BILL NUMBER: SB 205 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 7, 2001
INTRODUCED BY Senator McPherson
FEBRUARY 8, 2001
An act to amend Section Sections 1282.3
and 5536 of the Business and Professions Code, to amend
Section 670 Sections 670, 1036.2 and 1350
of the Evidence Code, to amend Section 11019.0
11019.9 of the Government Code, to amend
Sections 11362.9, 11372, 11372.7, 11550, and
11573.5 11573.5, 42400.1, 42400.2, 42400.3, 42402.1,
42402.2, 42402.3, and 109580 of the Health and Safety Code, to
amend Sections 28, 182, 186.11, 186.22, 368, 466, 530.7,
646.93, 666.7, 670, 1170.11, 1174.4, 186.11, 186.22,
186.26, 243.1, 312.1, 320.5, 368, 466, 481.1, 530.7, 593d, 593e, 645,
646.93, 666.7, 667.7, 670, 778a, 933.06, 1170.11, 1174.4, 1203.044,
1203.097, 1280.1, 1382, 2677, 2717.4, 3000, 3000.1,
3001, 3058.9, 4011.1, 4501.1, 6008,
6126.5, 6236, 7012, 11180, 11418, 11419,
12021, 12022.53, 12094, 12288, and 13519.4 of, to amend and
renumber Sections 113 , 597.2, 1511, and 5058.5 of, and
to amend and renumber the heading of Title 10.5 (commencing with
Section 14150) of Part 4 of, the Penal Code, to amend Section 19705
of the Revenue and Taxation Code, to amend Section
Sections 1808.21, 13202.4, and 22658.1 of the Vehicle
Code, and to amend Sections 355.1 and 302,
319.1, 367, 602 of 602, 635.1, and
5270.55 of, to amend and renumber Sections 602.5 and 730.7 of ,
and to amend and renumber the heading of Article 18.5 (commencing
with Section 743) of Chapter 2 of Part 1 of Division 2 of, the
Welfare and Institutions Code, relating to crime, and declaring the
urgency thereof, to take effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
SB 205, as amended, McPherson. Crime.
Existing law contains numerous provisions pertaining to crime and
the implementation of the criminal laws of this state.
This bill would make numerous, nonsubstantive changes to clarify
and update these provisions.
The bill would also make various technical revisions.
Among other things, it would revise provisions relating to the
duration of, and discharge from, parole and provisions relating to
punishment for terrorism involving weapons of mass destruction and
certain restricted biological agents.
Existing law prohibits certain persons, as specified, from owning
or possessing a firearm.
This bill would revise these provisions to include a person who
attempts to own or possess a firearm, under certain circumstances, as
specified. By revising the definition of a crime, the bill would
impose a state-mandated local program.
This bill would amend an initiative statute that provides its
provisions may be amended by the Legislature by a 2/3 vote of the
membership of each house, and therefore requires a 2/3 vote.
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.
The bill would declare that it is to take effect immediately as an
urgency statute.
Vote: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1282.3 of the Business and Professions
Code is amended to read:
1282.3. (a) It is unlawful for any person to act with willful or
wanton disregard for a person's safety that exposes the person to a
substantial risk of, or that causes, great bodily injury by affecting
the integrity of a clinical laboratory test or examination result
through improper collection, handling, storage, or labeling of the
biological specimen or the erroneous transcription or reporting of
clinical laboratory test or examination results.
(b) Notwithstanding Section 1287, a violation of this section
shall be punished , upon first conviction, as
follows:
(1) A first conviction is punishable by imprisonment in a
county jail for a period of not more than one year, or by
imprisonment in a state prison for 16 months, or two or three years,
by a fine not exceeding fifty thousand dollars ($50,000), or by both
this fine and imprisonment. A
(2) A second or subsequent conviction is punishable by
imprisonment in the state prison for two, four, or six years, by a
fine not exceeding fifty thousand dollars ($50,000), or by both this
fine and imprisonment.
(c) The enforcement remedies provided under this section are not
exclusive, and shall not preclude the use of any other criminal or
civil remedy. However, an act or omission punishable in different
ways by this section and any other provision of law shall not be
punished under more than one provision. Under those circumstances,
the penalty to be imposed shall be determined as set forth in Section
654 of the Penal Code.
SEC. 2. Section 5536 of the Business and Professions Code is
amended to read:
5536. (a) It is a misdemeanor, punishable by a fine of not less
than one hundred dollars ($100) nor more than five thousand dollars
($5,000), or by imprisonment in the a
county jail not exceeding one year, or by both that fine and
imprisonment, for any person who is not licensed to practice
architecture under this chapter to practice architecture in this
state, to use any term confusingly similar to the word architect,
, to use the stamp of a licensed architect, as
provided in Section 5536.1, or to advertise or put out any sign or
card or other device that might indicate to the public that he or she
is an architect, that he or she is qualified to engage in the
practice of architecture, or that he or she is an architectural
designer.
(b) It is a misdemeanor, punishable as specified in subdivision
(a), for any person who is not licensed to practice architecture
under this chapter to affix a stamp or seal that bears the legend
"State of California" or words or symbols that represent or imply
that the person is so licensed by the state to prepare plans,
specifications, or instruments of service.
(c) It is a misdemeanor, punishable as specified in subdivision
(a), for any person to advertise or represent that he or she is a
"registered building designer" or is registered or otherwise licensed
by the state as a building designer.
SEC. 2.
SEC. 3. Section 670 of the Evidence Code is amended to read:
670. (a) In any dispute concerning payment by means of a check, a
copy of the check produced in accordance with Section 1550 of the
Evidence Code, together with the original bank statement that
reflects payment of the check by the bank on which it was drawn or a
copy thereof produced in the same manner, creates a presumption that
the check has been paid.
(b) As used in this section:
(1) "Bank" means any person engaged in the business of banking and
includes, in addition to a commercial bank, a savings and loan
association, savings bank, or credit union.
(2) "Check" means a draft, other than a documentary draft, payable
on demand and drawn on a bank, even though it is described by
another term, such as "share draft" or "negotiable order of
withdrawal."
SEC. 3.
SEC. 4. Section 1036.2 of the Evidence Code is amended to read:
1036.2. As used in this article, "sexual assault" includes all of
the following:
(a) Rape, as defined in Section 261 of the Penal Code.
(b) Unlawful sexual intercourse, as defined in Section 261.5 of
the Penal Code.
(c) Rape in concert with force and violence, as defined in Section
264.1 of the Penal Code.
(d) Rape of a spouse, as defined in Section 262 of the Penal Code.
(e) Sodomy, as defined in Section 286 of the Penal Code, except a
violation of subdivision (e) of that section.
(f) A violation of Section 288 of the Penal Code.
(g) Oral copulation, as defined in Section 288a of the Penal Code,
except a violation of subdivision (e) of that section.
(h) Penetration of the genital or anal openings of
another person with a foreign object, substance, instrument, or
device, as specified Sexual penetration, as defined
in Section 289 of the Penal Code.
(i) Annoying or molesting a child under 18, as defined in Section
647a of the Penal Code.
(j) Any attempt to commit any of the above acts.
SEC. 5. Section 1350 of the Evidence Code is amended to read:
1350. (a) In a criminal proceeding charging a serious felony,
evidence of a statement made by a declarant is not made inadmissible
by the hearsay rule if the declarant is unavailable as a witness, and
all of the following are true:
(1) There is clear and convincing evidence that the declarant's
unavailability was knowingly caused by, aided by, or solicited by the
party against whom the statement is offered for the purpose of
preventing the arrest or prosecution of the party and is the result
of the death by homicide or the kidnapping of the declarant.
(2) There is no evidence that the unavailability of the declarant
was caused by, aided by, solicited by, or procured on behalf of, the
party who is offering the statement.
(3) The statement has been memorialized in a tape recording made
by a law enforcement official, or in a written statement prepared by
a law enforcement official and signed by the declarant and
notorized notarized in the presence of the law
enforcement official, prior to the death or kidnapping of the
declarant.
(4) The statement was made under circumstances which indicate its
trustworthiness and was not the result of promise, inducement,
threat, or coercion.
(5) The statement is relevant to the issues to be tried.
(6) The statement is corroborated by other evidence which tends to
connect the party against whom the statement is offered with the
commission of the serious felony with which the party is charged.
The corroboration is not sufficient if it merely shows the commission
of the offense or the circumstances thereof.
(b) If the prosecution intends to offer a statement pursuant to
this section, the prosecution shall serve a written notice upon the
defendant at least 10 days prior to the hearing or trial at which the
prosecution intends to offer the statement, unless the prosecution
shows good cause for the failure to provide that notice. In the
event that good cause is shown, the defendant shall be entitled to a
reasonable continuance of the hearing or trial.
(c) If the statement is offered during trial, the court's
determination shall be made out of the presence of the jury. If the
defendant elects to testify at the hearing on a motion brought
pursuant to this section, the court shall exclude from the
examination every person except the clerk, the court reporter, the
bailiff, the prosecutor, the investigating officer, the defendant and
his or her counsel, an investigator for the defendant, and the
officer having custody of the defendant. Notwithstanding any other
provision of law, the defendant's testimony at the hearing shall not
be admissible in any other proceeding except the hearing brought on
the motion pursuant to this section. If a transcript is made of the
defendant's testimony, it shall be sealed and transmitted to the
clerk of the court in which the action is pending.
(d) As used in this section, "serious felony" means any of the
felonies listed in subdivision (c) of Section 1192.7 of the Penal
Code or any violation of Section 11351, 11352, 11378, or 11379 of the
Health and Safety Code.
(e) If a statement to be admitted pursuant to this section
includes hearsay statements made by anyone other than the declarant
who is unavailable pursuant to subdivision (a), those hearsay
statements are inadmissible unless they meet the requirements of an
exception to the hearsay rule.
SEC. 6. Section 11019.9 of the Government Code is amended to
read:
11019.9. Each state department and state agency shall enact and
maintain a permanent privacy policy, in adherence with the
Information Practices Act of 1977 (Title 1.8 (commencing with Section
1798) of Part 4 of Division 3 of the Civil Code), that includes, but
is not limited to, the following principles:
(a) Personally identifiable information is only obtained through
lawful means.
(b) The purposes for which personally identifiable data are
collected are specified at or prior to the time of collection, and
any subsequent use is limited to the fulfillment of purposes not
inconsistent with those purposes previously specified.
(c) Personal data shall not be disclosed, made available, or
otherwise used for purposes other than those specified, except with
the consent of the subject of the data, or as authorized by law or
regulation.
(d) Personal data collected must be relevant to the purpose for
which it is collected.
(e) The general means by which personal data is protected against
loss, unauthorized access, use modification or disclosure shall be
posted, unless such that disclosure of
general means would compromise legitimate state department or state
agency objectives or law enforcement purposes.
(f) Each state department or state agency shall designate a
position within the department or agency, the duties of which shall
include, but not be limited to, responsibility for the privacy policy
within that department or agency.
SEC. 4.
SEC. 7. Section 11362.9 of the Health and Safety Code is
amended to read:
11362.9. (a) (1) It is the intent of the Legislature that the
state commission objective scientific research by the premier
research institute of the world, the University of California,
regarding the efficacy and safety of administering marijuana as part
of medical treatment. If the Regents of the University of
California, by appropriate resolution, accept this responsibility,
the University of California shall create a three-year program, to be
known as the California Marijuana Research Program.
(2) The program shall develop and conduct studies intended to
ascertain the general medical safety and efficacy of marijuana and,
if found valuable, shall develop medical guidelines for the
appropriate administration and use of marijuana.
(b) The program may immediately solicit proposals for research
projects to be included in the marijuana studies. Program
requirements to be used when evaluating responses to its solicitation
for proposals, shall include, but not be limited to, all of the
following:
(1) Proposals shall demonstrate the use of key personnel,
including clinicians or scientists and support personnel, who are
prepared to develop a program of research regarding marijuana's
general medical efficacy and safety.
(2) Proposals shall contain procedures for outreach to patients
with various medical conditions who may be suitable participants in
research on marijuana.
(3) Proposals shall contain provisions for a patient registry.
(4) Proposals shall contain provisions for an information system
that is designed to record information about possible study
participants, investigators, and clinicians, and deposit and analyze
data that accrues as part of clinical trials.
(5) Proposals shall contain protocols suitable for research on
marijuana, addressing patients diagnosed with the acquired
immunodeficiency syndrome (AIDS) or the human immunodeficiency virus
(HIV), cancer, glaucoma, or seizures or muscle spasms associated with
a chronic, debilitating condition. The proposal may also include
research on other serious illnesses, provided that resources are
available and medical information justifies the research.
(6) Proposals shall demonstrate the use of a specimen laboratory
capable of housing plasma, urine, and other specimens necessary to
study the concentration of cannabinoids in various tissues, as well
as housing specimens for studies of toxic effects of marijuana.
(7) Proposals shall demonstrate the use of a laboratory capable of
analyzing marijuana, provided to the program under this section, for
purity and cannabinoid content and the capacity to detect
contaminants.
(c) In order to ensure objectivity in evaluating proposals, the
program shall use a peer review process that is modeled on the
process used by the National Institutes of Health, and that guards
against funding research that is biased in favor of or against
particular outcomes. Peer reviewers shall be selected for their
expertise in the scientific substance and methods of the proposed
research, and their lack of bias or conflict of interest regarding
the applicants or the topic of an approach taken in the proposed
research. Peer reviewers shall judge research proposals on several
criteria, foremost among which shall be both of the following:
(1) The scientific merit of the research plan, including whether
the research design and experimental procedures are potentially
biased for or against a particular outcome.
(2) Researchers' expertise in the scientific substance and methods
of the proposed research, and their lack of bias or conflict of
interest regarding the topic of, and the approach taken in, the
proposed research.
(d) If the program is administered by the Regents of the
University of California, any grant research proposals approved by
the program shall also require review and approval by the research
advisory panel.
(e) It is the intent of the Legislature that the program be
established as follows:
(1) The program shall be located at one or more University of
California campuses that have a core of faculty experienced in
organizing multidisciplinary scientific endeavors and, in particular,
strong experience in clinical trials involving psychopharmacologic
agents. The campuses at which research under the auspices of the
program is to take place shall accommodate the administrative
offices, including the director of the program, as well as a data
management unit, and facilities for storage of specimens.
(2) When awarding grants under this section, the program shall
utilize principles and parameters of the other well-tested statewide
research programs administered by the University of California,
modeled after programs administered by the National Institutes of
Health, including peer review evaluation of the scientific merit of
applications.
(3) The scientific and clinical operations of the program shall
occur, partly at University of California campuses, and partly at
other postsecondary institutions, that have clinicians or scientists
with expertise to conduct the required studies. Criteria for
selection of research locations shall include the elements listed in
subdivision (b) and, additionally, shall give particular weight to
the organizational plan, leadership qualities of the program
director, and plans to involve investigators and patient populations
from multiple sites.
(4) The funds received by the program shall be allocated to
various research studies in accordance with a scientific plan
developed by the Scientific Advisory Council. As the first wave of
studies is completed, it is anticipated that the program will receive
requests for funding of additional studies. These requests shall be
reviewed by the Scientific Advisory Council.
(5) The size, scope, and number of studies funded shall be
commensurate with the amount of appropriated and available program
funding.
(f) All personnel involved in implementing approved proposals
shall be authorized as required by Section 11604.
(g) Studies conducted pursuant to this section shall include the
greatest amount of new scientific research possible on the medical
uses of, and medical hazards associated with, marijuana. The program
shall consult with the Research Advisory Panel analogous agencies in
other states, and appropriate federal agencies in an attempt to
avoid duplicative research and the wasting of research dollars.
(h) The program shall make every effort to recruit qualified
patients and qualified physicians from throughout the state.
(i) The marijuana studies shall employ state-of-the-art research
methodologies.
(j) The program shall ensure that all marijuana used in the
studies is of the appropriate medical quality and shall be obtained
from the National Institute on Drug Abuse or any other federal agency
designated to supply marijuana for authorized research. If these
federal agencies fail to provide a supply of adequate quality and
quantity within six months of the effective date of this section, the
Attorney General shall provide an adequate supply pursuant to
Section 11478.
(k) The program may review, approve, or incorporate studies and
research by independent groups presenting scientifically valid
protocols for medical research, regardless of whether the areas of
study are being researched by the committee.
(l) (1) To enhance understanding of the efficacy and adverse
effects of marijuana as a pharmacological agent, the program shall
conduct focused controlled clinical trials on the usefulness of
marijuana in patients diagnosed with AIDS or HIV, cancer, glaucoma,
or seizures or muscle spasms associated with a chronic, debilitating
condition. The program may add research on other serious illnesses,
provided that resources are available and medical information
justifies the research. The studies shall focus on comparisons of
both the efficacy and safety of methods of administering the drug to
patients, including inhalational, tinctural, and oral, evaluate
possible uses of marijuana as a primary or adjunctive treatment, and
develop further information on optimal dosage, timing, mode of
administration, and variations in the effects of different
cannabinoids and varieties of marijuana.
(2) The program shall examine the safety of marijuana in patients
with various medical disorders, including marijuana's interaction
with other drugs, relative safety of inhalation versus oral forms,
and the effects on mental function in medically ill persons.
(3) The program shall be limited to providing for objective
scientific research to ascertain the efficacy and safety of marijuana
as part of medical treatment, and should not be construed as
encouraging or sanctioning the social or recreational use of
marijuana.
(m) (1) Subject to paragraph (2), the program shall, prior to any
approving proposals, seek to obtain research protocol guidelines from
the National Institutes of Health and shall, if the National
Institutes of Health issues research protocol guidelines, comply with
those guidelines.
(2) If, after a reasonable period of time of not less than six
months and not more than a year has elapsed from the date the program
seeks to obtain guidelines pursuant to paragraph (1), no guidelines
have been approved, the program may proceed using the research
protocol guidelines it develops.
(n) In order to maximize the scope and size of the marijuana
studies, the program may do any of the following:
(1) Solicit, apply for, and accept funds from foundations, private
individuals, and all other funding sources that can be used to
expand the scope or timeframe of the marijuana studies that are
authorized under this section. The program shall not expend more
than 5 percent of its General Fund allocation in efforts to obtain
money from outside sources.
(2) Include within the scope of the marijuana studies other
marijuana research projects that are independently funded and that
meet the requirements set forth in subdivisions (a) to (c),
inclusive. In no case shall the program accept any funds that are
offered with any conditions other than that the funds be used to
study the efficacy and safety of marijuana as part of medical
treatment. Any donor shall be advised that funds given for purposes
of this section will be used to study both the possible benefits and
detriments of marijuana and that he or she will have no control over
the use of these funds.
(o) (1) Within six months of the effective date of this section,
the program shall report to the Legislature, the Governor, and the
Attorney General on the progress of the marijuana studies.
(2) Thereafter, the program shall issue a report to the
Legislature every six months detailing the progress of the studies.
The interim reports required under this paragraph shall include, but
not be limited to, data on all of the following:
(A) The names and number of diseases or conditions under study.
(B) The number of patients enrolled in each study by disease.
(C) Any scientifically valid preliminary findings.
(p) If the Regents of the University of California implement this
section, the President of the University of California shall appoint
a multidisciplinary Scientific Advisory Council, not to exceed 15
members, to provide policy guidance in the creation and
implementation of the program. Members shall be chosen on the basis
of scientific expertise. Members of the council shall serve on a
voluntary basis, with reimbursement for expenses incurred in the
course of their participation. The members shall be reimbursed for
travel and other necessary expenses incurred in their performance of
the duties of the council.
(q) No more than 10 percent of the total funds appropriated be
used for all aspects of the administration of this section.
(r) This section shall be implemented only to the extent that
funding for its purposes is appropriated by the Legislature in the
annual Budget Act.
SEC. 5.
SEC. 8. Section 11372 of the Health and Safety Code is
amended to read:
11372. (a) In addition to the term of imprisonment provided by
law for persons convicted of violating Section 11350, 11351, 11351.5,
11352, 11353, 11355, 11359, 11360, or 11361, the trial court may
impose a fine not exceeding twenty thousand dollars ($20,000) for
each such offense. In no event shall
such a fine be levied in lieu of or in
substitution for the term of imprisonment provided by law for
any of such these offenses.
(b) Any person receiving an additional term pursuant to paragraph
(1) of subdivision (a) of Section 11370.4, may, in addition, be fined
an amount not exceeding one million dollars ($1,000,000) for each
such offense.
(c) Any person receiving an additional term pursuant to paragraph
(2) of subdivision (a) of Section 11370.4, may, in addition, be fined
an amount not to exceed four million dollars ($4,000,000) for each
such offense.
(d) Any person receiving an additional term pursuant to paragraph
(3), (4), (5), or (6) of subdivision (a) of Section 11370.4, may, in
addition, be fined by an amount not to exceed eight million dollars
($8,000,000) for each such offense.
(e) The court shall make a finding, prior to the imposition of the
fines authorized by subdivision subdivisions
(b) to (e), inclusive, that there is a reasonable expectation
that the fine, or a substantial portion thereof, could be collected
within a reasonable period of time, taking into consideration the
defendant's income, earning capacity, and financial resources.
SEC. 6.
SEC. 9. Section 11372.7 of the Health and Safety Code is amended
to read:
11372.7. (a) Except as otherwise provided in subdivision (b) or
(e) (f) , each person who is convicted
of a violation of this chapter shall pay a drug program fee in an
amount not to exceed one hundred fifty dollars ($150) for each
separate offense. The court shall increase the total fine, if
necessary, to include this increment, which shall be in addition to
any other penalty prescribed by law.
(b) The court shall determine whether or not the person who is
convicted of a violation of this chapter has the ability to pay a
drug program fee. If the court determines that the person has the
ability to pay, the court may set the amount to be paid and order the
person to pay that sum to the county in a manner that the court
believes is reasonable and compatible with the person's financial
ability. In its determination of whether a person has the ability to
pay, the court shall take into account the amount of any fine
imposed upon that person and any amount that person has been ordered
to pay in restitution. If the court determines that the person does
not have the ability to pay a drug program fee, the person shall not
be required to pay a drug program fee.
(c) The county treasurer shall maintain a drug program fund. For
every drug program fee assessed and collected pursuant to
subdivisions (a) and (b), an amount equal to this assessment shall be
deposited into the fund for every conviction pursuant to this
chapter, in addition to fines, forfeitures, and other moneys which
are transmitted by the courts to the county treasurer pursuant to
Sections 11372.5 and 11502. These deposits shall be made prior to
any transfer pursuant to Section 11502. Amounts deposited in the
drug program fund shall be allocated by the administrator of the
county's drug program to drug abuse programs in the schools and the
community, subject to the approval of the board of supervisors, as
follows:
(1) The moneys in the fund shall be allocated through the planning
process established pursuant to Sections 11983, 11983.1, 11983.2,
and 11983.3.
(2) A minimum of 33 percent of the fund shall be allocated to
primary prevention programs in the schools and the community.
Primary prevention programs developed and implemented under this
article shall emphasize cooperation in planning and program
implementation among schools and community drug abuse agencies, and
shall demonstrate coordination through an interagency agreement among
county offices of education, school district, and the county drug
program administrator. These primary prevention programs may
include:
(A) School- and classroom-oriented programs, including, but not
limited to, programs designed to encourage sound decisionmaking, an
awareness of values, an awareness of drugs and their effects,
enhanced self-esteem, social and practical skills
that will assist students toward maturity,
enhanced or improved school climate and relationships among all
school personnel and students, and furtherance of cooperative
efforts of school- and community-based personnel.
(B) School- or community-based nonclassroom alternative programs,
or both, including, but not limited to, positive peer group programs,
programs involving youth and adults in constructive activities
designed as alternatives to drug use, and programs for special target
groups, such as women, ethnic minorities, and other high-risk,
high-need populations.
(C) Family-oriented programs, including, but not limited to,
programs aimed at improving family relationships and involving
parents constructively in the education and nurturing of their
children, as well as in specific activities aimed at preventing drug
abuse.
(d) Moneys deposited into a county drug program fund pursuant to
this section shall supplement, and shall not supplant, any local
funds made available to support the county's drug abuse prevention
and treatment efforts.
(e) Five percent of the money allocated to primary prevention
programs in schools and communities within the county pursuant to
paragraph (2) of subdivision (c) shall be used for the purpose of
conducting an annual evaluation. The annual evaluation shall be
conducted by the office of the county superintendent of schools in
counties where the program is operating in a single county or in the
office of the county superintendent of schools in the county
designated as the lead county in counties where the program is
operating as a consortium of counties. The evaluation shall contain
the following:
(1) A needs assessment evaluation which provides specific data
regarding the problem to be resolved.
(2) A written report of the planning process outlining the
deliberations, considerations, and conclusions following a review of
the needs assessment.
(3) An end of fiscal year accountability evaluation that will
indicate the program's continuing ability to reach appropriate
program beneficiaries, deliver the appropriate benefits, and use
funds appropriately.
(4) An impact evaluation charged with the task of assessing the
effectiveness of the program. Guidelines for the evaluation report
format and the timeliness for the submission of the report shall be
developed by the State Department of Education. Each county shall
submit an evaluation report annually to the State Department of
Education and the State Department of Education shall write and
submit a report to the Legislature and Governor.
(f) This section shall not apply to any person convicted of a
violation of subdivision (b) of Section 11357 of the Health and
Safety Code.
SEC. 10. Section 11550 of the Health and Safety Code is
amended to read:
11550. (a) No person shall use, or be under the influence of any
controlled substance which is (1) specified in subdivision (b), (c),
or (e), or paragraph (1) of subdivision (f) of Section 11054,
specified in paragraph (14), (15), (21), (22), or (23) of subdivision
(d) of Section 11054, specified in subdivision (b) or (c) of Section
11055, or specified in paragraph (1) or (2) of subdivision (d) or in
paragraph (3) of subdivision (e) of Section 11055, or (2) a narcotic
drug classified in Schedule III, IV, or V, except when administered
by or under the direction of a person licensed by the state to
dispense, prescribe, or administer controlled substances. It shall
be the burden of the defense to show that it comes within the
exception. Any person convicted of violating this subdivision is
guilty of a misdemeanor and shall be sentenced to serve a term of not
less than 90 days or more than one year in the
a county jail. The court may place a person convicted
under this subdivision on probation for a period not to exceed five
years and, except as provided in subdivision (c), shall in all cases
in which probation is granted require, as a condition thereof, that
the person be confined in the a county
jail for at least 90 days. Other than as provided by subdivision
(c), in no event shall the court have the power to absolve a person
who violates this subdivision from the obligation of spending at
least 90 days in confinement in the a
county jail.
(b) Any person who (1) is convicted of violating subdivision (a)
when the offense occurred within seven years of that person being
convicted of two or more separate violations of that subdivision or
of subdivision (e), and (2) refuses to complete a licensed drug
rehabilitation program offered by the court pursuant to subdivision
(c), shall be punished by imprisonment in a county jail for not less
than 180 days nor more than one year. In no event does the court
have the power to absolve a person convicted of a violation of
subdivision (a) that is punishable under this subdivision from the
obligation of spending at least 180 days in confinement in a county
jail unless there are no licensed drug rehabilitation programs
reasonably available.
For the purpose of this section, a drug rehabilitation program
shall not be considered reasonably available unless the person is
required to pay no more than the court determines that he or she is
reasonably able to pay, in order to participate in the program.
(c) The court may, when it would be in the interest of justice,
permit any person convicted of a violation of subdivision (a)
punishable under subdivision (a) or (b) to complete a licensed drug
rehabilitation program in lieu of part or all of the imprisonment in
the county jail. As a condition of sentencing, the court may require
the offender to pay all or a portion of the drug rehabilitation
program.
In order to alleviate jail overcrowding and to provide recidivist
offenders with a reasonable opportunity to seek rehabilitation
pursuant to this subdivision, counties are encouraged to include
provisions to augment licensed drug rehabilitation programs in their
substance abuse proposals and applications submitted to the state for
federal and state drug abuse funds.
(d) In addition to any fine assessed under this section, the judge
may assess a fine not to exceed seventy dollars ($70) against any
person who violates this section, with the proceeds of this fine to
be used in accordance with Section 1463.23 of the Penal Code. The
court shall, however, take into consideration the defendant's ability
to pay, and no defendant shall be denied probation because of his
or her inability to pay the fine permitted under this subdivision.
(e) Notwithstanding subdivisions (a) and (b) or any other
provision of law, any person who is unlawfully under the influence of
cocaine, cocaine base, heroin, methamphetamine, or phencyclidine
while in the immediate personal possession of a loaded, operable
firearm is guilty of a public offense punishable by imprisonment in
a county jail for not exceeding one year or in state
prison.
As used in this subdivision "immediate personal possession"
includes, but is not limited to, the interior passenger compartment
of a motor vehicle.
(f) Every person who violates subdivision (e) is punishable upon
the second and each subsequent conviction by imprisonment in the
state prison for two, three, or four years.
(g) Nothing in this section prevents deferred entry of judgment
under Chapter 2.5 (commencing with Section 1000) of Title 6 of Part 2
of the Penal Code unless the person is charged with violating
subdivision (b) or (c) of Section 243 of the Penal Code. A person
charged with violating this section by being under the influence of
any controlled substance which is specified in paragraph (21), (22),
or (23) of subdivision (d) of Section 11054 or in paragraph (3) of
subdivision (e) of Section 11055 and with violating either
subdivision (b) or (c) of Section 243 of the Penal Code or with a
violation of subdivision (e) shall be ineligible for deferred entry
of judgment.
SEC. 7.
SEC. 11. Section 11573.5 of the Health and Safety Code is
amended to read:
11573.5. (a) At the time of application for issuance of a
temporary writ pursuant to Section 11573, if proof of the existence
of the nuisance depends, in whole or part, upon the affidavits of
witnesses who are not peace officers, upon a showing of prior threats
of violence or acts of violence by any defendant or other person,
the court may issue orders to protect those witnesses, including, but
not limited to, nondisclosure of the name, address, or any other
information which may identify those witnesses.
(b) A temporary writ issued pursuant to Section 11573 may include
closure of the premises pending trial when a prior writ does not
result in the abatement of the nuisance. The duration of the writ
shall be within the court's discretion. In no event shall the total
period of closure pending trial exceed one year. Prior to ruling on
a request for closure the court may order that some or all of the
rent payments owing to the defendant be placed in an escrow account
for a period of up to 90 days or until the nuisance is abated. If
the court subsequently orders a closure of the premises, the money in
the escrow account shall be used to pay for relocation assistance
pursuant to subdivision (d). In ruling upon a request for closure,
whether for a defined or undefined duration, the court shall consider
all of the following factors:
(1) The extent and duration of the nuisance at the time of the
request.
(2) Prior efforts by the defendant to comply with previous court
orders to abate the nuisance.
(3) The nature and extent of any effect which the nuisance has
upon other persons, such as residents or businesses.
(4) Any effect of prior orders placing displaced residents' or
occupants' rent payments into an escrow account upon the defendant's
efforts to abate the nuisance.
(5) The effect of granting the request upon any resident or
occupant of the premises who is not named in the action, including
the availability of alternative housing or relocation assistance, the
pendency of any action to evict a resident or occupant, and any
evidence of participation by a resident or occupant in the nuisance
activity.
(c) In making an order of closure pursuant to this section, the
court may order the premises vacated and may issue any other orders
necessary to effectuate the closure. However, all tenants who may be
affected by the order shall be provided reasonable notice and an
opportunity to be heard at all hearings regarding the closure request
prior to the issuance of any order.
(d) In making an order of closure pursuant to this section, the
court shall order the defendant to provide relocation assistance to
any tenant ordered to vacate the premises, provided the court
determines that the tenant was not actively involved in the nuisance
activity. The relocation assistance ordered to be paid by the
defendant shall be in the amount necessary to cover moving costs,
security deposits for utilities and comparable housing, adjustment in
any lost rent, and any other reasonable expenses the court may deem
fair and reasonable as a result of the court's order.
(e) At the hearing to order closure pursuant to this section, the
court may make the following orders with respect to any displaced
tenant not actively involved in the nuisance:
(1) Priority for senior citizens, physically handicapped persons,
or persons otherwise suffering from a permanent or temporary
disability for claims against money for relocation assistance.
(2) Order the local agency seeking closure pursuant to this
section to make reasonable attempts to seek additional sources of
funds for relocation assistance to displaced tenants, if deemed
necessary.
(3) Appoint a receiver to oversee the disbursement of relocation
assistance funds, whose services shall be paid from the escrow fund.
(4) Where a defendant has paid relocation assistance pursuant to
subdivision (d), the escrow account under subdivision (b) may be
released to the defendant and no appointment under paragraph (3)
shall be made.
(f) (1) The remedies set forth pursuant to this section shall be
in addition to any other existing remedies for nuisance abatement
actions, including, but not limited to, the following:
(A) Capital improvements to the property, such as security gates.
(B) Improved interior or exterior lighting.
(C) Security guards.
(D) Posting of signs.
(E) Owner membership in neighborhood or local merchants'
associations.
(F) Attending property management training programs.
(G) Making cosmetic improvements to the property.
(2) At all stages of an action brought pursuant to this article,
the court has equitable powers to order steps necessary to remedy the
problem and enhance the abatement process.
SEC. 8.
SEC. 12. Section 42400.1 of the Health and Safety Code is amended
to read:
42400.1. (a) Any person who negligently emits an air contaminant
in violation of any provision of this part or any rule, regulation,
permit, or order of the state board or of a district pertaining to
emission regulations or limitations is guilty of a misdemeanor and is
subject to a fine of not more than twenty-five thousand dollars
($25,000) or imprisonment in the a
county jail for not more than nine months, or both.
(b) Any person who negligently emits an air contaminant in
violation of Section 41700 that causes great bodily injury, as
defined by subdivision (e) of Section 12022.7 of
the Penal Code, to, or death of, any person, is guilty of a
misdemeanor and is subject to a fine of not more than one hundred
thousand dollars ($100,000) or imprisonment in the
a county jail for not more than one year, or both.
(c) Each day during any portion of which a violation occurs is a
separate offense.
SEC. 13. Section 42400.2 of the Health and Safety Code is amended
to read:
42400.2. (a) Any person who emits an air contaminant in violation
of any provision of this part, or any order, rule, regulation, or
permit of the state board or of a district pertaining to emission
regulations or limitations, and who knew of the emission and failed
to take corrective action within a reasonable period of time under
the circumstances, is guilty of a misdemeanor and is subject to a
fine of not more than forty thousand dollars ($40,000) or
imprisonment in the a county jail for
not more than one year, or both.
(b) For purposes of this section, "corrective action" means the
termination of the emission violation or the grant of a variance from
the applicable order, rule, regulation, or permit pursuant to
Article 2 (commencing with Section 42350). If a district regulation
regarding process upsets or equipment breakdowns would allow
continued operation of equipment which is emitting air contaminants
in excess of allowable limits, compliance with that regulation is
deemed to be corrective action.
(c) Any person who owns or operates any source of air contaminants
in violation of Section 41700 that causes great bodily injury, as
defined by subdivision (e) of Section 12022.7 of
the Penal Code, to, or death of, any person, and who knew of the
emission and failed to take corrective action within a reasonable
period of time under the circumstances, is guilty of a misdemeanor
and is subject to a fine of not more than two hundred fifty thousand
dollars ($250,000) or imprisonment in the a
county jail for not more than one year, or both.
(d) Each day during any portion of which a violation occurs
constitutes a separate offense.
SEC. 14. Section 42400.3 of the Health and Safety Code is amended
to read:
42400.3. (a) Any person who willfully and intentionally emits an
air contaminant in violation of any provision of this part or any
rule, regulation, permit, or order of the state board or of a
district, pertaining to emission regulations or limitations is guilty
of a misdemeanor and is subject to a fine of not more than
seventy-five thousand dollars ($75,000), or imprisonment in
the a county jail for not more than one year, or
both.
(b) Any person who willfully and intentionally, or with reckless
disregard for the risk of great bodily injury, as defined by
subdivision (e) of Section 12022.7 of the Penal Code, to,
or death of, any person, emits an air contaminant in violation of
Section 41700 that results in any unreasonable risk of great bodily
injury to, or death of, any person, is guilty of a public offense and
is subject to a fine of not more than one hundred twenty-five
thousand dollars ($125,000) or imprisonment in the
a county jail for not more than one year, or both.
However, if the defendant is a corporation, the maximum fine may be
up to five hundred thousand dollars ($500,000).
(c) Any person who willfully and intentionally, or with reckless
disregard for the risk of great bodily injury, as defined by
subdivision (e) of Section 12022.7 of the Penal Code, to,
or death of, any person, emits an air contaminant in violation of
Section 41700 that causes great bodily injury to, or death of, any
person is guilty of a public offense, and is subject to a fine of not
more than two hundred fifty thousand dollars ($250,000) or
imprisonment in the county jail for not more than one year, or both,
or is subject to a fine of not more than two hundred fifty thousand
dollars ($250,000) or imprisonment in the a
state prison, or both. If the defendant is a corporation, the
maximum fine may be up to one million dollars ($1,000,000).
(d) Each day during any portion of which a violation occurs
constitutes a separate offense.
(e) This section does not preclude punishment under Section 189 or
192 of the Penal Code or any other provision of law that provides a
more severe punishment.
(f) For the purposes of this section:
(1) "Great bodily injury" means great bodily injury as defined by
subdivision (e) of Section 12022.7 of the Penal
Code.
(2) "Imprisonment in state prison" means imprisonment in the state
prison for 16 months, or two or three years.
(3) "Unreasonable risk of great bodily injury or death" means
substantial probability of great bodily injury or death.
SEC. 15. Section 42402.1 of the Health and Safety Code is amended
to read:
42402.1. (a) Any person who negligently emits an air contaminant
in violation of this part or any rule, regulation, permit, or order
of the state board or of a district, including a district hearing
board, pertaining to emission regulations or limitations is liable
for a civil penalty of not more than twenty-five thousand dollars
($25,000).
(b) Any person who negligently emits an air contaminant in
violation of Section 41700 that causes great bodily injury, as
defined by subdivision (e) of Section 12022.7 of
the Penal Code, to any person or that causes the death of any person,
is liable for a civil penalty of not more than one hundred thousand
dollars ($100,000).
(c) Each day during any portion of which a violation occurs is a
separate offense.
SEC. 16. Section 42402.2 of the Health and Safety Code is amended
to read:
42402.2. (a) Any person who emits an air contaminant in violation
of any provision of this part, or any order, rule, regulation, or
permit of the state board or of a district, including a district
hearing board, pertaining to emission regulations or limitations, and
who knew of the emission and failed to take corrective action, as
defined in subdivision (b) of Section 42400.2, within a reasonable
period of time under the circumstances, is liable for a civil penalty
of not more than forty thousand dollars ($40,000).
(b) Any person who owns or operates any source of air contaminants
in violation of Section 41700 that causes great bodily injury, as
defined by subdivision (e) of Section 12022.7 of
the Penal Code, to any person or that causes the death of any person,
and who knew of the emission and failed to take corrective action,
as defined in subdivision (b) of Section 42400.2, within a reasonable
period of time under the circumstances, is liable for a civil
penalty not to exceed two hundred fifty thousand dollars ($250,000).
(c) Each day during any portion of which a violation occurs is a
separate offense.
SEC. 17. Section 42402.3 of the Health and Safety Code is amended
to read:
42402.3. (a) Any person who willfully and intentionally emits an
air contaminant in violation of this part or any rule, regulation,
permit, or order of the state board, or of a district, including a
district hearing board, pertaining to emission regulations or
limitations, is liable for a civil penalty of not more than
seventy-five thousand dollars ($75,000).
(b) Any person who willfully and intentionally, or with reckless
disregard for the risk of great bodily injury, as defined by
subdivision (e) of Section 12022.7 of the Penal Code, to,
or death of, any person, emits an air contaminant in violation of
Section 41700 that results in an unreasonable risk of great bodily
injury to, or death of, any person, is liable for a civil penalty of
not more than one hundred twenty-five thousand dollars ($125,000).
If the violator is a corporation, the maximum penalty may be up to
five hundred thousand dollars ($500,000).
(c) Any person who willfully and intentionally, or with reckless
disregard for the risk of great bodily injury, as defined by
subdivision (e) of Section 12022.7 of the Penal Code, to,
or death of, any person, emits an air contaminant in violation of
Section 41700 that causes great bodily injury, as defined by
subdivision (e) of Section 12022.7 of the Penal Code, to
any person or that causes the death of any person, is liable for a
civil penalty of not more than two hundred fifty thousand dollars
($250,000). If the violator is a corporation, the maximum penalty
may be up to one million dollars ($1,000,000).
(d) Each day during any portion of which a violation occurs is a
separate offense.
SEC. 18. Section 109580 of the Health and Safety Code is amended
to read:
109580. Any person 18 years of age or over who violates Section
109575 by knowingly distributing an imitation controlled substance to
a person under 18 years of age is guilty of a misdemeanor and shall,
if convicted, be subject to imprisonment for not more than one year
in the a county jail or a fine of not
more than two thousand dollars ($2,000), or both the imprisonment and
fine. Upon a second or subsequent conviction of this offense, the
person shall be subject to imprisonment for not more that
than one year in the a
county jail and a fine of not less than six thousand dollars
($6,000).
SEC. 19. Section 28 of the Penal Code is amended to read:
28. (a) Evidence of mental disease, mental defect, or mental
disorder shall not be admitted to show or negate the capacity to form
any mental state, including, but not limited to, purpose, intent,
knowledge, premeditation, deliberation, or malice aforethought, with
which the accused committed the act. Evidence of mental disease,
mental defect, or mental disorder is admissible solely on the issue
of whether or not the accused actually formed a required specific
intent, premeditated, deliberated, or harbored malice aforethought,
when a specific intent crime is charged.
(b) As a matter of public policy there shall be no defense of
diminished capacity, diminished responsibility, or irresistible
impulse in a criminal action or juvenile adjudication hearing.
(c) This section shall not be applicable to an insanity hearing
pursuant to Section 1026 or 1429.5.
(d) Nothing in this section shall limit a court's discretion,
pursuant to the Evidence Code, to exclude psychiatric or
psychological evidence on whether the accused had a mental disease,
mental defect, or mental disorder at the time of the alleged offense.
SEC. 9.
SEC. 20. Section 113 of the Penal Code, as added by Chapter
17 of the Statutes of 1994, 1st Extraordinary Session, is amended and
renumbered to read:
112. (a) Any person who manufactures or sells any false
government document with the intent to conceal the true citizenship
or resident alien status of another person is guilty of a misdemeanor
and shall be punished by imprisonment in a county jail for one year.
Every false government document that is manufactured or sold in
violation of this section may be charged and prosecuted as a separate
and distinct violation, and consecutive sentences may be imposed for
each violation.
(b) A prosecuting attorney shall have discretion to charge a
defendant with a violation of this section or any other law that
applies.
(c) As used in this section, "government document" means any
document issued by the United States government or any state or local
government, including, but not limited to, any passport, immigration
visa, employment authorization card, birth certificate, driver's
license, identification card, or social security card.
SEC. 10.
SEC. 21. Section 182 of the Penal Code is amended to read:
182. (a) If two or more persons conspire: (1) To commit any
crime. (2) Falsely and maliciously to indict another for any
crime, or to procure another to be charged or arrested for any crime.
(3) Falsely to move or maintain any suit, action or proceeding.
(4) To cheat and defraud any person of any property, by any means
which are in themselves criminal, or to obtain money or property by
false pretenses or by false promises with fraudulent intent not to
perform such those promises. (5) To
commit any act injurious to the public health, to public morals, or
to pervert or obstruct justice, or the due administration of the
laws. (6) To commit any crime against the person of the President
or Vice President of the United States, the governor of any state or
territory, any United States justice or judge, or the secretary of
any of the executive departments of the United States. They are
punishable as follows:
When they conspire to commit any crime against the person of any
official specified in paragraph (6), they are guilty of a felony and
are punishable by imprisonment in the state prison for five, seven,
or nine years.
When they conspire to commit any other felony, they shall be
punishable in the same manner and to the same extent as is provided
for the punishment of that felony. If the felony is one for which
different punishments are prescribed for different degrees, the jury
or court which finds the defendant guilty thereof shall determine the
degree of the felony the defendant conspired
to commit. If the degree is not
so determined, the punishment for conspiracy to commit the felony
shall be that prescribed for the lesser degree, except in the case of
conspiracy to commit murder, in which case the punishment shall be
that prescribed for murder in the first degree.
If the felony is conspiracy to commit two or more felonies which
have different punishments and the commission of those felonies
constitute but one offense of conspiracy, the penalty shall be that
prescribed for the felony which has the greater maximum term.
When they conspire to do an act described in paragraph (4), they
shall be punishable by imprisonment in the state prison, or by
imprisonment in the county jail for not more than one year, or by a
fine not exceeding ten thousand dollars ($10,000), or both
by both that imprisonment or fine .
When they conspire to do any of the other acts described in this
section, they shall be punishable by imprisonment in the county jail
for not more than one year, or in the state prison, or by a fine not
exceeding ten thousand dollars ($10,000) or both
by both that imprisonment or fine .
All cases of conspiracy may be prosecuted and tried in the
superior court of any county in which any overt act tending to effect
such the conspiracy shall be done.
(b) Upon a trial for conspiracy, in a case where an overt act is
necessary to constitute the offense, the defendant cannot be
convicted unless one or more overt acts are expressly alleged in the
indictment or information, nor unless one of the acts alleged is
proved; but other overt acts not alleged may be given in evidence.
SEC. 11.
SEC. 22. Section 186.11 of the Penal Code is amended to
read:
186.11. (a) (1) Any person who commits two or more related
felonies, a material element of which is fraud or embezzlement, which
involve a pattern of related felony conduct, and the pattern of
related felony conduct involves the taking of more than one hundred
thousand dollars ($100,000), shall be punished, upon conviction of
two or more felonies in a single criminal proceeding, in addition and
consecutive to the punishment prescribed for the felony offenses of
which he or she has been convicted, by an additional term of
imprisonment in the state prison as specified in paragraph (2) or
(3). This enhancement shall be known as the aggravated white collar
crime enhancement. The aggravated white collar crime enhancement
shall only be imposed once in a single criminal proceeding. For
purposes of this section, "pattern of related felony conduct" means
engaging in at least two felonies that have the same or similar
purpose, result, principals, victims, or methods of commission, or
are otherwise interrelated by distinguishing characteristics, and
that are not isolated events. For purposes of this section, "two or
more related felonies" means felonies committed against two or more
separate victims, or against the same victim on two or more separate
occasions.
(2) If the pattern of related felony conduct involves the taking
of more than five hundred thousand dollars ($500,000), the additional
term of punishment shall be two, three, or five years in the state
prison.
(3) If the pattern of related felony conduct involves the taking
of more than one hundred thousand dollars ($100,000), but not more
than five hundred thousand dollars ($500,000), the additional term of
punishment shall be the term specified in paragraph (1) or (2) of
subdivision (a) of Section 12022.6.
(b) (1) The additional prison term and penalties provided for in
subdivisions (a), (c), and (d) shall not be imposed unless the facts
set forth in subdivision (a) are charged in the accusatory pleading
and admitted or found to be true by the trier of fact.
(2) The additional prison term provided in paragraph (2) of
subdivision (a) shall be in addition to any other punishment provided
by law, including Section 12022.6, and shall not be limited by any
other provision of law.
(c) Any person convicted of two or more felonies, as specified in
subdivision (a), shall also be liable for a fine not to exceed five
hundred thousand dollars ($500,000) or double the value of the
taking, whichever is greater, if the existence of facts that would
make the person subject to the aggravated white collar crime
enhancement have been admitted or found to be true by the trier of
fact. However, if the pattern of related felony conduct involves the
taking of more than one hundred thousand dollars ($100,000), but not
more than five hundred thousand dollars ($500,000), the fine shall
not exceed one hundred thousand dollars ($100,000) or double the
value of the taking, whichever is greater.
(d) Any person convicted of two or more felonies, as specified in
subdivision (a), shall be liable for the costs of restitution to
victims of the pattern of fraudulent or unlawful conduct, if the
existence of facts that would make the person subject to the
aggravated white collar crime enhancement have been admitted or found
to be true by the trier of fact.
(e) (1) If a person is alleged to have committed two or more
felonies, as specified in subdivision (a), and the aggravated white
collar crime enhancement is also charged, any asset or property that
is in the control of that person, and any asset or property that has
been transferred by that person to a third party, subsequent to the
commission of any criminal act alleged pursuant to subdivision (a),
other than in a bona fide purchase, whether found within or outside
the state, may be preserved by the superior court in order to pay
restitution and fines imposed pursuant to this section. Upon
conviction of two or more felonies, as specified in subdivision (a),
this property may be levied upon by the superior court to pay
restitution and fines imposed pursuant to this section if the
existence of facts that would make the person subject to the
aggravated white collar crime enhancement have been admitted or found
to be true by the trier of fact.
(2) To prevent dissipation or secreting of assets or property, the
prosecuting agency may, at the same time as or subsequent to the
filing of a complaint or indictment charging two or more felonies, as
specified in subdivision (a), and the enhancement specified in
subdivision (a), file a petition with the criminal division of the
superior court of the county in which the accusatory pleading was
filed, seeking a temporary restraining order, preliminary injunction,
the appointment of a receiver, or any other protective relief
necessary to preserve the property or assets. This petition shall
commence a proceeding that shall be pendent to the criminal
proceeding and maintained solely to effect the criminal remedies
provided for in this section. The proceeding shall not be subject to
or governed by the provisions of the Civil Discovery Act of 1986 as
set forth in Article 3 (commencing with Section 2016) of Chapter 3 of
Title 3 of Part 4 of the Code of Civil Procedure. The petition
shall allege that the defendant has been charged with two or more
felonies, as specified in subdivision (a), and is subject to the
aggravated white collar crime enhancement specified in subdivision
(a). The petition shall identify that criminal proceeding and the
assets and property to be affected by an order issued pursuant to
this section.
(3) A notice regarding the petition shall be provided, by personal
service or registered mail, to every person who may have an interest
in the property specified in the petition. Additionally, the notice
shall be published for at least three successive weeks in a
newspaper of general circulation in the county where the property
affected by an order issued pursuant to this section is located. The
notice shall state that any interested person may file a verified
claim with the superior court stating the nature and amount of their
claimed interest. The notice shall set forth the time within which a
claim of interest in the protected property is required to be filed.
(4) If the property to be preserved is real property, the
prosecuting agency shall record, at the time of filing the petition,
a lis pendens in each county in which the real property is situated
which specifically identifies the property by legal description, the
name of the owner of record as shown on the latest equalized
assessment roll, and the assessor's parcel number.
(5) If the property to be preserved are assets under the control
of a banking or financial institution, the prosecuting agency, at the
time of the filing of the petition, may obtain an order from the
court directing the banking or financial institution to immediately
disclose the account numbers and value of the assets of the accused
held by the banking or financial institution. The prosecuting agency
shall file a supplemental petition, specifically identifying which
banking or financial institution accounts shall be subject to a
temporary restraining order, preliminary injunction, or other
protective remedy.
(6) Any person claiming an interest in the protected property may,
at any time within 30 days from the date of the first publication of
the notice of the petition, 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 the nature and amount
of his or her interest in the property or assets. A verified copy of
the claim shall be served by the claimant on the Attorney General or
district attorney, as appropriate.
(7) The imposition of fines and restitution pursuant to this
section shall be determined by the superior court in which the
underlying criminal offense is sentenced. Any judge who is assigned
to the criminal division of the superior court in the county where
the petition is filed may issue a temporary restraining order in
conjunction with, or subsequent to, the filing of an allegation
pursuant to this section. Any subsequent hearing on the petition
shall also be heard by a judge assigned to the criminal division of
the superior court in the county in which the petition is filed. At
the time of the filing of an information or indictment in the
underlying criminal case, any subsequent hearing on the petition
shall be heard by the superior court judge assigned to the underlying
criminal case.
(f) Concurrent with or subsequent to the filing of the petition,
the prosecuting agency may move the superior court for, and the
superior court may issue, the following pendente lite orders to
preserve the status quo of the property alleged in the petition:
(1) An injunction to restrain any person from transferring,
encumbering, hypothecating, or otherwise disposing of that property.
(2) Appointment of a receiver to take possession of, care for,
manage, and operate the assets and properties so that the property
may be maintained and preserved. The court may order that a receiver
appointed pursuant to this section shall be compensated for all
reasonable expenditures made or incurred by him or her in connection
with the possession, care, management, and operation of any property
or assets that are subject to the provisions of this section.
(3) A bond or other undertaking, in lieu of other orders, of a
value sufficient to ensure the satisfaction of restitution and fines
imposed pursuant to this section.
(g) (1) No preliminary injunction may be granted or receiver
appointed by the court without notice that meets the requirements of
paragraph (3) of subdivision (e) to all known and reasonably
ascertainable interested parties and upon a hearing to determine that
an order is necessary to preserve the property pending the outcome
of the criminal proceedings. A temporary restraining order may be
issued by the court, ex parte, pending that hearing in conjunction
with or subsequent to the filing of the petition upon the application
of the prosecuting attorney. The temporary restraining order may be
based upon the sworn declaration of a peace officer with personal
knowledge of the criminal investigation that establishes probable
cause to believe that aggravated white collar crime has taken place
and that the amount of restitution and fines established by this
section exceeds or equals the worth of the assets subject to the
temporary restraining order. The declaration may include the hearsay
statements of witnesses to establish the necessary facts. The
temporary restraining order may be issued without notice upon a
showing of good cause to the court.
(2) The defendant, or a person who has filed a verified claim as
provided in paragraph (6) of subdivision (e), shall have the right to
have the court conduct an order to show cause hearing within 10 days
of the service of the request for hearing upon the prosecuting
agency, in order to determine whether the temporary restraining order
should remain in effect, whether relief should be granted from any
lis pendens recorded pursuant to paragraph (4) of subdivision (e), or
whether any existing order should be modified in the interests of
justice. Upon a showing of good cause, the hearing shall be held
within two days of the service of the request for hearing upon the
prosecuting agency.
(3) In determining whether to issue a preliminary injunction or
temporary restraining order in a proceeding brought by a prosecuting
agency in conjunction with or subsequent to the filing of an
allegation pursuant to this section, the court has the discretion to
consider any matter that it deems reliable and appropriate, including
hearsay statements, in order to reach a just and equitable decision.
The court shall weigh the relative degree of certainty of the
outcome on the merits and the consequences to each of the parties of
granting the interim relief. If the prosecution is likely to prevail
on the merits and the risk of the dissipation of assets outweighs
the potential harm to the defendants and the interested parties, the
court shall grant injunctive relief. The court shall give
significant weight to the following factors:
(A) The public interest in preserving the property or assets
pendente lite.
(B) The difficulty of preserving the property or assets pendente
lite where the underlying alleged crimes involve issues of fraud and
moral turpitude.
(C) The fact that the requested relief is being sought by a public
prosecutor on behalf of alleged victims of white collar crimes.
(D) The likelihood that substantial public harm has occurred where
aggravated white collar crime is alleged to have been committed.
(E) The significant public interest involved in compensating the
victims of white collar crime and paying court imposed restitution
and fines.
(4) The court, in making its orders, may consider a defendant's
request for the release of a portion of the property affected by this
section in order to pay reasonable legal fees in connection with the
criminal proceeding, any necessary and appropriate living expenses
pending trial and sentencing, and for the purpose of posting bail.
The court shall weigh the needs of the public to retain the property
against the needs of the defendant to a portion of the property. The
court shall consider the factors listed in paragraph (3) prior to
making any order releasing property for these purposes.
(5) The court, in making its orders, shall seek to protect the
interests of any innocent third persons, including an innocent
spouse, who were not involved in the commission of any criminal
activity.
(6) Any petition filed pursuant to this section is part of the
criminal proceedings for purposes of appointment of counsel and shall
be assigned to the criminal division of the superior court of the
county in which the accusatory pleading was filed.
(7) Based upon a noticed motion brought by the receiver appointed
pursuant to paragraph (2) of subdivision (f), the court may order an
interlocutory sale of property named in the petition when the
property is liable to perish, to waste, or to be significantly
reduced in value, or when the expenses of maintaining the property
are disproportionate to the value thereof. The proceeds of the
interlocutory sale shall be deposited with the court or as directed
by the court pending determination of the proceeding pursuant to this
section.
(8) The court may make any orders that are necessary to preserve
the continuing viability of any lawful business enterprise that is
affected by the issuance of a temporary restraining order or
preliminary injunction issued pursuant to this action.
(9) In making its orders, the court shall seek to prevent any
asset subject to a temporary restraining order or preliminary
injunction from perishing, spoiling, going to waste, or otherwise
being significantly reduced in value. Where the potential for
diminution in value exists, the court shall appoint a receiver to
dispose of or otherwise protect the value of the property or asset.
(10) A preservation order shall not be issued against any assets
of a business that are not likely to be dissipated and that may be
subject to levy or attachment to meet the purposes of this section.
(h) If the allegation that the defendant is subject to the
aggravated white collar crime enhancement is dismissed or found by
the trier of fact to be untrue, any preliminary injunction or
temporary restraining order issued pursuant to this section shall be
dissolved. If a jury is the trier of fact, and the jury is unable to
reach a unanimous verdict, the court shall have the discretion to
continue or dissolve all or a portion of the preliminary injunction
or temporary restraining order based upon the interests of justice.
However, if the prosecuting agency elects not to retry the case, any
preliminary injunction or temporary restraining order issued pursuant
to this section shall be dissolved.
(i) (1) (A) If the defendant is convicted of two or more felonies,
as specified in subdivision (a), and the existence of facts that
would make the person subject to the aggravated white collar crime
enhancement have been admitted or found to be true by the trier of
fact, the trial judge shall continue the preliminary injunction or
temporary restraining order until the date of the criminal sentencing
and shall make a finding at that time as to what portion, if any, of
the property or assets subject to the preliminary injunction or
temporary restraining order shall be levied upon to pay fines and
restitution to victims of the crime. The order imposing fines and
restitution may exceed the total worth of the property or assets
subjected to the preliminary injunction or temporary restraining
order. The court may order the immediate transfer of the property or
assets to satisfy any judgment and sentence made pursuant to this
section. Additionally, upon motion of the prosecution, the court may
enter an order as part of the judgment and sentence making the order
imposing fines and restitution pursuant to this section enforceable
pursuant to Title 9 (commencing with Section 680.010) of Part 2 of
the Code of Civil Procedure.
(B) Additionally, the court shall order the defendant to make full
restitution to the victim or to make restitution to the victim based
on his or her ability to pay, as defined in subdivision (b) of
Section 1203.1b. The payment of the restitution ordered by the court
pursuant to this section shall be made a condition of any probation
granted by the court if the existence of facts that would make the
defendant subject to the aggravated white collar crime enhancement
have been admitted or found to be true by the trier of fact.
Notwithstanding any other provision of law, the court may order that
the period of probation continue for up to 10 years or until full
restitution is made to the victim, whichever is earlier.
(C) The sentencing court shall retain jurisdiction to enforce the
order to pay additional fines and restitution and, in appropriate
cases, may initiate probation violation proceedings or contempt of
court proceedings against a defendant who is found to have willfully
failed to comply with any lawful order of the court.
(D) If the execution of judgment is stayed pending an appeal of an
order of the superior court pursuant to this section, the
preliminary injunction or temporary restraining order shall be
maintained in full force and effect during the pendency of the
appellate period.
(2) The order imposing fines and restitution shall not affect the
interest in real property of any third party that was acquired prior
to the recording of the lis pendens, unless the property was obtained
from the defendant other than as a bona fide purchaser for value.
If any assets or property affected by this section are subject to a
valid lien, mortgage, security interest, or interest under a
conditional sales contract and the amount due to the holder of the
lien, mortgage, interest, or contract is less than the appraised
value of the property, that person may pay to the state or the local
government that initiated the proceeding the amount of the difference
between the appraised value of the property and the amount of the
lien, mortgage, security interest, or interest under a conditional
sales contract. Upon that payment, the state or local entity shall
relinquish all claims to the property. If the holder of the interest
elects not to make that payment to the state or local governmental
entity, the interest in the property shall be deemed transferred to
the state or local governmental entity and any indicia of ownership
of the property shall be confirmed in the state or local governmental
entity. The appraised value shall be determined as of the date
judgment is entered either by agreement between the holder of the
lien, mortgage, security interest, or interest under a conditional
sales contract and the governmental entity involved, or if they
cannot agree, then by a court-appointed appraiser for the county in
which the action is brought. A person holding a valid lien,
mortgage, security interest, or interest under a conditional sales
contract shall be paid the appraised value of his or her interest.
(3) In making its final order, the court shall seek to protect the
legitimately acquired interests of any innocent third persons,
including an innocent spouse, who were not involved in the commission
of any criminal activity.
(j) In all cases where property is to be levied upon pursuant to
this section, a receiver appointed by the court shall be empowered to
liquidate all property or assets which shall be distributed in the
following order of priority:
(1) To the receiver, or court-appointed appraiser, for all
reasonable expenditures made or incurred by him or her in connection
with the sale of the property or liquidation of assets, including all
reasonable expenditures for any necessary repairs, storage, or
transportation of any property levied upon under this section.
(2) To any holder of a valid lien, mortgage, or security interest
up to the amount of his or her interest in the property or proceeds.
(3) To any victim as restitution for any fraudulent or unlawful
acts alleged in the accusatory pleading that were proven by the
prosecuting agency as part of the pattern of fraudulent or unlawful
acts.
(4) For payment of any fine imposed pursuant to this section. The
proceeds obtained in payment of a fine shall be paid to the
treasurer of the county in which the judgment was entered, or if the
action was undertaken by the Attorney General, to the Treasurer. If
the payment of any fine imposed pursuant to this section involved
losses resulting from violation of Section 550 of this code or
Section 1871.4 of the Insurance Code, one-half of the fine collected
shall be paid to the treasurer of the county in which the judgment
was entered, and one-half of the fine collected shall be paid to the
Department of Insurance for deposit in the appropriate account in the
Insurance Fund. The proceeds from the fine first shall be used by a
county to reimburse local prosecutors and enforcement agencies for
the reasonable costs of investigation and prosecution of cases
brought pursuant to this section.
(5) To the Restitution Fund, or in cases involving convictions
relating to insurance fraud, to the State Insurance
Fund as restitution for crimes not specifically pleaded and proven
in the accusatory pleading.
(k) If, after distribution pursuant to paragraphs (1) and (2) of
subdivision (j), the value of the property to be levied upon pursuant
to this section is insufficient to pay for restitution and fines,
the court shall order an equitable sharing of the proceeds of the
liquidation of the property, and any other recoveries, which shall
specify the percentage of recoveries to be devoted to each purpose.
At least 70 percent of the proceeds remaining after distribution
pursuant to paragraphs (1) and (2) of subdivision (j) shall be
devoted to restitution.
(l) Unless otherwise expressly provided, the remedies or penalties
provided by this section are cumulative to each other and to the
remedies or penalties available under all other laws of this state,
except that two separate actions against the same defendant and
pertaining to the same fraudulent or unlawful acts may not be brought
by a district attorney or the Attorney General pursuant to this
section and Chapter 5 (commencing with Section 17200) of Part 2 of
Division 7 of the Business and Professions Code. If a fine is
imposed under this section, it shall be in lieu of all other fines
that may be imposed pursuant to any other provision of law for the
crimes for which the defendant has been convicted in the action.
SEC. 12.
SEC. 23. Section 186.22 of the Penal Code is amended to
read:
186.22. (a) Any person who actively participates in any criminal
street gang with knowledge that its members engage in or have engaged
in a pattern of criminal gang activity, and who willfully promotes,
furthers, or assists in any felonious criminal conduct by members of
that gang, shall be punished by imprisonment in a county jail for a
period not to exceed one year, or by imprisonment in the state prison
for 16 months, or two or three years.
(b) (1) Except as provided in paragraph
paragraphs (4) and (5), any person who is convicted of a felony
committed for the benefit of, at the direction of, or in association
with any criminal street gang, with the specific intent to promote,
further, or assist in any criminal conduct by gang members, shall,
upon conviction of that felony, in addition and consecutive to the
punishment prescribed for the felony or attempted felony of which he
or she has been convicted, be punished as follows:
(A) Except as provided in subparagraphs
(B) and (C), the person shall be punished by an additional term of
two, three, or four years at the court's discretion.
(B) If the felony is a serious felony, as defined in subdivision
(c) of Section 1192.7, the person shall be punished by an additional
term of five years.
(C) If the felony is a violent felony, as defined in subdivision
(c) of Section 667.5, the person shall be punished by an additional
term of 10 years.
(2) If the underlying felony described in paragraph (1) is
committed on the grounds of, or within 1,000 feet of, a public or
private elementary, vocational, junior high, or high school, during
hours in which the facility is open for classes or school-related
programs or when minors are using the facility that fact shall be a
circumstance in aggravation of the crime in imposing a term under
paragraph (1).
(3) The court shall order the imposition of the middle term of the
sentence enhancement, unless there are circumstances in aggravation
or mitigation. The court shall state the reasons for its choice of
sentencing enhancements on the record at the time of the sentencing.
(4) Any person who is convicted of a felony enumerated in this
paragraph committed for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific intent
to promote, further, or assist in any criminal conduct by gang
members, shall, upon conviction of that felony, be sentenced to an
indeterminate term of life imprisonment with a minimum term of the
indeterminate sentence calculated as the greater of:
(A) The term determined by the court pursuant to Section 1170 for
the underlying conviction, including any enhancement applicable under
Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or
any period prescribed by Section 3046, if the felony is any of the
offenses enumerated in subparagraphs (B) or (C) of this paragraph.
(B) Imprisonment in the state prison for 15 years, if the felony
is a home invasion robbery, in violation of subparagraph (A) of
paragraph (1) of subdivision (a) of Section 213; carjacking, as
defined in Section 215; a felony violation of Section 246; or a
violation of Section 12022.55.
(C) Imprisonment in the state prison for seven years, if the
felony is extortion, as defined in Section 519; or threats to victims
and witnesses, as defined in Section 136.1.
(5) Except as provided in paragraph (4), any person who violates
this subdivision in the commission of a felony punishable by
imprisonment in the state prison for life, shall not be paroled until
a minimum of 15 calendar years have been served.
(c) If the court grants probation or suspends the execution of
sentence imposed upon the defendant for a violation of subdivision
(a), or in cases involving a true finding of the enhancement
enumerated in subdivision (b), the court shall require that the
defendant serve a minimum of 180 days in a county jail as a condition
thereof.
(d) Any person who is convicted of a public offense punishable as
a felony or a misdemeanor, which is committed for the benefit of, at
the direction of or in association with, any criminal street gang
with the specific intent to promote, further, or assist in any
criminal conduct by gang members, shall be punished by imprisonment
in the county jail not to exceed one year, or by imprisonment in the
state prison for one, two, or three years, provided that any person
sentenced to imprisonment in the county jail shall be imprisoned for
a period not to exceed one year, but not less than 180 days, and
shall not be eligible for release upon completion of sentence,
parole, or any other basis, until he or she has served 180 days. If
the court grants probation or suspends the execution of sentence
imposed upon the defendant, it shall require as a condition thereof
that the defendant serve 180 days in a county jail.
(e) As used in this chapter, "pattern of criminal gang activity"
means the commission of, attempted commission of, conspiracy to
commit, or solicitation of, sustained juvenile petition for, or
conviction of two or more of the following offenses, provided at
least one of these offenses occurred after the effective date of this
chapter and the last of those offenses occurred within three years
after a prior offense, and the offenses were committed on separate
occasions, or by two or more persons:
(1) Assault with a deadly weapon or by means of force likely to
produce great bodily injury, as defined in Section 245.
(2) Robbery, as defined in Chapter 4 (commencing with Section 211)
of Title 8 of Part 1.
(3) Unlawful homicide or manslaughter, as defined in Chapter 1
(commencing with Section 187) of Title 8 of Part 1.
(4) The sale, possession for sale, transportation, manufacture,
offer for sale, or offer to manufacture controlled substances as
defined in Sections 11054, 11055, 11056, 11057, and 11058 of the
Health and Safety Code.
(5) Shooting at an inhabited dwelling or occupied motor vehicle,
as defined in Section 246.
(6) Discharging or permitting the discharge of a firearm from a
motor vehicle, as defined in subdivisions (a) and (b) of Section
12034.
(7) Arson, as defined in Chapter 1 (commencing with Section 450)
of Title 13.
(8) The intimidation of witnesses and victims, as defined in
Section 136.1.
(9) Grand theft, as defined in subdivisions
subdivision (a) or (c) of Section 487.
(10) Grand theft of any firearm, vehicle, trailer, or vessel.
(11) Burglary, as defined in Section 459.
(12) Rape, as defined in Section 261.
(13) Looting, as defined in Section 463.
(14) Moneylaundering Money laundering
, as defined in Section 186.10.
(15) Kidnapping, as defined in Section 207.
(16) Mayhem, as defined in Section 203.
(17) Aggravated mayhem, as defined in Section 205.
(18) Torture, as defined in Section 206.
(19) Felony extortion, as defined in Sections 518 and 520.
(20) Felony vandalism, as defined in paragraph (1) of subdivision
(b) of Section 594.
(21) Carjacking, as defined in Section 215.
(22) The sale, delivery, or transfer of a firearm, as defined in
Section 12072.
(23) Possession of a pistol, revolver, or other firearm capable of
being concealed upon the person in violation of paragraph (1) of
subdivision (a) of Section 12101.
(24) Threats to commit crimes resulting in death or great bodily
injury, as defined in Section 422.
(25) Theft and unlawful taking or driving of a vehicle, as defined
in Section 10851 of the Vehicle Code.
(f) As used in this chapter, "criminal street gang" means any
ongoing organization, association, or group of three or more persons,
whether formal or informal, having as one of its primary activities
the commission of one or more of the criminal acts enumerated in
paragraphs (1) to (25), inclusive, of subdivision (e), having a
common name or common identifying sign or symbol, and whose members
individually or collectively engage in or have engaged in a pattern
of criminal gang activity.
(g) Notwithstanding any other law, the court may strike the
additional punishment for the enhancements provided in this section
or refuse to impose the minimum jail sentence for misdemeanors in an
unusual case where the interests of justice would best be served, if
the court specifies on the record and enters into the minutes the
circumstances indicating that the interests of justice would best be
served by that disposition.
(h) Notwithstanding any other provision of law, for each person
committed to the Youth Authority for a conviction pursuant to
subdivision (a) or (b) of this section, the offense shall be deemed
one for which the state shall pay the rate of 100 percent of the per
capita institutional cost of the Department of Youth Authority,
pursuant to Section 912.5 of the Welfare and Institutions Code.
(i) In order to secure a conviction, or sustain a juvenile
petition, pursuant to subdivision (a), it is not necessary for the
prosecution to prove that the person devotes all, or a substantial
part of his or her time or efforts to the criminal street gang, nor
is it necessary to prove that the person is a member of the criminal
street gang. Active participation in the criminal street gang is all
that is required.
SEC. 13.
SEC. 24. Section 186.26 of the Penal Code is amended to read:
186.26. (a) Any person who solicits or recruits another to
actively participate in a criminal street gang, as defined in
subdivision (f) of Section 186.22, with the intent that the person
solicited or recruited participate in a pattern of criminal street
gang activity, as defined in sudivision
subdivision (e) of Section 186.22, or with the intent that the
person solicited or recruited promote, further, or assist in any
felonious conduct by members of the criminal street gang, shall be
punished by imprisonment in the state prison for 16 months, or two or
three years.
(b) Any person who threatens another person with physical violence
on two or more separate occasions within any 30-day period with the
intent to coerce, induce, or solicit any person to actively
participate in a criminal street gang, as defined in subdivision (f)
of Section 186.22, shall be punished by imprisonment in the state
prison for two, three, or four years.
(c) Any person who uses physical violence to coerce, induce, or
solicit another person to actively participate in any criminal street
gang, as defined in subdivision (f) of Section 186.22, or to prevent
the person from leaving a criminal street gang, shall be punished by
imprisonment in the state prison for three, four or five years.
(d) If the person solicited, recruited, coerced, or threatened
pursuant to subdivision (a), (b), or (c) is a minor, an additional
term of three years shall be imposed in addition and consecutive to
the penalty prescribed for a violation of any of these subdivisions.
(e) Nothing in this section shall be construed to limit
prosecution under any other provision of law.
SEC. 25. Section 243.1 of the Penal Code is amended to read:
243.1. When a battery is committed against the person of a
custodial officer as defined in Section 831 of the Penal Code, and
the person committing the offense knows or reasonably should know
that such the victim is a custodial
officer engaged in the performance of his or her duties,
and such the custodial officer is
engaged in the performance of his or her duties, the
offense shall be punished by imprisonment in the state prison .
SEC. 26. Section 312.1 of the Penal Code is amended to read:
312.1. In any prosecution for a violation of the provisions of
this chapter or of Chapter 7.6 (commencing with Section 313), neither
the prosecution nor the defense shall be required to introduce
expert witness testimony concerning the obscene or harmful character
of the matter or live conduct which is the subject of any
the prosecution. Any evidence which tends to establish
contemporary community standards of appeal to prurient interest or of
customary limits of candor in the description or representation of
nudity, sex or excretion, or which bears upon the question of
significant literary, artistic, political, educational, or scientific
value shall, subject to the provisions of the Evidence Code, be
admissible when offered by either the prosecution or by the defense.
SEC. 27. Section 320.5 of the Penal Code is amended to read:
320.5. (a) Nothing in this chapter applies to any raffle
conducted by an eligible organization as defined in subdivision (c)
for the purpose of directly supporting beneficial or charitable
purposes or financially supporting another private, nonprofit,
eligible organization that performs beneficial or charitable purposes
if the raffle is conducted in accordance with this section.
(b) For purposes of this section, "raffle" means a scheme for the
distribution of prizes by chance among persons who have paid money
for paper tickets that provide the opportunity to win these prizes,
where all of the following are true:
(1) Each ticket is sold with a detachable coupon or stub, and both
the ticket and its associated coupon or stub are marked with a
unique and matching identifier.
(2) Winners of the prizes are determined by draw from among the
coupons or stubs described in paragraph (1) that have been detached
from all tickets sold for entry in the draw.
(3) The draw is conducted in California under the supervision of a
natural person who is 18 years of age or older.
(4) (A) At least 90 percent of the gross receipts generated from
the sale of raffle tickets for any given draw are used by the
eligible organization conducting the raffle to benefit or provide
support for beneficial or charitable purposes, or it may use those
revenues to benefit another private, nonprofit organization, provided
that an organization receiving these funds is itself an eligible
organization as defined in subdivision (c). As used in this section,
"beneficial purposes" excludes purposes that are intended to benefit
officers, directors, or members, as defined by Section 5056 of the
Corporations Code, of the eligible organization. In no event shall
funds raised by raffles conducted pursuant to this section be used to
fund any beneficial, charitable, or other purpose outside of
California. This section does not preclude an eligible organization
from using funds from sources other than the sale of raffle tickets
to pay for the administration or other costs of conducting a raffle.
(B) An employee of an eligible organization who is a direct seller
of raffle tickets shall not be treated as an employee for purposes
of workers' compensation under Section 3351 of the Labor Code if the
following conditions are satisfied:
(i) Substantially all of the remuneration (whether or not paid in
cash) for the performance of the service of selling raffle tickets is
directly related to sales rather than to the number of hours worked.
(ii) The services performed by the person are performed pursuant
to a written contract between the seller and the eligible
organization and the contract provides that the person will not be
treated as an employee with respect to the selling of raffle tickets
for workers' compensation purposes.
(C) For purposes of this section, employees selling raffle tickets
shall be deemed to be direct sellers as described in Section 650 of
the Unemployment Insurance Code as long as they meet the requirements
of that section.
(c) For purposes of this section, "eligible organization" means a
private, nonprofit organization that has been qualified to conduct
business in California for at least one year prior to conducting a
raffle and is exempt from taxation pursuant to Sections 23701a,
23701b, 23701d, 23701e, 23701f, 23701g, 23701k, 23701l, 23701t, or
23701w of the Revenue and Taxation Code.
(d) Any person who receives compensation in connection with the
operation of the raffle shall be an employee of the eligible
organization that is conducting the raffle, and in no event may
compensation be paid from revenues required to be dedicated to
beneficial or charitable purposes.
(e) No raffle otherwise permitted under this section may be
conducted by means of, or otherwise utilize, any gaming machine,
apparatus, or device, whether or not that machine, apparatus, or
device meets the definition of slot machine contained in Section
330a, 330b, or 330.1.
(f) No raffle otherwise permitted under this section may be
conducted, nor may tickets for a raffle be sold, within an operating
satellite wagering facility or racetrack inclosure licensed pursuant
to the Horse Racing Law (Chapter 4 (commencing with Section 19400) of
Division 8 of the Business and Professions Code) or within a
gambling establishment licensed pursuant to the Gambling Control Act
(Chapter 5 (commencing with Section 19800) of Division 8 of the
Business and Professions Code). A raffle may not be advertised,
operated, or conducted in any manner over the Internet, nor may
raffle tickets be sold, traded, or redeemed over the Internet. For
purposes of this section, advertisement shall not be defined to
include the announcement of a raffle on the web site of the
organization responsible for conducting the raffle.
(g) No individual, corporation, partnership, or other legal entity
shall hold a financial interest in the conduct of a raffle, except
the eligible organization that is itself authorized to conduct that
raffle, and any private, nonprofit, eligible organizations receiving
financial support from that charitable organization pursuant to
subdivisions (a) and (b).
(h) (1) An eligible organization may not conduct a raffle
authorized under this section, unless it registers annually with the
Department of Justice. The department shall furnish a registration
form via the Internet or upon request to eligible nonprofit
organizations. The department shall, by regulation, collect only the
information necessary to carry out the provisions of this section on
this form. This information shall include, but is not limited to,
the following:
(A) The name and address of the eligible organization.
(B) The federal tax identification number, the corporate number
issued by the Secretary of State, the organization number issued by
the Franchise Tax Board, or the California charitable trust
identification number of the eligible organization.
(C) The name and title of a responsible fiduciary of the
organization.
(2) The department may require an eligible organization to pay an
annual registration fee of ten dollars ($10) to cover the actual
costs of the department to administer and enforce this section. The
department may, by regulation, adjust the annual registration fee as
needed to ensure that revenues willfully offset, but do not exceed,
the actual costs incurred by the department pursuant to this section.
The fee shall be deposited by the department into the General Fund.
(3) The department shall receive General Fund moneys for the costs
incurred pursuant to this section subject to an appropriation by the
Legislature.
(4) The department shall adopt regulations necessary to effectuate
this section, including emergency regulations, pursuant to the
Administrative Procedure Act (Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code).
(4)
(5) The department shall maintain an automated data base of
all registrants. Each local law enforcement agency shall notify the
department of any arrests or investigation that may result in an
administrative or criminal action against a registrant. The
department may audit the records and other documents of a registrant
to ensure compliance with this section.
(5)
(6) Once registered, an eligible organization must file
annually thereafter with the department a report that includes the
following:
(A) The aggregate gross receipts from the operation of raffles.
(B) The aggregate direct costs incurred by the eligible
organization from the operation of raffles.
(C) The charitable or beneficial purposes for which proceeds of
the raffles were used, or identify the eligible recipient
organization to which proceeds were directed, and the amount of those
proceeds.
(6)
(7) The department shall annually furnish to registrants a
form to collect this information.
(7)
(8) The registration and reporting provisions of this
section do not apply to any religious corporation sole or other
religious corporation or organization that holds property for
religious purposes, to a cemetery corporation regulated under Chapter
19 of Division 3 of the Business and Professions Code, or to any
committee as defined in Section 82013 that is required to and does
file any statement pursuant to the provisions of Article 2
(commencing with Section 84200) of Chapter 4 of Title 9, or to a
charitable corporation organized and operated primarily as a
religious organization, educational institution, hospital, or a
health care service plan licensed pursuant to Section 1349 of the
Health and Safety Code.
(i) The department may take legal action against a registrant if
it determines that the registrant has violated this section or any
regulation adopted pursuant to this section, or that the registrant
has engaged in any conduct that is not in the best interests of the
public's health, safety, or general welfare. Any action taken
pursuant to this subdivision does not prohibit the commencement of an
administrative or criminal action by the Attorney General, a
district attorney, city attorney, or county counsel.
(j) Each action and hearing conducted to deny, revoke, or suspend
a registry, or other administrative action taken against a registrant
shall be conducted pursuant to the Administrative Procedure Act
(Chapters 4.5 and 5 (commencing with Section 11340) of Part 1 of
Division 3 of Title 2 of the Government Code). The department may
seek recovery of the costs incurred in investigating or prosecuting
an action against a registrant or applicant in accordance with those
procedures specified in Section 125.3 of the Business and Professions
Code. A proceeding conducted under this subdivision is subject to
judicial review pursuant to Section 1094.5 of the Code of Civil
Procedure.
(k) The Department of Justice shall conduct a study and report to
the Legislature by December 31, 2003, on the impact of the this
section on raffle practices in California. Specifically, the study
shall include, but not be limited to, information on whether the
number of raffles has increased, the amount of money raised through
raffles and whether this amount has increased, whether there are
consumer complaints, and whether there is increased fraud in the
operation of raffles.
(l) This section shall become operative on July 1, 2001.
(m) A raffle shall be exempt from this section if it satisfies all
of the following requirements:
(1) It involves a general and indiscriminate distributing of the
tickets.
(2) The tickets are offered on the same terms and conditions as
the tickets for which a donation is given.
(3) The scheme does not require any of the participants to pay for
a chance to win.
SEC. 28. Section 368 of the Penal Code is amended to read:
368. (a) The Legislature finds and declares that crimes against
elders and dependent adults are deserving of special consideration
and protection, not unlike the special protections provided for minor
children, because elders and dependent adults may be confused, on
various medications, mentally or physically impaired, or incompetent,
and therefore less able to protect themselves, to understand or
report criminal conduct, or to testify in court proceedings on their
own behalf.
(b) (1) Any person who, under circumstances or conditions likely
to produce great bodily harm or death, willfully causes or permits
any elder or dependent adult, with knowledge that he or she is an
elder or a dependent adult, to suffer, or inflicts thereon
unjustifiable physical pain or mental suffering, or having the care
or custody of any elder or dependent adult, willfully causes or
permits the person or health of the elder or dependent adult to be
injured, or willfully causes or permits the elder or dependent adult
to be placed in a situation in which his or her person or health is
endangered, is punishable by imprisonment in a county jail not
exceeding one year, or by a fine not to exceed six thousand dollars
($6,000), or by both that fine and imprisonment, or in the state
prison for two, three, or four years.
(2) If in the commission of an offense described in paragraph (1),
the victim suffers great bodily injury, as defined in subdivision
(f) of Section 12022.7, the defendant shall receive an additional
term in the state prison as follows:
(A) Three years if the victim is under 70 years of age.
(B) Five years if the victim is 70 years of age or older.
(3) If in the commission of an offense described in paragraph (1),
the defendant proximately causes the death of the victim, the
defendant shall receive an additional term in the state prison as
follows:
(A) Five years if the victim is under 70 years of age.
(B) Seven years if the victim is 70 years of age or older.
(c) Any person who, under circumstances or conditions other than
those likely to produce great bodily harm or death, willfully causes
or permits any elder or dependent adult, with knowledge that he or
she is an elder or a dependent adult, to suffer, or inflicts thereon
unjustifiable physical pain or mental suffering, or having the care
or custody of any elder or dependent adult, willfully causes or
permits the person or health of the elder or dependent adult to be
injured or willfully causes or permits the elder or dependent adult
to be placed in a situation in which his or her person or health may
be endangered, is guilty of a misdemeanor.
(d) Any person who is not a caretaker who violates any provision
of law proscribing theft or embezzlement, with respect to the
property of an elder or dependent adult, and who knows or reasonably
should know that the victim is an elder or dependent adult, is
punishable by imprisonment in a county jail not exceeding one year,
or in the state prison for two, three, or four years, when the money,
labor, or real or personal property taken is of a value exceeding
four hundred dollars ($400); and by a fine not exceeding one thousand
dollars ($1,000), by imprisonment in a county jail not exceeding one
year, or by both that fine and imprisonment, when the money, labor,
or real or personal property taken is of a value not exceeding four
hundred dollars ($400).
(e) Any caretaker of an elder or a dependent adult who violates
any provision of law proscribing theft or embezzlement, with respect
to the property of that elder or dependent adult, is punishable by
imprisonment in a county jail not exceeding one year, or in the state
prison for two, three, or four years when the money, labor, or real
or personal property taken is of a value exceeding four hundred
dollars ($400), and by a fine not exceeding one thousand dollars
($1,000), by imprisonment in a county jail not exceeding one year, or
by both that fine and imprisonment, when the money, labor, or real
or personal property taken is of a value not exceeding four hundred
dollars ($400).
(f) Any person who commits the false imprisonment of an elder or
dependent adult by the use of violence, menace, fraud, or deceit is
punishable by imprisonment in the state prison
for two, three, or four years.
(g) As used in this section, "elder" means any person who is 65
years of age or older.
(h) As used in this section, "dependent adult" means any person
who is between the ages of 18 and 64, who has physical or mental
limitations which restrict his or her ability to carry out normal
activities or to protect his or her rights, including, but not
limited to, persons who have physical or developmental disabilities
or whose physical or mental abilities have diminished because of age.
"Dependent adult" includes any person between the ages of 18 and 64
who is admitted as an inpatient to a 24-hour health facility, as
defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety
Code.
(i) As used in this section, "caretaker" means any person who has
the care, custody, or control of, or who stands in a position of
trust with, an elder or a dependent adult.
(j) Nothing in this section shall preclude prosecution under both
this section and Section 187 or 12022.7 or any other provision of
law. However, a person shall not receive an additional term of
imprisonment under both paragraphs (2) and (3) of subdivision (b) for
any single offense, nor shall a person receive an additional term of
imprisonment under both Section 12022.7 and paragraph (2) or (3) of
subdivision (b) for any single offense.
SEC. 14.
SEC. 29. Section 466 of the Penal Code is amended to read:
466. Every person having upon him or her in his or her possession
a picklock, crow, keybit, crowbar, screwdriver, vise grip pliers,
water-pump pliers, slidehammer, slim jim, tension bar, lock pick gun,
tubular lock pick, floor-safe door puller, master key, or other
instrument or tool with intent feloniously to break or enter into any
building, railroad car, aircraft, or vessel, trailer coach, or
vehicle as defined in the Vehicle Code, or who shall knowingly make
or alter, or shall attempt to make or alter, any key or other
instrument above named so that the same will fit or open the lock of
a building, railroad car, aircraft, or vessel,
trailer coach, or vehicle as defined in the Vehicle Code, without
being requested so to do by some person having the right to open the
same, or who shall make, alter, or repair any instrument or thing,
knowing or having reason to believe that it is intended to be used in
committing a misdemeanor or felony, is guilty of a misdemeanor. Any
of the structures mentioned in Section 459 shall be deemed to be a
building within the meaning of this section.
SEC. 15.
SEC. 30. Section 481.1 of the Penal Code is amended to read:
481.1. (a) Every person who counterfeits, forges, or alters any
fare media designed to entitle the holder to a ride on vehicles of a
public transportation system, as defined by Section 99211 of the
Public Utilities Code, or on vehicles operated by entities subsidized
by the Department of Transportation is punishable by imprisonment in
the the a county jail, not exceeding
one year, or in the state prison.
(b) Every person who knowingly possesses any counterfeit, forged,
or altered fare media designed to entitle the holder to a ride on
vehicles of a public transportation system, as defined by Section
99211 of the Public Utilities Code, or on vehicles operated by
entities subsidized by the Department of Transportation, or who
utters, publishes, or puts into circulation any fare media with
intent to defraud is punishable by imprisonment in the
a county jail not exceeding one year or by a
fine not exceeding one thousand dollars ($1,000), or by both.
SEC. 31. Section 530.7 of the Penal Code is amended to read:
530.7. (a) In order for a victim of identity theft to be included
in the data base established pursuant to subdivision (c), he or she
shall submit to the Department of Justice a court order obtained
pursuant to any provision of law, a full set of fingerprints, and any
other information prescribed by the department.
(b) Upon receiving information pursuant to subdivision (a), the
Department of Justice shall verify the identity of the victim against
any drivers driver's license or other
identification record maintained by the Department of Motor Vehicles.
(c) The Department of Justice shall establish and maintain a data
base of individuals who have been victims of identity theft. The
department shall provide a victim of identity theft or his or her
authorized representative access to the data base in order to
establish that the individual has been a victim of identity theft.
Access to the data base shall be limited to criminal justice
agencies, victims of identity theft, and individuals and agencies
authorized by the victims.
(d) The Department of Justice shall establish and maintain a
toll-free number to provide access to information under subdivision
(c).
(e) This section shall be operative September 1, 2001.
SEC. 16.
SEC. 32. Section 593d of the Penal Code is amended to read:
593d. (a) Except as provided in subdivision (e), any person who,
for the purpose of intercepting, receiving, or using any program or
other service carried by a multichannel video or information services
provider that the person is not authorized by that provider to
receive or use, commits any of the following acts is guilty of a
public offense:
(1) Knowingly and willfully makes or maintains an unauthorized
connection or connections, whether physically, electrically,
electronically, or inductively, to any cable, wire, or other
component of a multichannel video or information services provider's
system or to a cable, wire or other media, or receiver that is
attached to a multichannel video or information services provider's
system.
(2) Knowingly and willfully purchases, possesses, attaches, causes
to be attached, assists others in attaching, or maintains the
attachment of any unauthorized device or devices to any cable, wire,
or other component of a multichannel video or information services
provider's system or to a cable, wire or other media, or receiver
that is attached to a multichannel video or information services
provider's system.
(3) Knowingly and willfully makes or maintains any modification or
alteration to any device installed with the authorization of a
multichannel video or information services provider.
(4) Knowingly and willfully makes or maintains any modifications
or alterations to an access device that authorizes services or
knowingly and willfully obtains an unauthorized access device and
uses the modified, altered, or unauthorized access device to obtain
services from a multichannel video or information services provider.
For purposes of this section, each purchase, possession,
connection, attachment, or modification shall constitute a separate
violation of this section.
(b) Except as provided in subdivision (e), any person who
knowingly and willfully manufactures, assembles, modifies, imports
into this state, distributes, sells, offers to sell, advertises for
sale, or possesses for any of these purposes, any device or kit for a
device, designed, in whole or in part, to decrypt, decode,
descramble, or otherwise make intelligible any encrypted, encoded,
scrambled, or other nonstandard signal carried by a multichannel
video or information services provider, unless the device has been
granted an equipment authorization by the Federal Communications
Commission (FCC), is guilty of a public offense.
For purposes of this subdivision, "encrypted, encoded, scrambled,
or other nonstandard signal" means any type of signal or transmission
that is not intended to produce an intelligible program or service
without the use of a special device, signal, or information provided
by the multichannel video or information services provider or its
agents to authorized subscribers.
(c) Every person who knowingly and willfully makes or maintains an
unauthorized connection or connections with, whether physically,
electrically, electronically, or inductively, or who attaches, causes
to be attached, assists others in attaching, or maintains any
attachment to, any cable, wire, or other component of a multichannel
video or information services provider's system, for the purpose of
interfering with, altering, or degrading any multichannel video or
information service being transmitted to others, or for the purpose
of transmitting or broadcasting any program or other service not
intended to be transmitted or broadcast by the multichannel video or
information services provider, is guilty of a public offense.
For purposes of this section, each transmission or broadcast shall
constitute a separate violation of this section.
(d) (1) Any person who violates subdivision (a) shall be punished
by a fine not exceeding one thousand dollars ($1,000), by
imprisonment in a county jail not exceeding 90 days, or by both that
fine and imprisonment.
(2) Any person who violates subdivision (b) shall be punished as
follows:
(A) If the violation involves the manufacture, assembly,
modification, importation into this state, distribution,
advertisement for sale, or possession for sale or for any of these
purposes, of 10 or more of the items described in subdivision (b), or
the sale or offering for sale of five or more items for financial
gain, the person shall be punished by imprisonment in a county jail
not exceeding one year, or in the state prison, by a fine not
exceeding two hundred fifty thousand dollars ($250,000), or by both
that imprisonment and fine.
(B) If the violation involves the manufacture, assembly,
modification, importation into this state, distribution,
advertisement for sale, or possession for sale or for any of these
purposes, of nine or less of the items described in subdivision (b),
or the sale or offering for sale of four or less items for financial
gain, shall upon a conviction of a first offense, be punished by
imprisonment in a county jail not exceeding one year, by a fine not
exceeding twenty-five thousand dollars ($25,000), or by both that
imprisonment and fine. A second or subsequent conviction shall be
punished by imprisonment in a county jail not exceeding one year, or
in the state prison, by a fine not exceeding one hundred thousand
dollars ($100,000), or by both that imprisonment and fine.
(3) Any person who violates subdivision (c) shall be punished by a
fine not exceeding ten thousand dollars ($10,000), by imprisonment
in a county jail, or by both that fine and imprisonment.
(e) Any device or kit described in subdivision (a) or (b) seized
under warrant or incident to a lawful arrest, upon the conviction of
a person for a violation of subdivision (a) or (b), may be destroyed
as contraband by the sheriff.
(f) Any person who violates this section shall be liable in a
civil action to the multichannel video or information services
provider for the greater of the following amounts:
(1) Five thousand dollars ($5,000).
(2) Three times the amount of actual damages, if any, sustained by
the plaintiff plus reasonable attorney's fees.
A defendant who prevails in the action shall be awarded his or her
reasonable attorney's fees.
(g) Any multichannel video or information services provider may,
in accordance with the provisions of Chapter 3 (commencing with
Section 525) of Title 7 of Part 2 of the Code of Civil Procedure,
bring an action to enjoin and restrain any violation of this section,
and may in the same action seek damages as provided in subdivision
(g) (f) .
(h) It is not a necessary prerequisite to an action pursuant to
this section that the plaintiff has suffered, or be threatened with,
actual damages.
(i) For the purposes of this section, a "multichannel video or
information services provider" means a franchised or otherwise duly
licensed cable television system, video dialtone system, Multichannel
Multipoint Distribution Service system, Direct Broadcast Satellite
system, or other system providing video or information services that
are distributed via cable, wire, radio frequency, or other media. A
video dialtone system is a platform operated by a public utility
telephone corporation for the transport of video programming as
authorized by the Federal Communications Commission pursuant to FCC
Docket No. 87-266, and any subsequent decisions related to that
docket, subject to any rules promulgated by the FCC pursuant to those
decisions.
SEC. 33. Section 593e of the Penal Code is amended to read:
593e. (a) Every person who knowingly and willfully makes or
maintains an unauthorized connection or connections, whether
physically, electrically, or inductively, or purchases, possesses,
attaches, causes to be attached, assists others in or maintains the
attachment of any unauthorized device or devices to a television set
or to other equipment designed to receive a television broadcast or
transmission, or makes or maintains any modification or alteration to
any device installed with the authorization of a subscription
television system, for the purpose of intercepting, receiving, or
using any program or other service carried by the subscription
television system which the person is not authorized by that
subscription television system to receive or use, is guilty of a
misdemeanor punishable by a fine not exceeding one thousand dollars
($1,000), or by imprisonment in the a
county jail not exceeding 90 days, or both. For the purposes of this
section, each such purchase, possession,
connection, attachment or modification shall constitute a separate
violation of this section.
(b) Every person who, without the express authorization of a
subscription television system, knowingly and willfully manufactures,
imports into this state, assembles, distributes, sells, offers to
sell, possesses, advertises for sale, or otherwise provides any
device, any plan, or any kit for a device or for a printed circuit,
designed in whole or in part to decode, descramble, intercept, or
otherwise make intelligible any encoded, scrambled, or other
nonstandard signal carried by that subscription television system, is
guilty of a misdemeanor punishable by a fine not exceeding ten
thousand dollars ($10,000) or by imprisonment in the
a county jail, or both. A second or subsequent
conviction is punishable by a fine not exceeding twenty thousand
dollars ($20,000) or by imprisonment in the a
county jail for up to one year, or both.
(c) Any person who violates the provisions of subdivision (a)
shall be liable to the subscription television system for civil
damages in the amount of the value of the connection and subscription
fees service actually charged by the subscription television system
for the period of unauthorized use according to proof.
Any person who violates the provisions of subdivision (b) shall be
liable to the subscription television system at the election of the
subscription television system for either of the following amounts:
(1) An award of statutory damages in an aggregate amount of not
less that than five hundred dollars
($500) or more than ten thousand dollars ($10,000), as the court
deems just, for each device, plan, or kit for a device, or for a
printed circuit manufactured, imported, assembled, sold, offered for
sale, possessed, advertised for sale, or otherwise provided in
violation of subdivision (b), to be awarded instead of actual damages
and profits.
(2) Three times the amount of actual damages sustained by the
plaintiff as a result of the violation or violations of this section
and any revenues which have been obtained by the defendant as a
result of the violation or violations, or an amount equal to three
times the value of the services unlawfully obtained, or the sum of
five hundred dollars ($500) for each unauthorized device
manufactured, sold, used, or distributed, whichever is greater, and,
when appropriate, punitive damages. For the purposes of this
subdivision, revenues which have been obtained by the defendant as a
result of a violation or violations of this section shall not be
included in computing actual damages.
In a case where the court finds that any activity set forth in
subdivision (b) was committed knowingly and willfully and for
purposes of commercial advantage or private financial gain, the court
in its discretion may increase the award of damages, whether actual
or statutory, by an amount of not more than fifty thousand dollars
($50,000). It shall not constitute a use for "commercial advantage
or private financial gain" for any person to receive a subscription
television signal within a residential unit as defined herein.
(d) In any civil action filed pursuant to this section, the court
shall allow the recovery of full costs plus an award of reasonable
attorney's fees to the prevailing party.
(e) Any subscription television system may, in accordance with the
provisions of Chapter 3 (commencing with Section 525) of Title 7 of
Part 2 of the Code of Civil Procedure, bring an action to enjoin and
restrain any violation of this section without having to make a
showing of special or irreparable damage, and may in the same action
seek damages as provided in subdivision (c). Upon the execution of a
proper bond against damages for an injunction improvidently granted,
a temporary restraining order or a preliminary injunction may be
issued in any such action before a final
determination on the merits.
(f) It is not necessary that the plaintiff have incurred actual
damages, or be threatened with incurring actual damages, as a
prerequisite to bringing an action pursuant to this section.
(g) For the purposes of this section, an encoded, scrambled, or
other nonstandard signal shall include, without limitation, any type
of distorted signal or transmission that is not intended to produce
an intelligible program or service without the use of special devices
or information provided by the sender for the receipt of such signal
or transmission.
(h) (1) For the purposes of this section, a "subscription
television system" means a television system which sends an encoded,
scrambled, or other nonstandard signal over the air which is not
intended to be received in an intelligible form without special
equipment provided by or authorized by the sender.
(2) For purposes of this section, "residential unit" is defined as
any single-family residence, mobilehome within a mobilehome park,
condominium, unit or an apartment or multiple-housing unit leased or
rented for residential purposes.
SEC. 34. Section 597.2 of the Penal Code, as added by Chapter 1061
of the Statutes of 2000, is amended and renumbered to read:
597.2.
597.3. (a) Every person who operates a live animal market
shall do all of the following:
(1) Provide that no animal will be dismembered, flayed, cut open,
or have its skin, scales, feathers, or shell removed while the animal
is still alive.
(2) Provide that no live animals will be confined, held, or
displayed in a manner that results, or is likely to result, in
injury, starvation, dehydration, or suffocation.
(b) As used in this section:
(1) "Animal" means frogs, turtles, and birds sold for the purpose
of human consumption, with the exception of poultry.
(2) "Live animal market" means a retail food market where, in the
regular course of business, animals are stored alive and sold to
consumers for the purpose of human consumption.
(c) Any person who fails to comply with any requirement of
subdivision (a) shall for the first violation, be given a written
warning in a written language that is understood by the person
receiving the warning. A second or subsequent violation of
subdivision (a) shall be an infraction, punishable by a fine of not
less than two hundred fifty dollars ($250), nor more than one
thousand dollars ($1,000). However, a fine paid for a second
violation of subdivision (a) shall be deferred for six months if a
course is available that is administered by a state or local agency
on state law and local ordinances relating to live animal markets.
If the defendant successfully completes that course within six months
of entry of judgment, the fine shall be waived. The state or local
agency may charge the participant a fee to take the course, not to
exceed one hundred dollars ($100).
SEC. 35. Section 645 of the Penal Code is amended to read:
645. (a) Any person guilty of a first conviction of any offense
specified in subdivision (c), where the victim has not attained 13
years of age, may, upon parole, undergo medroxyprogesterone acetate
treatment or its chemical equivalent, in addition to any other
punishment prescribed for that offense or any other provision of law,
at the discretion of the court.
(b) Any person guilty of a second conviction of any offense
specified in subdivision (c), where the victim has not attained 13
years of age, shall, upon parole, undergo medroxyprogesterone acetate
treatment or its chemical equivalent, in addition to any other
punishment prescribed for that offense or any other provision of law.
(c) This section shall apply to the following offenses:
(1) Subdivision (c) or (d) of Section 286.
(2) Paragraph (1) of subdivision (b) of Section 288.
(3) Subdivision (b) (c) or (d) of
Section 288a.
(4) Subdivision (a) or (j) of Section 289.
(d) The parolee shall begin medroxyprogesterone acetate treatment
one week prior to his or her release from confinement in the state
prison or other institution and shall continue treatments until the
Department of Corrections demonstrates to the Board of Prison Terms
that this treatment is no longer necessary.
(e) If a person voluntarily undergoes a permanent, surgical
alternative to hormonal chemical treatment for sex offenders, he or
she shall not be subject to this section.
(f) The Department of Corrections shall administer this section
and implement the protocols required by this section. Nothing in the
protocols shall require an employee of the Department of Corrections
who is a physician and surgeon licensed pursuant to Chapter 5
(commencing with Section 2000) of Division 2 of the Business and
Professions Code or the Osteopathic Initiative Act to participate
against his or her will in the administration of the provisions of
this section. These protocols shall include, but not be limited to,
a requirement to inform the person about the effect of hormonal
chemical treatment and any side effects that may result from it. A
person subject to this section shall acknowledge the receipt of this
information.
SEC. 36. Section 646.93 of the Penal Code is amended to
read:
646.93. (a) (1) In those counties where the arrestee is initially
incarcerated in a jail operated by the county sheriff, the sheriff
shall designate a telephone number that shall be available to the
public to inquire about bail status or to determine if the person
arrested has been released and if not yet released, the scheduled
release date, if known. This subdivision does not require a county
sheriff or jail administrator to establish a new telephone number but
shall require that the information contained on the victim resource
card, as defined in Section 264.2, specify the phone number that a
victim should call to obtain this information. This subdivision
shall not require the county sheriff or municipal police departments
to produce new victim resource cards containing a designated phone
number for the public to inquire about the bail or custody status of
a person who has been arrested until their existing supply of victim
resource cards has been exhausted.
(2) In those counties where the arrestee is initially incarcerated
in an incarceration facility other than a jail operated by the
county sheriff and in those counties that do not operate a Victim
Notification (VNE) system, a telephone number shall be available to
the public to inquire about bail status or to determine if the person
arrested has been released and if not yet released, the scheduled
release date, if known. This subdivision does not require a
municipal police agency or jail administrator to establish a new
telephone number but shall require that the information contained on
the victim resource card, as defined in Section 264.2, specify the
phone number that a victim should call to obtain this information.
This subdivision shall not require the county sheriff or municipal
police departments to produce new victim resource cards containing a
designated phone number for the public to inquire about the bail or
custody status of a person who has been arrested until their existing
supply of victim resource cards has been exhausted.
(3) If an arrestee is transferred to another incarceration
facility and is no longer in the custody of the initial arresting
agency, the transfer date and new incarceration location shall be
made available through the telephone number designated by the
arresting agency.
(4) The resource card provided to victims pursuant to Section
264.2 shall list the designated telephone numbers to which this
section refers.
(b) Any request to lower bail shall be heard in open court in
accordance with Section 1270.1. In addition, the prosecutor shall
make all reasonable efforts to notify the victim or victims of the
bail hearing. The victims may be present at the hearing and shall be
permitted to address the court on the issue of bail.
(c) Unless good cause is shown not to impose the following
conditions, the judge shall impose as additional conditions of
release on bail that:
(1) The defendant shall not initiate contact in person, by
telephone, or any other means with the alleged victims.
(2) The defendant shall not knowingly go within 100 yards of the
alleged victims, their residence, or place of employment.
(3) The defendant shall not possess any firearms or other deadly
or dangerous weapons.
(4) The defendant shall obey all laws.
(5) The defendant, upon request at the time of his or her
appearance in court, shall provide the court with an address where he
or she is residing or will reside, a business address and telephone
number if employed, and a residence telephone number if the defendant'
s residence has a telephone.
A showing by declaration that any of these conditions are violated
shall, unless good cause is shown, result in the issuance of a
no-bail warrant.
SEC. 17.
SEC. 37. Section 666.7 of the Penal Code is amended to read:
666.7. It is the intent of the Legislature that this section
serve merely as a nonsubstantive comparative reference of current
sentence enhancement provisions. Nothing in this section shall have
any substantive effect
on the application of any sentence enhancement contained in any
provision of law, including, but not limited to, all of the
following: omission of any sentence enhancement provision, inclusion
of any obsolete sentence enhancement provision, or inaccurate
reference or summary of a sentence enhancement provision.
It is the intent of the Legislature to amend this section as
necessary to accurately reflect current sentence enhancement
provisions, including the addition of new provisions and the deletion
of obsolete provisions.
For the purposes of this section, the term "sentence enhancement"
means an additional term of imprisonment in the state prison added to
the base term for the underlying offense. A sentence enhancement is
imposed because of the nature of the offense at the time the offense
was committed or because the defendant suffered a qualifying prior
conviction before committing the current offense.
(a) The provisions listed in this subdivision imposing a sentence
enhancement of one year imprisonment in the state prison may be
referenced as Schedule A.
(1) Money laundering when the value of transactions exceeds fifty
thousand dollars ($50,000), but is less than one hundred fifty
thousand dollars ($150,000) (subpara. (A), para. (1), subd. (c), Sec.
186.10, Pen. C.).
(2) Commission of two or more related felonies, a material element
of which is fraud or embezzlement, which involve a pattern of
related felony conduct, involving the taking of more than one hundred
thousand dollars ($100,000) (para. (3), subd. (a), Sec. 186.11, Pen.
C.).
(3) Felony conviction of willful harm or injury to a child,
involving female genital mutilation (subd. (a), Sec. 273.4, Pen. C.).
(4) Prior conviction of felony hate crime with a current
conviction of felony hate crime (subd. (e), Sec. 422.75, Pen. C.).
(5) Harming, obstructing, or interfering with any horse or dog
being used by any peace officer in the discharge or attempted
discharge of his or her duties and, with the intent to so harm,
obstruct, or interfere, personally causing the death, destruction, or
serious physical injury of any horse or dog (subd. (c), Sec. 600,
Pen. C.).
(6) Prior prison term with current felony conviction (subd. (b),
Sec. 667.5, Pen. C.).
(7) Commission of any specified offense against a person who is 65
years of age or older, blind, a paraplegic or quadriplegic, or under
14 years of age (subd. (a), Sec. 667.9, Pen. C.).
(8) Showing child pornography to a minor prior to or during the
commission or attempted commission of any lewd or lascivious act with
the minor (subd. (a), Sec. 667.15, Pen. C.).
(9) Felony conviction of forgery, grand theft, or false pretenses
as part of plan or scheme to defraud an owner in connection with
repairs to a structure damaged by a natural disaster (subd. (a), Sec.
667.16, Pen. C.).
(10) Impersonating a peace officer during the commission of a
felony (Sec. 667.17, Pen. C.).
(11) Felony conviction of any specified offense, including, but
not limited to, forgery, grand theft, and false pretenses, as part of
plan or scheme to defraud an owner in connection with repairs to a
structure damaged by natural disaster with a prior felony
conviction of any of those offenses (subd. (c), Sec. 670, Pen. C.).
(12) Commission or attempted commission of a felony while armed
with a firearm (para. (1), subd. (a), Sec. 12022, Pen. C.).
(13) Personally using a deadly or dangerous weapon in the
commission or attempted commission of a felony (para. (1), subd. (b),
Sec. 12022, Pen. C.).
(14) Taking, damaging, or destroying any property in the
commission or attempted commission of a felony with the intent to
cause that taking, damage, or destruction when the loss exceeds fifty
thousand dollars ($50,000) (para. (1), subd. (a), Sec. 12022.6,
Pen. C.).
(15) Transferring, lending, selling, or giving any assault weapon
to a minor (para. (2), subd. (a), Sec. 12280, Pen. C.).
(16) Manufacturing, causing to be manufactured, distributing,
transporting, importing, keeping for sale, offering or exposing for
sale, giving, or lending any assault weapon while committing another
crime (subd. (e), Sec. 12280, Pen. C.).
(17) Inducing, employing, or using a minor to commit a drug
offense involving heroin, cocaine, or cocaine base, or unlawfully
furnishing one of these controlled substances to a minor, upon the
grounds of, or within, a church, playground, youth center, child day
care facility, or public swimming pool during business hours or
whenever minors are using the facility (para. (1), subd. (a), Sec.
11353.1, H.& S.C.).
(18) Inducing another person to commit a drug offense as part of
the drug transaction for which the defendant is convicted when the
value of the controlled substance involved exceeds five hundred
thousand dollars ($500,000) (para. (1), subd. (a), Sec. 11356.5, H.&
S.C.).
(19) Manufacturing, compounding, converting, producing, deriving,
processing, or preparing methamphetamine or phencyclidine (PCP), or
attempting to commit any of those acts, or possessing specified
combinations of substances with the intent to manufacture either
methamphetamine or phencyclidine (PCP), when the commission or
attempted commission of the offense causes the death or great bodily
injury of another person other than an accomplice (subd. (a), Sec.
11379.9, H.& S.C.).
(20) Using a minor to commit a drug offense involving
phencyclidine (PCP), methamphetamine, or lysergic acid diethylamide
(LSD), or unlawfully furnishing one of these controlled substances to
a minor, when the commission of the offense occurs upon the grounds
of, or within, a church, playground, youth center, child day care
facility, or public swimming pool during business hours or whenever
minors are using the facility (para. (1), subd. (a), Sec. 11380.1,
H.& S.C.).
(21) Possessing for sale, or selling, heroin, cocaine, cocaine
base, methamphetamine, or phencyclidine (PCP), when the commission of
the offense occurs upon the grounds of a public park, public
library, or oceanfront beach (para. (1), subd. (a), Sec. 11380.5, H.&
S.C.).
(22) Causing bodily injury or death to more than one victim in any
one instance of driving under the influence of any alcoholic
beverage or drug (Sec. 23558, Veh. C.).
(23) Fraudulently appropriating food stamps, electronically
transferred benefits, or authorizations to participate in the federal
Food Stamp Program entrusted to a public employee, or knowingly
using, transferring, selling, purchasing, or possessing ,
any of the same in an unauthorized manner, when the offense
is committed by means of an electronic transfer of benefits in an
amount exceeding fifty thousand dollars ($50,000), but less than one
hundred fifty thousand dollars ($150,000) (subpara. (A), para. (1),
subd. (h), Sec. 10980, W.& I.C.).
(b) The provisions listed in this subdivision imposing a sentence
enhancement of one, two, or three years' imprisonment in the state
prison may be referenced as Schedule B.
(1) Commission or attempted commission of a felony hate crime
(subd. (a), Sec. 422.75, Pen. C.).
(2) Commission or attempted commission of a felony against the
property of a public or private institution because the property is
associated with a person or group of identifiable race, color,
religion, nationality, country of origin, ancestry, gender,
disability, or sexual orientation (subd. (b), Sec. 422.75, Pen. C.).
(3) Felony conviction of unlawfully causing a fire of any
structure, forest land, or property when the defendant has been
previously convicted of arson or unlawfully causing a fire, or when a
firefighter, peace officer, or emergency personnel suffered great
bodily injury, or when the defendant proximately caused great bodily
injury to more than one victim, or caused multiple structures to burn
(subd. (a), Sec. 452.1, Pen. C.).
(4) Carrying a loaded or unloaded firearm during the commission or
attempted commission of any felony street gang crime (subd. (a),
Sec. 12021.5, Pen. C.).
(5) Personally using a deadly or dangerous weapon in the
commission of carjacking or attempted carjacking (para. (2), subd.
(b), Sec. 12022, Pen. C.).
(6) Being a principal in the commission or attempted commission of
any specified drug offense, knowing that another principal is
personally armed with a firearm (subd. (d), Sec. 12022, Pen. C.).
(7) Furnishing or offering to furnish a firearm to another for the
purpose of aiding, abetting, or enabling that person or any other
person to commit a felony (Sec. 12022.4, Pen. C.).
(8) Selling, supplying, delivering, or giving possession or
control of a firearm to any person within a prohibited class or to a
minor when the firearm is used in the subsequent commission of a
felony (para. (4), subd. (g), Sec. 12072, Pen. C.).
(9) Inducing, employing, or using a minor who is at least four
years younger than the defendant to commit a drug offense involving
any specified controlled substance, including, but not limited to,
heroin, cocaine, and cocaine base, or unlawfully providing one of
these controlled substances to a minor (para. (3), subd. (a), Sec.
11353.1, H.& S.C.).
(10) Prior conviction of inducing, employing, or using a minor to
commit a drug offense involving cocaine base, or unlawfully providing
cocaine base to a minor that resulted in a prison sentence with a
current conviction of the same offense (subd. (a), Sec. 11353.4, H.&
S.C.).
(11) Prior conviction of inducing, employing, or using a minor to
commit a drug offense involving cocaine base, or unlawfully providing
cocaine base to a minor with a current conviction of the same
offense involving a minor who is 14 years of age or younger (subd.
(b), Sec. 11353.4, H.& S.C.).
(12) Inducing, employing, or using a minor who is at least four
years younger than the defendant to commit a drug offense involving
any specified controlled substance, including, but not limited to,
phencyclidine (PCP), methamphetamine, and lysergic acid diethylamide
(LSD), or unlawfully providing one of these controlled substances to
a minor (para. (3), subd. (a), Sec. 11380.1, H.& S.C.).
(13) Causing great bodily injury or a substantial probability that
death could result by the knowing disposal, transport, treatment,
storage, burning, or incineration of any hazardous waste at a
facility without permits or at an unauthorized point (subd. (e), Sec.
25189.5, and subd. (c), Sec. 25189.7, H.& S.C.).
(c) The provisions listed in this subdivision imposing a sentence
enhancement of one, two, or five years' imprisonment in the state
prison may be referenced as Schedule C.
(1) Wearing a bullet-resistant body vest in the commission or
attempted commission of a violent offense (subd. (b), Sec. 12022.2,
Pen. C.).
(2) Commission or attempted commission of any specified sex
offense while armed with a firearm or deadly weapon (subd. (b), Sec.
12022.3, Pen. C.).
(d) The provisions listed in this subdivision imposing a sentence
enhancement of 16 months, or two or three years' imprisonment in the
state prison may be referenced as Schedule D.
(1) Knowing failure to register pursuant to Section 186.30 and
subsequent conviction or violation of Section 186.30, as specified
(para. (1), subd. (b), Sec. 186.33, Pen. C.).
(e) The provisions listed in this subdivision imposing a sentence
enhancement of two years' imprisonment in the state prison may be
referenced as Schedule E.
(1) Money laundering when the value of the transactions exceeds
one hundred fifty thousand dollars ($150,000), but is less than one
million dollars ($1,000,000) (subpara. (B), para. (1), subd. (c),
Sec. 186.10, Pen. C.).
(2) Commission of two or more related felonies, a material element
of which is fraud or embezzlement, which involve a pattern of
related felony conduct, involving the taking of more than one hundred
fifty thousand dollars ($150,000) (para. (3), subd. (a), Sec.
186.11, Pen. C.).
(3) Conviction of any specified felony sex offense that is
committed after fleeing to this state under specified circumstances
(subd. (d), Sec. 289.5, Pen. C.).
(4) Prior conviction of any specified insurance fraud offense with
current conviction of willfully injuring, destroying, secreting,
abandoning, or disposing of any property insured against loss or
damage by theft, embezzlement, or any casualty with the intent to
defraud or prejudice the insurer (subd. (b), Sec. 548, Pen. C.).
(5) Prior conviction of any specified insurance fraud offense with
current conviction of knowingly presenting any false or fraudulent
insurance claim or multiple claims for the same loss or injury, or
knowingly causing or participating in a vehicular collision for the
purpose of presenting any false or fraudulent claim, or providing
false or misleading information or concealing information for purpose
of insurance fraud (subd. (e), Sec. 550, Pen. C.).
(6) Causing serious bodily injury as a result of knowingly causing
or participating in a vehicular collision or accident for the
purpose of presenting any false or fraudulent claim (subd. (g), Sec.
550, Pen. C.).
(7) Harming, obstructing, or interfering with any horse or dog
being used by any peace officer in the discharge or attempted
discharge of his or her duties and, with the intent to cause great
bodily injury, personally causing great bodily injury to any person
other than an accomplice (subd. (d), Sec. 600, Pen. C.).
(8) Prior conviction of any specified offense with current
conviction of any of those offenses committed against a person who is
65 years of age or older, blind, a paraplegic or quadriplegic, or
under 14 years of age (subd. (b), Sec. 667.9, Pen. C.).
(9) Prior conviction for sexual penetration with current
conviction of the same offense committed against a person who is 65
years of age or older, blind, deaf, developmentally disabled, a
paraplegic or quadriplegic, or under 14 years of age (subd. (a), Sec.
667.10, Pen. C.).
(10) Showing child pornography to a minor prior to or
during the commission or attempted commission of continuous sexual
abuse of the minor (subd. (b), Sec. 667.15, Pen. C.).
(11) Primary care provider in a day care facility committing any
specified felony sex offense against a minor entrusted to his or her
care (subd. (a), Sec. 674, Pen. C.).
(12) Commission of a felony offense while released from custody on
bail or own recognizance (subd. (b), Sec. 12022.1, Pen. C.).
(13) Taking, damaging, or destroying any property in the
commission or attempted commission of a felony with the intent to
cause that taking, damage, or destruction when the loss exceeds one
hundred fifty thousand dollars ($150,000) (para. (2), subd. (a), Sec.
12022.6, Pen. C.).
(14) Inducing, employing, or using a minor to commit a drug
offense involving heroin, cocaine, or cocaine base, or unlawfully
furnishing one of these controlled substances to a minor, upon, or
within 1,000 feet of, the grounds of a school during school hours or
whenever minors are using the facility (para. (2), subd. (a), Sec.
11353.1, H.& S.C.).
(15) Inducing another person to commit a drug offense as part of
the drug transaction for which the defendant is convicted when the
value of the controlled substance involved exceeds two million
dollars ($2,000,000) (para. (2), subd. (a), Sec. 11356.5, H.& S.C.).
(16) Manufacturing, compounding, converting, producing, deriving,
processing, or preparing methamphetamine or phencyclidine (PCP), or
attempting to commit any of those acts, or possessing specified
combinations of substances with the intent to manufacture either
methamphetamine or phencyclidine (PCP), when the commission or
attempted commission of the crime occurs in a structure where any
child under 16 years of age is present (subd. (a), Sec. 11379.7, H.&
S.C.).
(17) Using a minor to commit a drug offense involving
phencyclidine (PCP), methamphetamine, or lysergic acid diethylamide
(LSD), or unlawfully furnishing one of these controlled substances to
a minor, upon, or within 1,000 feet of, the grounds of a school
during school hours or whenever minors are using the facility (para.
(2), subd. (a), Sec. 11380.1, H.& S.C.).
(18) Prior felony conviction of any specified insurance fraud
offense with a current conviction of making false or fraudulent
statements concerning a workers' compensation claim (subd. (c), Sec.
1871.4, Ins. C.).
(19) Prior felony conviction of making or causing to be made any
knowingly false or fraudulent statement of any fact material to the
determination of the premium, rate, or cost of any policy of workers'
compensation insurance for the purpose of reducing the premium,
rate, or cost of the insurance with a current conviction of the same
offense (subd. (b), Sec. 11760, Ins. C.).
(20) Prior felony conviction of making or causing to be made any
knowingly false or fraudulent statement of any fact material to the
determination of the premium, rate, or cost of any policy of workers'
compensation insurance issued or administered by the State
Compensation Insurance Fund for the purpose of reducing the premium,
rate, or cost of the insurance with a current conviction of the same
offense (subd. (b), Sec. 11880, Ins. C.).
(21) Fraudulently appropriating food stamps, electronically
transferred benefits, or authorizations to participate in the federal
Food Stamp Program entrusted to a public employee, or knowingly
using, transferring, selling, purchasing, or possessing, any of the
same in an unauthorized manner, when the offense is committed by
means of an electronic transfer of benefits in an amount exceeding
one hundred fifty thousand dollars ($150,000), but less than one
million dollars ($1,000,000) (subpara. (B), para. (1), subd. (h),
Sec. 10980, W.& I.C.).
(f) The provisions listed in this subdivision imposing a sentence
enhancement of two, three, or four years' imprisonment in the state
prison may be referenced as Schedule F.
(1) Commission of a felony, other than a serious or violent
felony, for the benefit of, at the direction of, or in association
with any criminal street gang, with the specific intent to promote,
further, or assist in any criminal conduct by gang members (subpara.
(A), para. (2) (1) , subd. (b), Sec.
186.22, Pen. C.).
(2) Acting in concert with another person or aiding or abetting
another person in committing or attempting to commit a felony hate
crime (subd. (c), Sec. 422.75, Pen. C.).
(3) Carrying a loaded or unloaded firearm together with a
detachable shotgun magazine, a detachable pistol magazine, a
detachable magazine, or a belt-feeding device during the commission
or attempted commission of any felony street gang crime (subd. (b),
Sec. 12021.5, Pen. C.).
(g) The provisions listed in this subdivision imposing a sentence
enhancement of two, three, or five years' imprisonment in the state
prison may be referenced as Schedule G.
(1) Commission of two or more related felonies, a material element
of which is fraud or embezzlement, which involve a pattern of
related felony conduct, involving the taking of more than five
hundred thousand dollars ($500,000) (para. (2), subd. (a), Sec.
186.11, Pen. C.).
(h) The provisions listed in this subdivision imposing a sentence
enhancement of three years' imprisonment in the state prison may be
referenced as Schedule H.
(1) Money laundering when the value of transactions exceeds one
million dollars ($1,000,000), but is less than two million five
hundred thousand dollars ($2,500,000) (subpara. (C), para. (1), subd.
(c), Sec. 186.10, Pen. C.).
(2) Solicitation, recruitment, or coercion, of a minor to
actively participate in a criminal street gang (subd. (d), Sec.
186.26,Pen. C.).
(3) Willfully mingling any poison or harmful substance which may
cause death if ingested, or which causes the infliction of great
bodily injury on any person, with any food, drink, medicine, or
pharmaceutical product or willfully placing such
that poison or harmful substance in any spring, well,
reservoir, or public water supply (para. (2), subd. (a), Sec. 347,
Pen. C.).
(4) Causing great bodily injury by willfully causing or permitting
any elder or dependent adult to suffer, or inflicting pain or mental
suffering upon, or endangering the health of, an elder or dependent
adult when the victim is under 70 years of age (subpara. (A), para.
(2), subd. (b), Sec. 368, Pen. C.).
(5) Maliciously driving or placing, in any tree, saw-log,
shingle-bolt, or other wood, any iron, steel, ceramic, or other
substance sufficiently hard to injure saws and causing bodily injury
to another person other than an accomplice (subd. (b), Sec. 593a,
Pen. C.).
(6) Prior prison term for violent felony with current violent
felony conviction (subd. (a), Sec. 667.5, Pen. C.).
(7) Commission of any specified felony sex offense by a primary
care provider in a day care facility against a minor entrusted to his
or her care while voluntarily acting in concert with another (subd.
(b), Sec. 674, Pen. C.).
(8) Commission or attempted commission of a felony while armed
with an assault weapon or a machinegun (para. (2), subd. (a), Sec.
12022, Pen. C.).
(9) Taking, damaging, or destroying any property in the commission
or attempted commission of a felony with the intent to cause that
taking, damage, or destruction when the loss exceeds one million
dollars ($1,000,000) (para. (3), subd. (a), Sec. 12022.6, Pen. C.).
(10) Personally inflicting great bodily injury on any person other
than an accomplice in the commission or attempted commission of a
felony (subd. (a), Sec. 12022.7, Pen. C.).
(11) Administering by injection, inhalation, ingestion, or any
other means, any specified controlled substance against the victim's
will by means of force, violence, or fear of immediate and unlawful
bodily injury to the victim or another person for the purpose of
committing a felony (Sec. 12022.75, Pen. C.).
(12) Commission of any specified sex offense with knowledge that
the defendant has acquired immune deficiency syndrome (AIDS) or with
the knowledge that he or she carries antibodies of the human
immunodeficiency virus at the time of the commission of the offense
(subd. (a), Sec. 12022.85, Pen. C.).
(13) Inducing another person to commit a drug offense as part of
the drug transaction for which the defendant is convicted when the
value of the controlled substance involved exceeds five million
dollars ($5,000,000) (para. (3), subd. (a), Sec. 11356.5, H.& S.C.).
(14) Prior conviction of any specified drug offense with current
conviction of any specified drug offense (subds. (a), (b), and (c),
Sec. 11370.2, H.& S.C.).
(15) Commission of any specified drug offense involving a
substance containing heroin, cocaine base, cocaine, methamphetamine,
amphetamine, or phencyclidine (PCP), when the substance exceeds one
kilogram or 30 liters (para. (1), subd. (a), and para. (1), subd.
(b), Sec. 11370.4, H.& S.C.).
(16) Manufacturing, compounding, converting, producing, deriving,
processing, or preparing any substance containing amphetamine,
methamphetamine, or phencyclidine (PCP) or its analogs or precursors,
or attempting to commit any of those acts, when the substance
exceeds three gallons or one pound (para. (1), subd. (a), Sec.
11379.8, H.& S.C.).
(17) Four or more prior convictions of specified alcohol-related
vehicle offenses with current conviction of driving under the
influence and causing great bodily injury (subd. (c), Sec. 23566,
Veh. C.).
(18) Fraudulently appropriating food stamps, electronically
transferred benefits, or authorizations to participate in the federal
Food Stamp Program entrusted to a public employee, or knowingly
using, transferring, selling, purchasing, or possessing, any of the
same in an unauthorized manner, when the offense is committed by
means of an electronic transfer of benefits in an amount exceeding
one million dollars ($1,000,000), but less than two million five
hundred thousand dollars ($2,500,000) (subpara. (C), para. (1), subd.
(h), Sec. 10980, W.& I.C.).
(i) The provisions listed in this subdivision imposing a sentence
enhancement of three, four, or five years' imprisonment in the state
prison may be referenced as Schedule I.
(1) Commission of felony arson with prior conviction of arson or
unlawfully starting a fire, or causing great bodily injury to a
firefighter, peace officer, other emergency personnel, or multiple
victims, or causing the burning of multiple structures, or using an
accelerator or ignition delay device (subd. (a), Sec. 451.1, Pen.
C.).
(2) Commission or attempted commission of any specified drug
offense while personally armed with a firearm (subd. (c), Sec. 12022,
Pen. C.).
(3) Personally inflicting great bodily injury under circumstances
involving domestic violence in the commission or attempted commission
of a felony (subd. (e), Sec. 12022.7, Pen. C.).
(4) Commission of any specified drug offense involving cocaine
base, heroin, or methamphetamine, or a conspiracy to commit any of
those offenses, upon the grounds of, or within 1,000 feet of, a
school during school hours or when minors are using the facility
(subd. (b), Sec. 11353.6, H.& S.C.).
(5) Commission of any specified drug offense involving cocaine
base, heroin, or methamphetamine, or a conspiracy to violate any of
those offenses, involving a minor who is at least four years younger
than the defendant (subd. (c), Sec. 11353.6, H.& S.C.).
(j) The provisions listed in this subdivision imposing a sentence
enhancement of 3, 4, or 10 years' imprisonment in the state prison
may be referenced as Schedule J.
(1) Commission or attempted commission of any felony while armed
with a firearm and in the immediate possession of ammunition for the
firearm designed primarily to penetrate metal or armor (subd. (a),
Sec. 12022.2, Pen. C.).
(2) Commission or attempted commission of any specified sex
offense while using a firearm or deadly weapon (subd. (a), Sec.
12022.3, Pen. C.).
(3) Commission or attempted commission of a felony while
personally using a firearm (para. (1), subd. (a), Sec. 12022.5, Pen.
C.).
(4) Commission or attempted commission of any specified drug
offense while personally using a firearm (subd. (c), Sec. 12022.5,
Pen. C.).
(k) The provisions listed in this subdivision imposing a sentence
enhancement of four years' imprisonment in the state prison may be
referenced as Schedule K.
(1) Money laundering when the value of transactions exceeds two
million five hundred thousand dollars ($2,500,000) (subpara. (D),
para. (1), subd. (c), Sec. 186.10, Pen. C.).
(2) Prior conviction of willfully inflicting upon a child any
cruel or inhuman corporal punishment or injury resulting in a
traumatic condition with current conviction of that offense (subd.
(b), Sec. 273d, Pen. C.).
(3) Taking, damaging, or destroying any property in the commission
or attempted commission of a felony with the intent to cause that
taking, damage, or destruction when the loss exceeds two million five
hundred thousand dollars ($2,500,000) (para. (4), subd. (a), Sec.
12022.6, Pen. C.).
(4) Personally, willfully, and maliciously discharging a firearm
from a motor vehicle at another person other than an occupant of a
motor vehicle and causing a victim to suffer paralysis or paraparesis
of a major body part (para. (1), subd. (b), Sec. 12022.9, Pen. C.).
(5) Personally, willfully, and maliciously discharging a firearm
from a motor vehicle at another occupied motor vehicle and causing a
victim to suffer paralysis or paraparesis of a major body part (para.
(2), subd. (b), Sec. 12022.9, Pen. C.).
(6) Willfully causing or permitting any child to suffer, or
inflicting on the child unjustifiable physical pain or injury that
results in death under circumstances or conditions likely to produce
great bodily harm or death, or, having the care or custody of any
child, willfully causing or permitting that child to be injured or
harmed under circumstances likely to produce great bodily harm or
death, when that injury or harm results in death (Sec. 12022.95,
Pen. C.).
(7) Fraudulently appropriating food stamps, electronically
transferred benefits, or authorizations to participate in the federal
Food Stamp Program entrusted to a public employee, or knowingly
using, transferring, selling, purchasing, or possessing, any of the
same in an unauthorized manner, when the offense is committed by
means of an electronic transfer of benefits in an amount exceeding
two million five hundred thousand dollars ($2,500,000) (subpara. (D),
para. (1), subd. (h), Sec. 10980, W.& I.C.).
(8) Execution of a scheme or artifice to defraud the Medi-Cal
program or any other health care program administered by the State
Department of Health Services or its agents or contractors, or to
obtain under false or fraudulent pretenses, representations, or
promises any property owned by or under the custody of the Medi-Cal
program or any health care program administered by the department,
its agents, or contractors under circumstances likely to cause or
that do cause two or more persons great bodily injury (subd. (d),
Sec. 14107, W.& I.C.).
(l) The provisions listed in this subdivision imposing a sentence
enhancement of four, five, or six years' imprisonment in the state
prison may be referenced as Schedule L.
(1) Personally inflicting great bodily harm
injury on a child under the age of five years in the
commission or attempted commission of a felony (subd. (d),
Sec. 12022.7, Pen. C.).
(m) The provisions listed in this subdivision imposing a sentence
enhancement of 4, 5, or 10 years' imprisonment in the state prison
may be referenced as Schedule M.
(1) Commission or attempted commission of a felony while
personally using a firearm with prior conviction of carjacking or
attempted carjacking (para. (2), subd. (a), Sec. 12022.5, Pen. C.).
(n) The provisions listed in this subdivision imposing a sentence
enhancement of five years' imprisonment in the state prison may be
referenced as Schedule N.
(1) Commission of a serious felony for the benefit of, at the
direction of, or in association with, any criminal street gang, with
the specific intent to promote, further, or assist in any criminal
conduct by gang members (subpara. (B), para. (1), subd. (b), Sec.
186.22, Pen. C.).
(2) Using sex offender registration information to commit a felony
(para. (1), subd. (q), Sec. 290, and para. (1), subd. (b), Sec.
290.4, Pen. C.).
(3) Causing great bodily injury by willfully causing or permitting
any elder or dependent adult to suffer, or inflicting pain or mental
suffering upon, or endangering the health of, an elder or dependent
adult when the victim is 70 years of age or older (subpara. (B),
para. (2), subd. (b), Sec. 368, Pen. C.).
(4) Causing death by willfully causing or permitting any elder or
dependent adult to suffer, or inflicting pain or mental suffering
upon, or endangering the health of, an elder or dependent adult when
the victim is under 70 years of age (subpara. (A), para. (3), subd.
(b), Sec. 368, Pen. C.).
(5) Two prior felony convictions of knowingly causing or
participating in a vehicular collision or accident for the purpose of
presenting any false or fraudulent claim with current conviction of
the same (subd. (f), Sec. 550, Pen. C.).
(6) Prior conviction of a serious felony with current conviction
of a serious felony (para. (1), subd. (a), Sec. 667, Pen. C.).
(7) Prior conviction of any specified sex offense with current
conviction of lewd and lascivious acts with a child under 14 years of
age (subd. (a), Sec. 667.51, Pen. C.).
(8) Prior conviction of any specified sex offense with current
conviction of any of those sex offenses (subd. (a), Sec. 667.6, Pen.
C.).
(9) Kidnapping or carrying away any child under 14 years of age
with the intent to permanently deprive the parent or legal guardian
custody of that child (Sec. 667.85, Pen. C.).
(10) Personally inflicting great bodily injury on any person other
than an accomplice in the commission or attempted commission of a
felony that causes the victim to become comatose due to a brain
injury or to suffer paralysis of a permanent nature (subd. (b), Sec.
12022.7, Pen. C.).
(11) Personally inflicting great bodily injury on another person
who is 70 years of age or older other than an accomplice in the
commission or attempted commission of a felony (subd. (c), Sec.
12022.7, Pen. C.).
(12) Inflicting great bodily injury on any victim in the
commission or attempted commission of any specified sex offense (Sec.
12022.8, Pen. C.).
(13) Personally and intentionally inflicting injury upon a
pregnant woman during the commission or attempted commission of a
felony that results in the termination of the pregnancy when the
defendant knew or reasonably should have known that the victim was
pregnant (subd. (a), Sec. 12022.9, Pen. C.).
(14) Using information disclosed to the licensee of a community
care facility by a prospective client regarding his or her status as
a sex offender to commit a felony (subd. (c), Sec. 1522.01, H.&
S.C.).
(15) Commission of any specified drug offense involving a
substance containing heroin, cocaine base, cocaine, methamphetamine,
amphetamine, or phencyclidine (PCP), when the substance exceeds 4
kilograms or 100 liters (para. (2), subd. (a), and para. (2), subd.
(b), Sec. 11370.4, H.& S.C.).
(16) Manufacturing, compounding, converting, producing, deriving,
processing, or preparing methamphetamine or phencyclidine (PCP), or
attempting to commit any of those acts, or possessing specified
combinations of substances with the intent to manufacture either
methamphetamine or phencyclidine (PCP), when the commission of the
crime causes any child under 16 years of age to suffer great bodily
injury (subd. (b), Sec. 11379.7, H.& S.C.).
(17) Manufacturing, compounding, converting, producing, deriving,
processing, or preparing any substance containing amphetamine,
methamphetamine, or phencyclidine (PCP) or its analogs or precursors,
or attempting to commit any of those acts, when the substance
exceeds 10 gallons or three pounds (para. (2), subd. (a), Sec.
11379.8, H.& S.C.).
(18) Fleeing the scene of the crime after commission of vehicular
manslaughter (subd. (c), Sec. 20001, Veh. C.).
(o) The provisions listed in this subdivision imposing a sentence
enhancement of 5, 6, or 10 years' imprisonment in the state prison
may be referenced as Schedule O.
(1) Discharging a firearm at an occupied motor vehicle in the
commission or attempted commission of a felony which caused great
bodily injury or death to another person (para. (1), subd. (b), Sec.
12022.5, Pen. C.).
(2) Commission or attempted commission of a felony while
personally using an assault weapon or a machinegun (para. (2), subd.
(b), Sec. 12022.5, Pen. C.).
(3) Discharging a firearm from a motor vehicle in the commission
or attempted commission of a felony with the intent to inflict great
bodily injury or death and causing great bodily injury or death (Sec.
12022.55, Pen. C.).
(p) The provisions listed in this subdivision imposing a sentence
enhancement of seven years' imprisonment in the state prison may be
referenced as Schedule P.
(1) Causing death by willfully causing or permitting any elder or
dependent adult to suffer, or inflicting pain or mental suffering
upon, or endangering the health of, an elder or dependent adult when
the victim is 70 years of age or older (subpara. (B), para. (3),
subd. (b), Sec. 368, Pen. C.).
(q) The provisions listed in this subdivision imposing a sentence
enhancement of nine years' imprisonment in the state prison may be
referenced as Schedule Q.
(1) Kidnapping a victim for the purpose of
committing any specified felony sex offense (subd. (a), Sec. 667.8,
Pen. C.).
(r) The provisions listed in this subdivision imposing a sentence
enhancement of 10 years' imprisonment in the state prison may be
referenced as Schedule R.
(1) Commission of a violent felony for the benefit of, at the
direction of, or in the association with, any
criminal street gang, with the specific intent to promote, further,
or assist in any criminal conduct by gang members (subpara. (C),
para. (1), subd. (b), Sec. 186.22, Pen. C.).
(2) Two or more prior prison terms for any specified sex offense
with current conviction of any of those sex offenses (subd. (b), Sec.
667.6, Pen. C.).
(3) Commission or attempted commission of any specified felony
offense while personally using a firearm (subd. (b), Sec. 12022.53,
Pen. C.).
(4) Commission of any specified drug offense involving a substance
containing heroin, cocaine base, cocaine, methamphetamine,
amphetamine, or phencyclidine (PCP), when the substance exceeds 10
kilograms or 200 liters (para. (3), subd. (a), and para. (3), subd.
(b), Sec. 11370.4, H.& S.C.).
(5) Manufacturing, compounding, converting, producing, deriving,
processing, or preparing any substance containing amphetamine,
methamphetamine, or phencyclidine (PCP) or its analogs or precursors,
or attempting to commit any of those acts, when the substance
exceeds 25 gallons or 10 pounds (para. (3), subd. (a), Sec. 11379.8,
H.& S.C.).
(s) The provisions listed in this subdivision imposing a sentence
enhancement of 15 years' imprisonment in the state prison may be
referenced as Schedule S.
(1) Kidnapping a victim under 14 years of age for
the purpose of committing any specified felony sex offense
(subd. (b), Sec. 667.8, Pen. C.).
(2) Commission of any specified drug offense involving a substance
containing heroin, cocaine base, cocaine, methamphetamine,
amphetamine, or phencyclidine (PCP), when the substance exceeds 20
kilograms or 400 liters (para. (4), subd. (a), and para. (4), subd.
(b), Sec. 11370.4, H.& S.C.).
(3) Manufacturing, compounding, converting, producing, deriving,
processing, or preparing any substance containing amphetamine,
methamphetamine, or phencyclidine (PCP) or its analogs or precursors,
or attempting to commit any of those acts, when the substance
exceeds 105 gallons or 44 pounds (para. (4), subd. (a), Sec. 11379.8,
H.& S.C.).
(t) The provisions listed in this subdivision imposing a sentence
enhancement of 20 years' imprisonment in the state prison may be
referenced as Schedule T.
(1) Intentionally and personally discharging a firearm in the
commission or attempted commission of any specified felony offense
(subd. (c), Sec. 12022.53, Pen. C.).
(2) Commission of any specified drug offense involving a substance
containing heroin, cocaine base, or cocaine, when the substance
exceeds 40 kilograms (para. (5), subd. (a), Sec. 11370.4, H.& S.C.).
(u) The provisions listed in this subdivision imposing a sentence
enhancement of 25 years' imprisonment in the state prison may be
referenced as Schedule U.
(1) Commission of any specified drug offense involving a substance
containing heroin, cocaine base, or cocaine, when the substance
exceeds 80 kilograms (para. (6), subd. (a), Sec. 11370.4, H.& S.C.).
(v) The provisions listed in this subdivision imposing a sentence
enhancement of 25 years to life imprisonment in the state prison may
be referenced as Schedule V.
(1) Intentionally and personally discharging a firearm in the
commission or attempted commission of any specified felony offense
and proximately causing great bodily injury to any person other than
an accomplice (subd. (d), Sec. 12022.53, Pen. C.).
SEC. 18.
SEC. 38. Section 667.7 of the Penal Code is amended to read:
667.7. (a) Any person convicted of a felony in which the person
inflicted great bodily injury as provided in Section 12022.53 or
12022.7, or personally used force which was likely to produce great
bodily injury, who has served two or more prior separate prison terms
as defined in Section 667.5 for the crime of murder; attempted
murder; voluntary manslaughter; mayhem; rape by force, violence, or
fear of immediate and unlawful bodily injury on the victim or another
person; oral copulation by force, violence, duress, menace, or fear
of immediate and unlawful bodily injury on the victim or another
person; sodomy by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person;
lewd acts on a child under the age of 14 years by use of force,
violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person; a violation of subdivision
(a) of Section 289 where the act is accomplished against the victim's
will by means of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person;
kidnapping as punished in former subdivision (d) of Section 208, or
for ransom, extortion, or robbery; robbery involving the use of force
or a deadly weapon; assault with intent to commit murder; assault
with a deadly weapon; carjacking involving the use of a deadly
weapon; assault with intent to commit murder; assault with a deadly
weapon; assault with a force likely to produce great bodily injury;
assault with intent to commit rape, sodomy, oral copulation,
sexual penetration of a vaginal or anal opening
in violation of Section 289, or lewd and lascivious acts on
a child; arson of a structure; escape or attempted escape by an
inmate with force or violence in violation of subdivision (a) of
Section 4530, or of Section 4532; exploding a destructive
device with intent to murder in violation of Section 12308; exploding
a destructive device which causes bodily injury in violation of
Section 12309, or mayhem or great bodily injury in violation of
Section 12310; exploding a destructive device with intent to injure,
intimidate, or terrify, in violation of Section 12303.3; any felony
in which the person inflicted great bodily injury as provided in
Section 12022.53 or 12022.7; or any felony punishable by death or
life imprisonment with or without the possibility of parole is a
habitual offender and shall be punished as follows:
(1) A person who served two prior separate prison terms shall be
punished by imprisonment in the state prison for life and shall not
be eligible for release on parole for 20 years, or the term
determined by the court pursuant to Section 1170 for the underlying
conviction, including any enhancement applicable under Chapter 4.5
(commencing with Section 1170) of Title 7 of Part 2, or any period
prescribed by Section 190 or 3046, whichever is greatest. Article
2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3
shall apply to reduce any minimum term in a state prison imposed
pursuant to this section, but the person shall not otherwise be
released on parole prior to that time.
(2) Any person convicted of a felony specified in this subdivision
who has served three or more prior separate prison terms, as defined
in Section 667.5, for the crimes specified in subdivision (a) of
this section shall be punished by imprisonment in the state prison
for life without the possibility of parole.
(b) This section shall not prevent the imposition of the
punishment of death or imprisonment for life without the possibility
of parole. No prior prison term shall be used for this determination
which was served prior to a period of 10 years in which the person
remained free of both prison custody and the commission of an offense
which results in a felony conviction. As used in this section, a
commitment to the Department of the Youth Authority after conviction
for a felony shall constitute a prior prison term. The term imposed
under this section shall be imposed only if the prior prison terms
are alleged under this section in the accusatory pleading, and either
admitted by the defendant in open court, or found to be true by the
jury trying the issue of guilt or by the court where guilt is
established by a plea of guilty or nolo contendere or by a trial by
the court sitting without a jury.
SEC. 39. Section 670 of the Penal Code is amended to read:
670. (a) Any person who violates Section 7158 or 7159 of, or
subdivision (b), (c), (d), or (e) of Section 7161 of, the Business
and Professions Code or Section 470, 484, 487, or 532 of this code as
part of a plan or scheme to defraud an owner or lessee of a
residential or nonresidential structure in connection with the offer
or performance of repairs to the structure for damage caused by a
natural disaster specified in subdivision (b), shall be subject to
the penalties and enhancements specified in subdivisions (c) and (d).
The existence of any fact which would bring a person under this
section shall be alleged in the information or indictment and either
admitted by the defendant in open court, or found to be true by the
jury trying the issue of guilt or by the court where guilt is
established by a plead plea of guilty
or nolo contendere or by trial by the court sitting without a jury.
(b) This section applies to natural disasters for which a state of
emergency is proclaimed by the Governor pursuant to Section 8625 of
the Government Code or for which an emergency or major disaster is
declared by the President of the United States.
(c) The maximum or prescribed amounts of fines for offenses
subject to this section shall be doubled. If the person has been
previously convicted of a felony offense specified in subdivision
(a), the person shall receive a one-year enhancement in addition to,
and to run consecutively to, the term of imprisonment for any felony
otherwise prescribed by this subdivision.
(d) Additionally, the court shall order any person sentenced
pursuant to this section to make full restitution to the victim or
to make restitution to the victim based on the person's ability to
pay, as defined in subdivision (b) of Section 1203.1b. The payment
of the restitution ordered by the court pursuant to this subdivision
shall be made a condition of any probation granted by the court for
an offense punishable under this section. Notwithstanding any other
provision of law, the period of probation shall be at least five
years or until full restitution is made to the victim, whichever
first occurs.
(e) Notwithstanding any other provision of law, the prosecuting
agency shall be entitled to recover its costs of investigation and
prosecution from any fines imposed for a conviction under this
section.
SEC. 19.
SEC. 40. Section 778a of the Penal Code is amended to read:
778a. (a) Whenever a person, with intent to commit a crime, does
any act within this state in execution or part execution of that
intent, which culminates in the commission of a crime, either within
or without this state, the person is punishable for that crime in
this state in the same manner as if the the crime
had been committed entirely within this state.
(b) Whenever a person who, within this state, kidnaps another
person within the meaning of Sections 207 and 209, and thereafter
carries the person into another state or country and commits any
crime of violence or theft against that person in the other state or
country, the person is punishable for that crime of violence or theft
in this state in the same manner as if the crime had been committed
within this state.
SEC. 41. Section 933.06 of the Penal Code is amended to read:
933.06. (a) Notwithstanding Sections 916 and 940, in a county
having a population of 20,000 or less, a final report may be adopted
and submitted pursuant to Section 933 with the concurrence of
a at least 10 grand jurors if all of
the following conditions are met:
(1) The grand jury consisting of 19 persons has been impaneled
pursuant to law, and the membership is reduced from 19 to fewer than
12.
(2) The vacancies have not been filled pursuant to Section 908.1
within 30 days from the time that the clerk of the superior court is
given written notice that the vacancy has occurred.
(3) A final report has not been submitted by the grand jury
pursuant to Section 933.
(b) Notwithstanding Section 933, no responsible officers,
agencies, or departments shall be required to comment on a final
report submitted pursuant to this section.
SEC. 42. Section 1170.11 of the Penal Code is amended to
read:
1170.11. As used in Section 1170.1, the term "specific
enhancement" means enhancements that relate to the circumstances of
the crime. It includes, but is not limited to, the enhancements
provided in Sections 186.10, 186.11, 186.22, 186.26, 186.33, 273.4,
289.5, 290, 290.4, 347, and 368, subdivisions (a), (b), and (c) of
Section 422.75, paragraphs (2), (3), (4), and (5) of subdivision (a)
of Section 451.1, paragraphs (2), (3), and (4) of subdivision (a) of
Section 452.1, subdivision (g) of Section 550, Sections 593a, 600,
667.8, 667.85, 667.9, 667.10, 667.15, 667.16, 667.17, 674, 12021.5,
12022, 12022.2, 12022.3, 12022.4, 12022.5, 12022.53, 12022.55,
12022.6, 12022.7, 12022.75, 12022.8, 12022.85, 12022.9, 12022.95,
12072, and 12280 of this code, and in Sections 1522.01 and 11353.1,
subdivision (b) of Section 11353.4, Sections 11353.6, 11356.5,
11370.4, 11379.7, 11379.8, 11379.9, 11380.1, 11380.5, 25189.5, and
25189.7 of the Health and Safety Code, and in Sections 20001 and
23558 of the Vehicle Code, and in Sections 10980 and 14017
14107 of the Welfare and Institutions Code.
SEC. 20.
SEC. 43. Section 1174.4 of the Penal Code is amended to
read:
1174.4. (a) Persons eligible for participation in this
alternative sentencing program shall meet all of the following
criteria:
(1) Pregnant women with an established history of substance abuse,
or pregnant or parenting women with an established history of
substance abuse who have one or more children under six years old at
the time of entry into the program. For women with children, at
least one eligible child shall reside with the mother in the
facility.
(2) Never served a prior prison term for, nor been convicted in
the present proceeding of, committing or attempting to commit, any of
the following offenses:
(A) Murder or voluntary manslaughter.
(B) Mayhem.
(C) Rape.
(D) Kidnapping.
(E) Sodomy by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person.
(F) Oral copulation by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another
person.
(G) Lewd acts on a child under 14 years of age, as defined in
Section 288.
(H) Any felony punishable by death or imprisonment in the state
prison for life.
(I) Any felony in which the defendant inflicts great bodily injury
on any person, other than an accomplice, that has been charged and
proved as provided for in Section 12022.53, 12022.7 , or
12022.9, or any felony in which the defendant uses a firearm, as
provided in Section 12022.5, 12022.53, or 12022.55, in which the use
has been charged and proved.
(J) Robbery.
(K) Any robbery perpetrated in an inhabited dwelling house or
trailer coach as defined in the Vehicle Code, or in the inhabited
portion of any other building, wherein it is charged and proved that
the defendant personally used a deadly or dangerous weapon, as
provided in subdivision (b) of Section 12022, in the commission of
that robbery.
(L) Arson in violation of subdivision (a) of Section 451.
(M) Sexual penetration in violation of subdivision (a) of Section
289 if the act is accomplished against the victim's will by force,
violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person.
(N) Rape or sexual penetration in concert, in violation of Section
264.1.
(O) Continual sexual abuse of a child in violation of Section
288.5.
(P) Assault with intent to commit mayhem, rape, sodomy, oral
copulation, rape in concert , with another,
lascivious acts upon a child, or sexual penetration.
(Q) Assault with a deadly weapon or with force likely to produce
great bodily injury in violation of subdivision (a) of Section 245.
(R) Any violent felony defined in Section 667.5.
(S) A violation of Section 12022.
(T) A violation of Section 12308.
(U) Burglary of the first degree.
(V) A violation of Section 11351, 11351.5, 11352, 11353, 11358,
11359, 11360, 11370.1, 11370.6, 11378, 11378.5, 11379, 11379.5,
11379.6, 11380, or 11383 of the Health and Safety Code.
(3) Has not been sentenced to state prison for a term exceeding 36
months.
(b) Prior to sentencing, if the court proposes to give
consideration to a placement, the court shall consider a written
evaluation by the probation department, which shall include the
following:
(1) Whether the defendant is eligible for participation pursuant
to this section.
(2) Whether participation by the defendant and her eligible
children is deemed to be in the best interests of the children.
(3) Whether the defendant is amenable to treatment for substance
abuse and would benefit from participation in the program.
(4) Whether the program is deemed to be in the best interests of
an eligible child of the defendant, as determined by a representative
of the appropriate child welfare services agency of the county if
the child is a dependent child of the
juvenile court pursuant to Section 300 of the
Welfare and Institutions Code.
(c) The district attorney shall make a recommendation to the court
as to whether or not the defendant would benefit from the program,
which the court shall consider in making its decision. If the court'
s decision is without the concurrence of the district attorney, the
court shall specify its reasons in writing and enter them into the
record.
(d) If the court determines that the defendant may benefit from
participation in this program, the court may impose a state prison
sentence with the recommendation that the defendant participate in
the program pursuant to this chapter. The court shall notify the
department within 48 hours of imposition of this sentence.
(e) The Director of Corrections shall consider the court's
recommendation in making a determination on the inmate's placement in
the program.
(f) Women accepted for the program by the Director of Corrections
shall be delivered by the county, pursuant to Section 1202a, to the
facility selected by the department. Before the director accepts a
woman for the program, the county shall provide to the director the
necessary information to determine her eligibility and appropriate
placement status. Priority for services and aftercare shall be given
to inmates who are incarcerated in a county, or adjacent to a
county, in which a program facility is located.
(g) Prior to being admitted to the program, each participant shall
voluntarily sign an agreement specifying the terms and conditions of
participation in the program.
(h) The department may refer inmates back to the sentencing court
if the department determines that an eligible inmate has not been
recommended for the program. The department shall refer the inmate
to the court by an evaluative report so stating the department's
assessment of eligibility, and requesting a recommendation by the
court.
(i) Women who successfully complete the program, including the
minimum of one year of transition services under intensive parole
supervision, shall be discharged from parole. Women who do not
successfully complete the program shall be returned to the state
prison where they shall serve their original sentences. These
persons shall receive full credit against their original sentences
for the time served in the program, pursuant to Section 2933.
SEC. 21.
SEC. 44. Section 1203.044 of the Penal Code is amended to read:
1203.044. (a) This section shall apply only to a defendant
convicted of a felony for theft of an amount exceeding fifty thousand
dollars ($50,000) in a single transaction or occurrence. This
section shall not apply unless the fact that the crime involved the
theft of an amount exceeding fifty thousand dollars ($50,000) in a
single transaction or occurrence is charged in the accusatory
pleading and either admitted by the defendant in open court or found
to be true by the trier of fact. Aggregate losses from more than one
criminal act shall not be considered in determining if this section
applies.
(b) Notwithstanding any other law, probation shall not be granted
to a defendant convicted of a crime to which subdivision (a) applies
if the defendant was previously convicted of an offense for which an
enhancement pursuant to Section 12022.6 was found true even if that
enhancement was not imposed by the sentencing court. The prior
conviction shall be alleged in the accusatory pleading and either
admitted by the defendant in open court or found to be true by the
trier of fact.
(c) In deciding whether to grant probation to a defendant
convicted of a crime to which subdivision (a) applies, the court
shall consider all relevant information, including the extent to
which the defendant has attempted to pay restitution to the victim
between the date upon which the defendant was convicted and the date
of sentencing. A defendant claiming inability to pay restitution
before the date of sentencing shall provide a statement of assets,
income, and liabilities, as set forth in subdivision (j) to the
court, the probation department, and the prosecution.
(d) In addition to the restrictions on probation imposed by
subdivisions (b) and (c), probation shall not be granted to any
person convicted of theft in an amount exceeding one hundred thousand
dollars ($100,000) in a single transaction or occurrence, except in
unusual cases if the interests of justice would best be served if the
person is granted probation. The fact that the theft was of an
amount exceeding one hundred thousand dollars ($100,000) in a single
transaction or occurrence, shall be alleged in the accusatory
pleading and either admitted by the defendant in open court or found
to be true by the trier of fact. This subdivision shall not
authorize a grant of probation otherwise prohibited under subdivision
(b) or (c). If probation is granted pursuant to this subdivision,
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 that disposition. Aggregate losses from more than one
criminal act shall not be considered in determining whether this
subdivision applies.
(e) Subject to subdivision (f), if a defendant is convicted of a
crime to which subdivision (a) applies and the court grants
probation, a court shall impose at least a 90-day sentence in a
county jail as a condition of probation. If the defendant was
convicted of a crime to which subdivision (d) applies, and the court
grants probation, the court shall impose at least a 180-day sentence
in a county jail as a condition of probation.
(f) The court shall designate a portion of any sentence imposed
pursuant to subdivision (e) as a mandatory in-custody term. For the
purpose of this section only, "mandatory in-custody term" means that
the defendant shall serve that term, notwithstanding credits pursuant
to Section 4019, in custody in the a
county jail. The defendant shall not be allowed release on any
program during that term, including work furlough, work release,
public service program, or electronic monitoring. The court shall
designate the mandatory in-custody term as follows:
(1) If the defendant was convicted of a crime to which subdivision
(a) applies, the mandatory in-custody term shall be no less than 30
days. If the person serves a mandatory in-custody term of at least
30 days, the court may, in the interests of justice, and for reasons
stated in the record, reduce the mandatory minimum 90-day sentence
required by subdivision (e).
(2) If the defendant was convicted of a crime to which subdivision
(d) applies, the mandatory in-custody term shall be no less than 60
days. If the person serves a mandatory in-custody term of at least
60 days, the court may, in the interests of justice, and for reasons
stated in the record, reduce the mandatory minimum 180-day sentence
required by subdivision (e).
(g) If a defendant is convicted of a crime to which subdivision
(a) applies, and the court grants probation, the court shall require
the defendant as a condition of probation to pay restitution to the
victim and to pay a surcharge to the county in the amount of 20
percent of the restitution ordered by the court, as follows:
(1) The surcharge is not subject to any assessments otherwise
imposed by Section 1464. The surcharge shall be paid into the county
treasury and placed in the general fund to be used exclusively for
the investigation and prosecution of white collar crime offenses and
to pay the expenses incurred by the county in administering this
section, including increased costs incurred as a result of offenders
serving mandatory in-custody terms pursuant to this section.
(2) The court shall also enter an income deduction order as
provided in Section 13967.2 of the Government Code to secure payment
of the surcharge. That order may be enforced to secure payment of
the surcharge as provided by those provisions.
(3) The county board of supervisors shall not charge the fee
provided for by Section 1203.1, subdivision (l) of Section 1202.4, or
subdivision (d) of Section 13967, as operative on or before
September 28, 1994, of the Government Code for the collection of
restitution or any restitution fine.
(4) The defendant shall not be required to pay the costs of
probation as otherwise required by subdivision (b) of Section 1203.1.
(h) Notwithstanding any other law, if a defendant is convicted of
a crime to which subdivision (a) applies and the court grants
probation, as a condition of probation, within 30 court days after
being granted probation, and annually thereafter, the defendant shall
provide the county financial officer with all of the following
documents and records:
(1) True and correct copies of all income tax and personal
property tax returns for the previous tax year, including W-2 forms
filed on the defendant's behalf with any state tax agency. If the
defendant is unable to supply a copy of a state tax return, the
defendant shall provide a true and correct copy of all income tax
returns for the previous tax year filed on his or her behalf with the
federal government. The defendant is not required to provide any
particular document if to do so would violate federal law or the law
of the state in which the document was filed. However, this section
shall supersede all other laws in this state concerning the right to
privacy with respect to tax returns filed with this state. If,
during the term of probation, the defendant intentionally fails to
provide the county financial officer with any document that he or she
knows is required to be provided under this subdivision, that
failure shall constitute a violation of probation.
(2) A statement of income, assets, and liabilities as defined in
subdivision (j).
(i) The submission by the defendant of any tax document pursuant
to paragraph (1) of subdivision (h) that the defendant knows does not
accurately state the defendant's income, or if required, the
defendant's personal property, if the inaccuracy is material,
constitutes a violation of probation.
(j) A statement of income, assets, and liabilities form, that is
consistent with the disclosure requirements of this section, may be
established by the financial officer of each county. That statement
shall require the defendant to furnish relevant financial information
identifying the defendant's income, assets, possessions, or
liabilities, actual or contingent. The statement may include the
following:
(1) All real property in which the defendant has any interest.
(2) Any item of personal property worth more than three thousand
dollars ($3,000) in which the defendant has any interest, including,
but not limited to, vehicles, airplanes, boats, computers, and
consumer electronics. Any collection of jewelry, coins, silver,
china, artwork, antiques, or other collectibles in which the
defendant has any interest, if that collection is worth more than
three thousand dollars ($3,000).
(3) All domestic and foreign assets in the defendant's name, or in
the name of the defendant's spouse or minor children, of a value
over three thousand dollars ($3,000) and in whatever form, including,
but not limited to, bank accounts, securities, stock options, bonds,
mutual funds, money market funds, certificates of deposits,
annuities, commodities, precious metals, deferred compensation
accounts, individual retirement accounts, and related or analogous
accounts.
(4) All insurance policies in which the defendant or the defendant'
s spouse or minor children retain a cash value.
(5) All pension funds in which the defendant has a vested right.
(6) All insurance policies of which the defendant is a
beneficiary.
(7) All contracts, agreements, judgments, awards, or prizes
granting the defendant the right to receive money or real or personal
property in the future, including alimony and child support.
(8) All trusts of which the defendant is a beneficiary.
(9) All unrevoked wills of a decedent if the defendant or
defendant's spouse or minor child is a beneficiary.
(10) All lawsuits currently maintained by the defendant or by or
against a corporation in which the defendant owns more than a 25
percent interest if the suit includes a prayer for damages.
(11) All corporations of which the defendant is an officer. If
the defendant is an officer in a corporation sole, subchapter S
corporation, or closely held corporation, and controls more equity of
that corporation than any other individual, the county financial
officer shall have authority to request other records of the
corporation.
(12) All debts in excess of three thousand dollars ($3,000) owed
by the defendant to any person or entity.
(13) Copies of all applications for loans made by the defendant
during the last year.
(14) All encumbrances on any real and personal property in which
the defendant has any interest.
(15) All sales, transfers, assignments, quitclaims, conveyances,
or encumbrances of any interest in real or personal property of a
value exceeding three thousand dollars ($3,000) made by the defendant
during the period beginning one year before charges were filed to
the present, including the identity of the recipient of same, and
relationship, if any, to the defendant.
(k) The information contained in the statement of income, assets,
and liabilities shall not be available to the public. Information
received pursuant to this subdivision shall not be disclosed to any
member of the public. Any disclosure in violation of this section
shall be a contempt of court punishable by a fine not exceeding one
thousand dollars ($1,000), and shall also create a civil cause of
action for damages.
(l) After providing the statement of income, assets, and
liabilities, the defendant shall provide the county financial officer
with copies of any documents representing or reflecting the
financial information set forth in subdivision (j) as requested by
that officer.
(m) The defendant shall sign the statement of income, assets, and
liabilities under penalty of perjury. The provision of information
known to be false, or the intentional failure to provide material
information knowing that it was required to have been provided, shall
constitute a violation of probation.
(n) The Franchise Tax Board and the Employment Development
Department shall release copies of income tax returns filed by the
defendant and other information concerning the defendant's current
income and place of employment to the county financial officer upon
request. That information shall be kept confidential and shall not
be made available to any member of the public. Any unauthorized
release shall be subject to subdivision (k). The county shall
reimburse the reasonable administrative expenses incurred by those
agencies in providing this information.
(o) During the term of probation, the defendant shall notify the
county financial officer in writing within 30 days, after receipt
from any source of any money or real or personal property that has a
value of over five thousand dollars ($5,000), apart from the salary
from the defendant's and the defendant's spouse's regular employment.
The defendant shall report the source and value of the money or
real or personal property received. This information shall not be
made available to the public or the victim. Any unauthorized release
shall be subject to subdivision (k).
(p) The term of probation in all cases shall be 10 years.
However, after the defendant has served five years of probation, the
defendant shall be released from all terms and conditions of
probation except those terms and conditions included within this
section. A court may not revoke or otherwise terminate probation
within 10 years unless and until the defendant has satisfied both the
restitution judgment and the surcharge, or the defendant is
imprisoned for a violation of probation. Upon satisfying the
restitution judgment, the defendant is entitled to a court order
vacating that judgment and removing it from the public record.
Amounts owing on the surcharge are forgiven upon completion of the
term of probation.
(q) The county financial officer shall establish a suggested
payment schedule each year to ensure that the defendant remits
amounts to make restitution to the victim and pay the surcharge. The
county financial officer shall evaluate the defendant's current
earnings, future earning capacity, assets (including assets that are
in trust or in accounts where penalties may be incurred upon
premature withdrawal of funds), and liabilities, and set payments to
the county based upon the defendant's ability to pay. The defendant
shall bear the burden of demonstrating the lack of his or her ability
to pay. If the defendant objects to the suggested payment schedule,
the court shall set the schedule. Express findings by the court as
to the factors bearing on the payment schedule shall not be required.
After the payment schedule is set, a defendant may request a change
in the schedule upon a change of circumstances. The restitution
schedule shall set a reasonable payment amount and shall not set
payments in an amount that is likely to cause severe financial
hardship to the defendant or his or her family.
(r) The willful failure to pay the amounts required by the payment
schedule or to comply with the requirements of the county financial
officer or the probation department pursuant to this section, if the
defendant is able to pay or comply, is a violation of probation.
(s) In determining the defendant's ability to pay, the court shall
consider whether the annual payment required, including any money or
property seized to satisfy the restitution judgment, exceeds 15
percent of the defendant's taxable income for the previous year as
identified on the defendant's tax return for the defendant's state of
residence or on the defendant's federal tax return. If the
defendant has filed a joint return, the defendant's income for
purposes of this section shall be presumed to be the total of all
wages earned by the defendant, plus one-half of all other nonsalary
income listed on the tax return and accompanying schedules, unless
the defendant demonstrates otherwise. The court shall also consider
the defendant's current income and future earning capacity. A
defendant shall bear the burden of demonstrating lack of his or her
ability to pay. Express findings by the court as to the factors
bearing on the payment schedule shall not be required.
(t) The defendant shall personally appear at any hearing held
pursuant to any provision of this section unless the defendant is
incarcerated or otherwise excused by the court, in which case the
defendant may appear through counsel.
(u) Notwithstanding subdivision (d) of Section 1203.1, the county
financial officer shall distribute proceeds collected by the county
pursuant to this section as follows:
(1) If the restitution judgment has been satisfied, but the
surcharge remains outstanding, all amounts paid by the defendant
shall be kept by the county and applied to the surcharge.
(2) If the surcharge has been satisfied, but the restitution
judgment has not been satisfied, all amounts submitted to the county
shall be remitted to the victim.
(3) If neither judgment has been satisfied, the county shall remit
70 percent of the amounts collected to the victim. Those amounts
shall be credited to the restitution judgment. The remaining 30
percent shall be retained by the county and credited toward the
surcharge.
(v) Neither this section, nor the amendments to Section 12022.6 of
the Penal Code enacted pursuant to Chapter 104 of the Statutes of
1992, are intended to lessen or otherwise mitigate sentences that
could otherwise be imposed under any law in effect when the offense
was committed.
(w) For the purpose of this section, a county may designate an
appropriate employee of the county probation department, the
department of revenue, or any other analogous county
department to act as the county financial officer pursuant to this
section.
(x) This section shall remain in effect only until January 1,
2008, and as of that date is repealed unless a later enacted statute,
which is enacted before January 1, 2008, deletes or extends that
date.
(y) This act shall be known as the Economic Crime Act of 1992.
SEC. 45. Section 1203.097 of the Penal Code is amended to
read:
1203.097. (a) If a person is granted probation for a crime in
which the victim is a person defined in Section 6211 of the Family
Code, the terms of probation shall include all of the following:
(1) A minimum period of probation of 36 months, which may include
a period of summary probation as appropriate.
(2) A criminal court protective order protecting the victim from
further acts of violence, threats, stalking, sexual abuse, and
harassment, and, if appropriate, containing residence exclusion or
stay-away conditions.
(3) Notice to the victim of the disposition of the case.
(4) Booking the defendant within one week of sentencing if the
defendant has not already been booked.
(5) A minimum payment by the defendant of two hundred dollars
($200) to be disbursed as specified in this paragraph. If, after a
hearing in court on the record, the court finds that the defendant
does not have the ability to pay, the court may reduce or waive this
fee.
One-third of the moneys deposited with the county treasurer
pursuant to this section shall be retained by counties and deposited
in the domestic violence programs special fund created pursuant to
Section 18305 of the Welfare and Institutions Code, to be expended
for the purposes of Chapter 5 (commencing with Section 18290) of Part
6 of Division 9 of the Welfare and Institutions Code. The remainder
shall be transferred, once a month, to the Controller for deposit in
equal amounts in the Domestic Violence Restraining Order
Reimbursement Fund and in the Domestic Violence Training and
Education Fund, which are hereby created, in an amount equal to
two-thirds of funds collected during the preceding month. Moneys
deposited into these funds pursuant to this section shall be
available upon appropriation by the Legislature and shall be
distributed each fiscal year as follows:
(A) Funds from the Domestic Violence Restraining Order
Reimbursement Fund shall be distributed to local law enforcement or
other criminal justice agencies for state-mandated local costs
resulting from the notification requirements set forth in subdivision
(a) of Section 6385 of the Family Code, based on the annual
notification from the Department of Justice of the number of
restraining orders issued and registered in the state domestic
violence restraining order registry maintained by the Department of
Justice, for the development and maintenance of the domestic violence
restraining order data bank system.
(B) Funds from the Domestic Violence Training and Education Fund
shall support a statewide training and education program to increase
public awareness of domestic violence and to improve the scope and
quality of services provided to the victims of domestic violence.
Grants to support this program shall be awarded on a competitive
basis and be administered by the State Department of Health Services,
in consultation with the statewide domestic violence coalition,
which is eligible to receive funding under this section.
(6) Successful completion of a batterer's program, as defined in
subdivision (c), or if none is available, another appropriate
counseling program designated by the court, for a period not less
than one year with periodic progress reports by the program to the
court every three months or less and weekly sessions of a minimum of
two hours class time duration.
(7) (A) (i) The court shall order the defendant to comply with all
probation requirements, including the requirements to attend
counseling, keep all program appointments, and pay program fees based
upon the ability to pay.
(ii) The terms of probation for offenders shall not be lifted
until all reasonable fees due to the counseling program have been
paid in full, but in no case shall probation be extended beyond the
term provided in subdivision (a) of Section 1203.1. If the court
finds that the defendant does not have the ability to pay the fees
based on the defendant's changed circumstances, the court may reduce
or waive the fees.
(B) Upon request by the batterer's program, the court shall
provide the defendant's arrest report, prior incidents of violence,
and treatment history to the program.
(8) The court also shall order the defendant to perform a
specified amount of appropriate community service, as designated by
the court. The defendant shall present the court with proof of
completion of community service and the court shall determine if the
community service has been satisfactorily completed. If sufficient
staff and resources are available, the community service shall be
performed under the jurisdiction of the local agency overseeing a
community service program.
(9) If the program finds that the defendant is unsuitable, the
program shall immediately contact the probation department or the
court. The probation department or court shall either recalendar the
case for hearing or refer the defendant to an appropriate
alternative batterer's program.
(10) (A) Upon recommendation of the program, a court shall require
a defendant to participate in additional sessions throughout the
probationary period, unless it finds that it is not in the interests
of justice to do so, states its reasons on the record, and enters
them into the minutes. In deciding whether the defendant would
benefit from more sessions, the court shall consider whether any of
the following conditions exist:
(i) The defendant has been violence free for a minimum of six
months.
(ii) The defendant has cooperated and participated in the batterer'
s program.
(iii) The defendant demonstrates an understanding of and practices
positive conflict resolution skills.
(iv) The defendant blames, degrades, or has committed acts that
dehumanize the victim or puts at risk the victim's safety, including,
but not limited to, molesting, stalking, striking, attacking,
threatening, sexually assaulting, or battering the victim.
(v) The defendant demonstrates an understanding that the use of
coercion or violent behavior to maintain dominance is unacceptable in
an intimate relationship.
(vi) The defendant has made threats to harm anyone in any manner.
(vii) The defendant has complied with applicable
requirements under paragraph (6) of subdivision (c) or subparagraph
(C) to receive alcohol counseling, drug counseling, or both.
(viii) The defendant demonstrates acceptance of responsibility for
the abusive behavior perpetrated against the victim.
(B) The program shall immediately report any violation of the
terms of the protective order, including any new acts of violence or
failure to comply with the program requirements, to the court, the
prosecutor, and, if formal probation has been ordered, to the
probation department. The probationer shall file proof of enrollment
in a batterer's program with the court within 30 days of conviction.
(C) Concurrent with other requirements under this section, in
addition to, and not in lieu of, the batterer's program, and unless
prohibited by the referring court, the probation department or the
court may make provisions for a defendant to use his or her resources
to enroll in a chemical dependency program or to enter voluntarily a
licensed chemical dependency recovery hospital or residential
treatment program that has a valid license issued by the state to
provide alcohol or drug services to receive program participation
credit, as determined by the court. The probation department shall
document evidence of this hospital or residential treatment
participation in the defendant's program file.
(11) The conditions of probation may include, in lieu of a fine,
but not in lieu of the fund payment required under paragraph (5), one
or more of the following requirements:
(A) That the defendant make payments to a battered women's
shelter, up to a maximum of five thousand dollars ($5,000).
(B) That the defendant reimburse the victim for reasonable
expenses that the court finds are the direct result of the defendant'
s offense.
For any order to pay a fine, to make payments to a battered women'
s shelter, or to pay restitution as a condition of probation under
this subdivision, the court shall make a determination of the
defendant's ability to pay. Determination of a defendant's ability
to pay may include his or her future earning capacity. A defendant
shall bear the burden of demonstrating lack of his or her ability to
pay. Express findings by the court as to the factors bearing on the
amount of the fine shall not be required. In no event shall any
order to make payments to a battered women's shelter be made if it
would impair the ability of the defendant to pay direct restitution
to the victim or court-ordered child support. When the injury to a
married person is caused in whole or in part by the criminal acts of
his or her spouse in violation of this section, the community
property shall not be used to discharge the liability of the
offending spouse for restitution to the injured spouse, as required
by Section 1203.04, as operative on or before August 2, 1995, or
Section 1202.4, or to a shelter for costs with regard to the injured
spouse, until all separate property of the offending spouse is
exhausted.
(12) If it appears to the prosecuting attorney, the court, or the
probation department that the defendant is performing
unsatisfactorily in the assigned program, is not benefiting from
counseling, or has engaged in criminal conduct, upon request of the
probation officer, the prosecuting attorney, or on its own motion,
the court, as a priority calendar item, shall hold a hearing to
determine whether further sentencing should proceed. The court may
consider factors, including, but not limited to, any violence by the
defendant against the former or a new victim while on probation and
noncompliance with any other specific condition of probation. If the
court finds that the defendant is not performing satisfactorily in
the assigned program, is not benefiting from the program, has not
complied with a condition of probation, or has engaged in criminal
conduct, the court shall terminate the defendant's participation in
the program and shall proceed with further sentencing.
(b) If a person is granted formal probation for a crime in which
the victim is a person defined in Section 6211 of the Family Code, in
addition to the terms specified in subdivision (a), all of the
following shall apply:
(1) The probation department shall make an investigation and take
into consideration the defendant's age, medical history, employment
and service records, educational background, community and family
ties, prior incidents of violence, police report, treatment history,
if any, demonstrable motivation, and other mitigating factors in
determining which batterer's program would be appropriate for the
defendant. This information shall be provided to the batterer's
program if it is requested. The probation department shall also
determine which community programs the defendant would benefit from
and which of those programs would accept the defendant. The
probation department shall report its findings and recommendations to
the court.
(2) The court shall advise the defendant that the failure to
report to the probation department for the initial investigation, as
directed by the court, or the failure to enroll in a specified
program, as directed by the court or the probation department, shall
result in possible further incarceration. The court, in the
interests of justice, may relieve the defendant from the prohibition
set forth in this subdivision based upon the defendant's mistake or
excusable neglect. Application for this relief shall be filed within
20 court days of the missed deadline. This time limitation may not
be extended. A copy of any application for relief shall be served on
the office of the prosecuting attorney.
(3) After the court orders the defendant to a batterer's program,
the probation department shall conduct an initial assessment of the
defendant, including, but not limited to, all of the following:
(A) Social, economic, and family background.
(B) Education.
(C) Vocational achievements.
(D) Criminal history.
(E) Medical history.
(F) Substance abuse history.
(G) Consultation with the probation officer.
(H) Verbal consultation with the victim, only if the victim
desires to participate.
(I) Assessment of the future probability of the defendant
committing murder.
(4) The probation department shall attempt to notify the victim
regarding the requirements for the defendant's participation in the
batterer's program, as well as regarding available victim resources.
The victim also shall be informed that attendance in any program
does not guarantee that an abuser will not be violent.
(c) The court or the probation department shall refer defendants
only to batterer's programs that follow standards outlined in
paragraph (1), which may include, but are not limited to, lectures,
classes, group discussions, and counseling. The probation department
shall design and implement an approval and renewal process for
batterer's programs and shall solicit input from criminal justice
agencies and domestic violence victim advocacy programs.
(1) The goal of a batterer's program under this section shall be
to stop domestic violence. A batterer's program shall consist of the
following components:
(A) Strategies to hold the defendant accountable for the violence
in a relationship, including, but not limited to, providing the
defendant with a written statement that the defendant shall be held
accountable for acts or threats of domestic violence.
(B) A requirement that the defendant participate in ongoing
same-gender group sessions.
(C) An initial intake that provides written definitions to the
defendant of physical, emotional, sexual, economic, and verbal abuse,
and the techniques for stopping these types of abuse.
(D) Procedures to inform the victim regarding the requirements for
the defendant's participation in the intervention program as well as
regarding available victim resources. The victim also shall be
informed that attendance in any program does not guarantee that an
abuser will not be violent.
(E) A requirement that the defendant attend group sessions free of
chemical influence.
(F) Educational programming that examines, at a minimum, gender
roles, socialization, the nature of violence, the dynamics of power
and control, and the effects of abuse on children and others.
(G) A requirement that excludes any couple counseling or family
counseling, or both.
(H) Procedures that give the program the right to assess whether
or not the defendant would benefit from the program and to refuse to
enroll the defendant if it is determined that the defendant would not
benefit from the program, so long as the refusal is not because of
the defendant's inability to pay. If possible, the program shall
suggest an appropriate alternative program.
(I) Program staff who, to the extent possible, have specific
knowledge regarding, but not limited to, spousal abuse, child abuse,
sexual abuse, substance abuse, the dynamics of violence and abuse,
the law, and procedures of the legal system.
(J) Program staff who are encouraged to utilize the expertise,
training, and assistance of local domestic violence centers.
(K) A requirement that the defendant enter into a written
agreement with the program, which shall include an outline of the
contents of the program, the attendance requirements, the requirement
to attend group sessions free of chemical influence, and a statement
that the defendant may be removed from the program if it is
determined that the defendant is not benefiting from the program or
is disruptive to the program.
(L) A requirement that the defendant sign a confidentiality
statement prohibiting disclosure of any information obtained through
participating in the program or during group sessions regarding other
participants in the program.
(M) Program content that provides cultural and ethnic sensitivity.
(N) A requirement of a written referral from the court or
probation department prior to permitting the defendant to enroll in
the program. The written referral shall state the number of minimum
sessions required by the court.
(O) Procedures for submitting to the probation department all of
the following uniform written responses:
(i) Proof of enrollment, to be submitted to the court and the
probation department and to include the fee determined to be charged
to the defendant, based upon the ability to pay, for each session.
(ii) Periodic progress reports that include attendance, fee
payment history, and program compliance.
(iii) Final evaluation that includes the program's evaluation of
the defendant's progress, using the criteria set forth in paragraph
(4) of subdivision (a) and recommendation for either successful or
unsuccessful termination or continuation in the program.
(P) A sliding fee schedule based on the defendant's ability to
pay. The batterer's program shall develop and utilize a sliding fee
scale that recognizes both the defendant's ability to pay and the
necessity of programs to meet overhead expenses. An indigent
defendant may negotiate a deferred payment schedule, but shall pay a
nominal fee, if the defendant has the ability to pay the nominal fee.
Upon a hearing and a finding by the court that the defendant does
not have the financial ability to pay the nominal fee, the court
shall waive this fee. The payment of the fee shall be made a
condition of probation if the court determines the defendant has the
present ability to pay the fee. The fee shall be paid during the
term of probation unless the program sets other conditions. The
acceptance policies shall be in accordance with the scaled fee
system.
(2) The court shall refer persons only to batterer's programs that
have been approved by the probation department pursuant to paragraph
(5). The probation department shall do both of the following:
(A) Provide for the issuance of a provisional approval, provided
that the applicant is in substantial compliance with applicable laws
and regulations and an urgent need for approval exists. A
provisional approval shall be considered an authorization to provide
services and shall not be considered a vested right.
(B) If the probation department determines that a program is not
in compliance with standards set by the department, the department
shall provide written notice of the noncompliant areas to the
program. The program shall submit a written plan of corrections
within 14 days from the date of the written notice on noncompliance.
A plan of correction shall include, but not be limited to, a
description of each corrective action and timeframe for
implementation. The department shall review and approve all or any
part of the plan of correction and notify the program of approval or
disapproval in writing. If the program fails to submit a plan of
correction or fails to implement the approved plan of correction, the
department shall consider whether to revoke or suspend approval and,
upon revoking or suspending approval, shall have the option to cease
referrals of defendants under this section.
(3) No program, regardless of its source of funding, shall be
approved unless it meets all of the following standards:
(A) The establishment of guidelines and criteria for education
services, including standards of services that may include lectures,
classes, and group discussions.
(B) Supervision of the defendant for the purpose of evaluating the
person's progress in the program.
(C) Adequate reporting requirements to ensure that all persons
who, after being ordered to attend and complete a program, may be
identified for either failure to enroll in, or failure to
successfully complete, the program or for the successful completion
of the program as ordered. The program shall notify the court and
the probation department in writing within the period of time and in
the manner specified by the court of any person who fails to complete
the program. Notification shall be given if the program determines
that the defendant is performing unsatisfactorily or if the defendant
is not benefiting from the education, treatment, or counseling.
(D) No victim shall be compelled to participate in a program or
counseling, and no program may condition a defendant's enrollment on
participation by the victim.
(4) In making referrals of indigent defendants to approved
batterer's programs, the probation department shall apportion these
referrals evenly among the approved programs.
(5) The probation department shall have the sole authority to
approve a batterer's program for probation. The program shall be
required to obtain only one approval but shall renew that approval
annually.
(A) The procedure for the approval of a new or existing program
shall include all of the following:
(i) The completion of a written application containing necessary
and pertinent information describing the applicant program.
(ii) The demonstration by the program that it possesses adequate
administrative and operational capability to operate a batterer's
treatment program. The program shall provide documentation to prove
that the program has conducted batterer's programs for at least one
year prior to application. This requirement may be waived under
subparagraph (A) of paragraph (2) if there is no existing batterer's
program in the city, county, or city and county.
(iii) The onsite review of the program, including monitoring of a
session to determine that the program adheres to applicable statutes
and regulations.
(iv) The payment of the approval fee.
(B) The probation department shall fix a fee for approval not to
exceed two hundred fifty dollars ($250) and for approval renewal not
to exceed two hundred fifty dollars ($250) every year in an amount
sufficient to cover its cost in administering the approval process
under this section. No fee shall be charged for the approval of
local governmental entities.
(C) The probation department has the sole authority to approve the
issuance, denial, suspension, or revocation of approval and to cease
new enrollments or referrals to a batterer's program under this
section. The probation department shall review information relative
to a program's performance or failure to adhere to standards, or
both. The probation department may suspend or revoke any approval
issued under this subdivision or deny an application to renew an
approval or to modify the terms and conditions of approval, based on
grounds established by probation, including, but not limited to,
either of the following:
(i) Violation of this section by any person holding approval or by
a program employee in a program under this section.
(ii) Misrepresentation of any material fact in obtaining the
approval.
(6) For defendants who are chronic users or serious abusers of
drugs or alcohol, standard components in the program shall include
concurrent counseling for substance abuse and violent behavior, and
in appropriate cases, detoxification and abstinence from the abused
substance.
(7) The program shall conduct an exit conference that assesses the
defendant's progress during his or her participation in the batterer'
s program.
SEC. 22.
SEC. 46. Section 1280.1 of the Penal Code is amended to
read:
1280.1. (a) From the time of recording an affidavit for the
justification of bail, the affidavit shall constitute an attachment
lien governed by Sections 488 500, 488.510 and 489.310 of the Code of
Civil Procedure in the amount of the bail undertaking, until
exonerated, released, or otherwise discharged. Any release of the
undertaking shall be effected by an order of the court, filed with
the clerk of the court, with a certified copy of the order recorded
in the office of the county recorder.
(b) If the bail is forfeited and summary judgment is entered,
pursuant to Sections 1305 and 1306, the lien shall have the force and
effect of a judgment lien, by recordation of an abstract of
judgment, which, may be enforced and satisfied pursuant to Section
1306 as well as through the applicable execution process set forth in
Title 9 (commencing with Section 680.010) of Part 2 of the Code of
Civil Procedure.
SEC. 23.
SEC. 47. Section 1382 of the Penal Code is amended to read:
1382. (a) The court, unless good cause to the contrary is shown,
shall order the action to be dismissed in the following cases:
(1) When a person has been held to answer for a public offense and
an information is not filed against that person within 15 days.
(2) In a felony case, when a defendant is not brought to trial
within 60 days of the defendant's arraignment on an indictment or
information, or reinstatement of criminal proceedings pursuant to
Chapter 6 (commencing with Section 1367) of Title 10 of Part 2, or,
in case the cause is to be tried again following a mistrial, an order
granting a new trial from which an appeal is not taken, or an appeal
from the superior court, within 60 days after the mistrial has been
declared, after entry of the order granting the new trial, or after
the filing of the remittitur in the trial court, or after the
issuance of a writ or order which, in effect, grants a new trial,
within 60 days after notice of the writ or order is filed in the
trial court and served upon the prosecuting attorney, or within 90
days after notice of the writ or order is filed in the trial court
and served upon the prosecuting attorney in any case where the
district attorney chooses to resubmit the case for a preliminary
examination after an appeal or the issuance of a writ reversing a
judgment of conviction upon a plea of guilty prior to a preliminary
hearing. However, an action shall not be dismissed under this
paragraph if either of the following circumstances exist:
(A) The defendant enters a general waiver of the 60-day trial
requirement. A general waiver of the 60-day trial requirement
entitles the superior court to set or continue a trial date without
the sanction of dismissal should the case fail to proceed on the date
set for trial. If the defendant, after proper notice to all
parties, later withdraws his or her waiver in the superior court, the
defendant shall be brought to trial within 60 days of the date of
that withdrawal. If a general time waiver is not expressly entered,
subparagraph (B) shall apply.
(B) The defendant requests or consents to the setting of a trial
date beyond the 60-day period. Whenever a case is set for trial
beyond the 60-day period by request or consent, expressed or implied,
of the defendant without a general waiver, the defendant shall be
brought to trial on the date set for trial or within 10 days
thereafter.
Whenever a case is set for trial after a defendant enters either a
general waiver as to the 60-day trial requirement or requests or
consents, expressed or implied, to the setting of a trial date beyond
the 60-day period pursuant to this paragraph, the court may not
grant a motion of the defendant to vacate the date set for trial and
to set an earlier trial date unless all parties are properly noticed
and the court finds good cause for granting that motion.
(3) Regardless of when the complaint is filed, when a defendant in
a misdemeanor or infraction case is not brought to trial within 30
days after he or she is arraigned or enters his or her plea,
whichever occurs later, or after reinstatement of criminal
proceedings pursuant to Chapter 6 (commencing with Section 1367) of
Title 10 of Part 2, if the defendant is in custody at the time of
arraignment or plea, whichever occurs later, or in all other cases,
within 45 days after the defendant's arraignment or entry of the
plea, whichever occurs later, or after reinstatement of criminal
proceedings pursuant to Chapter 6 (commencing with Section 1367) of
Title 10 of Part 2, or in case the cause is to be tried again
following a mistrial, an order granting a new trial from which no
appeal is taken, or an appeal from a judgment in a misdemeanor or
infraction case, within 30 days after the mistrial has been declared,
after entry of the order granting the new trial, or after the
remittitur is filed in the trial court. However, an action shall not
be dismissed under this subdivision if any of the following
circumstances exist:
(A) The defendant enters a general waiver of the 30-day or 45-day
trial requirement. A general waiver of the 30-day or 45-day trial
requirement entitles the court to set or continue a trial date
without the sanction of dismissal should the case fail to proceed on
the date set for trial. If the defendant, after proper notice to all
parties, later withdraws his or her waiver, the defendant shall be
brought to trial within 30 days of the date of that withdrawal. If a
general time waiver is not expressly entered, subparagraph (B) shall
apply.
(B) The defendant requests or consents to the setting of a trial
date beyond the 30-day or 45-day period. In the absence of an
express general time waiver from the defendant, the court shall set a
trial date. Whenever a case is set for trial beyond the 30-day or
45-day period by request or consent, expressed or implied, of the
defendant without a general waiver, the defendant shall be brought to
trial on the date set for trial or within 10 days thereafter.
(C) The defendant in a misdemeanor case has been ordered to appear
on a case set for hearing prior to trial, but the defendant fails to
appear on that date and a bench warrant is issued, or the case is
not tried on the date set for trial because of the defendant's
neglect or failure to appear, in which case the defendant shall be
deemed to have been arraigned within the meaning of this subdivision
on the date of his or her subsequent arraignment on a bench warrant
or his or her submission to the court.
(b) Whenever a defendant has been ordered to appear in superior
court on a felony case set for trial or set for a hearing prior to
trial after being held to answer, if the defendant fails to appear on
that date and a bench warrant is issued, the defendant shall be
brought to trial within 60 days after the defendant next appears in
the superior court unless a trial date previously had been set which
is beyond that 60-day period.
(c) If the defendant is not represented by counsel, the defendant
shall not be deemed under this section to have consented to the date
for the defendant's trial unless the court has explained to the
defendant his or her rights under this section and the effect of his
or her consent.
SEC. 24.
SEC. 48. Section 1511 of the Penal Code, as added by Chapter 560
of the Statutes of 1989, is amended and renumbered to read:
1511.
1512. (a) In addition to petitions for a writ of mandate,
prohibition, or review which the people are authorized to file
pursuant to any other statute or pursuant to any court decision, the
people may also seek review of an order granting a defendant's motion
for severance or discovery by a petition for a writ of mandate or
prohibition.
(b) In construing the legislative intent of subdivision (a), no
inference shall be drawn from the amendment to Assembly Bill 1052 of
the 1989-90 Regular Session of the Legislature which deleted
reference to the case of People v. Superior Court, 69 Cal. 2d 491.
SEC. 49. Section 2677 of the Penal Code is amended to read:
2677. At the time of filing of a petition pursuant to Section
2676 by the person, or pursuant to Section 2675 by the warden, the
court shall appoint the public defender or other attorney to
represent the person unless the person is financially able to provide
his or her own attorney. The attorney shall advise the person of
his or her rights in relation to the proceeding in question and shall
represent him or her before the court.
The court shall also appoint an independent medical expert on the
person's behalf to examine the person's medical, mental, or emotional
condition and to testify thereon, unless the person is financially
able to obtain the expert testimony. However, if the person has
given his or her informed consent to the proposed organic therapy,
other than psychosurgery as referred to in subdivision (c) of Section
2670.5, and his or her attorney concurs in the proposed
administration of the organic therapy, the court may waive the
requirement that an independent medical expert be appointed.
SEC. 25.
SEC. 50. Section 2717.4 of the Penal Code is amended to
read:
2717.4. (a) There is hereby established within the Department of
Corrections the Joint Venture Policy Advisory Board. The Joint
Venture Policy Advisory Board shall consist of the Director of
Corrections, who shall serve
as chair, the Director of the Employment Development Department,
and five members, to be appointed by the Governor, three of whom
shall be public members, one of whom shall represent organized labor
and one of whom shall represent industry. Five members shall
constitute a quorum and a vote of the majority of the members in
office shall be necessary for the transaction of the business of the
board. Appointed members of the board shall be compensated at the
rate of two hundred dollars ($200) for each day while on official
business of the board and shall be reimbursed for necessary expenses.
The initial terms of the members appointed by the Governor shall be
for one year (one member), two years (two members), three years (one
member), and four years (one member), as determined by the Governor.
After the initial term, all members shall serve for four years.
(b) The board shall advise the Director of Corrections of policies
that further the purposes of the Prison Inmate Labor Initiative of
1990 to be considered in the implementation of joint venture
programs.
SEC. 26.
SEC. 51. Section 3000 of the Penal Code is amended to read:
3000. (a) (1) The Legislature finds and declares that the period
immediately following incarceration is critical to successful
reintegration of the offender into society and to positive
citizenship. It is in the interest of public safety for the state to
provide for the supervision of and surveillance of parolees,
including the judicious use of revocation actions, and to provide
educational, vocational, family and personal counseling necessary to
assist parolees in the transition between imprisonment and discharge.
A sentence pursuant to Section 1168 or 1170 shall include a period
of parole, unless waived, as provided in this section.
(2) The Legislature finds and declares that it is not the intent
of this section to diminish resources allocated to the Department of
Corrections for parole functions for which the department is
responsible. It is also not the intent of this section to diminish
the resources allocated to the Board of Prison Terms to execute its
duties with respect to parole functions for which the board is
responsible.
(3) The Legislature finds and declares that diligent effort must
be made to ensure that parolees are held accountable for their
criminal behavior, including, but not limited to, the satisfaction of
restitution fines and orders.
(4) Any finding made pursuant to Article 4 (commencing with
Section 6600) of Chapter 2 of Part 2 of Division 6 of the Welfare and
Institutions Code, that a person is a sexually violent predator
shall not toll, discharge, or otherwise affect that person's period
of parole.
(b) Notwithstanding any provision to the contrary in Article 3
(commencing with Section 3040) of this chapter, the following shall
apply:
(1) At the expiration of a term of imprisonment of one year and
one day, or a term of imprisonment imposed pursuant to Section 1170
or at the expiration of a term reduced pursuant to Section 2931 or
2933, if applicable, the inmate shall be released on parole for a
period not exceeding three years, except that any inmate sentenced
for an offense specified in paragraph (3), (4), (5), (6),
(11), (16), or (18) of subdivision (c) of Section 667.5
, shall be released on parole for a period not
exceeding five years, unless in either case the parole authority for
good cause waives parole and discharges the inmate from the custody
of the department.
(2) In the case of any inmate sentenced under Section 1168, the
period of parole shall not exceed five years in the case of an inmate
imprisoned for any offense other than first or second degree murder
for which the inmate has received a life sentence, and shall not
exceed three years in the case of any other inmate, unless in either
case the parole authority for good cause waives parole and discharges
the inmate from custody of the department. This subdivision shall
also be applicable to inmates who committed crimes prior to July 1,
1977, to the extent specified in Section 1170.2.
(3) Notwithstanding paragraphs (1) and (2), in the case of any
offense for which the inmate has received a life sentence pursuant to
Section 667.61, the period of parole shall be five years. Upon the
request of the Department of Corrections, and on the grounds that the
paroled inmate may pose a substantial danger to public safety, the
Board of Prison Terms shall conduct a hearing to determine if the
parolee shall be subject to a single additional five-year period of
parole. The board shall conduct the hearing pursuant to the
procedures and standards governing parole revocation. The request
for parole extension shall be made no less than 180 days prior to the
expiration of the initial five-year period of parole.
(4) The parole authority shall consider the request of any inmate
regarding the length of his or her parole and the conditions thereof.
(5) Upon successful completion of parole, or at the end of the
maximum statutory period of parole specified for the inmate under
paragraph (1), (2), or (3), as the case may be, whichever is earlier,
the inmate shall be discharged from custody. The date of the
maximum statutory period of parole under this subdivision and
paragraphs (1), (2) , and (3), shall be computed
from the date of initial parole or from the date of extension of
parole pursuant to paragraph (3) and shall be a period
chronologically determined. Time during which parole is suspended
because the prisoner has absconded or has been returned to custody as
a parole violator shall not be credited toward any period of parole
unless the prisoner is found not guilty of the parole violation.
However, in no case, except as provided in Section 3064, may a
prisoner subject to three years on parole be retained under parole
supervision or in custody for a period longer than four years from
the date of his or her initial parole, and, except as provided in
Section 3064, in no case may a prisoner subject to five years on
parole be retained under parole supervision or in custody for a
period longer than seven years from the date of his or her initial
parole or from the date of extension of parole pursuant to paragraph
(3).
(6) The Department of Corrections shall meet with each inmate at
least 30 days prior to his or her good time release date and shall
provide, under guidelines specified by the parole authority, the
conditions of parole and the length of parole up to the maximum
period of time provided by law. The inmate has the right to
reconsideration of the length of parole and conditions thereof by the
parole authority. The Department of Corrections or the Board of
Prison Terms may impose as a condition of parole that a prisoner make
payments on the prisoner's outstanding restitution fines or orders
imposed pursuant to subdivision (a) or (c) of Section 13967 of the
Government Code, as operative prior to September 28, 1994, or
subdivision (b) or (f) of Section 1202.4.
(7) For purposes of this chapter, the Board of Prison Terms shall
be considered the parole authority.
(8) The sole authority to issue warrants for the return to actual
custody of any state prisoner released on parole rests with the Board
of Prison Terms, except for any escaped state prisoner or any state
prisoner released prior to his or her scheduled release date who
should be returned to custody, and Section 3060 shall apply.
SEC. 27.
SEC. 52. Section 3000.1 of the Penal Code is amended to
read:
3000.1. (a) In the case of any inmate sentenced under Section
1168 for any offense of first or second degree murder with a maximum
term of life imprisonment, the period of parole, if parole is
granted, shall be the remainder of the inmate's life.
(b) Notwithstanding any other provision of law, when any person
referred to in subdivision (a) has been released on parole from the
state prison, and has been on parole continuously for seven years in
the case of any person imprisoned for first degree murder, and five
years in the case of any person imprisoned for second degree murder,
since release from confinement, the board shall, within 30 days,
discharge that person from parole, unless the board, for good cause,
determines that the person will be retained on parole. The board
shall make a written record of its determination and transmit a copy
of it to the parolee.
(c) In the event of a retention on parole, the parolee shall be
entitled to a review by the board each year thereafter.
(d) There shall be a hearing as provided in Sections 3041.5 and
304l.7 within 12 months of the date of any revocation of parole to
consider the release of the inmate on parole, and notwithstanding the
provisions of paragraph (2) of subdivision (b) of Section 3041.5,
there shall be annual parole consideration hearings thereafter,
unless the person is released or otherwise ineligible for parole
release. The panel or board shall release the person within one year
of the date of the revocation unless it determines that the
circumstances and gravity of the parole violation are such that
consideration of the public safety requires a more lengthy period of
incarceration or unless there is a new prison commitment following a
conviction.
(e) The provisions of Section 3042 shall not apply to any hearing
held pursuant to this section.
SEC. 28. Section 3001 of the Penal Code is amended to read:
3001. (a) Notwithstanding any other provision of law, when any
person referred to in paragraph (1) of subdivision (b) of Section
3000 who was not imprisoned for committing a violent felony, as
defined in subdivision (c) of Section 667.5, has been released on
parole from the state prison, and has been on parole continuously for
one year since release from confinement, within 30 days, that person
shall be discharged from parole, unless the Department of
Corrections recommends to the Board of Prison Terms that the person
be retained on parole and the board, for good cause, determines that
the person will be retained. Notwithstanding any other provision of
law, when any person referred to in paragraph (1) of subdivision (b)
of Section 3000 who was imprisoned for committing a violent felony,
as defined in subdivision (c) of Section 667.5, has been released on
parole from the state prison, and has been on parole continuously for
two years since release from confinement for a person subject to
three years on parole or has been on parole continuously for three
years since release from confinement for a person subject to five
years on parole, the department shall discharge, within 30 days, that
person from parole, unless the department recommends to the board
that the person be retained on parole and the board for good cause,
determines that the person will be retained. The board shall make a
written record of its determination and the department shall transmit
a copy thereof to the parolee.
(b) Notwithstanding any other provision of law, when any person
referred to in paragraph (2) or (3) of subdivision (b) of Section
3000 has been released on parole from the state prison, and has been
on parole continuously for three years since release from confinement
or since extension of parole, the board shall discharge, within 30
days, the person from parole, unless the board, for good cause,
determines that the person will be retained on parole. The board
shall make a written record of its determination and the department
shall transmit a copy thereof to the parolee.
(c) In the event of a retention on parole, the parolee shall be
entitled to a review by the parole authority each year thereafter
until the maximum statutory period of parole has expired.
(d) The amendments to this section made during the 1987-88 Regular
Session of the Legislature shall only be applied prospectively and
shall not extend the parole period for any person whose eligibility
for discharge from parole was fixed as of the effective date of those
amendments.
SEC. 29.
SEC. 53. Section 3058.9 of the Penal Code is amended to
read:
3058.9. (a) Whenever any person confined to state prison is
serving a term for the conviction of child abuse pursuant to Section
273a, 273ab, 273d, or any sex offense identified in statute as being
perpetrated against a minor victim, or as ordered by any court, the
Board of Prison Terms, with respect to inmates sentenced pursuant to
subdivision (b) of Section 1168 or the Department of Corrections,
with respect to inmates sentenced pursuant to Section 1170, shall
notify the sheriff or chief of police, or both, and the district
attorney, having jurisdiction over the community in which the person
was convicted and, in addition, the sheriff or chief of police, or
both, and the district attorney having jurisdiction over the
community in which the person is scheduled to be released on parole
or rereleased following a period of confinement pursuant to a parole
revocation without a new commitment.
(b) (1) The notification shall be made by mail at least 45 days
prior to the scheduled release date, except as provided in paragraph
(3). In all cases, the notification shall include the name of the
person who is scheduled to be released, whether or not the person is
required to register with local law enforcement, and the community in
which the person will reside. The notification shall specify the
office within the Department of Corrections with the authority to
make final determination and adjustments regarding parole location
decisions.
(2) Notwithstanding any other provision of law, the Department of
Corrections shall not restore credits nor take any administrative
action resulting in an inmate being placed in a greater credit
earning category that would result in notification being provided
less than 45 days prior to an inmate's scheduled release date.
(3) When notification cannot be provided within the 45 days due to
the unanticipated release date change of an inmate as a result of an
order from the court, an action by the Board of Prison Terms, the
granting of an administrative appeal, or a finding of not guilty or
dismissal of a disciplinary action, that affects the sentence of the
inmate, or due to a modification of the department's decision
regarding the community into which the person is scheduled to be
released pursuant to paragraph (4), the department shall provide
notification as soon as practicable, but in no case less than 24
hours after the final decision is made regarding where the parolee
will be released.
(4) Those agencies receiving the notice referred to in this
subdivision may provide written comment to the board or department
regarding the impending release. Agencies that choose to provide
written comments shall respond within 30 days prior to the inmate's
scheduled release, unless an agency received less than 45 days'
notice of the impending release, in which case the agency shall
respond as soon as practicable prior to the scheduled release. Those
comments shall be considered by the board or department, which may,
based on those comments, modify its decision regarding the community
in which the person is scheduled to be released. The Department of
Corrections shall respond in writing not less than 15 days prior to
the scheduled release with a final determination as to whether to
adjust the parole location and documenting the basis for its
decision, unless the department received comments less than 30 days
prior to the impending release, in which case the department shall
respond as soon as practicable prior to the scheduled release. The
comments shall become a part of the inmate's file.
(c) If the court orders the immediate release of an inmate, the
department shall notify the sheriff or chief of police, or both, and
the district attorney, having jurisdiction over the community in
which the person was convicted and, in addition, the sheriff or chief
of police, or both, and the district attorney, having jurisdiction
over the community in which the person is scheduled to be released on
parole or released following a period of confinement pursuant to a
parole revocation without a new commitment.
(d) The notification required by this section shall be made
whether or not a request has been made under Section 3058.5.
In no case shall notice required by this section to the
appropriate agency be later than the day of release on parole. If,
after the 45-day notice is given to law enforcement and to the
district attorney relating to an out-of-county placement, there is
change of county placement, notice to the ultimate county of
placement shall be made upon the determination of the county of
placement.
(e) The notice required by this section shall satisfy the notice
required by Section 3058.6 for any person whose offense is identified
in both sections.
SEC. 30.
SEC. 54. Section 4011.1 of the Penal Code is amended to
read:
4011.1. (a) Notwithstanding Section 29602 of the Government Code
and any other provisions of this chapter, a county, city or the
Department of the Youth Authority is authorized to make claim for and
recovery of the costs of necessary hospital, medical, surgical,
dental, or optometric care rendered to any prisoner confined in a
county or city jail or any juvenile confined in a detention facility,
who would otherwise be entitled to that care under the Medi-Cal Act
(Chapter 7 (commencing with Section 14000) Part 3, Division 9,
of the Welfare and Institutions Code), and who is eligible for
that care on the first day of confinement or detention, to the extent
that federal financial participation is available, or under the
provisions of any private program or policy for that care, and the
county, city or the Department of the Youth Authority shall be liable
only for the costs of that care as cannot be recovered pursuant to
this section. No person who is eligible for Medi-Cal shall be
eligible for benefits under the provisions of this section, and no
county or city or the Department of the Youth Authority is authorized
to make a claim for any recovery of costs for services for that
person, unless federal financial participation is available for all
or part of the costs of providing services to that person under the
Medi-Cal Act.
Notwithstanding any other provision of law, any county or city
making a claim pursuant to this section and under the Medi-Cal Act
shall reimburse the Health Care Deposit Fund for the state costs of
paying those medical claims. Funds allocated to the county from the
County Health Services Fund pursuant to Part 4.5 (commencing with
Section 16700) of Division 9 of the Welfare and Institutions Code may
be utilized by the county or city to make that reimbursement.
(b) Notwithstanding Section 29602 of the Government Code and any
other provisions of this chapter, to the extent that recovery of
costs of necessary hospital, medical, surgical, dental, or optometric
care are not accomplished under subdivision (a), a county, city, or
the Department of the Youth Authority is authorized to make claim for
and recover from a prisoner or a person legally responsible for a
prisoner's care and maintenance the costs of necessary hospital,
medical, surgical, dental, or optometric care rendered to any
prisoner confined in a county or city jail, or any juvenile confined
in a detention facility, where the prisoner or the person legally
responsible for the prisoner's care and maintenance is financially
able to pay for the prisoner's care, support, and maintenance.
Nothing in this subdivision shall be construed to authorize a city, a
county, or the Department of the Youth Authority to make a claim
against a spouse of a prisoner.
(c) Necessary hospital, medical, dental, or optometric care, as
used in this section, does not include care rendered with respect to
an injury occurring during confinement in a county or city jail or
juvenile detention facility, nor does it include any care or testing
mandated by law.
(d) Subdivisions (b) and (c) shall apply only where there has been
a determination of the present ability of the prisoner or
responsible third party to pay all or a portion of the cost of
necessary hospital, medical, surgical, dental, or optometric care.
The person legally responsible for the prisoner's care shall provide
a financial disclosure statement, executed under penalty of perjury,
based on his or her past year's income tax return, to the Department
of the Youth Authority. The city, county, or Department of the Youth
Authority may request that the prisoner appear before a designated
hearing officer for an inquiry into the ability of the prisoner or
responsible third party to pay all or part of the cost of the care
provided.
(e) Notice of this request shall be provided to the prisoner or
responsible third party, which shall contain the following:
(1) A statement of the cost of the care provided to the prisoner.
(2) The prisoner's or responsible third party's procedural rights
under this section.
(3) The time limit within which the prisoner or responsible third
party may respond.
(4) A warning that if the prisoner or responsible third party
fails to appear before, or respond to, the designated officer, the
officer may petition the court for an order requiring him or her to
make payment of the full cost of the care provided to the prisoner.
(f) At the hearing, the prisoner or responsible third party shall
be entitled to, but shall not be limited to, all of the following
rights:
(1) The right to be heard in person.
(2) The right to present witnesses and documentary evidence.
(3) The right to confront and cross-examine adverse witnesses.
(4) The right to have adverse evidence disclosed to him or her.
(5) The right to a written statement of the findings of the
designated hearing officer.
(g) If the hearing officer determines that the prisoner or
responsible third party has the present ability to pay all or a part
of the cost, the officer shall set the amount to be reimbursed, and
shall petition the court to order the prisoner or responsible third
party to pay the sum to the city, county, or state, in the manner in
which it finds reasonable and compatible to the prisoner's or
responsible third party's financial ability. The court's order shall
be enforceable in the manner provided for money judgments in a civil
action under the Code of Civil Procedure.
(h) At any time prior to satisfaction of the judgment rendered
according to the terms of this section, a prisoner or responsible
third party against whom a judgment has been rendered, may petition
the rendering court for a modification of the previous judgment on
the grounds of a change of circumstance with regard to his or her
ability to pay the judgment. The prisoner or responsible third party
shall be advised of this right at the time the original judgment is
rendered.
(i) As used in this section, "ability to pay" means the overall
capacity of the prisoner or responsible third party to reimburse the
costs, or a portion of the costs, of the care provided to the
prisoner, and shall include, but not be limited to, all of the
following:
(1) The prisoner's or responsible third party's present financial
position.
(2) The prisoner's or responsible third party's discernible future
financial position.
(3) The likelihood that the prisoner or responsible third party
will be able to obtain employment in the future.
(4) Any other factor or factors which may bear upon the prisoner's
or responsible third party's financial position.
SEC. 31. Section 4501.1 of the Penal Code is amended to read:
4501.1. (a) Every person confined in the state prison who commits
a battery by gassing upon the person of any peace officer, as
defined in Chapter 4.5 (commencing with Section 830) of Title 3 of
Part 2, or employee of the state prison is guilty of aggravated
battery and shall be punished by imprisonment in a county jail or by
imprisonment in the state prison for two, three, or four years.
Every state prison inmate convicted of a felony under this section
shall serve his or her term of imprisonment consecutively.
(b) For purposes of this section, "gassing" means intentionally
placing or throwing, or causing to be placed or thrown, upon the
person of another, any human excrement or other bodily fluids or
bodily substances or any mixture containing human excrement or other
bodily fluids or bodily substances that results in actual contact
with the person's skin or membranes.
(c) The warden or other person in charge of the state prison shall
use every available means to immediately investigate all reported or
suspected violations of subdivision (a), including, but not limited
to, the use of forensically acceptable means of preserving and
testing the suspected gassing substance to confirm the presence of
human excrement or other bodily fluids or bodily substances. If
there is probable cause to believe that the inmate has violated
subdivision (a), the chief medical officer of the state prison or his
or her designee, may, when he or she deems it medically necessary to
protect the health of an officer or employee who may have been
subject to a violation of this section, order the inmate to receive
an examination or test for hepatitis or tuberculosis or both
hepatitis and tuberculosis on either a voluntary or involuntary basis
immediately after the event, and periodically thereafter as
determined to be necessary by the medical officer in order to ensure
that further hepatitis or tuberculosis transmission does not occur.
These decisions shall be consistent with an occupational exposure as
defined by the Center for Disease Control and Prevention. The
results of any examination or test shall be provided to the officer
or employee who has been subject to a reported or suspected violation
of this section. Nothing in this subdivision shall be
construed to otherwise supersede the
operation of Title 8 (commencing with Section 7500). Any person
performing tests, transmitting test results, or disclosing
information pursuant to this section shall be immune from civil
liability for any action taken in accordance with this section.
(d) The warden or other person in charge of the state prison shall
refer all reports for which there is probable cause to believe that
the inmate has violated subdivision (a) to the local district
attorney for prosecution.
(e) The Department of Corrections shall report to the Legislature,
by January 1, 2000, its findings and recommendations on gassing
incidents at the state prison and the medical testing authorized by
this section. The report shall include, but not be limited to, all
of the following:
(1) The total number of gassing incidents at each state prison
facility up to the date of the report.
(2) The disposition of each gassing incident, including the
administrative penalties imposed, the number of incidents that are
prosecuted, and the results of those prosecutions, including any
penalties imposed.
(3) A profile of the inmates who commit the aggravated batteries,
including the number of inmates who have one or more prior serious or
violent felony convictions.
(4) Efforts that the department has taken to limit these
incidents, including staff training and the use of protective
clothing and goggles.
(5) The results and costs of the medical testing authorized by
this section.
(f) Nothing in this section shall preclude prosecution under both
this section and any other provision of law.
SEC. 32.
SEC. 55. Section 5058.5 of the Penal Code, as added by
Chapter 695 of the Statutes of 1992, is amended and renumbered to
read:
5058.6. The Director of the Department of Corrections shall have
the authority of a head of a department set forth in subdivision (e)
of Section 11181 of the Government Code to issue subpoenas as
provided in Article 2 (commencing with Section 11180) of Chapter 2 of
Division 3 of Title 2 of the Government Code. The department shall
adopt regulations on the policies and guidelines for the issuance of
subpoenas.
SEC. 33.
SEC. 56. Section 6008 of the Penal Code is amended to read:
6008. The Department of Corrections, the Department of the Youth
Authority, the Board of Prison Terms, and the and
Youthful Offender Parole Board shall report to the State Department
of Health Services the results of the tuberculosis examinations
required by Section 6006.
SEC. 57. Section 6126.5 of the Penal Code is amended to
read:
6126.5. (a) Notwithstanding any other provision of law, the
Inspector General during regular business hours or at any other time
determined necessary by the Inspector General, shall have access to
and authority to examine and reproduce, any and all books, accounts,
reports, vouchers, correspondence files, documents, and other
records, and to examine the bank accounts, money, or other property,
of any entity defined in Section 6126 for any audit or investigation.
Any officer or employee of any such agency or
entity having these records or property in his or her possession or
under his or her control shall permit access to, and examination and
reproduction thereof consistent with the provisions of this section,
upon the request of the Inspector General or his or her authorized
representative.
(b) For the purposes of access, examination, and reproduction as
provided in subdivision (a), an authorized representative of the
Inspector General is an employee or officer of the agency or public
entity involved and is subject to any limitations on release of the
information as may apply to an employee or officer of the agency or
public entity. For the purpose of conducting any audit or
investigation, the Inspector General or his or her authorized
representative shall have access to the records and property of any
public or private entity or person subject to review or regulation by
the public agency or public entity being audited or investigated to
the same extent that employees or officers of that agency or public
entity have access. No provision of law providing for the
confidentiality of any records or property shall prevent disclosure
pursuant to subdivision (a), unless the provision specifically refers
to and precludes access and examination and reproduction pursuant to
subdivision (a).
(c) Any officer or person who fails or refuses to permit access,
examination, or reproduction, as required by this section, is guilty
of a misdemeanor.
(d) The Inspector General may require any employee of those
entities specified in Section 6126 to be interviewed on a
confidential basis. Any employee requested to be interviewed shall
comply and shall have time afforded by the appointing authority for
the purpose of an interview with the Inspector General or his or her
designee. Any record created by an interview shall be deemed
confidential for use by the Inspector General and the Secretary of
the Youth and Adult Correctional Agency only. It is not the purpose
of these communications to address disciplinary action or grievance
procedures that may routinely occur. If it appears that the facts of
the case could lead to punitive action, the Inspector General shall
be subject to the provisions of the Public Safety Officers Procedural
Bill of Rights Act (Section 3300 of the Government Code et seq.) as
if the Inspector General were the employer.
SEC. 34.
SEC. 58. Section 6236 of the Penal Code is amended to read:
6236. This chapter shall be known as "Restitution Centers."
SEC. 35.
SEC. 59. Section 7012 of the Penal Code is amended to read:
7012. (a) The Department of Corrections shall submit to the Joint
Legislative Prison Committee, the State Public Works Board, the
appropriate county board of supervisors, and the local city council
at least 30 days prior to the acquisition of real property for prison
facilities to be located in Riverside and Del Norte Counties, an
environmental assessment study, which shall include a discussion of
impacts and mitigation measures, if necessary, for the following
areas:
(1) Geology.
(2) Hydrology-groundwater.
(3) Water quality-surface waters.
(4) Plant and animal life-endangered and rare species.
(5) Air quality.
(6) Noise.
(7) Light and glare.
(8) Utilities-gas, electricity, telephone, solid waste, sewage
disposal, and drinking water.
(9) Archaeology.
(10) Energy.
(b) The factors set forth in subdivision (a) shall be assessed
only as they relate to the direct impacts caused off the site as a
result of the construction, operation, and maintenance of the prison
facility upon completion and occupancy.
(c) Notwithstanding any other provision of law, other than Section
7003, the approval of the study by the State Public Works Board is
the only approval required for compliance with any applicable
environmental requirements. The Public State Works Board shall not
act on the study until it receives a recommendation from the Joint
Legislative Prison Committee. Approval of the study by the State
Public Works Board shall be final and binding on all parties.
(d) If the committee does not, by a majority vote of the committee
membership, take any action on the study within 30 days after
submittal, that inaction shall be deemed to be a recommendation of
concurrence for the purposes of this section.
(e) Prior to providing a recommendation to the State Public Works
Board, but within the 30-day period specified in subdivision (d), the
committee shall hold a public hearing in the community in the
vicinity of the proposed site. Notice of the hearing shall be
published in a newspaper of general circulation in, or adjacent to,
that community. The notice shall be at least one-quarter page in
size. The city council and the county board of supervisors shall be
invited to participate in the hearing.
SEC. 36.
SEC. 60. Section 11180 of the Penal Code is amended to read:
11180. The Interstate Compact for Adult Offender Supervision as
contained herein is hereby enacted into law and entered into on
behalf of the state with any and all other states legally joining
therein in a form substantially as follows:
Preamble
Whereas: The interstate compact for the supervision of Parolees
and Probationers was established in 1937. It is the earliest
corrections "compact" established among the states and has not been
amended since its adoption over 62 years ago.
Whereas: This compact is the only vehicle for the controlled
movement of adult parolees and probationers across state lines and it
currently has jurisdiction over more than a quarter of a million
offenders.
Whereas: The complexities of the compact have become more
difficult to administer, and many jurisdictions have expanded
supervision expectations to include currently unregulated practices
such as victim input, victim notification requirements, and sex
offender registration.
Whereas: After hearings, national surveys, and a detailed study
by a task force appointed by the National Institute of Corrections,
the overwhelming recommendation has been to amend the document to
bring about an effective management capacity that addresses public
safety concerns and offender accountability.
Whereas: Upon the adoption of this Interstate Compact for Adult
Offender Supervision, it is the intention of the Legislature to
repeal the previous Interstate Compact for the Supervision of
Parolees and Probationers on the effective date of this Compact.
Be it enacted by the General Assembly (Legislature) of the state
of California.
Short title: This Act may be cited as The Interstate Compact for
Adult Offender Supervision.
Article I. Purpose
The compacting states to this Interstate Compact recognize that
each state is responsible for the supervision of adult offenders in
the community who are authorized pursuant to the Bylaws and Rules of
this compact to travel across state lines both to and from each
compacting state in such a manner as to track the location of
offenders, transfer supervision authority in an orderly and efficient
manner, and when necessary return offenders to the originating
jurisdictions. The compacting states also recognize that Congress,
by enacting the Crime Control Act, 4 U.S.C. Section 112 (1965), has
authorized and encouraged compacts for cooperative efforts and mutual
assistance in the prevention of crime. It is the purpose of this
compact and the Interstate Commission created hereunder, through
means of joint and cooperative action among the compacting states:
to provide the framework for the promotion of public safety and
protect the rights of victims through the control and regulation of
the interstate movement of offenders in the community; to provide for
the effective tracking, supervision, and rehabilitation of these
offenders by the sending and receiving states; and to equitably
distribute the costs, benefits, and obligations of the compact among
the compacting states. In addition, this compact will: create an
Interstate Commission which will establish uniform procedures to
manage the movement between states of adults placed under community
supervision and released to the community under the jurisdiction of
courts, paroling authorities, corrections or other criminal justice
agencies which will promulgate rules to achieve the purpose of this
compact; ensure an opportunity for input and timely notice to victims
and to jurisdictions where defined offenders are authorized to
travel or to relocate across state lines; establish a system of
uniform data collection, access to information on active cases by
authorized criminal justice officials, and regular reporting of
Compact activities to heads of state councils, state executive,
judicial, and legislative branches and criminal justice
administrators; monitor compliance with rules governing interstate
movement of offenders and initiate interventions to address and
correct non-compliance; and coordinate training and education
regarding regulations of interstate movement of offenders for
officials involved in such activity. The compacting states recognize
that there is no "right" of any offender to live in another state
and that duly accredited officers of a sending state may at all times
enter a receiving state and there apprehend and retake any offender
under supervision subject to the provisions of this compact and
Bylaws and Rules promulgated hereunder. It is the policy of the
compacting states that the activities conducted by the Interstate
Commission created herein are the formation of public policies and
are therefore public business.
Article II. Definitions
As used in this compact, unless the context clearly requires a
different construction:
"Adult" means both individuals legally classified as adults and
juveniles treated as adults by court order, statute, or operation of
law.
"By-laws" mean those by-laws established by the Interstate
Commission for its governance, or for directing or controlling the
Interstate Commission's actions or conduct.
"Compact Administrator" means the individual in each compacting
state appointed pursuant to the terms of this compact responsible for
the administration and management of the state's supervision and
transfer of offenders subject to the terms of this compact, the rules
adopted by the Interstate Commission and policies adopted by the
State Council under this compact.
"Compacting state" means any state which has enacted the enabling
legislation for this compact.
"Commissioner" means the voting representative of each compacting
state appointed pursuant to Article III of this compact.
"Interstate Commission" means the Interstate Commission for Adult
Offender Supervision established by this compact.
"Member" means the commissioner of a compacting state or designee,
who shall be a person officially connected with the commissioner.
"Non Compacting state" means any state which has not enacted the
enabling legislation for this compact.
"Offender" means an adult placed under, or subject to, supervision
as the result of the commission of a criminal offense and released
to the community under the jurisdiction of courts, paroling
authorities, corrections, or other criminal justice agencies.
"Person" means any individual, corporation, business enterprise,
or other legal entity, either public or private.
"Rules" means acts of the Interstate Commission, duly promulgated
pursuant to Article VIII of this compact, substantially affecting
interested parties in addition to the Interstate Commission, which
shall have the force and effect of law in the compacting states.
"State" means a state of the United States, the District of
Columbia, and any other territorial possessions of the United States.
"State Council" means the resident members of the State Council
for Interstate Adult Offender Supervision created by each state under
Article III of this compact.
Article III. The Compact Commission
The compacting states hereby create the "Interstate Commission for
Adult Offender Supervision."
The Interstate Commission shall be a body corporate and joint
agency of the compacting states.
The Interstate Commission shall have all the responsibilities,
powers, and duties set forth herein, including the power to sue and
be sued, and such additional powers as may be conferred upon it by
subsequent action of the respective legislatures of the compacting
states in accordance with the terms of this compact.
The Interstate Commission shall consist of Commissioners selected
and appointed by resident members of the State Council for Interstate
Adult Offender Supervision for each state. In addition to the
Commissioners who are the voting representatives of each state, the
Interstate Commission shall include individuals who are not
commissioners but who are members of interested organizations; such
non-commissioner members must include a member of the national
organizations of governors, legislators, state chief justices,
attorneys general and crime victims. All non-commissioner members of
the Interstate Commission shall be ex-officio (nonvoting) members.
The Interstate Commission may provide in its by-laws for such
additional, ex-officio, non-voting members as it deems necessary.
Each compacting state represented at any meeting of the Interstate
Commission is entitled to one vote. A majority of the compacting
states shall constitute a quorum for the transaction of business,
unless a larger quorum is required by the by-laws of the Interstate
Commission. The Interstate Commission shall meet at least once each
calendar year. The chairperson may call additional meetings and,
upon the request of 27 or more compacting states, shall call
additional meetings. Public notice shall be given of all meetings
and meetings shall be open to the public.
The Interstate Commission shall establish an Executive Committee
which shall include commission officers, members and others as shall
be determined by the By-laws. The Executive Committee shall have the
power to act on behalf of the Interstate Commission during periods
when the Interstate Commission is not in session, with the exception
of rulemaking and/or amendment to the Compact. The Executive
Committee oversees the day-to-day activities managed by the Executive
Director and Interstate Commission staff; administers enforcement
and compliance with the provisions of the compact, its by-laws and as
directed by the Interstate Commission and performs other duties as
directed by the Commission or set forth in the By-laws.
Article IV. The State Council
Each member state shall create a State Council for Interstate
Adult Offender Supervision which shall be responsible for the
appointment of the commissioner who shall serve on the Interstate
Commission from that state. Each state council shall appoint as its
commissioner the Compact Administrator from that state to serve on
the Interstate Commission in such capacity under or pursuant to
applicable law of the member state. While each member state may
determine the membership of its own state council, its membership
must include at least one representative from the legislative,
judicial, and executive branches of government, victims groups and
compact administrators. Each compacting state retains the right to
determine the qualifications of the Compact Administrator who shall
be appointed by the state council or by the Governor in consultation
with the Legislature and the Judiciary. In addition to appointment
of its commissioner to the National Interstate Commission, each state
council shall exercise oversight and advocacy concerning its
participation in Interstate Commission activities and other duties as
may be determined by each member state, including, but not limited
to, development of policy concerning operations and procedures of the
compact within that state.
Article V. Powers and Duties of the Interstate Commission
The Interstate Commission shall have the following powers:
To adopt a seal and suitable by-laws governing the management and
operation of the Interstate Commission.
To promulgate rules which shall have the force and effect of
statutory law and shall be binding in the compacting states to the
extent and in the manner provided in this compact.
To oversee, supervise and coordinate the interstate movement of
offenders subject to the terms of this compact and any by-laws
adopted and rules promulgated by the compact commission.
To enforce compliance with compact provisions, Interstate
Commission rules, and by-laws, using all necessary and proper means,
including, but not limited to, the use of judicial process.
To establish and maintain offices.
To purchase and maintain insurance and bonds.
To borrow, accept, or contract for services of personnel,
including, but not limited to, members and their staffs.
To establish and appoint committees and hire staff which it deems
necessary for the carrying out of its functions including, but not
limited to, an executive committee as required by Article III which
shall have the power to act on behalf of the Interstate Commission in
carrying out its powers and duties hereunder.
To elect or appoint such officers, attorneys, employees, agents,
or consultants, and to fix their compensation, define their duties
and determine their qualifications; and to establish the Interstate
Commission's personnel policies and programs relating to, among other
things, conflicts of interest, rates of compensation, and
qualifications of personnel.
To accept any and all donations and grants of money, equipment,
supplies, materials, and services, and to receive, utilize, and
dispose of same.
To lease, purchase, accept contributions or donations of, or
otherwise to own, hold, improve or use any property, real, personal,
or mixed.
To sell, convey, mortgage, pledge, lease, exchange, abandon, or
otherwise dispose of any property, real, personal or mixed.
To establish a budget and make expenditures and levy dues as
provided in Article X of this compact.
To sue and be sued.
To provide for dispute resolution among Compacting States.
To perform such functions as may be necessary or appropriate to
achieve the purposes of this compact.
To report annually to the legislatures, governors, judiciary, and
state councils of the compacting states concerning the activities of
the Interstate Commission during the preceding year. Such reports
shall also include any recommendations that may have been adopted by
the Interstate Commission.
To coordinate education, training and public awareness regarding
the interstate movement of offenders for officials involved in such
activity.
To establish uniform standards for the reporting, collecting, and
exchanging of data.
Article VI. Organization and Operation of the Interstate
Commission
Section A. By-laws
The Interstate Commission shall, by a majority of the Members,
within twelve months of the first Interstate Commission meeting,
adopt By-laws to govern its conduct as may be necessary or
appropriate to carry out the purposes of the Compact, including, but
not limited to:
Establishing the fiscal year of the Interstate Commission.
Establishing an executive committee and such other committees as
may be necessary.
Providing reasonable standards and procedures:
(i) For the establishment of committees.
(ii) Governing any general or specific delegation of any authority
or function of the Interstate Commission; providing reasonable
procedures for calling and conducting meetings of the Interstate
Commission, and ensuring reasonable notice of each such meeting;
establishing the titles and responsibilities of the officers of the
Interstate Commission; providing reasonable standards and procedures
for the establishment of the personnel policies and programs of the
Interstate Commission. Notwithstanding any civil service or other
similar laws of any Compacting State, the By-laws shall exclusively
govern the personnel policies and programs of the Interstate
Commission; and providing a mechanism for winding up the operations
of the Interstate Commission and the equitable return of any surplus
funds that may exist upon the termination of the Compact after the
payment and/or reserving of all of its debts and obligations;
providing transition rules for "start up" administration of the
compact; establishing standards and procedures for compliance and
technical assistance in carrying out the compact.
Section B. Officers and Staff
The Interstate Commission shall, by a majority of the Members,
elect from among its Members a chairperson and a vice chairperson,
each of whom shall have such authorities and duties as may be
specified in the By-laws. The chairperson, or in his or her absence
or disability, the vice chairperson, shall preside at all meetings of
the Interstate Commission. The Officers so elected shall serve
without compensation or remuneration from the Interstate Commission;
provided that, subject to the availability of budgeted funds, the
officers shall be reimbursed for any actual and necessary costs and
expenses incurred by them in the performance of their duties and
responsibilities as officers of the Interstate Commission.
The Interstate Commission shall, through its executive committee,
appoint or retain an executive director for such period, upon such
terms and conditions and for such compensation as the Interstate
Commission may deem appropriate. The executive director shall serve
as secretary to the Interstate Commission, and hire and supervise
such other staff as may be authorized by the Interstate Commission,
but shall not be a member.
Section C. Corporate Records of the Interstate Commission
The Interstate Commission shall maintain its corporate books and
records in accordance with the By-laws.
Section D. Qualified Immunity, Defense and Indemnification
The Members, officers, executive director and employees of the
Interstate Commission shall be immune from suit and liability, either
personally or in their official capacity, for any claim for damage
to or loss of property or personal injury or other civil liability
caused or arising out of any actual or alleged act, error or omission
that occurred within the scope of Interstate Commission employment,
duties or responsibilities; provided, that nothing in this paragraph
shall be construed to protect any such person from suit and/or
liability for any damage, loss, injury or liability caused by the
intentional or willful and wanton misconduct of any such person. The
Interstate Commission shall defend the Commissioner of a Compacting
State, or his or her representatives or employees, or the Interstate
Commission's representatives or employees, in any civil action
seeking to impose liability, arising out of any actual or alleged
act, error or omission that occurred within the scope of Interstate
Commission employment, duties or responsibilities, or that the
defendant had a reasonable basis for believing occurred within the
scope of Interstate Commission employment, duties or
responsibilities; provided, that the actual or alleged act, error or
omission did not result from
intentional wrongdoing on the part of such person.
The Interstate Commission shall indemnify and hold the
Commissioner of a Compacting State, the appointed designee or
employees, or the Interstate Commission's representatives or
employees, harmless in the amount of any settlement or judgement
obtained against such persons arising out of any actual or alleged
act, error or omission that occurred within the scope of Interstate
Commission employment, duties or responsibilities, or that such
persons had a reasonable basis for believing occurred within the
scope of Interstate Commission employment, duties or
responsibilities, provided, that the actual or alleged act, error or
omission did not result from gross negligence or intentional
wrongdoing on the part of such person.
Article VII. Activities of the Interstate Commission
The Interstate Commission shall meet and take such actions as are
consistent with the provisions of this Compact.
Except as otherwise provided in this Compact and unless a greater
percentage is required by the By-laws, in order to constitute an act
of the Interstate Commission, such act shall have been taken at a
meeting of the Interstate Commission and shall have received an
affirmative vote of a majority of the members present.
Each Member of the Interstate Commission shall have the right and
power to cast a vote to which that Compacting State is entitled and
to participate in the business and affairs of the Interstate
Commission. A Member shall vote in person on behalf of the state and
shall not delegate a vote to another member state. However, a State
Council shall appoint another authorized representative, in the
absence of the commissioner from that state, to cast a vote on behalf
of the member state at a specified meeting. The By-laws may provide
for Members' participation in meetings by telephone or other means
of telecommunication or electronic communication. Any voting
conducted by telephone, or other means of telecommunication or
electronic communication shall be subject to the same quorum
requirements of meetings where members are present in person.
The Interstate Commission shall meet at least once during each
calendar year. The chairperson of the Interstate Commission may call
additional meetings at any time and, upon the request of a majority
of the Members, shall call additional meetings.
The Interstate Commission's By-laws shall establish conditions and
procedures under which the Interstate Commission shall make its
information and official records available to the public for
inspection or copying. The Interstate Commission may exempt from
disclosure any information or official records to the extent they
would adversely affect personal privacy rights or proprietary
interests. In promulgating such Rules, the Interstate Commission may
make available to law enforcement agencies records and information
otherwise exempt from disclosure, and may enter into agreements with
law enforcement agencies to receive or exchange information or
records subject to nondisclosure and confidentiality provisions.
Public notice shall be given of all meetings and all meetings
shall be open to the public, except as set forth in the Rules or as
otherwise provided in the Compact. The Interstate Commission shall
promulgate Rules consistent with the principles contained in the
"Government in Sunshine Act," 5 U.S.C. Section 552(b), as may be
amended. The Interstate Commission and any of its committees may
close a meeting to the public where it determines by two-thirds vote
that an open meeting would be likely to:
Relate solely to the Interstate Commission's internal personnel
practices and procedures.
Disclose matters specifically exempted from disclosure by statute.
Disclose trade secrets or commercial or financial information
which is privileged or confidential.
Involve accusing any person of a crime, or formally censuring any
person.
Disclose information of a personal nature where disclosure would
constitute a clearly unwarranted invasion of personal privacy.
Disclose investigatory records compiled for law enforcement
purposes.
Disclose information contained in or related to examination,
operating or condition reports prepared by, or on behalf of or for
the use of, the Interstate Commission with respect to a regulated
entity for the purpose of regulation or supervision of such entity.
Disclose information, the premature disclosure of which would
significantly endanger the life of a person or the stability of a
regulated entity.
Specifically relate to the Interstate Commission's issuance of a
subpoena, or its participation in a civil action or proceeding.
For every meeting closed pursuant to this provision, the
Interstate Commission's chief legal officer shall publicly certify
that, in his or her opinion, the meeting may be closed to the public,
and shall reference each relevant exemptive provision. The
Interstate Commission shall keep minutes which shall fully and
clearly describe all matters discussed in any meeting and shall
provide a full and accurate summary of any actions taken, and the
reasons therefor, including a description of each of the views
expressed on any item and the record of any rollcall vote (reflected
in the vote of each Member on the question). All documents
considered in connection with any action shall be identified in such
minutes. The Interstate Commission shall collect standardized data
concerning the interstate movement of offenders as directed through
its By-laws and Rules which shall specify the data to be collected,
the means of collection and data exchange and reporting requirements.
Article VIII. Rulemaking Functions of the Interstate
Commission
The Interstate Commission shall promulgate Rules in order to
effectively and efficiently achieve the purposes of the Compact
including transition rules governing administration of the compact
during the period in which it is being considered and enacted by the
states.
Rulemaking shall occur pursuant to the criteria set forth in this
Article and the By-laws and Rules adopted pursuant thereto. Such
rulemaking shall substantially conform to the principles of the
federal Administrative Procedure Act, 5 U.S.C.S. section 551 et seq.,
and the Federal Advisory Committee Act, 5 U.S.C.S. app. 2, section 1
et seq., as may be amended (hereinafter "APA"). All Rules and
amendments shall become binding as of the date specified in each Rule
or amendment.
If a majority of the legislatures of the Compacting States rejects
a Rule, by enactment of a statute or resolution in the same manner
used to adopt the compact, then such Rule shall have no further force
and effect in any Compacting State.
When promulgating a Rule, the Interstate Commission shall:
Publish the proposed Rule stating with particularity the text of
the Rule which is proposed and the reason for the proposed Rule.
Allow persons to submit written data, facts, opinions and
arguments, which information shall be publicly available.
Provide an opportunity for an informal hearing.
Promulgate a final Rule and its effective date, if appropriate,
based on the rulemaking record.
Not later than sixty days after a Rule is promulgated, any
interested person may file a petition in the United States District
Court for the District of Columbia or in the Federal District Court
where the Interstate Commission's principal office is located for
judicial review of such Rule. If the court finds that the Interstate
Commission's action is not supported by substantial evidence, (as
defined in the APA), in the rulemaking record, the court shall hold
the Rule unlawful and set it aside. Subjects to be addressed within
12 months after the first meeting must at a minimum include:
Notice to victims and opportunity to be heard.
Offender registration and compliance.
Violations/returns.
Transfer procedures and forms.
Eligibility for transfer.
Collection of restitution and fees from offenders.
Data collection and reporting.
The level of supervision to be provided by the receiving state.
Transition rules governing the operation of the compact and the
Interstate Commission during all or part of the period between the
effective date of the compact and the date on which the last eligible
state adopts the compact.
Mediation, arbitration and dispute resolution.
The existing rules governing the operation of the previous compact
superceded by this Act shall be null and void twelve (12) months
after the first meeting of the Interstate Commission created
hereunder.
Upon determination by the Interstate Commission that an emergency
exists, it may promulgate an emergency rule which shall become
effective immediately upon adoption, provided that the usual
rulemaking procedures provided hereunder shall be retroactively
applied to said rule as soon as reasonably possible, in no event
later than 90 days after the effective date of the rule.
Article IX. Oversight, Enforcement, and Dispute Resolution by
the Interstate Commission
Section A. Oversight
The Interstate Commission shall oversee the interstate movement of
adult offenders in the compacting states and shall monitor such
activities being administered in Non-compacting States which may
significantly affect Compacting States.
The courts and executive agencies in each Compacting State shall
enforce this Compact and shall take all actions necessary and
appropriate to effectuate the Compact's purposes and intent. In any
judicial or administrative proceeding in a Compacting State
pertaining to the subject matter of this Compact which may affect the
powers, responsibilities or actions of the Interstate Commission,
the Interstate Commission shall be entitled to receive all service of
process in any such proceeding, and shall have standing to intervene
in the proceeding for all purposes.
Section B. Dispute Resolution
The Compacting States shall report to the Interstate Commission on
issues or activities of concern to them, and cooperate with and
support the Interstate Commission in the discharge of its duties and
responsibilities.
The Interstate Commission shall attempt to resolve any disputes or
other issues which are subject to the Compact and which may arise
among Compacting States and Non-compacting States.
The Interstate Commission shall enact a By-law or promulgate a
Rule providing for both mediation and binding dispute resolution for
disputes among the Compacting States.
Section C. Enforcement
The Interstate Commission, in the reasonable exercise of its
discretion, shall enforce the provisions of this compact using any or
all means set forth in Article XII, Section B, of this compact.
Article X. Finance
The Interstate Commission shall pay or provide for the payment of
the reasonable expenses of its establishment, organization and
ongoing activities.
The Interstate Commission shall levy on and collect an annual
assessment from each Compacting State to cover the cost of the
internal operations and activities of the Interstate Commission and
its staff which must be in a total amount sufficient to cover the
Interstate Commission's annual budget as approved each year. The
aggregate annual assessment amount shall be allocated based upon a
formula to be determined by the Interstate Commission, taking into
consideration the population of the state and the volume of
interstate movement of offenders in each Compacting State and shall
promulgate a Rule binding upon all Compacting States which governs
said assessment.
The Interstate Commission shall not incur any obligations of any
kind prior to securing the funds adequate to meet the same; nor shall
the Interstate Commission pledge the credit of any of the compacting
states, except by and with the authority of the compacting state.
The Interstate Commission shall keep accurate accounts of all
receipts and disbursements. The receipts and disbursements of the
Interstate Commission shall be subject to the audit and accounting
procedures established under its By-laws. However, all receipts and
disbursements of funds handled by the Interstate Commission shall be
audited yearly by a certified or licensed public accountant and the
report of the audit shall be included in and become part of the
annual report of the Interstate Commission.
Article XI. Compacting States, Effective Date and Amendment
Any state, as defined in Article II of this compact, is eligible
to become a Compacting State. The Compact shall become effective and
binding upon legislative enactment of the Compact into law by no
less than 35 of the States. The initial effective date shall be the
later of July 1, 2001, or upon enactment into law by the 35th
jurisdiction. Thereafter, it shall become effective and binding, as
to any other Compacting State, upon enactment of the Compact into law
by that State. The governors of Non-member states or their
designees will be invited to participate in Interstate Commission
activities on a non-voting basis prior to adoption of the compact by
all states and territories of the United States.
Amendments to the Compact may be proposed by the Interstate
Commission for enactment by the Compacting States. No amendment
shall become effective and binding upon the Interstate Commission and
the Compacting States unless and until it is enacted into law by
unanimous consent of the Compacting States.
Article XII. Withdrawl Withdrawal
, Default, Termination, and Judicial Enforcement
Section A. Withdrawal
Once effective, the Compact shall continue in force and remain
binding upon each and every Compacting State; provided, that a
Compacting State may withdraw from the Compact ("Withdrawing State")
by enacting a statute specifically repealing the statute which
enacted the Compact into law.
The effective date of withdrawal is the effective date of the
repeal. The Withdrawing State shall immediately notify the
Chairperson of the Interstate Commission in writing upon the
introduction of legislation repealing this Compact in the Withdrawing
State. The Interstate Commission shall notify the other Compacting
States of the Withdrawing State's intent to withdraw within sixty
days of its receipt thereof. The Withdrawing State is responsible
for all assessments, obligations and liabilities incurred through the
effective date of withdrawal, including any obligations, the
performance of which extend beyond the effective date of withdrawal.
Reinstatement following withdrawal of any Compacting State shall
occur upon the Withdrawing State reenacting the Compact or upon such
later date as determined by the Interstate Commission.
Section B. Default
If the Interstate Commission determines that any Compacting State
has at any time defaulted ("Defaulting State") in the performance of
any of its obligations or responsibilities under this Compact, the
By-laws or any duly promulgated Rules the Interstate Commission may
impose any or all of the following penalties: Fines, fees and costs
in such amounts as are deemed to be reasonable as fixed by the
Interstate Commission. Remedial training and technical assistance as
directed by the Interstate Commission; suspension and termination of
membership in the compact. Suspension shall be imposed only after
all other reasonable means of securing compliance under the By-laws
and Rules have been exhausted. Immediate notice of suspension shall
be given by the Interstate Commission to the Governor, the Chief
Justice or Chief Judicial Officer of the state, the majority and
minority leaders of the defaulting state's legislature, and the State
Council.
The grounds for default include, but are not limited to, failure
of a Compacting State to perform such obligations or responsibilities
imposed upon it by this compact, Interstate Commission By-laws, or
duly promulgated Rules. The Interstate Commission shall immediately
notify the Defaulting State in writing of the penalty imposed by the
Interstate Commission on the Defaulting State pending a cure of the
default. The Interstate Commission shall stipulate the conditions
and the time period within which the Defaulting State must cure its
default. If the Defaulting State fails to cure the default within
the time period specified by the Interstate Commission, in addition
to any other penalties imposed herein, the Defaulting State may be
terminated from the Compact upon an affirmative vote of a majority of
the Compacting States and all rights, privileges and benefits
conferred by this Compact shall be terminated from the effective date
of suspension. Within sixty days of the effective date of
termination of a Defaulting State, the Interstate Commission shall
notify the Governor, the Chief Justice or Chief Judicial Officer and
the Majority and Minority Leaders of the Defaulting State's
legislature and the state council of such termination.
The Defaulting State is responsible for all assessments,
obligations and liabilities incurred through the effective date of
termination including any obligations, the performance of which
extends beyond the effective date of termination.
The Interstate Commission shall not bear any costs relating to the
Defaulting State unless otherwise mutually agreed upon between the
Interstate Commission and the Defaulting State. Reinstatement
following termination of any Compacting State requires both a
reenactment of the Compact by the Defaulting State and the approval
of the Interstate Commission pursuant to the Rules.
Section C. Judicial Enforcement
The Interstate Commission may, by majority vote of the Members,
initiate legal action in the United States District Court for the
District of Columbia or, at the discretion of the Interstate
Commission, in the Federal District where the Interstate Commission
has its offices to enforce compliance with the provisions of the
Compact, its duly promulgated Rules and By-laws, against any
Compacting State in default. In the event judicial enforcement is
necessary the prevailing party shall be awarded all costs of such
litigation including reasonable attorneys fees.
Section D. Dissolution of Compact
The Compact dissolves effective upon the date of the withdrawal or
default of the Compacting State which reduces membership in the
Compact to one Compacting State.
Upon the dissolution of this Compact, the Compact becomes null and
void and shall be of no further force or effect, and the business
and affairs of the Interstate Commission shall be wound up and any
surplus funds shall be distributed in accordance with the By-laws.
Article XIII. Severability and Construction
The provisions of this Compact shall be severable, and if any
phrase, clause, sentence or provision is deemed unenforceable, the
remaining provisions of the Compact shall be enforceable.
The provisions of this Compact shall be liberally constructed to
effectuate its purposes.
Article XIV. Binding Effect of Compact and Other Laws
Section A. Other Laws
Nothing herein prevents the enforcement of any other law of a
Compacting State that is not inconsistent with this Compact.
All Compacting States' laws conflicting with this Compact are
superseded to the extent of the conflict.
Section B. Binding Effect of the Compact
All lawful actions of the Interstate Commission, including all
Rules and By-laws promulgated by the Interstate Commission, are
binding upon the Compacting States.
All agreements between the Interstate Commission and the
Compacting States are binding in accordance with their terms.
Upon the request of a party to a conflict over meaning or
interpretation of Interstate Commission actions, and upon a majority
vote of the Compacting States, the Interstate Commission may issue
advisory opinions regarding such meaning or interpretation.
In the event any provision of this Compact exceeds the
constitutional limits imposed on the legislature of any Compacting
State, the obligations, duties, powers or jurisdiction sought to be
conferred by such provision upon the Interstate Commission shall be
ineffective and such obligations, duties, powers or jurisdiction
shall remain in the Compacting State and shall be exercised by the
agency thereof to which such obligations, duties, powers or
jurisdiction are delegated by law in effect at the time this Compact
becomes effective.
SEC. 61. Section 11418 of the Penal Code is amended to read:
11418. (a) (1) Any person, without lawful authority, who
possesses, develops, manufactures, produces, transfers, acquires, or
retains any weapon of mass destruction, shall be punished by
imprisonment in the state prison for 3, 6, or 9 years.
(2) Any person who commits a violation of paragraph (1) and who
has been previously convicted of Section 11411, 11412, 11413, 11460,
12303.1, 12303.2, or 12303.3 shall be punished by imprisonment in the
state prison for 4, 8, or 12 years.
(b) (1) Any person who uses or directly employs against another
person a weapon of mass destruction in a form that may cause
widespread, disabling illness, or injury in human beings shall be
punished by imprisonment in the state prison for life.
(2) Any person who uses a weapon of mass destruction in a form
that may cause widespread damage to and disruption of the water or
food supply shall be punished by imprisonment in the state prison for
4, 8, or 12 years, and by a fine of not more than one hundred
thousand dollars ($100,000).
(3) Any person who maliciously uses against animals or crops a
weapon of mass destruction in a form that may cause widespread
damage to and substantial diminution in the value of stock
animals or crops shall be punished by a fine of not more than
one hundred thousand dollars ($100,000), or by imprisonment in
the state prison for 4, 8, or 12 years, and by a fine of not
more than one hundred thousand dollars ($100,000) or
by both that fine and imprisonment .
(c) Any person who uses a weapon of mass destruction in a form
that may cause widespread and significant damage to public natural
resources, including coastal waterways and beaches, public parkland,
surface waters, ground water, and wildlife, shall be punished by
imprisonment in the state prison for 3, 4, or 6 years.
(d) Any person who uses recombinant technology or any other
biological advance to create new pathogens or more virulent forms of
existing pathogens for the purposes specified in this section, shall
be punished by imprisonment in a county jail for up to one year or in
the state prison for 3, 6, or 9 years, or by a fine of not more than
two hundred fifty thousand dollars ($250,000), or by both that fine
and imprisonment.
(e) Nothing in this section shall be construed to prevent
punishment instead pursuant to any other provision of law that
imposes a greater or more severe punishment.
SEC. 37. Section 11419 of the Penal Code is amended to read:
11419. (a) Any person or entity possessing any of the restricted
biological agents enumerated in subdivision (b) shall be punished by
imprisonment in the state prison for 4, 8, or 12 years, and by a fine
of not more than two hundred fifty thousand dollars ($250,000).
(b) For the purposes of this section, "restricted biological
agents" means the following:
(1) Viruses: Crimean-Congo hemorrhagic fever virus, eastern
equine encephalitis virus, ebola viruses, equine morbilli virus,
lassa fever virus, marburg virus, Rift Valley fever virus, South
African hemorrhagic fever viruses (Junin, Machupo, Sabia, Flexal,
Guanarito), tick-borne encephalitis complex viruses, variola major
virus (smallpox virus), Venezuelan equine encephalitis virus, viruses
causing hantavirus pulmonary syndrome, yellow fever virus.
(2) Bacteria: bacillus anthracis (commonly known as anthrax),
brucella abortus, brucella melitensis, brucella suis, burkholderia
(pseudomonas) mallei, burkholderia (pseudomonas) pseudomallei,
clostridium botulinum, francisella tularensis, yersinia pestis
(commonly known as plague).
(3) Rickettsiae: coxiella burnetii, rickettsia prowazekii,
rickettsia rickettsii.
(4) Fungi: coccidioides immitis.
(5) Toxins: abrin, aflatoxins, botulinum toxins, clostridium
perfringens epsilon toxin, conotoxins, diacetoxyscirpenol, ricin,
saxitoxin, shigatoxin, staphylococcal enterotoxins, tetrodotoxin, T-2
toxin.
(c) (1) This section shall not apply to any physician,
veterinarian, pharmacist, or licensed medical practitioner authorized
to dispense a prescription under Section 11026 of the Health and
Safety Code, or universities, research institutions, or
pharmaceutical corporations, or any person possessing the agents
pursuant to a lawful prescription issued by a person defined in
Section 11026 of the Health and Safety Code, if the person possesses
vaccine strains of the viral agents Junin virus strain #1, Rift
Valley fever virus strain MP-12, Venezuelan equine encephalitis virus
strain TC-83 and yellow fever virus strain 17-D; any vaccine strain
described in Section 78.1 of Subpart A of Part 78 of Subchapter C of
Chapter 1 of Title 9 of the Code of Federal Regulations, or any
successor provisions, and any toxin for medical use, inactivated for
use as vaccines, or toxin preparation for biomedical research use at
a median lethal dose for vertebrates of more than 100 ng/kg, as well
as any national standard toxin required for biologic potency testing
as described in Part 113 (commencing with Section 113.1) of
Subchapter E of Chapter 1 of Title 9 of the Code of Federal
Regulations, or any successor provisions.
(2) For the purposes of this section, no person shall be deemed to
be in possession of an agent if the person is naturally exposed to,
or innocently infected or contaminated with, the agent.
(d) Any peace officer who encounters any of the restricted agents
mentioned above shall immediately notify and consult with a local
public health officer to ensure proper consideration of any public
health risk.
(e) Nothing in this section shall be construed to prevent
punishment instead pursuant to any other provision of law that
imposes a greater or more
severe punishment.
SEC. 38.
SEC. 62. Section 12021 of the Penal Code is amended to read:
12021. (a) (1) Any person who has been convicted of a felony
under the laws of the United States, of the State of California, or
any other state, government, or country, or of an offense enumerated
in subdivision (a), (b), or (d) of Section 12001.6, or who is
addicted to the use of any narcotic drug, who owns or has in his or
her possession or under his or her custody or control any firearm is
guilty of a felony.
(2) Any person who has two or more convictions for violating
paragraph (2) of subdivision (a) of Section 417 and who owns or has
in his or her possession or under his or her custody or control any
firearm is guilty of a felony.
(b) Notwithstanding subdivision (a), any person who has been
convicted of a felony or of an offense enumerated in Section 12001.6,
when that conviction results from certification by the juvenile
court for prosecution as an adult in an adult court under Section 707
of the Welfare and Institutions Code, who owns or has in his or her
possession or under his or her custody or control any firearm is
guilty of a felony.
(c) (1) Except as provided in subdivision (a) or paragraph (2) of
this subdivision, any person who has been convicted of a misdemeanor
violation of Section 71, 76, 136.1, 136.5, or 140, subdivision (d) of
Section 148, Section 171b, 171c, 171d, 186.28, 240, 241, 242, 243,
244.5, 245, 245.5, 246, 246.3, 247, 273.5, 273.6, 417, 417.1, 417.2,
417.6, 422, 626.9, 646.9, 12023, or 12024, subdivision (b) or (d) of
Section 12034, Section 12040, subdivision (b) of Section 12072,
subdivision (a) of former Section 12100, Section 12220, 12320, or
12590, or Section 8100, 8101, or 8103 of the Welfare and Institutions
Code, any firearm-related offense pursuant to Sections 871.5 and
1001.5 of the Welfare and Institutions Code, or of the conduct
punished in paragraph (3) of subdivision (g) of Section 12072, and
who, within 10 years of the conviction, owns, or has in his or her
possession or under his or her custody or control, any firearm is
guilty of a public offense, which shall be punishable by imprisonment
in a county jail not exceeding one year or in the state prison, by a
fine not exceeding one thousand dollars ($1,000), or by both that
imprisonment and fine. The court, on forms prescribed by the
Department of Justice, shall notify the department of persons subject
to this subdivision. However, the prohibition in this paragraph may
be reduced, eliminated, or conditioned as provided in paragraph (2)
or (3).
(2) Any person employed as a peace officer described in Section
830.1, 830.2, 830.31, 830.32, 830.33, or 830.5 whose employment or
livelihood is dependent on the ability to legally possess a firearm,
who is subject to the prohibition imposed by this subdivision because
of a conviction under Section 273.5, 273.6, or 646.9, may petition
the court only once for relief from this prohibition. The petition
shall be filed with the court in which the petitioner was sentenced.
If possible, the matter shall be heard before the same judge that
sentenced the petitioner. Upon filing the petition, the clerk of the
court shall set the hearing date and shall notify the petitioner and
the prosecuting attorney of the date of the hearing. Upon making
each of the following findings, the court may reduce or eliminate the
prohibition, impose conditions on reduction or elimination of the
prohibition, or otherwise grant relief from the prohibition as the
court deems appropriate:
(A) Finds by a preponderance of the evidence that the petitioner
is likely to use a firearm in a safe and lawful manner.
(B) Finds that the petitioner is not within a prohibited class as
specified in subdivision (a), (b), (d), (e), or (g) or Section
12021.1, and the court is not presented with any credible evidence
that the petitioner is a person described in Section 8100 or 8103 of
the Welfare and Institutions Code.
(C) Finds that the petitioner does not have a previous conviction
under this subdivision no matter when the prior conviction occurred.
In making its decision, the court shall consider the petitioner's
continued employment, the interest of justice, any relevant evidence,
and the totality of the circumstances. The court shall require, as
a condition of granting relief from the prohibition under this
section, that the petitioner agree to participate in counseling as
deemed appropriate by the court. Relief from the prohibition shall
not relieve any other person or entity from any liability that might
otherwise be imposed. It is the intent of the Legislature that
courts exercise broad discretion in fashioning appropriate relief
under this paragraph in cases in which relief is warranted. However,
nothing in this paragraph shall be construed to require courts to
grant relief to any particular petitioner. It is the intent of the
Legislature to permit persons who were convicted of an offense
specified in Section 273.5, 273.6, or 646.9 to seek relief from the
prohibition imposed by this subdivision.
(3) Any person who is subject to the prohibition imposed by this
subdivision because of a conviction of an offense prior to that
offense being added to paragraph (1), may petition the court only
once for relief from this prohibition. The petition shall be filed
with the court in which the petitioner was sentenced. If possible,
the matter shall be heard before the same judge that sentenced the
petitioner. Upon filing the petition, the clerk of the court shall
set the hearing date and notify the petitioner and the prosecuting
attorney of the date of the hearing. Upon making each of the
following findings, the court may reduce or eliminate the
prohibition, impose conditions on reduction or elimination of the
prohibition, or otherwise grant relief from the prohibition as the
court deems appropriate:
(A) Finds by a preponderance of the evidence that the petitioner
is likely to use a firearm in a safe and lawful manner.
(B) Finds that the petitioner is not within a prohibited class as
specified in subdivision (a), (b), (d), (e), or (g) or Section
12021.1, and the court is not presented with any credible evidence
that the petitioner is a person described in Section 8100 or 8103 of
the Welfare and Institutions Code.
(C) Finds that the petitioner does not have a previous conviction
under this subdivision, no matter when the prior conviction occurred.
In making its decision, the court may consider the interest of
justice, any relevant evidence, and the totality of the
circumstances. It is the intent of the Legislature that courts
exercise broad discretion in fashioning appropriate relief under this
paragraph in cases in which relief is warranted. However, nothing
in this paragraph shall be construed to require courts to grant
relief to any particular petitioner.
(4) Law enforcement officials who enforce the prohibition
specified in this subdivision against a person who has been granted
relief pursuant to paragraph (2) or (3), shall be immune from any
liability for false arrest arising from the enforcement of this
subdivision unless the person has in his or her possession a
certified copy of the court order that granted the person relief from
the prohibition. This immunity from liability shall not relieve any
person or entity from any other liability that might otherwise be
imposed.
(d) Any person who, as an express condition of probation, is
prohibited or restricted from owning, possessing, controlling,
receiving, or purchasing a firearm and who owns, or has in his or her
possession or under his or her custody or control, any firearm but
who is not subject to subdivision (a) or (c) is guilty of a public
offense, which shall be punishable by imprisonment in a county jail
not exceeding one year or in the state prison, by a fine not
exceeding one thousand dollars ($1,000), or by both that imprisonment
and fine. The court, on forms provided by the Department of
Justice, shall notify the department of persons subject to this
subdivision. The notice shall include a copy of the order of
probation and a copy of any minute order or abstract reflecting the
order and conditions of probation.
(e) Any person who (1) is alleged to have committed an offense
listed in subdivision (b) of Section 707 of the Welfare and
Institutions Code, an offense described in subdivision (b) of Section
1203.073, or any offense enumerated in paragraph (1) of subdivision
(c), and (2) is subsequently adjudged a ward of the juvenile court
within the meaning of Section 602 of the Welfare and Institutions
Code because the person committed an offense listed in subdivision
(b) of Section 707 of the Welfare and Institutions Code, an offense
described in subdivision (b) of Section 1203.073, or any offense
enumerated in paragraph (1) of subdivision (c) shall not own, or have
in his or her possession or under his or her custody or control, any
firearm until the age of 30 years. A violation of this subdivision
shall be punishable by imprisonment in a county jail not exceeding
one year or in the state prison, by a fine not exceeding one thousand
dollars ($1,000), or by both that imprisonment and fine. The
juvenile court, on forms prescribed by the Department of Justice,
shall notify the department of persons subject to this subdivision.
Notwithstanding any other law, the forms required to be submitted to
the department pursuant to this subdivision may be used to determine
eligibility to acquire a firearm.
(f) Subdivision (a) shall not apply to a person who has been
convicted of a felony under the laws of the United States unless
either of the following criteria is satisfied:
(1) Conviction of a like offense under California law can only
result in imposition of felony punishment.
(2) The defendant was sentenced to a federal correctional facility
for more than 30 days, or received a fine of more than one thousand
dollars ($1,000), or received both punishments.
(g) (1) Every person who purchases or receives, or attempts to
purchase or receive, a firearm knowing that he or she is subject to a
protective order as defined in Section 6218 of the Family Code,
Section 136.2, or a temporary restraining order or injunction issued
pursuant to Section 527.6 or 527.8 of the Code of Civil Procedure, is
guilty of a public offense, which shall be punishable by
imprisonment in a county jail not exceeding one year or in the state
prison, by a fine not exceeding one thousand dollars ($1,000), or by
both that imprisonment and fine. This subdivision does not apply
unless the copy of the restraining order personally served on the
person against whom the restraining order is issued contains a notice
in bold print stating (1) that the person is
prohibited from purchasing or receiving or attempting to purchase or
receive a firearm and (2) specifying the penalties
for violating this subdivision, or a court has provided actual
verbal notice of the firearm prohibition and penalty as provided in
Section 6304 of the Family Code.
(2) Every person who owns or possesses , or attempts to own
or possess, a firearm knowing that he or she is prohibited from
owning or possessing or attempting to own or possess a firearm by
the provisions of a protective order as defined in Section 6218 of
the Family Code, Section 136.2 of the Penal Code, or a temporary
restraining order or injunction issued pursuant to Section 527.6 or
527.8 of the Code of Civil Procedure, is guilty of a public offense,
which shall be punishable by imprisonment in a county jail not
exceeding one year, by a fine not exceeding one thousand dollars
($1,000), or by both that imprisonment and fine. This subdivision
does not apply unless a copy of the restraining order personally
served on the person against whom the restraining order is issued
contains a notice in bold print stating (1) that
the person is prohibited from owning or possessing or attempting to
own or possess a firearm and (2) specifying the
penalties for violating this subdivision, or a court has provided
actual verbal notice of the firearm prohibition and penalty as
provided in Section 6304 of the Family Code.
(3) Judicial Council shall provide notice on all protective orders
that the respondent is prohibited from owning, possessing,
purchasing, or receiving a firearm while the protective order is in
effect and that the firearm shall be relinquished to the local law
enforcement agency for that jurisdiction or sold to a licensed gun
dealer, and that proof of surrender or sale shall be filed within a
specified time of receipt of the order. The order shall also state
on its face the expiration date for relinquishment.
(4) If probation is granted upon conviction of a violation of this
subdivision, the court shall impose probation consistent with the
provisions of Section 1203.097.
(h) (1) A violation of subdivision (a), (b), (c), (d), or (e) is
justifiable where all of the following conditions are met:
(A) The person found the firearm or took the firearm from a person
who was committing a crime against him or her.
(B) The person possessed the firearm no longer than was necessary
to deliver or transport the firearm to a law enforcement agency for
that agency's disposition according to law.
(C) If the firearm was transported to a law enforcement agency, it
was transported in accordance with paragraph (18) of subdivision (a)
of Section 12026.2.
(D) If the firearm is being transported to a law enforcement
agency, the person transporting the firearm has given prior notice to
the law enforcement agency that he or she is transporting the
firearm to the law enforcement agency for disposition according to
law.
(2) Upon the trial for violating subdivision (a), (b), (c), (d),
or (e), the trier of fact shall determine whether the defendant was
acting within the provisions of the exemption created by this
subdivision.
(3) The defendant has the burden of proving by a preponderance of
the evidence that he or she comes within the provisions of the
exemption created by this subdivision.
SEC. 39.
SEC. 63. Section 12022.53 of the Penal Code is amended to
read:
12022.53. (a) This section applies to the following felonies:
(1) Section 187 (murder).
(2) Section 203 or 205 (mayhem).
(3) Section 207, 209, or 209.5 (kidnapping).
(4) Section 211 (robbery).
(5) Section 215 (carjacking).
(6) Section 220 (assault with intent to commit a specified
felony).
(7) Subdivision (d) of Section 245 (assault with a firearm on a
peace officer or firefighter).
(8) Section 261 or 262 (rape).
(9) Section 264.1 (rape or sexual penetration in concert).
(10) Section 286 (sodomy).
(11) Section 288 or 288.5 (lewd act on a child).
(12) Section 288a (oral copulation).
(13) Section 289 (sexual penetration).
(14) Section 4500 (assault by a life prisoner).
(15) Section 4501 (assault by a prisoner).
(16) Section 4503 (holding a hostage by a prisoner).
(17) Any felony punishable by death or imprisonment in the state
prison for life.
(18) Any attempt to commit a crime listed in this subdivision
other than an assault.
(b) Notwithstanding any other provision of law, any person who is
convicted of a felony specified in subdivision (a), and who in the
commission of that felony personally used a firearm, shall be
punished by a term of imprisonment of 10 years in the state prison,
which shall be imposed in addition and consecutive to the punishment
prescribed for that felony. The firearm need not be operable or
loaded for this enhancement to apply.
(c) Notwithstanding any other provision of law, any person who is
convicted of a felony specified in subdivision (a), and who in the
commission of that felony intentionally and personally discharged a
firearm, shall be punished by a term of imprisonment of 20 years in
the state prison, which shall be imposed in addition and consecutive
to the punishment prescribed for that felony.
(d) Notwithstanding any other provision of law, any person who is
convicted of a felony specified in subdivision (a), Section 246, or
subdivision (c) or (d) of Section 12034, and who in the commission of
that felony intentionally and personally discharged a firearm and
proximately caused great bodily injury, as defined in Section
12022.7, or death, to any person other than an accomplice, shall be
punished by a term of imprisonment of 25 years to life in the state
prison, which shall be imposed in addition and consecutive to the
punishment prescribed for that felony.
(e) (1) The enhancements specified in this section shall apply to
any person charged as a principal in the commission of an offense
that includes an allegation pursuant to this section when a violation
of both this section and subdivision (b) of Section 186.22 are pled
and proved.
(2) An enhancement for participation in a criminal street gang
pursuant to Chapter 11 (commencing with Section 186.20) of Title 7 of
Part 1 , shall not be imposed on a person in
addition to an enhancement imposed pursuant to this subdivision,
unless the person personally used or personally discharged a firearm
in the commission of the offense.
(f) Only one additional term of imprisonment under this section
shall be imposed per person for each crime. If more than one
enhancement per person is found true under this section, the court
shall impose upon that person the enhancement that provides the
longest term of imprisonment. An enhancement involving a firearm
specified in Section 12021.5, 12022, 12022.3, 12022.4, 12022.5, or
12022.55 shall not be imposed on a person in addition to an
enhancement imposed pursuant to this section. An enhancement for
great bodily injury as defined in Section 12022.7, 12022.8, or
12022.9 shall not be imposed on a person in addition to an
enhancement imposed pursuant to subdivision (d).
(g) Notwithstanding any other provision of law, probation shall
not be granted to, nor shall the execution or imposition of sentence
be suspended for, any person found to come within the provisions of
this section.
(h) Notwithstanding Section 1385 or any other provision of law,
the court shall not strike an allegation under this section or a
finding bringing a person within the provisions of this section.
(i) The total amount of credits awarded pursuant to Article 2.5
(commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 or
pursuant to Section 4019 or any other provision of law shall not
exceed 15 percent of the total term of imprisonment imposed on a
defendant upon whom a sentence is imposed pursuant to this section.
(j) For the penalties in this section to apply, the existence of
any fact required under subdivision (b), (c), or (d) shall be alleged
in the information or indictment and either admitted by the
defendant in open court or found to be true by the trier of fact.
When an enhancement specified in this section has been admitted or
found to be true, the court shall impose punishment pursuant to this
section rather than imposing punishment authorized under any other
provision of law, unless another provision of law provides for a
greater penalty or a longer term of imprisonment.
(k) When a person is found to have used or discharged a firearm in
the commission of an offense that includes an allegation pursuant to
this section and the firearm is owned by that person, a
coparticipant, or a coconspirator, the court shall order that the
firearm be deemed a nuisance and disposed of in the manner provided
in Section 12028.
(l) The enhancements specified in this section shall not apply to
the lawful use or discharge of a firearm by a public officer, as
provided in Section 196, or by any person in lawful self-defense,
lawful defense of another, or lawful defense of property, as provided
in Sections 197, 198, and 198.5.
SEC. 40.
SEC. 64. Section 12094 of the Penal Code is amended to read:
12094. (a) Any person with knowledge of any change, alteration,
removal, or obliteration described herein, who buys, receives,
disposes of, sells, offers for sale, or has in his or her possession
any pistol, revolver, or other firearm which has had the name of the
maker, model, or the manufacturer's number or other mark of
identification including any distinguishing number or mark assigned
by the Department of Justice changed, altered, removed, or
obliterated is guilty of a misdemeanor.
(b) Subdivision (a) does not apply to any of the following:
(1) The acquisition or possession of a firearm described in
subdivision (a) by any member of the military forces of this state or
of the United States, while on duty and acting within the scope and
course of his or her employment.
(2) The acquisition or possession of a firearm described in
subdivision (a) by any peace officer described in Chapter 4.5
(commencing with Section 830) of Title 3 of Part 2, while on duty and
acting within the scope and course of his or her employment.
(3) The acquisition or possession of a firearm described in
subdivision (a) by any employee of a forensic laboratory, while on
duty and acting within the scope and course of his or her employment.
(4) The possession and disposition of a firearm described in
subdivision (a) by a person who meets , all of the
following:
(A) He or she is not prohibited from possessing firearms or
ammunition pursuant to Section 12021 or 12021.1 or paragraph (1) of
subdivision (b) of Section 12316 of this code, or Section 8100 or
8103 of the Welfare and Institutions Code.
(B) The person possessed the firearm no longer than was necessary
to deliver the same to a law enforcement agency for that agency's
disposition according to law.
(C) If the person is transporting the firearm, he or she is
transporting the firearm to a law enforcement agency in order to
deliver the firearm to the law enforcement agency for the agency's
disposition according to law.
(D) If the person is transporting the firearm to a law enforcement
agency, he or she has given prior notice to the law enforcement
agency that he or she is transporting the firearm to that law
enforcement agency for that agency's disposition according to law.
(E) The firearm is transported in a locked container as defined in
subdivision (d) of Section 12026.2.
SEC. 41.
SEC. 65. Section 12288 of the Penal Code is amended to read:
12288. Any individual may arrange in advance to relinquish an
assault weapon to a police or sheriff's department. The assault
weapon shall be transported in accordance with Section 12026.1.
SEC. 42.
SEC. 66. Section 13519.4 of the Penal Code is amended to
read:
13519.4. (a) On or before August 1, 1993, the commission shall
develop and disseminate guidelines and training for all law
enforcement officers in California as described in subdivision (a) of
Section 13510 and who adhere to the standards approved by the
commission, on the racial and cultural differences among the
residents of this state. The course or courses of instruction and
the guidelines shall stress understanding and respect for racial and
cultural differences, and development of effective, noncombative
methods of carrying out law enforcement duties in a racially and
culturally diverse environment.
(b) The course of basic training for law enforcement officers
shall, no later than August 1, 1993, include adequate instruction on
racial and cultural diversity in order to foster mutual respect and
cooperation between law enforcement and members of all racial and
cultural groups. In developing the training, the commission shall
consult with appropriate groups and individuals having an interest
and expertise in the field of cultural awareness and diversity.
(c) For the purposes of this section, "culturally diverse" and
"cultural diversity" include, but are not limited to, gender and
sexual orientation issues. The Legislature finds and declares as
follows:
(1) Racial profiling is a practice that presents a great danger to
the fundamental principles of a democratic society. It is abhorrent
and cannot be tolerated.
(2) Motorists who have been stopped by the police for no reason
other than the color of their skin or their apparent nationality or
ethnicity are the victims of discriminatory practices.
(3) It is the intent of the Legislature in enacting the changes to
Section 13519.4 of the Penal Code made by the act that added this
subdivision that more than additional training is required to address
the pernicious practice of racial profiling and that enactment of
this bill is in no way dispositive of the issue of how the state
should deal with racial profiling.
(4) The working men and women in California law enforcement risk
their lives every day. The people of California greatly appreciate
the hard work and dedication of law enforcement officers in
protecting public safety. The good name of these officers should not
be tarnished by the actions of those few who commit discriminatory
practices.
(d) "Racial profiling," for purposes of this section, is the
practice of detaining a suspect based on a broad set of criteria
which casts suspicion on an entire class of people without any
individualized suspicion of the particular person being stopped.
(e) A law enforcement officer shall not engage in racial
profiling.
(f) Every law enforcement officer in this state shall participate
in expanded training as prescribed and certified by the Commission on
Peace Officers Standards and Training. Training shall begin being
offered no later than January 1, 2002. The curriculum shall be
created by the commission in collaboration with a five-person panel,
appointed no later than March 1, 2001, as follows: the Governor
shall appoint three members and one member each shall be appointed by
the Senate Committee on Rules and the Speaker of the Assembly. Each
appointee shall be appointed from among prominent members of the
following organizations:
(1) State Conference of the NAACP.
(2) Brotherhood Crusade.
(3) Mexican American Legal Defense and Education Fund.
(4) The League of United Latin American Citizens.
(5) American Civil Liberties Union.
(6) Anti-Defamation League.
(7) California NOW.
(8) Asian Pacific Bar of California.
(9) The Urban League.
(g) Members of the panel shall not be compensated, except for
reasonable per diem expenses related to their work for panel
purposes.
(h) The curriculum shall utilize the Tools for Tolerance for Law
Enforcement Professionals framework and shall include and examine the
patterns, practices, and protocols that
make up racial profiling. This training shall
prescribe patterns, practices, and protocols that prevent racial
profiling. In developing the training, the commission shall consult
with appropriate groups and individuals having an interest and
expertise in the field of racial profiling. The course of
instruction shall include, but not be limited to, adequate
consideration of each of the following subjects:
(1) Identification of key indices and perspectives that make up
cultural differences among residents in a local community.
(2) Negative impact of biases, prejudices, and stereotyping on
effective law enforcement, including examination of how historical
perceptions of discriminatory enforcement practices have harmed
police-community relations.
(3) The history and the role of the civil rights movement and
struggles and their impact on law enforcement.
(4) Specific obligations of officers in preventing, reporting, and
responding to discriminatory or biased practices by fellow officers.
(5) Perspectives of diverse, local constituency groups and experts
on particular cultural and police-community relations issues in a
local area.
(i) Once the initial basic training is completed, each law
enforcement officer in California as described in subdivision (a) of
Section 13510 who adheres to the standards approved by the commission
shall be required to complete a refresher course every five years
thereafter, or on a more frequent basis if deemed necessary, in order
to keep current with changing racial and cultural trends.
(j) The Legislative Analyst shall conduct a study of the data
being voluntarily collected by those jurisdictions that have
instituted a program of data collection with regard to racial
profiling, including, but not limited to, the California Highway
Patrol, the City of San Jose, and the City of San Diego, both to
ascertain the incidence of racial profiling and whether data
collection serves to address and prevent such practices, as well as
to assess the value and efficacy of the training herein prescribed
with respect to preventing local profiling. The Legislative Analyst
may prescribe the manner in which the data is to be submitted and may
request that police agencies collecting such data submit it in the
requested manner. The Legislative Analyst shall provide to the
Legislature a report and recommendations with regard to racial
profiling by July 1, 2002.
SEC. 43.
SEC. 67. The heading of Title 10.5 (commencing with Section
14150) of Part 4 of the Penal Code is amended and renumbered to read:
TITLE 10.6. COMMUNITY CONFLICT RESOLUTION PROGRAMS
SEC. 44.
SEC. 68. Section 19705 of the Revenue and Taxation Code is
amended to read:
19705. (a) Any person who does any of the following shall be
guilty of a felony and, upon conviction, shall be fined not more than
fifty thousand dollars ($50,000) or imprisoned in the state prison,
or both, together with the costs of investigation and prosecution:
(1) Willfully makes and subscribes any return, statement, or other
document, that contains or is verified by a written declaration that
it is made under penalty of perjury, and he or she does not believe
to be true and correct as to every material matter.
(2) Willfully aids or assists in, or procures, counsels, or
advises the preparation or presentation under, or in connection with
any matter arising under, the Personal Income Tax Law or the Bank and
Corporation Tax Law, of a return, affidavit, claim, or other
document, that is fraudulent or is false as to any material matter,
whether or not that falsity or fraud is with the knowledge or consent
of the person authorized or required to present that return,
affidavit, claim, or document.
(3) Simulates or falsely or fraudulently executes or signs any
bond, permit, entry, or other document required by the provisions of
the Personal Income Tax Law or the Bank and Corporation Tax Law, or
by any regulation pursuant to that law, or procures the same to be
falsely or fraudulently executed or advises, aids in, or connives at
that execution.
(4) Removes, deposits, or conceals, or is concerned in removing,
depositing, or concealing, any goods or commodities for or in respect
whereof any tax is or shall be imposed, or any property upon which
levy is authorized by Chapter 5 (commencing with Section 19201); or
Chapter 8 (commencing with Section 688.010) of Division 1 of, and
Chapter 5 (commencing with Section 706.010) of Division 2 of, Title 9
of the Code of Civil Procedure, with intent to evade or defeat the
assessment or collection of any tax, additions to tax, penalty, or
interest imposed by Part 10 (commencing with Section 17001), Part 11
(commencing with Section 23001), or this part.
(5) In connection with any settlement under Section 19442, or
offer of that settlement, or in connection with any closing agreement
under Section 19441 or offer to enter into that agreement, or
compromise under Section 19443, or offer of that compromise,
willfully does any of the following:
(A) Conceals from any officer or employee of this state any
property belonging to the estate of a taxpayer or other person liable
in respect of the tax.
(B) Receives, withholds, destroys, mutilates, or falsifies any
book, document, or record, or makes any false statement, relating to
the estate or financial condition of the taxpayer or other person
liable in respect of the tax.
(b) In the case of a corporation, the fifty thousand dollars
($50,000) limitation specified in subdivision (a) shall be increased
to two hundred thousand dollars ($200,000).
(c) The fact that an individual's name is signed to a return,
statement, or other document filed, including a return, statement, or
other document filed using electronic technology pursuant to Section
18621.5, shall be prima facie evidence for all purposes that the
return, statement, or other document was actually signed by him or
her.
(d) For purposes of this section, "person" means the taxpayer, any
member of the taxpayer's family, any corporation, agent, fiduciary,
or representative of, or any other individual or entity acting on
behalf of, the taxpayer, or any other corporation or entity owned or
controlled by the taxpayer, directly or indirectly, or which owns or
controls the taxpayer, directly or indirectly.
(e) The changes made to this section by the act adding this
subdivision apply to offers made on or after January 1, 1999.
SEC. 45.
SEC. 69. Section 1808.21 of the Vehicle Code is amended to read:
1808.21. (a) Any residence address in any record of the
department is confidential and shall not be disclosed to any person,
except a court, law enforcement agency, or other government agency,
or as authorized in Section 1808.22 or 1808.23.
(b) Release of any mailing address or part thereof in any record
of the department may be restricted to a release for purposes related
to the reasons for which the information was collected, including,
but not limited to, the assessment of driver risk, or ownership of
vehicles or vessels. This restriction does not apply to a release to
a court, a law enforcement agency, or other governmental agency, or
a person who has been issued a requester code pursuant to Section
1810.2.
(c) Any person providing the department with a mailing address
shall declare, under penalty of perjury, that the mailing address is
a valid, existing, and accurate mailing address and shall consent to
receive service of process pursuant to subdivision (b) of Section
415.20, subdivision (a) of Section 415.30, and Section 416.90 of the
Code of Civil Procedure at the mailing address.
(d) (1) Any registration or driver's license record of a person
may be suppressed from any other person, except those persons
specified in subdivision (a), if the person requesting the
suppression submits verification acceptable to the department that he
or she has reasonable cause to believe either of the following:
(A) That he or she is the subject of stalking, as specified in
Section 1708.7 of the Civil Code or Section 646.9 of the Penal Code.
(B) That there exists a threat of death or great bodily injury to
his or her person, as defined in subdivision (d) of
Section 12022.7 of the Penal Code.
(2) Upon suppression of a record, each request for information
about that record shall be authorized by the subject of the record or
verified as legitimate by other investigative means by the
department before the information is released.
(e) Suppression of a record pursuant to subdivision (d) shall
occur for one year after approval by the department. Not less than
60 days prior to the date the suppression of the record would
otherwise expire, the department shall notify the subject of the
record of its impending expiration. The suppression may be continued
for two additional periods of one year each if a letter is submitted
to the department stating that the person continues to have a
reasonable cause to believe that he or she is the subject of stalking
or that there exists a threat of death or great bodily injury as
described in subparagraph (B) of paragraph (1) of subdivision (d).
The suppression may be additionally continued at the end of the
second one-year period by submitting verification acceptable to the
department. The notification described in this subdivision shall
instruct the person of the method to reapply for record suppression.
(f) For the purposes of subdivisions (d) and (e), "verification
acceptable to the department" means recent police reports, court
documentation, or other documentation from a law enforcement agency.
SEC. 70. Section 13202.4 of the Vehicle Code is amended to read:
13202.4. (a) (1) For each conviction of a minor who commits a
public offense involving a pistol, revolver, or other firearm capable
of being concealed upon the person, the court may suspend the minor'
s driving privilege for five years. If the minor convicted does not
yet have the privilege to drive, the court may order the department
to delay issuing the privilege to drive for five years subsequent to
the time the person becomes legally eligible to drive. For each
successive offense, the court may suspend the minor's driving
privilege for those possessing a license or delay the eligibility for
those not in possession of a license at the time of their conviction
for one additional year.
(2) (A) Any minor whose driving privilege is suspended pursuant
to this section may elect to reduce the period of
suspension or delay imposed by the court by performing community
service under the supervision of the probation department if both of
the following conditions are met:
(i) At least 50 percent of the suspension or delay period has
expired.
(ii) The person has not been the subject of any other criminal
conviction during the suspension or delay period.
(B) If the conditions specified in subparagraph (A) are met, the
period of suspension or delay ordered under paragraph (1) shall be
reduced at the rate of one day for each hour of community service
performed.
(3) As used in this section, the term "conviction" includes the
findings in juvenile proceedings specified in Section 13105.
(b) (1) Whenever the court suspends driving privileges pursuant to
subdivision (a), the court in which the conviction is had shall
require all driver's licenses held by the person to be surrendered to
the court. The court shall, within 10 days following the
conviction, transmit a certified abstract of the conviction, together
with any driver's licenses surrendered, to the department.
(2) Violations of restrictions imposed pursuant to this section
are subject to Section 14603.
(c) When the court is considering suspending or delaying driving
privileges pursuant to subdivision (a), the court shall consider if a
personal or family hardship exists that requires the person to have
a driver's license for his or her own, or a member of his or her
family's, employment or medically related purposes.
(d) The suspension, restriction, or delay of driving privileges
pursuant to this section shall be in addition to any penalty imposed
upon conviction for the offense.
SEC. 71. Section 22658.1 of the Vehicle Code is amended to
read:
22658.1. (a) Any towing company that, in removing a vehicle,
cuts, removes, otherwise damages, or leaves open a fence without the
prior approval of the property owner or the person in charge of the
property shall then and there do either of the following:
(1) Locate and notify the owner or person in charge of the
property of the damage or open condition of the fence, the name and
address of the towing company, and the license, registration, or
identification number of the vehicle being removed.
(2) Leave in a conspicuous place on the property the name and
address of the towing company, and the license, registration, or
identification number of the vehicle being removed, and shall without
unnecessary delay, notify the police department of the city in which
the property is located, or if the property is located in
unincorporated territory, either the sheriff or the local
headquarters of the Department of the California Highway Patrol, of
that information and the location of the damaged or opened fence.
(b) Any person failing to comply with all the requirements of this
section is guilty of an infraction.
SEC. 46. Section 355.1 of the Welfare and Institutions Code is
amended to read:
355.1. (a) Where the court finds, based upon competent
professional evidence, that an injury, injuries, or detrimental
condition sustained by a minor is of a nature as would ordinarily not
be sustained except as the result of the unreasonable or neglectful
acts or omissions of either parent, the guardian, or other person who
has the care or custody of the minor, that finding shall be prima
facie evidence that the minor is a person described by subdivision
(a), (b), or (d) of Section 300.
(b) Proof that either parent, the guardian, or other person who
has the care or custody of a minor who is the subject of a petition
filed under Section 300 has physically abused, neglected, or cruelly
treated another minor shall be admissible in evidence.
(c) The presumption created by subdivision (a) constitutes a
presumption affecting the burden of producing evidence.
(d) Where the court finds that either a parent, a guardian, or any
other person who resides with, or has the care or custody of, a
minor who is currently the subject of the petition filed under
Section 300 (1) has been previously convicted of sexual abuse as
defined in Section 11165.1 of the Penal Code, (2) has been previously
convicted of an act in another jurisdiction that would constitute
sexual abuse as defined in Section 11165.1 of the Penal Code if
committed in this state, (3) has been found in a prior dependency
hearing or similar proceeding in the corresponding court of
anotherjurisdiction to have committed an act of sexual abuse, or (4)
is required, as the result of a felony conviction, to register as a
sex offender pursuant to Section 290 of the Penal Code, that finding
shall be prima facie evidence in any proceeding that the subject
minor is a person described by subdivision (a), (b), (c), or (d) of
Section 300 and is at substantial risk of abuse or neglect. The
prima facie evidence constitutes a presumption affecting the burden
of producing evidence.
(e) Where the court believes that a child has suffered criminal
abuse or neglect, the court may direct a representative of the child
protective agency to take action pursuant to subdivision (i) of
Section 11166 of the Penal Code.
(f) Testimony by a parent, guardian, or other person who has the
care or custody of the minor made the subject of a proceeding under
Section 300 shall not be admissible as evidence in any other action
or proceeding.
SEC. 47.
SEC. 72. Section 302 of the Welfare and Institutions Code is
amended to read:
302. (a) A juvenile court may assume jurisdiction over a child
described in Section 300 regardless of whether the child was in the
physical custody of both parents or was in the sole legal or physical
custody of only one parent at the time that the events or conditions
occurred that brought the child within the jurisdiction of the
court.
(b) Unless their parental rights have been terminated, both
parents shall be notified of all proceedings involving the child. In
any case where the social worker is required to provide a parent or
guardian with notice of a proceeding at which the social worker
intends to present a report, the social worker shall also provide
both parents, whether custodial or noncustodial, or any guardian, or
the counsel for the parent or guardian a copy of the report prior to
the hearing, either personally or by first-class mail. The social
worker shall not charge any fee for providing a copy of a report
required by this subdivision. The social worker shall keep
confidential the address of any parent who is known to be the victim
of domestic violence.
(c) When a child is adjudged a dependent of the juvenile court,
any issues regarding custodial rights between his or her parents
shall be determined solely by the juvenile court, as specified in
Sections 304, 361.2, and 362.4, so long as the child remains a
dependent of the juvenile court.
(d) (1) Any custody or visitation order issued
by the juvenile court at the time the juvenile court terminates its
jurisdiction pursuant to Section 362.4 regarding a child who has been
previously adjudged to be a dependent child of the juvenile court
shall be a final judgment and shall remain in effect after that
jurisdiction is terminated. The order shall not be modified in a
proceeding or action described in Section 3021 of the Family Code
unless the court finds that there has been a significant change of
circumstances since the juvenile court issued the order and
modification of the order is in the best interests of the child.
SEC. 73. Section 319.1 of the Welfare and Institutions Code is
amended to read:
319.1. When the court finds a minor to be a person described by
Section 300, and believes that the minor may need specialized mental
health treatment while the minor is unable to reside in his or her
natural home, the court shall notify the director of the county
mental health department in the county where the minor resides. The
county mental health department shall perform the duties required
under Section 5694.7 for all those minors.
Nothing in this section shall restrict the provisions of emergency
psychiatric services to those minors who are involved in dependency
cases and have not yet reached the point of ajudication
adjudication or disposition, nor shall it
operate to restrict evaluations at an earlier stage of the
proceedings or to restrict orders removing the minor from a detention
facility for psychiatric treatment.
SEC. 74. Section 367 of the Welfare and Institutions Code is
amended to read:
367. (a) Whenever a person has been adjudged a dependent child of
the juvenile court and has been committed or otherwise disposed of
as provided in this chapter for the care of dependent children of the
juvenile court, the court may order that said dependent child be
detained in a suitable place designated as the court seems
deems fit until the execution of the order of
commitment or of other disposition.
(b) In any case in which a child is detained for more than 15 days
pending the execution of the order of commitment or of any other
disposition, the court shall periodically review the case to
determine whether the delay is reasonable. These periodic reviews
shall be held at least every 15 days, commencing from the time the
child was initially detained pending the execution of the order of
commitment or of any other disposition, and during the course of each
review the court shall inquire regarding the action taken by the
social worker to carry out its order, the reasons for the delay, and
the effect of the delay upon the child.
SEC. 75. Section 602 of the Welfare and Institutions Code is
amended to read:
602. (a) Except as provided in subdivision (b), any person who is
under the age of 18 years when he or she violates any law of this
state or of the United States or any ordinance of any city or county
of this state defining crime other than an ordinance establishing a
curfew based solely on age, is within the jurisdiction of the
juvenile court, which may adjudge such person to be a ward of the
court.
(b) Any person who is alleged, when he or she was 14 years of age
or older, to have committed one of the following offenses shall be
prosecuted under the general law in a court of criminal jurisdiction:
(1) Murder, as described in Section 187 of the Penal Code, if one
of the circumstances enumerated in subdivision (a) of Section 190.2
of the Penal Code is alleged by the prosecutor, and the prosecutor
alleges that the minor personally killed the victim.
(2) The following sex offenses, if the prosecutor alleges that the
minor personally committed the offense, and if the prosecutor
alleges one of the circumstances enumerated in the One Strike law,
subdivisions (d) or (e) of Section 667.61 of the Penal Code, applies:
(A) Rape, as described in paragraph (2) of subdivision (a) of
Section 261 of the Penal Code.
(B) Spousal rape, as described in paragraph (1) of subdivision (a)
of Section 262 of the Penal Code.
(C) Forcible sex offenses in concert with another, as described in
Section 264.1 of the Penal Code.
(D) Forcible lewd and lascivious acts on a child under the age of
14 years, as described in subdivision (b) of Section 288 of the Penal
Code.
(E) Forcible sexual penetration, as described in subdivision (a)
of Section 289 of the Penal Code.
(F) Sodomy or oral copulation in violation of Section 286 or 288a
of the Penal Code, by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person.
(G) Lewd and lascivious acts on a child under the age of 14 years,
as defined in subdivision (a) of Section 288, unless the defendant
qualifies for probation under subdivision (c) of Section 1203.066 of
the Penal Code.
SEC. 48.
SEC. 76. Section 602.5 of the Welfare and Institutions Code, as
added by Chapter 996 of the Statutes of 1999, is amended and
renumbered to read:
602.5.
602.3. (a) Notwithstanding any other law and pursuant to
the provisions of this section, the juvenile court shall commit any
minor adjudicated to be a ward of the court for the personal use of a
firearm in the commission of a violent felony, as defined in
subdivision (c) of Section 667.5 of the Penal Code, to placement in a
juvenile hall, ranch, camp, or with the Youth Authority.
(b) A court may impose a treatment-based alternative placement
order on any minor subject to this section if the court finds the
minor has a mental disorder requiring intensive treatment. Any
alternative placement order under this subdivision shall be made on
the record, in writing, and in accordance with Article 3 (commencing
with Section 6550) of Chapter 2 of Part 2 of Division 6.
SEC. 77. Section 635.1 of the Welfare and Institutions Code is
amended to read:
635.1. When the court finds a minor to be a person described by
Section 602 and believes the minor may need specialized mental health
treatment while the minor is unable to reside in his or her natural
home, the court shall notify the director of the county mental health
department in the county where the minor resides. The county mental
health department shall perform the duties required under Section
5697.5 for all those minors.
Nothing in this section shall restrict the provision of emergency
psychiatric services to those minors who have not yet reached the
point of ajudication adjudication or
disposition, nor shall it operate to restrict evaluations at an
earlier stage of the proceedings or to restrict the use of Sections
4011.6 and 4011.8 of the Penal Code.
SEC. 78. Section 730.7 of the Welfare and Institutions Code, as
added by Chapter 996 of the Statutes of 1999, is amended and
renumbered to read:
730.7.
730.8. (a) Except as provided in subdivision (b), the court
shall require any minor who is ordered to pay restitution pursuant
to Section 730.6, or to perform community service, to report to the
court on his or her compliance with the court's restitution order or
order for community service, or both, no less than annually until the
order is fulfilled.
(b) For any minor committed to the Department of the Youth
Authority, the department shall monitor the compliance with any order
of the court that requires the minor to pay restitution. Upon the
minor's discharge from the Department of the Youth Authority, the
department shall notify the court regarding the minor's compliance
with an order to pay restitution.
SEC. 79. The heading of Article 18.5 (commencing with
Section 743) of Chapter 2 of Part 1 of Division 2 of the Welfare and
Institutions Code is amended and renumbered to read:
Article 18.6. Repeat Offender Prevention Project
SEC. 49.
SEC. 80. Section 5270.55 of the Welfare and Institutions Code is
amended to read:
5270.55. (a) Whenever it is contemplated that a gravely disabled
person may need to be detained beyond the end of the 14-day period of
intensive treatment and prior to proceeding with an additional
30-day certification, the professional person in charge of the
facility shall cause an evaluation to be made, based on the patient's
current condition and past history, as to whether it appears that
the person, even after up to 30 days of additional treatment, is
likely to qualify for appointment of a conservator. If the
appointment of a conservator appears likely, the conservatorship
referral shall be made during the 14-day period of intensive
treatment.
(b) If it appears that with up to 30 days additional
treatment a person is likely to reconstitute sufficiently to obviate
the need for appointment of a conservator, then the person may be
certified for the additional 30 days.
(c) Where no conservatorship referral has been made during the
14-day period and where during the 30-day certification it appears
that the person is likely to require the appointment of a
conservator, then the conservatorship referral shall be made to allow
sufficient time for conservatorship investigation and other related
procedures. If a temporary conservatorship is obtained, it shall
run concurrently with and not consecutively to the 30-day
certification period. The conservatorship hearing shall be held by
the 30th day of the certification period. The maximum involuntary
detention period for gravely disabled persons pursuant to Sections
5150, 5250 and 5270.15 shall be limited to 47 days. Nothing in this
section shall prevent a person from excercising
exercising his or her right to a hearing as stated in
Sections 5275 and 5353.
SEC. 81. No reimbursement is required by this act pursuant
to Section 6 of Article XIIIB of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIIIB of the California Constitution.
SEC. 50.
SEC. 82. 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 correct and conform certain criminal law statutes at
the earliest possible time so as to avoid confusion regarding these
provisions, it is necessary for this act to take immediate effect.