless the following
procedure has been complied with:
(1) At the time of the issuance of the warrant the court shall
appoint a special master in accordance with subdivision (d) to
accompany the person who will serve the warrant. Upon service of the
warrant, the special master shall inform the party served of the
specific items being sought and that the party shall have the
opportunity to provide the items requested. If the party, in the
judgment of the special master, fails to provide the items requested,
the special master shall conduct a search for the items in the areas
indicated in the search warrant.
(2) If the party who has been served states that an item or items
should not be disclosed, they shall be sealed by the special master
and taken to court for a hearing.
At the hearing, the party searched shall be entitled to raise any
issues that may be raised pursuant to Section 1538.5 as well as a
claim that the item or items are privileged, as provided by law. The
hearing shall be held in the superior court. The court shall
provide sufficient time for the parties to obtain counsel and make
any motions or present any evidence. The hearing shall be held
within three days of the service of the warrant unless the court
makes a finding that the expedited hearing is impracticable. In that
case the matter shall be heard at the earliest possible time.
If an item or items are taken to court for a hearing, any
limitations of time prescribed in Chapter 2 (commencing with Section
797) of Title 3 of Part 2 shall be tolled from the time of the
seizure until the final conclusion of the hearing, including any
associated writ or appellate proceedings.
(3) The warrant shall, whenever practicable, be served during
normal business hours. In addition, the warrant shall be served upon
a party who appears to have possession or control of the items
sought. If, after reasonable efforts, the party serving the warrant
is unable to locate the person, the special master shall seal and
return to the court, for determination by the court, any item that
appears to be privileged as provided by law.
(d) As used in this section, a "special master" is an attorney who
is a member in good standing of the California State Bar and who has
been selected from a list of qualified attorneys that is maintained
by the State Bar particularly for the purposes of conducting the
searches described in this section. These attorneys shall serve
without compensation. A special master shall be considered a public
employee, and the governmental entity that caused the search warrant
to be issued shall be considered the employer of the special master
and the applicable public entity, for purposes of Division 3.6
(commencing with Section 810) of Title 1 of the Government Code,
relating to claims and actions against public entities and public
employees. In selecting the special master, the court shall make
every reasonable effort to ensure that the person selected has no
relationship with any of the parties involved in the pending matter.
Any information obtained by the special master shall be confidential
and shall not be divulged except in direct response to inquiry by
the court.
In any case in which the magistrate determines that, after
reasonable efforts have been made to obtain a special master, a
special master is not available and would not be available within a
reasonable period of time, the magistrate may direct the party
seeking the order to conduct the search in the manner described in
this section in lieu of the special master.
(e) Any search conducted pursuant to this section by a special
master may be conducted so as to permit the party serving the warrant
or his or her designee to accompany the special master as he or she
conducts his or her search. However, that party or his or her
designee shall not participate in the search nor shall he or she
examine any of the items being searched by the special master except
upon agreement of the party upon whom the warrant has been served.
(f) As used in this section, "documentary evidence" includes, but
is not limited to, writings, documents, blueprints, drawings,
photographs, computer printouts, microfilms, X-rays, files, diagrams,
ledgers, books, tapes, audio and video recordings, films or papers
of any type or description.
(g) No warrant shall issue for any item or items described in
Section 1070 of the Evidence Code.
(h) Notwithstanding any other law, no claim of attorney work
product as described in Section 2018 of the Code of Civil Procedure
shall be sustained where there is probable cause to believe that the
lawyer is engaging or has engaged in criminal activity related to the
documentary evidence for which a warrant is requested unless it is
established at the hearing with respect to the documentary evidence
seized under the warrant that the services of the lawyer were not
sought or obtained to enable or aid anyone to commit or plan to
commit a crime or a fraud.
(i) Nothing in this section is intended to limit an attorney's
ability to request an in camera hearing pursuant to the holding of
the Supreme Court of California in People v. Superior Court (Laff)
(2001) 25 Cal.4th 703.
SEC. 3.2. Section 1524 of the Penal Code is amended to read:
1524. (a) A search warrant may be issued upon any of the
following grounds:
(1) When the property was stolen or embezzled.
(2) When the property or things were used as the means of
committing a felony.
(3) When the property or things are in the possession of any
person with the intent to use them as a means of committing a public
offense, or in the possession of another to whom he or she may have
delivered them for the purpose of concealing them or preventing their
being discovered.
(4) When the property or things to be seized consist of any item
or constitute any evidence that tends to show a felony has been
committed, or tends to show that a particular person has committed a
felony.
(5) When the property or things to be seized consist of evidence
that tends to show that sexual exploitation of a child, in violation
of Section 311.3, or possession of matter depicting sexual conduct of
a person under the age of 18 years, in violation of Section 311.11,
has occurred or is occurring.
(6) When there is a warrant to arrest a person.
(7) When a provider of electronic communication service or remote
computing service has records or evidence, as specified in Section
1524.3, showing that property was stolen or embezzled constituting a
misdemeanor, or that property or things are in the possession of any
person with the intent to use them as a means of committing a
misdemeanor public offense, or in the possession of another to whom
he or she may have delivered them for the purpose of concealing them
or preventing their discovery.
(b) The property or things or person or persons described in
subdivision (a) may be taken on the warrant from any place, or from
any person in whose possession the property or things may be.
(c) Notwithstanding subdivision (a) or
(b), no search warrant shall issue for any documentary evidence in
the possession or under the control of any person, who is a lawyer as
defined in Section 950 of the Evidence Code, a physician as defined
in Section 990 of the Evidence Code, a psychotherapist as defined in
Section 1010 of the Evidence Code, or a clergyman as defined in
Section 1030 of the Evidence Code, and who is not reasonably
suspected of engaging or having engaged in criminal activity related
to the documentary evidence for which a warrant is requested unless
the following procedure has been complied with:
(1) At the time of the issuance of the warrant the court shall
appoint a special master in accordance with subdivision (d) to
accompany the person who will serve the warrant. Upon service of the
warrant, the special master shall inform the party served of the
specific items being sought and that the party shall have the
opportunity to provide the items requested. If the party, in the
judgment of the special master, fails to provide the items requested,
the special master shall conduct a search for the items in the areas
indicated in the search warrant.
(2) If the party who has been served states that an item or items
should not be disclosed, they shall be sealed by the special master
and taken to court for a hearing.
At the hearing, the party searched shall be entitled to raise any
issues that may be raised pursuant to Section 1538.5 as well as a
claim that the item or items are privileged, as provided by law. The
hearing shall be held in the superior court. The court shall
provide sufficient time for the parties to obtain counsel and make
any motions or present any evidence. The hearing shall be held
within three days of the service of the warrant unless the court
makes a finding that the expedited hearing is impracticable. In that
case the matter shall be heard at the earliest possible time.
If an item or items are taken to court for a hearing, any
limitations of time prescribed in Chapter 2 (commencing with Section
797) of Title 3 of Part 2 shall be tolled from the time of the
seizure until the final conclusion of the hearing, including any
associated writ or appellate proceedings.
(3) The warrant shall, whenever practicable, be served during
normal business hours. In addition, the warrant shall be served upon
a party who appears to have possession or control of the items
sought. If, after reasonable efforts, the party serving the warrant
is unable to locate the person, the special master shall seal and
return to the court, for determination by the court, any item that
appears to be privileged as provided by law.
(d) As used in this section, a "special master" is an attorney who
is a member in good standing of the California State Bar and who has
been selected from a list of qualified attorneys that is maintained
by the State Bar particularly for the purposes of conducting the
searches described in this section. These attorneys shall serve
without compensation. A special master shall be considered a public
employee, and the governmental entity that caused the search warrant
to be issued shall be considered the employer of the special master
and the applicable public entity, for purposes of Division 3.6
(commencing with Section 810) of Title 1 of the Government Code,
relating to claims and actions against public entities and public
employees. In selecting the special master, the court shall make
every reasonable effort to ensure that the person selected has no
relationship with any of the parties involved in the pending matter.
Any information obtained by the special master shall be confidential
and shall not be divulged except in direct response to inquiry by
the court.
In any case in which the magistrate determines that, after
reasonable efforts have been made to obtain a special master, a
special master is not available and would not be available within a
reasonable period of time, the magistrate may direct the party
seeking the order to conduct the search in the manner described in
this section in lieu of the special master.
(e) Any search conducted pursuant to this section by a special
master may be conducted in a manner that permits the party serving
the warrant or his or her designee to accompany the special master as
he or she conducts his or her search. However, that party or his or
her designee shall not participate in the search nor shall he or she
examine any of the items being searched by the special master except
upon agreement of the party upon whom the warrant has been served.
(f) As used in this section, "documentary evidence" includes, but
is not limited to, writings, documents, blueprints, drawings,
photographs, computer printouts, microfilms, X-rays, files, diagrams,
ledgers, books, tapes, audio and video recordings, films or papers
of any type or description.
(g) No warrant shall issue for any item or items described in
Section 1070 of the Evidence Code.
(h) Notwithstanding any other law, no claim of attorney work
product as described in Section 2018 of the Code of Civil Procedure
shall be sustained where there is probable cause to believe that the
lawyer is engaging or has engaged in criminal activity related to the
documentary evidence for which a warrant is requested unless it is
established at the hearing with respect to the documentary evidence
seized under the warrant that the services of the lawyer were not
sought or obtained to enable or aid anyone to commit or plan to
commit a crime or a fraud.
(i) Nothing in this section is intended to limit an attorney's
ability to request an in camera hearing pursuant to the holding of
the Supreme Court of California in People v. Superior Court (Laff)
(2001) 25 Cal.4th 703.
SEC. 3.4. Section 1524 of the Penal Code is amended to read:
1524. (a) A search warrant may be issued upon any of the
following grounds:
(1) When the property was stolen or embezzled.
(2) When the property or things were used as the means of
committing a felony.
(3) When the property or things are in the possession of any
person with the intent to use them as a means of committing a public
offense, or in the possession of another to whom he or she may have
delivered them for the purpose of concealing them or preventing their
being discovered.
(4) When the property or things to be seized consist of any item
or constitute any evidence that tends to show a felony has been
committed, or tends to show that a particular person has committed a
felony.
(5) When the property or things to be seized consist of evidence
that tends to show that sexual exploitation of a child, in violation
of Section 311.3, or possession of matter depicting sexual conduct of
a person under the age of 18 years, in violation of Section 311.11,
has occurred or is occurring.
(6) When there is a warrant to arrest a person.
(b) The property or things or person or persons described in
subdivision (a) may be taken on the warrant from any place, or from
any person in whose possession the property or things may be.
(c) Notwithstanding subdivision (a) or (b), no search warrant
shall issue for any documentary evidence in the possession or under
the control of any person, who is a lawyer as defined in Section 950
of the Evidence Code, a physician as defined in Section 990 of the
Evidence Code, a psychotherapist as defined in Section 1010 of the
Evidence Code, a licensed private investigator as defined in Section
7521 of the Business and Professions Code who has done any work for
an attorney or has been appointed by a court to assist a defendant in
propria persona, or a clergyman as defined in Section 1030 of the
Evidence Code, and who is not reasonably suspected of engaging or
having engaged in criminal activity related to the documentary
evidence for which a warrant is requested unless the following
procedure has been complied with:
(1) At the time of the issuance of the warrant the court shall
appoint a special master in accordance with subdivision (d) to
accompany the person who will serve the warrant. Upon service of the
warrant, the special master shall inform the party served of the
specific items being sought and that the party shall have the
opportunity to provide the items requested. If the party, in the
judgment of the special master, fails to provide the items requested,
the special master shall conduct a search for the items in the areas
indicated in the search warrant.
(2) If the party who has been served states that an item or items
should not be disclosed, they shall be sealed by the special master
and taken to court for a hearing.
At the hearing, the party searched shall be entitled to raise any
issues that may be raised pursuant to Section 1538.5 as well as a
claim that the item or items are privileged, as provided by law. The
hearing shall be held in the superior court. The court shall
provide sufficient time for the parties to obtain counsel and make
any motions or present any evidence. The hearing shall be held
within three days of the service of the warrant unless the court
makes a finding that the expedited hearing is impracticable. In that
case the matter shall be heard at the earliest possible time.
If an item or items are taken to court for a hearing, any
limitations of time prescribed in Chapter 2 (commencing with Section
797) of Title 3 of Part 2 shall be tolled from the time of the
seizure until the final conclusion of the hearing, including any
associated writ or appellate proceedings.
(3) The warrant shall, whenever practicable, be served during
normal business hours. In addition, the warrant shall be served upon
a party who appears to have possession or control of the items
sought. If, after reasonable efforts, the party serving the warrant
is unable to locate the person, the special master shall seal and
return to the court, for determination by the court, any item that
appears to be privileged as provided by law.
(d) As used in this section, a "special master" is an attorney who
is a member in good standing of the California State Bar and who has
been selected from a list of qualified attorneys that is maintained
by the State Bar particularly for the purposes of conducting the
searches described in this section. These attorneys shall serve
without compensation. A special master shall be considered a public
employee, and the governmental entity that caused the search warrant
to be issued shall be considered the employer of the special master
and the applicable public entity, for purposes of Division 3.6
(commencing with Section 810) of Title 1 of the Government Code,
relating to claims and actions against public entities and public
employees. In selecting the special master, the court shall make
every reasonable effort to ensure that the person selected has no
relationship with any of the parties involved in the pending matter.
Any information obtained by the special master shall be confidential
and shall not be divulged except in direct response to inquiry by
the court.
In any case in which the magistrate determines that, after
reasonable efforts have been made to obtain a special master, a
special master is not available and would not be available within a
reasonable period of time, the magistrate may direct the party
seeking the order to conduct the search in the manner described in
this section in lieu of the special master.
(e) Any search conducted pursuant to this section by a special
master may be conducted in a manner that permits the party serving
the warrant or his or her designee to accompany the special master as
he or she conducts his or her search. However, that party or his or
her designee shall not participate in the search nor shall he or she
examine any of the items being searched by the special master except
upon agreement of the party upon whom the warrant has been served.
(f) As used in this section, "documentary evidence" includes, but
is not limited to, writings, documents, blueprints, drawings,
photographs, computer printouts, microfilms, X-rays, files, diagrams,
ledgers, books, tapes, audio and video recordings, films or papers
of any type or description.
(g) No warrant shall issue for any item or items described in
Section 1070 of the Evidence Code.
(h) Notwithstanding any other law, no claim of attorney work
product as described in Section 2018 of the Code of Civil Procedure
shall be sustained where there is probable cause to believe that the
lawyer is engaging or has engaged in criminal activity related to the
documentary evidence for which a warrant is requested unless it is
established at the hearing with respect to the documentary evidence
seized under the warrant that the services of the lawyer were not
sought or obtained to enable or aid anyone to commit or plan to
commit a crime or a fraud.
(i) Nothing in this section is intended to limit an attorney's
ability to request an in camera hearing pursuant to the holding of
the Supreme Court of California in People v. Superior Court (Laff)
(2001) 25 Cal.4th 703.
SEC. 3.6. Section 1524 of the Penal Code is amended to read:
1524. (a) A search warrant may be issued upon any of the
following grounds:
(1) When the property was stolen or embezzled.
(2) When the property or things were used as the means of
committing a felony.
(3) When the property or things are in the possession of any
person with the intent to use them as a means of committing a public
offense, or in the possession of another to whom he or she may have
delivered them for the purpose of concealing them or preventing their
being discovered.
(4) When the property or things to be seized consist of any item
or constitute any evidence that tends to show a felony has been
committed, or tends to show that a particular person has committed a
felony.
(5) When the property or things to be seized consist of evidence
that tends to show that sexual exploitation of a child, in violation
of Section 311.3, or possession of matter depicting sexual conduct of
a person under the age of 18 years, in violation of Section 311.11,
has occurred or is occurring.
(6) When there is a warrant to arrest a person.
(7) When a provider of electronic communication service or remote
computing service has records or evidence, as specified in Section
1524.3, showing that property was stolen or embezzled constituting a
misdemeanor, or that property or things are in the possession of any
person with the intent to use them as a means of committing a
misdemeanor public offense, or in the possession of another to whom
he or she may have delivered them for the purpose of concealing them
or preventing their discovery.
(b) The property or things or person or persons described in
subdivision (a) may be taken on the warrant from any place, or from
any person in whose possession the property or things may be.
(c) Notwithstanding subdivision (a) or (b), no search warrant
shall issue for any documentary evidence in the possession or under
the control of any person, who is a lawyer as defined in Section 950
of the Evidence Code, a physician as defined in Section 990 of the
Evidence Code, a psychotherapist as defined in Section 1010 of the
Evidence Code, a licensed private investigator as defined in Section
7521 of the Business and Professions Code who has done any work for
an attorney or has been appointed by a court to assist a defendant in
propria persona, or a clergyman as defined in Section 1030 of the
Evidence Code, and who is not reasonably suspected of engaging or
having engaged in criminal activity related to the documentary
evidence for which a warrant is requested unless the following
procedure has been complied with:
(1) At the time of the issuance of the warrant the court shall
appoint a special master in accordance with subdivision (d) to
accompany the person who will serve the warrant. Upon service of the
warrant, the special master shall inform the party served of the
specific items being sought and that the party shall have the
opportunity to provide the items requested. If the party, in the
judgment of the special master, fails to provide the items requested,
the special master shall conduct a search for the items in the areas
indicated in the search warrant.
(2) If the party who has been served states that an item or items
should not be disclosed, they shall be sealed by the special master
and taken to court for a hearing.
At the hearing, the party searched shall be entitled to raise any
issues that may be raised pursuant to Section 1538.5 as well as a
claim that the item or items are privileged, as provided by law. The
hearing shall be held in the superior court. The court shall
provide sufficient time for the parties to obtain counsel and make
any motions or present any evidence. The hearing shall be held
within three days of the service of the warrant unless the court
makes a finding that the expedited hearing is impracticable. In that
case the matter shall be heard at the earliest possible time.
If an item or items are taken to court for a hearing, any
limitations of time prescribed in Chapter 2 (commencing with Section
797) of Title 3 of Part 2 shall be tolled from the time of the
seizure until the final conclusion of the hearing, including any
associated writ or appellate proceedings.
(3) The warrant shall, whenever practicable, be served during
normal business hours. In addition, the warrant shall be served upon
a party who appears to have possession or control of the items
sought. If, after reasonable efforts, the party serving the warrant
is unable to locate the person, the special master shall seal and
return to the court, for determination by the court, any item that
appears to be privileged as provided by law.
(d) As used in this section, a "special master" is an attorney who
is a member in good standing of the California State Bar and who has
been selected from a list of qualified attorneys that is maintained
by the State Bar particularly for the purposes of conducting the
searches described in this section. These attorneys shall serve
without compensation. A special master shall be considered a public
employee, and the governmental entity that caused the search warrant
to be issued shall be considered the employer of the special master
and the applicable public entity, for purposes of Division 3.6
(commencing with Section 810) of Title 1 of the Government Code,
relating to claims and actions against public entities and public
employees. In selecting the special master, the court shall make
every reasonable effort to ensure that the person selected has no
relationship with any of the parties involved in the pending matter.
Any information obtained by the special master shall be confidential
and shall not be divulged except in direct response to inquiry by
the court.
In any case in which the magistrate determines that, after
reasonable efforts have been made to obtain a special master, a
special master is not available and would not be available within a
reasonable period of time, the magistrate may direct the party
seeking the order to conduct the search in the manner described in
this section in lieu of the special master.
(e) Any search conducted pursuant to this section by a special
master may be conducted in a manner that permits the party serving
the warrant or his or her designee to accompany the special master as
he or she conducts his or her search. However, that party or his or
her designee shall not participate in the search nor shall he or she
examine any of the items being searched by the special master except
upon agreement of the party upon whom the warrant has been served.
(f) As used in this section, "documentary evidence" includes, but
is not limited to, writings, documents, blueprints, drawings,
photographs, computer printouts, microfilms, X-rays, files, diagrams,
ledgers, books, tapes, audio and video recordings, films, or papers
of any type or description.
(g) No warrant shall issue for any item or items described in
Section 1070 of the Evidence Code.
(h) Notwithstanding any other law, no claim of attorney work
product as described in Section 2018 of the Code of Civil Procedure
shall be sustained where there is probable cause to believe that the
lawyer is engaging or has engaged in criminal activity related to the
documentary evidence for which a warrant is requested unless it is
established at the hearing with respect to the documentary evidence
seized under the warrant that the services of the lawyer were not
sought or obtained to enable or aid anyone to commit or plan to
commit a crime or a fraud.
(i) Nothing in this section is intended to limit an attorney's
ability to request an in camera hearing pursuant to the holding of
the Supreme Court of California in People v. Superior Court (Laff)
(2001) 25 Cal.4th 703.
SEC. 4. (a) Section 3.2 of this bill incorporates amendments to
Section 1524 of the Penal Code proposed by both this bill and SB
1980. It shall only become operative if (1) both bills are enacted
and become effective on or before January 1, 2003, (2) each bill
amends Section 1524 of the Penal Code, and (3) SB 1637 is not enacted
or as enacted does not amend that section, and (4) this bill is
enacted after SB 1980, in which case Section 3 of this bill shall
remain operative only until the operative date of SB 1980, at which
time Section 3.2 shall become operative and Sections 3.4 and 3.6 of
this bill shall not become operative.
(b) Section 3.4 of this bill incorporates amendments to Section
1524 of the Penal Code proposed by both this bill and SB 1637. It
shall only become operative if (1) both bills are enacted and become
effective on or before January 1, 2003, (2) each bill amends Section
1524 of the Penal Code, (3) SB 1980 is not enacted or as enacted does
not amend that section, and (4) this bill is enacted after SB 1637,
in which case Section 3 of this bill shall remain operative only
until the operative date of SB 1637, at which time Section 3.4 of
this bill shall become operative and Sections 3.2 and 3.6 of this
bill shall not become operative.
(c) Section 3.6 of this bill incorporates amendments to Section
1524 of the Penal Code proposed by this bill, SB 1980, and SB 1637.
It shall only become operative if (1) all three bills are enacted and
become effective on or before January 1, 2003, (2) all three bills
amend Section 1524 of the Penal Code, and (3) this bill is enacted
after SB 1980 and SB 1637, in which case Section 3 of the bill shall
remain operative only until the operative date of SB 1980 or SB 1637,
whichever is later, at which time Section 3.6 of the bill shall
become operative and Sections 3.2 and 3.4 of this bill shall not
become operative.
SEC. 5. This act is an urgency statute necessary for the immediate
preservation of the public peace, health, or safety within the
meaning of Article IV of the Constitution and shall go into immediate
effect. The facts constituting the necessity are:
In order to assist the prosecution of pending fraud cases, it is
necessary that this act take effect immediately.