BILL NUMBER: SB 851 CHAPTERED
BILL TEXT
CHAPTER 468
FILED WITH SECRETARY OF STATE SEPTEMBER 22, 2003
APPROVED BY GOVERNOR SEPTEMBER 20, 2003
PASSED THE SENATE SEPTEMBER 8, 2003
PASSED THE ASSEMBLY SEPTEMBER 2, 2003
AMENDED IN ASSEMBLY AUGUST 28, 2003
AMENDED IN ASSEMBLY JULY 21, 2003
AMENDED IN ASSEMBLY JUNE 26, 2003
AMENDED IN ASSEMBLY JUNE 9, 2003
AMENDED IN SENATE APRIL 21, 2003
INTRODUCED BY Committee on Public Safety (Senators McPherson
(Chair), Burton, Margett, Romero, Sher, and Vasconcellos)
FEBRUARY 21, 2003
An act to amend Section 44010 of the Education Code, to amend
Section 917 of the Evidence Code, to amend Section 6250 of the Family
Code, to amend Section 6254.24 of the Government Code, to amend
Sections 11561 and 121070 of the Health and Safety Code, to amend
Sections 171.5, 629.62, 633, 803, 830.31, 836, 847, 981, 1170.11,
1202.1, 1203.1abc, 1203.3, 3520, 11171, 12022.5, 12022.53, 13864, and
14309 of, to add Section 803.5 to, and to repeal Section 13864 of,
the Penal Code, to amend Sections 14601, 23109.2, and 35400 of, to
amend and repeal Section 23249 of, and to repeal Section 23249.1 of,
the Vehicle Code, and to amend Sections 355, 387, and 15763 of the
Welfare and Institutions Code, relating to public safety.
LEGISLATIVE COUNSEL'S DIGEST
SB 851, Committee on Public Safety. Public safety.
(1) Existing law contains numerous provisions pertaining to crime
and the implementation of the criminal laws of this state.
This would make numerous, nonsubstantive changes to these
provisions.
(2) Existing law provides that the Attorney General, district
attorney, or other specified law enforcement officers are not
prohibited from overhearing or recording any communication that they
could lawfully overhear or record, prior to the enactment of
specified prohibitions on the eavesdropping or recording of specified
communications.
This bill would add to the law enforcement officers listed in this
provision police officers of the County of Los Angeles.
(3) Under existing law, except as specified, a prescribed
limitation of time for certain offenses is not tolled or extended for
any reason. Existing law provides that for specified offenses a
prescribed limitation of time does not commence to run until the
discovery of that offense. This provision is applicable to those
offenses punishable by imprisonment in the state prison, a material
element of which is fraud or breach of a fiduciary obligation, the
commission of the crimes of theft or embezzlement upon an elder or
dependent adult, or the basis of which is misconduct in office by a
public officer, employee, or appointee, including, but not limited
to, specified offenses.
This bill would revise and recast these provisions regarding elder
or dependent adults. The bill would also provide that the
limitations period for specified crimes involving the unlawful use of
personal identifying information and procuring or offering a false
or forged instrument for record does not begin to run until discovery
of the offense.
(4) Existing law defines certain persons as peace officers,
including safety police officers of the County of Los Angeles, who
may carry firearms and whose authority extends to any place in the
state for the purpose of performing their duties and making arrests,
as specified.
This bill would change the reference to police officers of the
County of Los Angeles.
(5) Existing law establishes a 5-year pilot program that
authorizes the court to require any adult who has been convicted of a
nonviolent or nonserious offense to participate in a program
designed to assist the person in obtaining the equivalent of a 12th
grade education as a condition of probation. This program is
operable only upon approval of a county's board of supervisors.
Existing law also authorizes the court to require a probationer to
participate in a literacy or General Education Development Program.
Existing law repeals this program on January 1, 2004, unless it is
extended or made permanent by subsequent legislation.
This bill would extend the repeal date of this program to January
1, 2008.
(6) Existing law generally creates an ignition interlock device
program for those people who are convicted of driving under the
influence. Under this program, existing law makes it unlawful for
any person whose driving privilege is restricted for specified
reasons to operate any vehicle not equipped with a functioning
ignition interlock device. If a person is convicted of violating
this provision, the court is required to notify the Department of
Motor Vehicles, which is required to terminate the restriction and
suspend or revoke the person's driving privilege, as specified.
Existing law also requires the Department of Motor Vehicles to
conduct 2 studies to evaluate the effectiveness of ignition interlock
in California and requires that the findings be reported to the
Legislature, as specified. Existing law repeals these provisions as
of January 1, 2005.
This bill would delete this repeal date as it relates to the
ignition interlock program, and would make it only apply to the
studies of ignition interlock devices.
(7) Existing law requires that each county establish an emergency
response adult protective services program. Existing law requires a
county to respond immediately to any report of imminent danger to an
elder or dependent adult residing in other than a long-term care
facility or a residential facility. For reports involving persons
residing in a long-term care facility or a residential care facility,
the county shall report to the local long-term care ombudsman
program, as specified. Except as specified, existing law requires
the county to respond to all other reports of danger to an elder or
dependent adult in other than a long-term care facility or
residential care facility within 10 calendar days or as soon as
practicably possible.
This bill would provide that a county shall not be required to
report or respond to a report that involves danger to an elder or
dependent adult residing in any facility for the incarceration of
prisoners that is operated by or under contract to the Federal Bureau
of Prisons, the Department of Corrections, the California Department
of the Youth Authority, a county sheriff's department, a city police
department, or any other law enforcement agency when the abuse
reportedly has occurred in that facility.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 44010 of the Education Code is amended to read:
44010. "Sex offense," as used in Sections 44020, 44237, 44346,
44425, 44436, 44836, 45123, and 45304, means any one or more of the
offenses listed below:
(a) Any offense defined in Section 220, 261, 261.5, 262, 264.1,
266, 266j, 267, 285, 286, 288, 288a, 289, 311.1, 311.2, 311.3, 311.4,
311.10, 311.11, 313.1, 647b, 647.6, or former Section 647a,
subdivision (a), (b), (c), or (d) of Section 243.4, or subdivision
(a) or (d) of Section 647 of the Penal Code.
(b) Any offense defined in former subdivision (5) of former
Section 647 of the Penal Code repealed by Chapter 560 of the Statutes
of 1961, or any offense defined in former subdivision (2) of former
Section 311 of the Penal Code repealed by Chapter 2147 of the
Statutes of 1961, if the offense defined in those sections was
committed prior to September 15, 1961, to the same extent that an
offense committed prior to that date was a sex offense for the
purposes of this section prior to September 15, 1961.
(c) Any offense defined in Section 314 of the Penal Code committed
on or after September 15, 1961.
(d) Any offense defined in former subdivision (1) of former
Section 311 of the Penal Code repealed by Chapter 2147 of the
Statutes of 1961 committed on or after September 7, 1955, and prior
to September 15, 1961.
(e) Any offense involving lewd and lascivious conduct under
Section 272 of the Penal Code committed on or after September 15,
1961.
(f) Any offense involving lewd and lascivious conduct under former
Section 702 of the Welfare and Institutions Code repealed by Chapter
1616 of the Statutes of 1961, if that offense was committed prior to
September 15, 1961, to the same extent that an offense committed
prior to that date was a sex offense for the purposes of this section
prior to September 15, 1961.
(g) Any offense defined in Section 286 or 288a of the Penal Code
prior to the effective date of the amendment of either section
enacted at the 1975-76 Regular Session of the Legislature committed
prior to the effective date of the amendment.
(h) Any attempt to commit any of the offenses specified in this
section.
(i) Any offense committed or attempted in any other state or
against the laws of the United States which, if committed or
attempted in this state, would have been punishable as one or more of
the offenses specified in this section.
(j) Any conviction for an offense resulting in the requirement to
register as a sex offender pursuant to Section 290 of the Penal Code.
(k) Commitment as a mentally disordered sex offender under former
Article 1 (commencing with Section 6300) of Chapter 2 of Part 2 of
the Welfare and Institutions Code, as repealed by Chapter 928 of the
Statutes of 1981.
SEC. 2. Section 917 of the Evidence Code is amended to read:
917. (a) Whenever a privilege is claimed on the ground that the
matter sought to be disclosed is a communication made in confidence
in the course of the lawyer-client, physician-patient,
psychotherapist-patient, clergyman-penitent, husband-wife, sexual
assault victim-counselor, or domestic violence victim-counselor
relationship, the communication is presumed to have been made in
confidence and the opponent of the claim of privilege has the burden
of proof to establish that the communication was not confidential.
(b) A communication between persons in a relationship listed in
subdivision (a) does not lose its privileged character for the sole
reason that it is communicated by electronic means or because persons
involved in the delivery, facilitation, or storage of electronic
communication may have access to the content of the communication.
(c) For purposes of this section, "electronic" has the same
meaning provided in Section 1633.2 of the Civil Code.
SEC. 3. Section 6250 of the Family Code is amended to read:
6250. A judicial officer may issue an ex parte emergency
protective order where a law enforcement officer asserts reasonable
grounds to believe any of the following:
(a) That a person is in immediate and present danger of domestic
violence, based on the person's allegation of a recent incident of
abuse or threat of abuse by the person against whom the order is
sought.
(b) That a child is in immediate and present danger of abuse by a
family or household member, based on an allegation of a recent
incident of abuse or threat of abuse by the family or household
member.
(c) That a child is in immediate and present danger of being
abducted by a parent or relative, based on a reasonable belief that a
person has an intent to abduct the child or flee with the child from
the jurisdiction or based on an allegation of a recent threat to
abduct the child or flee with the child from the jurisdiction.
(d) That an elder or dependent adult is in immediate and present
danger of abuse as defined in Section 15610.07 of the Welfare and
Institutions Code, based on an allegation of a recent incident of
abuse or threat of abuse by the person against whom the order is
sought, except that no emergency protective order shall be issued
based solely on an allegation of financial abuse.
SEC. 4. Section 6254.24 of the Government Code is amended to read:
6254.24. As used in this chapter, "public safety official" means
the following:
(a) An active or retired peace officer as defined in Sections 830
and 830.1 of the Penal Code.
(b) An active or retired public officer or other person listed in
Sections 1808.2 and 1808.6 of the Vehicle Code.
(c) An "elected or appointed official" as defined in subdivision
(c) of Section 6254.21.
(d) Attorneys employed by the Department of Justice, the State
Public Defender, or a county office of the district attorney or
public defender.
(e) City attorneys and attorneys who represent cities in criminal
matters.
(f) Specified employees of the Department of Corrections, the
California Youth Authority, and the Prison Industry Authority who
supervise inmates or are required to have a prisoner in their care or
custody.
(g) Nonsworn employees who supervise inmates in a city police
department, a county sheriff's office, the Department of the
California Highway Patrol, federal, state, and local detention
facilities, and local juvenile halls, camps, ranches, and homes.
(h) Federal prosecutors and criminal investigators and National
Park Service Rangers working in California.
(i) The surviving spouse or child of a peace officer defined in
Section 830 of the Penal Code, if the peace officer died in the line
of duty.
SEC. 5. Section 11561 of the Health and Safety Code is amended to
read:
11561. When the parole authority concludes that there are
reasonable grounds for believing that a person on parole is addicted
or habituated to, or is in imminent danger of addiction or
habituation to, controlled substances or alcohol, it may, in
accordance with procedures used to revoke parole, issue an order to
detain or place the person in a substance abuse treatment control
unit for a period not to exceed 90 days. The order shall be a
sufficient warrant for any peace officer or employee of the
Department of Corrections to return the person to physical custody.
Detention pursuant to the order shall not be deemed a suspension,
cancellation, or revocation of parole until the parole authority so
orders pursuant to Section 3060 of the Penal Code. A parolee taken
into physical custody pursuant to Section 3060 of the Penal Code may
be detained in a substance abuse treatment control unit established
pursuant to this article.
No person on parole shall be placed in a substance abuse treatment
control unit against his or her will.
SEC. 6. Section 121070 of the Health and Safety Code is amended to
read:
121070. (a) Any medical personnel employed by, under contract to,
or receiving payment from the State of California, any agency
thereof, or any county, city, or city and county to provide service
at any state prison, the Medical Facility, any Youth Authority
institution, any county jail, city jail, hospital jail ward, juvenile
hall, juvenile detention facility, or any other facility where
adults are held in custody or minors are detained, or any medical
personnel employed, under contract, or receiving payment to provide
services to persons in custody or detained at any of the foregoing
facilities, who receives information as specified herein that an
inmate or minor at the facility has been exposed to or infected by
the AIDS virus or has an AIDS-related condition or any communicable
disease, shall communicate the information to the officer in charge
of the facility where the inmate or minor is in custody or detained.
(b) Information subject to disclosure under subdivision (a) shall
include the following: any laboratory test that indicates exposure
to or infection by the AIDS virus, AIDS-related condition, or other
communicable diseases; any statement by the inmate or minor to
medical personnel that he or she has AIDS or an AIDS-related
condition, has been exposed to the AIDS virus, or has any
communicable disease; the results of any medical examination or test
that indicates that the inmate or minor has tested positive for
antibodies to the AIDS virus, has been exposed to the AIDS virus, has
an AIDS-related condition, or is infected with AIDS or any
communicable disease; provided, that information subject to
disclosure shall not include information communicated to or obtained
by a scientific research study pursuant to prior written approval
expressly waiving disclosure under this section by the officer in
charge of the facility.
(c) The officer in charge of the facility shall notify all
employees, medical personnel, contract personnel, and volunteers
providing services at the facility who have or may have direct
contact with the inmate or minor in question, or with bodily fluids
from the inmate or minor, of the substance of the information
received under subdivisions (a) and (b) so that those persons can
take appropriate action to provide for the care of the inmate or
minor, the safety of other inmates or minors, and their own safety.
(d) The officer in charge and all persons to whom information is
disclosed pursuant to this section shall maintain the confidentiality
of personal identifying data regarding the information, except for
disclosure authorized hereunder or as may be necessary to obtain
medical or psychological care or advice.
(e) Any person who wilfully discloses personal identifying data
regarding information obtained under this section to any person who
is not a peace officer or an employee of a federal, state, or local
public health agency, except as authorized hereunder, by court order,
with the written consent of the patient or as otherwise authorized
by law, is guilty of a misdemeanor.
SEC. 7. Section 171.5 of the Penal Code is amended to read:
171.5. (a) For purposes of this section:
(1) "Airport" means an airport, with a secured area, that
regularly serves an air carrier holding a certificate issued by the
United States Secretary of Transportation.
(2) "Sterile area" means a portion of an airport defined in the
airport security program to which access generally is controlled
through the screening of persons and property, as specified in
Section 1540.5 of Title 49 of the Code of Federal Regulations.
(b) It is unlawful for any person to knowingly possess within any
sterile area of an airport, any of the items listed in subdivision
(c).
(c) The following items are unlawful to possess as provided in
subdivision (b):
(1) Any firearm.
(2) Any knife with a blade length in excess of four inches, the
blade of which is fixed, or is capable of being fixed, in an
unguarded position by the use of one or two hands.
(3) Any box cutter or straight razor.
(4) Any metal military practice hand grenade.
(5) Any metal replica hand grenade.
(6) Any plastic replica hand grenade.
(7) Any imitation firearm as defined in Section 417.4.
(8) Any frame, receiver, barrel, or magazine of a firearm.
(9) Any unauthorized tear gas weapon.
(10) Any taser or stun gun, as defined in Section 244.5.
(11) Any instrument that expels a metallic projectile, such as a
BB or pellet, through the force of air pressure, CO2 pressure, or
spring action, or any spot marker gun or paint gun.
(12) Any ammunition as defined in Section 12316.
(d) Subdivision (b) shall not apply to, or affect, any of the
following:
(1) A duly appointed peace officer, as defined in Chapter 4.5
(commencing with Section 830) of Title 3 of Part 2, a retired peace
officer with authorization to carry concealed weapons as described in
subdivision (a) of Section 12027, a full-time paid peace officer of
another state or the federal government who is carrying out official
duties while in California, or any person summoned by any of these
officers to assist in making arrests or preserving the peace while he
or she is actually engaged in assisting the officer.
(2) A person who has authorization to possess a weapon specified
in subdivision (c), granted in writing by an airport security
coordinator who is designated as specified in Section 1542.3 of Title
49 of the Code of Federal Regulations, and who is responsible for
the security of the airport.
(e) A violation of this section is punishable by imprisonment in a
county jail for a period not exceeding six months, or by a fine not
exceeding one thousand dollars ($1,000), or by both that fine and
imprisonment.
(f) The provisions of this section are cumulative, and shall not
be construed as restricting the application of any other law.
However, an act or omission that is punishable in different ways by
this and any other provision of law shall not be punished under more
than one provision.
(g) Nothing in this section is intended to affect existing state
or federal law regarding the transportation of firearms on airplanes
in checked luggage, or the possession of the items listed in
subdivision (c) in areas that are not "sterile areas."
SEC. 8. Section 629.62 of the Penal Code is amended to read:
629.62. (a) The Attorney General shall prepare and submit an
annual report to the Legislature, the Judicial Council, and the
Director of the Administrative Office of the United States Court on
interceptions conducted under the authority of this chapter during
the preceding year. Information for this report shall be provided to
the Attorney General by any prosecutorial agency seeking an order
pursuant to this chapter.
(b) The report shall include all of the following data:
(1) The number of orders or extensions applied for.
(2) The kinds of orders or extensions applied for.
(3) The fact that the order or extension was granted as applied
for, was modified, or was denied.
(4) The number of wire, electronic pager, and electronic cellular
telephone devices that are the subject of each order granted.
(5) The period of interceptions authorized by the order, and the
number and duration of any extensions of the order.
(6) The offense specified in the order or application, or
extension of an order.
(7) The identity of the applying law enforcement officer and
agency making the application and the person authorizing the
application.
(8) The nature of the facilities from which or the place where
communications were to be intercepted.
(9) A general description of the interceptions made under the
order or extension, including (A) the approximate nature and
frequency of incriminating communications intercepted, (B) the
approximate nature and frequency of other communications intercepted,
(C) the approximate number of persons whose communications were
intercepted, and (D) the approximate nature, amount, and cost of the
manpower and other resources used in the interceptions.
(10) The number of arrests resulting from interceptions made under
the order or extension, and the offenses for which arrests were
made.
(11) The number of trials resulting from the interceptions.
(12) The number of motions to suppress made with respect to the
interceptions, and the number granted or denied.
(13) The number of convictions resulting from the interceptions
and the offenses for which the convictions were obtained and a
general assessment of the importance of the interceptions.
(14) Except with regard to the initial report required by this
section, the information required by paragraphs (9) to (13),
inclusive, with respect to orders or extensions obtained in a
preceding calendar year.
(15) The date of the order for service of inventory made pursuant
to Section 629.68, confirmation of compliance with the order, and the
number of notices sent.
(16) Other data that the Legislature, the Judicial Council, or the
Director of the Administrative Office shall require.
(c) The annual report shall be filed no later than April of each
year, and shall also include a summary analysis of the data reported
pursuant to subdivision (b). The Attorney General may issue
regulations prescribing the content and form of the reports required
to be filed pursuant to this section by any prosecutorial agency
seeking an order to intercept wire, electronic pager, or electronic
cellular telephone communications.
(d) The Attorney General shall, upon the request of an individual
making an application, provide any information known to him or her as
a result of these reporting requirements that would enable the
individual making an application to comply with paragraph (6) of
subdivision (a) of Section 629.50.
SEC. 9. Section 633 of the Penal Code is amended to read:
633. Nothing in Section 631, 632, 632.5, 632.6, or 632.7
prohibits the Attorney General, any district attorney, or any
assistant, deputy, or investigator of the Attorney General or any
district attorney, any officer of the California Highway Patrol, any
chief of police, assistant chief of police, or police officer of a
city or city and county, any sheriff, undersheriff, or deputy sheriff
regularly employed and paid in that capacity by a county, police
officer of the County of Los Angeles, or any person acting pursuant
to the direction of one of these law enforcement officers acting
within the scope of his or her authority, from overhearing or
recording any communication that they could lawfully overhear or
record prior to the effective date of this chapter.
Nothing in Section 631, 632, 632.5, 632.6, or 632.7 renders
inadmissible any evidence obtained by the above-named persons by
means of overhearing or recording any communication that they could
lawfully overhear or record prior to the effective date of this
chapter.
SEC. 10. Section 803 of the Penal Code is amended to read:
803. (a) Except as provided in this section, a limitation of time
prescribed in this chapter is not tolled or extended for any reason.
(b) No time during which prosecution of the same person for the
same conduct is pending in a court of this state is a part of a
limitation of time prescribed in this chapter.
(c) A limitation of time prescribed in this chapter does not
commence to run until the discovery of an offense described in this
subdivision. This subdivision applies to an offense punishable by
imprisonment in the state prison, a material element of which is
fraud or breach of a fiduciary obligation, or the basis of which is
misconduct in office by a public officer, employee, or appointee, or
to theft or embezzlement from an elder or dependent adult punishable
by imprisonment in the state prison, including, but not limited to,
the following offenses:
(1) Grand theft of any type, forgery, falsification of public
records, or acceptance of a bribe by a public official or a public
employee.
(2) A violation of Section 72, 118, 118a, 132, or 134.
(3) A violation of Section 25540, of any type, or Section 25541 of
the Corporations Code.
(4) A violation of Section 1090 or 27443 of the Government Code.
(5) Felony welfare fraud or Medi-Cal fraud in violation of Section
11483 or 14107 of the Welfare and Institutions Code.
(6) Felony insurance fraud in violation of Section 548 or 550 of
this code or former Section 1871.1, or Section 1871.4, of the
Insurance Code.
(7) A violation of Section 580, 581, 582, 583, or 584 of the
Business and Professions Code.
(8) A violation of Section 22430 of the Business and Professions
Code.
(9) A violation of Section 10690 of the Health and Safety Code.
(10) A violation of Section 529a.
(11) A violation of subdivision (d) or (e) of Section 368.
(d) If the defendant is out of the state when or after the offense
is committed, the prosecution may be commenced as provided in
Section 804 within the limitations of time prescribed by this
chapter, and no time up to a maximum of three years during which the
defendant is not within the state shall be a part of those
limitations.
(e) A limitation of time prescribed in this chapter does not
commence to run until the offense has been discovered, or could have
reasonably been discovered, with regard to offenses under Division 7
(commencing with Section 13000) of the Water Code, under Chapter 6.5
(commencing with Section 25100) of, Chapter 6.7 (commencing with
Section 25280) of, or Chapter 6.8 (commencing with Section 25300) of,
Division 20 of, or Part 4 (commencing with Section 41500) of
Division 26 of, the Health and Safety Code, or under Section 386, or
offenses under Chapter 5 (commencing with Section 2000) of Division 2
of, Chapter 9 (commencing with Section 4000) of Division 2 of,
Chapter 10 (commencing with Section 7301) of Division 3 of, or
Chapter 19.5 (commencing with Section 22440) of Division 8 of, the
Business and Professions Code.
(f) (1) Notwithstanding any other limitation of time described in
this chapter, a criminal complaint may be filed within one year of
the date of a report to a responsible adult or agency by a child
under 18 years of age that the child is a victim of a crime described
in Section 261, 286, 288, 288a, 288.5, 289, or 289.5.
(2) For purposes of this subdivision, a "responsible adult" or
"agency" means a person or agency required to report pursuant to
Section 11166. This subdivision applies only if both of the
following occur:
(A) The limitation period specified in Section 800 or 801 has
expired.
(B) The defendant has committed at least one violation of Section
261, 286, 288, 288a, 288.5, 289, or 289.5 against the same victim
within the limitation period specified for that crime in either
Section 800 or 801.
(3) (A) This subdivision applies to a cause of action arising
before, on, or after January 1, 1990, the effective date of this
subdivision, and it shall revive any cause of action barred by
Section 800 or 801 if any of the following occurred or occurs:
(i) The complaint or indictment was filed on or before January 1,
1997, and it was filed within the time period specified in this
subdivision.
(ii) The complaint or indictment is or was filed subsequent to
January 1, 1997, and it is or was filed within the time period
specified within this subdivision.
(iii) The victim made the report required by this subdivision to a
responsible adult or agency after January 1, 1990, and a complaint
or indictment was not filed within the time period specified in this
subdivision, but a complaint or indictment is filed no later than 180
days after the date on which either a published opinion of the
California Supreme Court, deciding whether retroactive application of
this section is constitutional, becomes final or the United States
Supreme Court files an opinion deciding the question of whether
retroactive application of this subdivision is constitutional,
whichever occurs first.
(iv) The victim made the report required by this subdivision to a
responsible adult or agency after January 1, 1990, and a complaint or
indictment was filed within the time period specified in this
subdivision, but the indictment, complaint, or subsequently filed
information was dismissed, but a new complaint or indictment is or
was filed no later than 180 days after the date on which either a
published opinion of the California Supreme Court, deciding whether
retroactive application of this section is constitutional, becomes
final or the United States Supreme Court files an opinion deciding
the question of whether retroactive application of this subdivision
is constitutional, whichever occurs first.
(B) (i) If the victim made the report required by this subdivision
to a responsible adult or agency after January 1, 1990, and a
complaint or indictment was filed within the time period specified in
this subdivision, but the indictment, complaint, or subsequently
filed information was dismissed, a new complaint or indictment may be
filed notwithstanding any other provision of law, including, but not
limited to, subdivision (c) of Section 871.5 and subdivision (b) of
Section 1238.
(ii) An order dismissing an action filed under this subdivision,
which is entered or becomes effective at any time prior to 180 days
after the date on which either a published opinion of the California
Supreme Court, deciding the question of whether retroactive
application of this section is constitutional, becomes final or the
United States Supreme Court files an opinion deciding the question of
whether retroactive application of this subdivision is
constitutional, whichever occurs first, shall not be considered an
order terminating an action within the meaning of Section 1387.
(iii) Any ruling regarding the retroactivity of this subdivision
or its constitutionality made in the course of the previous
proceeding, including any review proceeding, shall not be binding
upon refiling.
(g) (1) Notwithstanding any other limitation of time described in
this chapter, a criminal complaint may be filed within one year of
the date of a report to a California law enforcement agency by a
person of any age alleging that he or she, while under the age of 18
years, was the victim of a crime described in Section 261, 286, 288,
288a, 288.5, 289, or 289.5.
(2) This subdivision applies only if both of the following occur:
(A) The limitation period specified in Section 800 or 801 has
expired.
(B) The crime involved substantial sexual conduct, as described in
subdivision (b) of Section 1203.066, excluding masturbation that is
not mutual, and there is independent evidence that clearly and
convincingly corroborates the victim's allegation. No evidence may
be used to corroborate the victim's allegation that otherwise would
be inadmissible during trial. Independent
evidence does not include the opinions of mental
health professionals.
(3) (A) This subdivision applies to a cause of action arising
before, on, or after January 1, 1994, the effective date of this
subdivision, and it shall revive any cause of action barred by
Section 800 or 801 if any of the following occurred or occurs:
(i) The complaint or indictment was filed on or before January 1,
1997, and it was filed within the time period specified in this
subdivision.
(ii) The complaint or indictment is or was filed subsequent to
January 1, 1997, and it is or was filed within the time period
specified within this subdivision.
(iii) The victim made the report required by this subdivision to a
law enforcement agency after January 1, 1994, and a complaint or
indictment was not filed within the time period specified in this
subdivision, but a complaint or indictment is filed no later than 180
days after the date on which either a published opinion of the
California Supreme Court, deciding the question of whether
retroactive application of this subdivision is constitutional,
becomes final or the United States Supreme Court files an opinion
deciding the question of whether retroactive application of this
subdivision is constitutional, whichever occurs first.
(iv) The victim made the report required by this subdivision to a
law enforcement agency after January 1, 1994, and a complaint or
indictment was filed within the time period specified in this
subdivision, but the indictment, complaint, or subsequently filed
information was dismissed, but a new complaint or indictment is filed
no later than 180 days after the date on which either a published
opinion of the California Supreme Court, deciding the question of
whether retroactive application of this subdivision is
constitutional, becomes final or the United States Supreme Court
files an opinion deciding the question of whether retroactive
application of this subdivision is constitutional, whichever occurs
first.
(B) (i) If the victim made the report required by this subdivision
to a law enforcement agency after January 1, 1994, and a complaint
or indictment was filed within the time period specified in this
subdivision, but the indictment, complaint, or subsequently filed
information was dismissed, a new complaint or indictment may be filed
notwithstanding any other provision of law, including, but not
limited to, subdivision (c) of Section 871.5 and subdivision (b) of
Section 1238.
(ii) An order dismissing an action filed under this subdivision,
which is entered or becomes effective at any time prior to 180 days
after the date on which either a published opinion of the California
Supreme Court, deciding the question of whether retroactive
application of this section is constitutional, becomes final or the
United States Supreme Court files an opinion deciding the question of
whether retroactive application of this subdivision is
constitutional, whichever occurs first, shall not be considered an
order terminating an action within the meaning of Section 1387.
(iii) Any ruling regarding the retroactivity of this subdivision
or its constitutionality made in the course of the previous
proceeding, by any trial court or any intermediate appellate court,
shall not be binding upon refiling.
(h) (1) Notwithstanding any other limitation of time described in
this chapter, a criminal complaint may be filed within one year of
the date of a report to a California law enforcement agency by a
person under 21 years of age, alleging that he or she, while under 18
years of age, was the victim of a crime described in Section 261,
286, 288, 288a, 288.5, 289, or 289.5.
(2) This subdivision applies only if both of the following occur:
(A) The limitation period specified in Section 800 or 801 has
expired.
(B) The crime involved substantial sexual conduct, as described in
subdivision (b) of Section 1203.066, excluding masturbation that is
not mutual, and there is independent evidence that corroborates the
victim's allegation. No evidence may be used to corroborate the
victim's allegation that otherwise would be inadmissible during
trial. Independent evidence does not include the opinions of mental
health professionals.
(3) This subdivision applies to a cause of action arising before,
on, or after January 1, 2002, the effective date of this subdivision,
and it shall revive any cause of action barred by Section 800 or 801
if the complaint or indictment was filed within the time period
specified by this subdivision.
(i) (1) Notwithstanding the limitation of time described in
Section 800, the limitations period for commencing prosecution for a
felony offense described in subparagraph (A) of paragraph (2) of
subdivision (a) of Section 290, where the limitations period set
forth in Section 800 has not expired as of January 1, 2001, or the
offense is committed on or after January 1, 2001, shall be 10 years
from the commission of the offense, or one year from the date on
which the identity of the suspect is conclusively established by DNA
testing, whichever is later, provided, however, that the one-year
period from the establishment of the identity of the suspect shall
only apply when either of the following conditions is met:
(A) For an offense committed prior to January 1, 2001, biological
evidence collected in connection with the offense is analyzed for DNA
type no later than January 1, 2004.
(B) For an offense committed on or after January 1, 2001,
biological evidence collected in connection with the offense is
analyzed for DNA type no later than two years from the date of the
offense.
(2) In the event the conditions set forth in subparagraph (A) or
(B) of paragraph (1) are not met, the limitations period for
commencing prosecution for a felony offense described in subparagraph
(A) of paragraph (2) of subdivision (a) of Section 290, where the
limitations period set forth in Section 800 has not expired as of
January 1, 2001, or the offense is committed on or after January 1,
2001, shall be 10 years from the commission of the offense.
(3) For purposes of this section, "DNA" means deoxyribonucleic
acid.
(j) For any crime, the proof of which depends substantially upon
evidence that was seized under a warrant, but which is unavailable to
the prosecuting authority under the procedures described in People
v. Superior Court (Laff) (2001) 25 Cal.4th 703, People v. Superior
Court (Bauman & Rose) (1995) 37 Cal.App.4th 1757, or subdivision (c)
of Section 1524, relating to claims of evidentiary privilege or
attorney work product, the limitation of time prescribed in this
chapter shall be tolled from the time of the seizure until final
disclosure of the evidence to the prosecuting authority. Nothing in
this section otherwise affects the definition or applicability of any
evidentiary privilege or attorney work product.
(k) (1) In a criminal investigation involving child sexual abuse
as described in subdivision (g) or (h), when the limitations period
set forth therein has not expired, that period shall be tolled from
the time a party initiates litigation challenging a grand jury
subpoena until the end of that litigation, including any associated
writ or appellate proceeding, or until the final disclosure of
evidence to the investigating or prosecuting agency, if that
disclosure is ordered pursuant to the subpoena after the litigation.
(2) Nothing in this subdivision affects the definition or
applicability of any evidentiary privilege.
(3) This subdivision shall not apply where a court finds that the
grand jury subpoena was issued or caused to be issued in bad faith.
(l) As used in subdivisions (f), (g), and (h), Section 289.5
refers to the statute enacted by Chapter 293 of the Statutes of 1991
relating to penetration by an unknown object.
SEC. 10.5. Section 803.5 is added to the Penal Code, to read:
803.5. With respect to a violation of Section 115 or 530.5, a
limitation of time prescribed in this chapter does not commence to
run until the discovery of the offense.
SEC. 11. Section 830.31 of the Penal Code is amended to read:
830.31. The following persons are peace officers whose authority
extends to any place in the state for the purpose of performing their
primary duty or when making an arrest pursuant to Section 836 as to
any public offense with respect to which there is immediate danger to
person or property, or of the escape of the perpetrator of that
offense, or pursuant to Section 8597 or 8598 of the Government Code.
These peace officers may carry firearms only if authorized, and
under the terms and conditions specified, by their employing agency.
(a) A police officer of the County of Los Angeles, if the primary
duty of the officer is the enforcement of the law in or about
properties owned, operated, or administered by his or her employing
agency or when performing necessary duties with respect to patrons,
employees, and properties of his or her employing agency.
(b) A person designated by a local agency as a park ranger and
regularly employed and paid in that capacity, if the primary duty of
the officer is the protection of park and other property of the
agency and the preservation of the peace therein.
(c) (1) A peace officer of the Department of General Services of
the City of Los Angeles designated by the general manager of the
department, if the primary duty of the officer is the enforcement of
the law in or about properties owned, operated, or administered by
his or her employing agency or when performing necessary duties with
respect to patrons, employees, and properties of his or her employing
agency.
(2) A peace officer designated pursuant to this subdivision, and
authorized to carry firearms by his or her employing agency, shall
satisfactorily complete the introductory course of firearm training
required by Section 832 and shall requalify in the use of firearms
every six months.
(3) Notwithstanding any other provision of law, a peace officer
designated pursuant to this subdivision who is authorized to carry a
firearm by his or her employing agency while on duty shall not be
authorized to carry a firearm when he or she is not on duty.
(d) A housing authority patrol officer employed by the housing
authority of a city, district, county, or city and county or employed
by the police department of a city and county, if the primary duty
of the officer is the enforcement of the law in or about properties
owned, operated, or administered by his or her employing agency or
when performing necessary duties with respect to patrons, employees,
and properties of his or her employing agency.
SEC. 12. Section 836 of the Penal Code is amended to read:
836. (a) A peace officer may arrest a person in obedience to a
warrant, or, pursuant to the authority granted to him or her by
Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2,
without a warrant, may arrest a person whenever any of the following
circumstances occur:
(1) The officer has probable cause to believe that the person to
be arrested has committed a public offense in the officer's presence.
(2) The person arrested has committed a felony, although not in
the officer's presence.
(3) The officer has probable cause to believe that the person to
be arrested has committed a felony, whether or not a felony, in fact,
has been committed.
(b) Any time a peace officer is called out on a domestic violence
call, it shall be mandatory that the officer make a good faith effort
to inform the victim of his or her right to make a citizen's arrest.
This information shall include advising the victim how to safely
execute the arrest.
(c) (1) When a peace officer is responding to a call alleging a
violation of a domestic violence protective or restraining order
issued under the Family Code, Section 527.6 of the Code of Civil
Procedure, Section 213.5 of the Welfare and Institutions Code,
Section 136.2 of this code, or paragraph (2) of subdivision (a) of
Section 1203.097 of this code, or of a domestic violence protective
or restraining order issued by the court of another state, tribe, or
territory and the peace officer has probable cause to believe that
the person against whom the order is issued has notice of the order
and has committed an act in violation of the order, the officer
shall, consistent with subdivision (b) of Section 13701, make a
lawful arrest of the person without a warrant and take that person
into custody whether or not the violation occurred in the presence of
the arresting officer. The officer shall, as soon as possible after
the arrest, confirm with the appropriate authorities or the Domestic
Violence Protection Order Registry maintained pursuant to Section
6380 of the Family Code that a true copy of the protective order has
been registered, unless the victim provides the officer with a copy
of the protective order.
(2) The person against whom a protective order has been issued
shall be deemed to have notice of the order if the victim presents to
the officer proof of service of the order, the officer confirms with
the appropriate authorities that a true copy of the proof of service
is on file, or the person against whom the protective order was
issued was present at the protective order hearing or was informed by
a peace officer of the contents of the protective order.
(3) In situations where mutual protective orders have been issued
under Division 10 (commencing with Section 6200) of the Family Code,
liability for arrest under this subdivision applies only to those
persons who are reasonably believed to have been the primary
aggressor. In those situations, prior to making an arrest under this
subdivision, the peace officer shall make reasonable efforts to
identify, and may arrest, the primary aggressor involved in the
incident. The primary aggressor is the person determined to be the
most significant, rather than the first, aggressor. In identifying
the primary aggressor, an officer shall consider (A) the intent of
the law to protect victims of domestic violence from continuing
abuse, (B) the threats creating fear of physical injury, (C) the
history of domestic violence between the persons involved, and (D)
whether either person involved acted in self-defense.
(d) Notwithstanding paragraph (1) of subdivision (a), if a suspect
commits an assault or battery upon a current or former spouse,
fiance, fiancee, a current or former cohabitant as defined in Section
6209 of the Family Code, a person with whom the suspect currently is
having or has previously had an engagement or dating relationship,
as defined in paragraph (10) of subdivision (f) of Section 243, a
person with whom the suspect has parented a child, or is presumed to
have parented a child pursuant to the Uniform Parentage Act (Part 3
(commencing with Section 7600) of Division 12 of the Family Code), a
child of the suspect, a child whose parentage by the suspect is the
subject of an action under the Uniform Parentage Act, a child of a
person in one of the above categories, any other person related to
the suspect by consanguinity or affinity within the second degree, or
any person who is 65 years of age or older and who is related to the
suspect by blood or legal guardianship, a peace officer may arrest
the suspect without a warrant where both of the following
circumstances apply:
(1) The peace officer has probable cause to believe that the
person to be arrested has committed the assault or battery, whether
or not it has in fact been committed.
(2) The peace officer makes the arrest as soon as probable cause
arises to believe that the person to be arrested has committed the
assault or battery, whether or not it has in fact been committed.
(e) In addition to the authority to make an arrest without a
warrant pursuant to paragraphs (1) and (3) of subdivision (a), a
peace officer may, without a warrant, arrest a person for a violation
of Section 12025 when all of the following apply:
(1) The officer has reasonable cause to believe that the person to
be arrested has committed the violation of Section 12025.
(2) The violation of Section 12025 occurred within an airport, as
defined in Section 21013 of the Public Utilities Code, in an area to
which access is controlled by the inspection of persons and property.
(3) The peace officer makes the arrest as soon as reasonable cause
arises to believe that the person to be arrested has committed the
violation of Section 12025.
SEC. 13. Section 847 of the Penal Code is amended to read:
847. (a) A private person who has arrested another for the
commission of a public offense must, without unnecessary delay, take
the person arrested before a magistrate, or deliver him or her to a
peace officer.
(b) There shall be no civil liability on the part of, and no cause
of action shall arise against, any peace officer or federal criminal
investigator or law enforcement officer described in subdivision (a)
or (d) of Section 830.8, acting within the scope of his or her
authority, for false arrest or false imprisonment arising out of any
arrest under any of the following circumstances:
(1) The arrest was lawful, or the peace officer, at the time of
the arrest, had reasonable cause to believe the arrest was lawful.
(2) The arrest was made pursuant to a charge made, upon reasonable
cause, of the commission of a felony by the person to be arrested.
(3) The arrest was made pursuant to the requirements of Section
142, 837, 838, or 839.
SEC. 14. Section 981 of the Penal Code is amended to read:
981. The bench warrant must be substantially in the following
form:
County of ____. The People of the State of California to any
Sheriff, Marshal, or Policeman in this State: An accusatory pleading
having been filed on the ____ day of ____, A.D. ____, in the
Superior Court of the County of ____, charging C. D. with the crime
of ____ (designating it generally); you are, therefore, commanded
forthwith to arrest the above named C. D., and bring him or her
before that Court (or if the accusatory pleading has been sent to
another Court, then before that Court, naming it), to answer said
accusatory pleading, or if the Court is not in session, that you
deliver him or her into the custody of the Sheriff of the County of
____.
Given under my hand, with the seal of said Court affixed, this
____ day of ____, A.D. ____.
By order of said Court.
(SEAL.) E. F., Clerk.
SEC. 15. 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, 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 14107 of the Welfare and
Institutions Code.
SEC. 16. Section 1202.1 of the Penal Code is amended to read:
1202.1. (a) Notwithstanding Sections 120975 and 120990 of the
Health and Safety Code, the court shall order every person who is
convicted of, or adjudged by the court to be a person described by
Section 601 or 602 of the Welfare and Institutions Code as provided
in Section 725 of the Welfare and Institutions Code by reason of a
violation of, a sexual offense listed in subdivision (e), whether or
not a sentence or fine is imposed or probation is granted, to submit
to a blood or oral mucosal transudate saliva test for evidence of
antibodies to the probable causative agent of acquired immune
deficiency syndrome (AIDS) within 180 days of the date of conviction.
Each person tested under this section shall be informed of the
results of the blood or oral mucosal transudate saliva test.
(b) Notwithstanding Section 120980 of the Health and Safety Code,
the results of the blood or oral mucosal transudate saliva test to
detect antibodies to the probable causative agent of AIDS shall be
transmitted by the clerk of the court to the Department of Justice
and the local health officer.
(c) Notwithstanding Section 120980 of the Health and Safety Code,
the Department of Justice shall provide the results of a test or
tests as to persons under investigation or being prosecuted under
Section 647f or 12022.85, if the results are on file with the
department, to the defense attorney upon request and the results also
shall be available to the prosecuting attorney upon request for the
purpose of either preparing counts for a subsequent offense under
Section 647f or sentence enhancement under Section 12022.85 or
complying with subdivision (d).
(d) (1) In every case in which a person is convicted of a sexual
offense listed in subdivision (e) or adjudged by the court to be a
person described by Section 601 or 602 of the Welfare and
Institutions Code as provided in Section 725 of the Welfare and
Institutions Code by reason of the commission of a sexual offense
listed in subdivision (e), the prosecutor or the prosecutor's
victim-witness assistance bureau shall advise the victim of his or
her right to receive the results of the blood or oral mucosal
transudate saliva test performed pursuant to subdivision (a). The
prosecutor or the prosecutor's victim-witness assistance bureau shall
refer the victim to the local health officer for counseling to
assist him or her in understanding the extent to which the particular
circumstances of the crime may or may not have placed the victim at
risk of transmission of the human immunodeficiency virus (HIV) from
the accused, to ensure that the victim understands the limitations
and benefits of current tests for HIV, and to assist the victim in
determining whether he or she should make the request.
(2) Notwithstanding any other law, upon the victim's request, the
local health officer shall be responsible for disclosing test results
to the victim who requested the test and the person who was tested.
However, as specified in subdivision (g), positive test results
shall not be disclosed to the victim or the person who was tested
without offering or providing professional counseling appropriate to
the circumstances as follows:
(A) To help the victim understand the extent to which the
particular circumstances of the crime may or may not have put the
victim at risk of transmission of HIV from the perpetrator.
(B) To ensure that the victim understands both the benefits and
limitations of the current tests for HIV.
(C) To obtain referrals to appropriate health care and support
services.
(e) For purposes of this section, "sexual offense" includes any of
the following:
(1) Rape in violation of Section 261 or 264.1.
(2) Unlawful intercourse with a person under 18 years of age in
violation of Section 261.5 or 266c.
(3) Rape of a spouse in violation of Section 262 or 264.1.
(4) Sodomy in violation of Section 266c or 286.
(5) Oral copulation in violation of Section 266c or 288a.
(6) (A) Any of the following offenses if the court finds that
there is probable cause to believe that blood, semen, or any other
bodily fluid capable of transmitting HIV has been transferred from
the defendant to the victim:
(i) Sexual penetration in violation of Section 264.1, 266c, or
289.
(ii) Aggravated sexual assault of a child in violation of Section
269.
(iii) Lewd or lascivious conduct with a child in violation of
Section 288.
(iv) Continuous sexual abuse of a child in violation of Section
288.5.
(v) The attempt to commit any offense described in clauses (i) to
(iv), inclusive.
(B) For purposes of this paragraph, the court shall note its
finding on the court docket and minute order if one is prepared.
(f) Any blood or oral mucosal transudate saliva tested pursuant to
subdivision (a) shall be subjected to appropriate confirmatory tests
to ensure accuracy of the first test results, and under no
circumstances shall test results be transmitted to the victim or the
person who is tested unless any initially reactive test result has
been confirmed by appropriate confirmatory tests for positive
reactors.
(g) The local health officer shall be responsible for disclosing
test results to the victim who requested the test and the person who
was tested. However, positive test results shall not be disclosed to
the victim or the person who was tested without offering or
providing professional counseling appropriate to the circumstances.
(h) The local health officer and the victim shall comply with all
laws and policies relating to medical confidentiality, subject to the
disclosure authorized by subdivisions (g) and (i).
(i) Any victim who receives information from the local health
officer pursuant to subdivision (g) may disclose the information as
he or she deems necessary to protect his or her health and safety or
the health and safety of his or her family or sexual partner.
(j) Any person who transmits test results or discloses information
pursuant to this section shall be immune from civil liability for
any action taken in compliance with this section.
SEC. 17. Section 1203.1abc of the Penal Code is amended to read:
1203.1abc. (a) In addition to any other terms of imprisonment,
fine, and conditions of probation, the court may require any adult
convicted of an offense which is not a violent felony, as defined in
subdivision (c) of Section 667.5, or a serious felony, as defined in
subdivision (c) of Section 1192.7, to participate in a program that
is designed to assist the person in obtaining the equivalent of a
12th grade education. In the case of a probationer, the court may
require participation in either a literacy program or a General
Education Development (GED) program.
(b) A probation officer may utilize volunteers from the community
to provide assistance to probationers under this section.
(c) This section shall be operable in Los Angeles
County as a pilot project upon approval by a majority vote of the
county's board of supervisors to be conducted in two courts within
the County of Los Angeles. It shall be operable in other counties
only upon approval by a majority vote of a county's board of
supervisors.
(d) A county probation department may utilize the volunteer
services of a local college or university in evaluating the
effectiveness of this program. In the County of Los Angeles, the
California State University at Los Angeles (CSULA) shall evaluate the
program and submit a report to the Legislature regarding the success
or failure of the program. CSULA shall bear the costs of the
evaluation and report.
(e) This section shall not apply to any person who is mentally or
developmentally incapable of attaining the equivalent of a 12th grade
education.
(f) Failure to make progress in a program under subdivision (a) is
not a basis for revocation of probation.
(g) This pilot program shall be deemed successful if at least 10
percent of the persons participating in the pilot projects obtain the
equivalent of a 12th grade education within three years.
(h) It is the intent of the Legislature that any increases in
adult enrollment resulting from the implementation of subdivision (a)
shall not be included in the apportionment of funds for adult
education pursuant to Sections 52616.17 to 52616.20, inclusive, of
the Education Code.
(i) This section is repealed effective January 1, 2008, unless it
is extended or made permanent by subsequent legislation.
SEC. 18. Section 1203.3 of the Penal Code is amended to read:
1203.3. (a) The court shall have authority at any time during the
term of probation to revoke, modify, or change its order of
suspension of imposition or execution of sentence. The court may at
any time when the ends of justice will be subserved thereby, and when
the good conduct and reform of the person so held on probation shall
warrant it, terminate the period of probation, and discharge the
person so held.
(b) The exercise of the court's authority in subdivision (a) to
revoke, modify, change, or terminate probation is subject to the
following:
(1) Before any sentence or term or condition of probation is
modified, a hearing shall be held in open court before the judge.
The prosecuting attorney shall be given a two-day written notice and
an opportunity to be heard on the matter, except that, as to
modifying or terminating a protective order in a case involving
domestic violence, as defined in Section 6211 of the Family Code, the
prosecuting attorney shall be given a five-day written notice and an
opportunity to be heard.
(A) If the sentence or term or condition of probation is modified
pursuant to this section, the judge shall state the reasons for that
modification on the record.
(B) As used in this section, modification of sentence shall
include reducing a felony to a misdemeanor.
(2) No order shall be made without written notice first given by
the court or the clerk thereof to the proper probation officer of the
intention to revoke, modify, or change its order.
(3) In all cases, if the court has not seen fit to revoke the
order of probation and impose sentence or pronounce judgment, the
defendant shall at the end of the term of probation or any extension
thereof, be by the court discharged subject to the provisions of
these sections.
(4) The court may modify the time and manner of the term of
probation for purposes of measuring the timely payment of restitution
obligations or the good conduct and reform of the defendant while on
probation. The court shall not modify the dollar amount of the
restitution obligations due to the good conduct and reform of the
defendant, absent compelling and extraordinary reasons, nor shall the
court limit the ability of payees to enforce the obligations in the
manner of judgments in civil actions.
(5) Nothing in this section shall be construed to prohibit the
court from modifying the dollar amount of a restitution order
pursuant to subdivision (f) of Section 1202.4 at any time during the
term of the probation.
(6) The court may limit or terminate a protective order that is a
condition of probation in a case involving domestic violence, as
defined in Section 6211 of the Family Code. In determining whether
to limit or terminate the protective order, the court shall consider
if there has been any material change in circumstances since the
crime for which the order was issued, and any issue that relates to
whether there exists good cause for the change, including, but not
limited to, consideration of all of the following:
(A) Whether the probationer has accepted responsibility for the
abusive behavior perpetrated against the victim.
(B) Whether the probationer is currently attending and actively
participating in counseling sessions.
(C) Whether the probationer has completed parenting counseling, or
attended alcoholics or narcotics counseling.
(D) Whether the probationer has moved from the state, or is
incarcerated.
(E) Whether the probationer is still cohabiting, or intends to
cohabit, with any subject of the order.
(F) Whether the defendant has performed well on probation,
including consideration of any progress reports.
(G) Whether the victim desires the change, and if so, the victim's
reasons, whether the victim has consulted a victim advocate, and
whether the victim has prepared a safety plan and has access to local
resources.
(H) Whether the change will impact any children involved,
including consideration of any child protective services information.
(I) Whether the ends of justice would be served by limiting or
terminating the order.
(c) If a probationer is ordered to serve time in jail, and the
probationer escapes while serving that time, the probation is revoked
as a matter of law on the day of the escape.
(d) If probation is revoked pursuant to subdivision (c), upon
taking the probationer into custody, the probationer shall be
accorded a hearing or hearings consistent with the holding in the
case of People v. Vickers (1972) 8 Cal.3d 451. The purpose of that
hearing or hearings is not to revoke probation, as the revocation has
occurred as a matter of law in accordance with subdivision (c), but
rather to afford the defendant an opportunity to require the
prosecution to establish that the alleged violation did in fact occur
and to justify the revocation.
(e) This section does not apply to cases covered by Section
1203.2.
SEC. 19. Section 3520 of the Penal Code is amended to read:
3520. The department shall make a report due on or before January
1 of each odd-numbered year containing a review of each research
program which has been approved and conducted. The report shall be
transmitted to the Legislature and shall be made available to the
public.
SEC. 20. Section 11171 of the Penal Code is amended to read:
11171. (a) (1) The Legislature hereby finds and declares that
adequate protection of victims of child physical abuse or neglect has
been hampered by the lack of consistent and comprehensive medical
examinations.
(2) Enhancing examination procedures, documentation, and evidence
collection relating to child abuse or neglect will improve the
investigation and prosecution of child abuse or neglect as well as
other child protection efforts.
(b) On or before January 1, 2004, the Office of Criminal Justice
Planning shall, in cooperation with the State Department of Social
Services, the Department of Justice, the California Association of
Crime Lab Directors, the California District Attorneys Association,
the California State Sheriffs' Association, the California Peace
Officers' Association, the California Medical Association, the
California Police Chiefs' Association, child advocates, the
California Medical Training Center, child protective services, and
other appropriate experts, establish medical forensic forms,
instructions, and examination protocols for victims of child physical
abuse or neglect using as a model the form and guidelines developed
pursuant to Section 13823.5.
(c) The form shall include, but not be limited to, a place for
notation concerning each of the following:
(1) Any notification of injuries or any report of suspected child
physical abuse or neglect to law enforcement authorities or children'
s protective services, in accordance with existing reporting
procedures.
(2) Addressing relevant consent issues, if indicated.
(3) The taking of a patient history of child physical abuse or
neglect that includes other relevant medical history.
(4) The performance of a physical examination for evidence of
child physical abuse or neglect.
(5) The collection or documentation of any physical evidence of
child physical abuse or neglect, including any recommended
photographic procedures.
(6) The collection of other medical or forensic specimens,
including drug ingestion or toxication, as indicated.
(7) Procedures for the preservation and disposition of evidence.
(8) Complete documentation of medical forensic exam findings with
recommendations for diagnostic studies, including blood tests and
X-rays.
(9) An assessment as to whether there are findings that indicate
physical abuse or neglect.
(d) The forms shall become part of the patient's medical record
pursuant to guidelines established by the advisory committee of the
Office of Criminal Justice Planning and subject to the
confidentiality laws pertaining to the release of medical forensic
examination records.
(e) The forms shall be made accessible for use on the Internet.
SEC. 21. Section 12022.5 of the Penal Code is amended to read:
12022.5. (a) Except as provided in subdivision (b), any person
who personally uses a firearm in the commission of a felony or
attempted felony shall be punished by an additional and consecutive
term of imprisonment in the state prison for 3, 4, or 10 years,
unless use of a firearm is an element of that offense.
(b) Notwithstanding subdivision (a), any person who personally
uses an assault weapon, as specified in Section 12276 or Section
12276.1, or a machinegun, as defined in Section 12200, in the
commission of a felony or attempted felony, shall be punished by an
additional and consecutive term of imprisonment in the state prison
for 5, 6, or 10 years.
(c) 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.
(d) Notwithstanding the limitation in subdivision (a) relating to
being an element of the offense, the additional term provided by this
section shall be imposed for any violation of Section 245 if a
firearm is used, or for murder if the killing is perpetrated by means
of shooting a firearm from a motor vehicle intentionally at another
person outside of the vehicle with the intent to inflict great bodily
injury or death.
(e) When a person is found to have personally used a firearm, an
assault weapon, or a machinegun in the commission of a felony or
attempted felony as provided in this section and the firearm, assault
weapon, or machinegun is owned by that person, the court shall order
that the firearm be deemed a nuisance and disposed of in the manner
provided in Section 12028.
(f) For purposes of imposing an enhancement under Section 1170.1,
the enhancements under this section shall count as one, single
enhancement.
SEC. 22. 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, in
the commission of a felony specified in subdivision (a), personally
uses a firearm, shall be punished by an additional and consecutive
term of imprisonment in the state prison for 10 years. The firearm
need not be operable or loaded for this enhancement to apply.
(c) Notwithstanding any other provision of law, any person who, in
the commission of a felony specified in subdivision (a), personally
and intentionally discharges a firearm, shall be punished by an
additional and consecutive term of imprisonment in the state prison
for 20 years.
(d) Notwithstanding any other provision of law, any person who, in
the commission of a felony specified in subdivision (a), Section
246, or subdivision (c) or (d) of Section 12034, personally and
intentionally discharges a firearm and proximately causes great
bodily injury, as defined in Section 12022.7, or death, to any person
other than an accomplice, shall be punished by an additional and
consecutive term of imprisonment in the state prison for 25 years to
life.
(e) (1) The enhancements provided in this section shall apply to
any person who is a principal in the commission of an offense if both
of the following are pled and proved:
(A) The person violated subdivision (b) of Section 186.22.
(B) Any principal in the offense committed any act specified in
subdivision (b), (c), or (d).
(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. 23. Section 13864 of the Penal Code, as amended by Chapter
711 of the Statutes of 1992, is amended to read:
13864. There is hereby created, in the Office of Criminal Justice
Planning, the Comprehensive Alcohol and Drug Prevention Education
component of the Suppression of Drug Abuse in Schools Program in
public elementary schools in grades 4 to 6, inclusive.
Notwithstanding Section 13861 or any other provision in this code,
all Comprehensive Alcohol and Drug Prevention Education component
funds made available to the Office of Criminal Justice Planning in
accordance with the Classroom Instructional Improvement and
Accountability Act shall be administered by and disbursed to county
superintendents of schools in this state by the Executive Director of
the Office of Criminal Justice Planning. All applications for that
funding shall be reviewed and evaluated by the Office of Criminal
Justice Planning, in consultation with the State Department of
Alcohol and Drug Programs and the State Department of Education.
(a) The executive director is authorized to allocate and award
funds to county department superintendents of schools for allocation
to individual school districts or to a consortium of two or more
school districts. Applications funded under this section shall
comply with the criteria, policies, and procedures established under
subdivision (b) of this section.
(b) As a condition of eligibility for the funding described in
this section, the school district or consortium of school districts
shall have entered into an agreement with a local law enforcement
agency to jointly implement a comprehensive alcohol and drug abuse
prevention, intervention, and suppression program developed by the
Office of Criminal Justice Planning, in consultation with the State
Department of Alcohol and Drug Programs and the State Department of
Education, containing all of the following components:
(1) A standardized age-appropriate curriculum designed for pupils
in grades 4 to 6, inclusive, specifically tailored and sensitive to
the socioeconomic and ethnic characteristics of the target pupil
population. Although new curricula shall not be required to be
developed, existing curricula may be modified and adapted to meet
local needs. The elements of the standardized comprehensive alcohol
and drug prevention education program curriculum shall be defined and
approved by the Governor's Policy Council on Drug and Alcohol Abuse,
as established by Executive Order #D-70-80.
(2) A planning process that shall include both assessment of the
school district's characteristics, resources and the extent of
problems related to juvenile drug abuse, and input from local law
enforcement agencies.
(3) A school district governing board policy that provides for a
coordinated intervention system that, at a minimum, includes
procedures for identification, intervention, and referral of at-risk
alcohol-and drug-involved youth, and identifies the roles and
responsibilities of law enforcement, school personnel, parents, and
pupils.
(4) Early intervention activities that include, but are not
limited to, the identification of pupils who are high risk or have
chronic drug abuse problems, assessment, and referral for appropriate
services, including ongoing support services.
(5) Parent education programs to initiate and maintain parental
involvement, with an emphasis for parents of at-risk pupils.
(6) Staff and in-service training programs, including both indepth
training for the core team involved in providing program services
and general awareness training for all school faculty and
administrative, credentialed, and noncredentialed school personnel.
(7) In-service training programs for local law enforcement
officers.
(8) School, law enforcement, and community involvement to ensure
coordination of program services. Pursuant to that coordination, the
school district or districts and other local agencies are encouraged
to use a single community advisory committee or task force for drug,
alcohol, and tobacco abuse prevention programs, as an alternative to
the creation of a separate group for that purpose under each state
or federally funded program.
(c) The application of the county superintendent of schools shall
be submitted to the Office of Criminal Justice Planning. Funds made
available to the Office of Criminal Justice Planning for allocation
under this section are intended to enhance, but shall not supplant,
local funds that would, in the absence of the Comprehensive Alcohol
and Drug Prevention Education component, be made available to
prevent, intervene in, or suppress drug abuse among schoolage
children. For districts that are already implementing a
comprehensive drug abuse prevention program for pupils in grades 4 to
6, inclusive, the county superintendent shall propose the use of the
funds for drug prevention activities in school grades other than 4
to 6, inclusive, compatible with the program components of this
section. The expenditure of funds for that alternative purpose shall
be approved by the executive director.
(1) Unless otherwise authorized by the Office of Criminal Justice
Planning, each county superintendent of schools shall be the fiscal
agent for any Comprehensive Alcohol and Drug Prevention Education
component award, and shall be responsible for ensuring that each
school district within that county receives the allocation prescribed
by the Office of Criminal Justice Planning. Each county
superintendent shall develop a countywide plan that complies with
program guidelines and procedures established by the Office of
Criminal Justice Planning pursuant to subdivision (d). A maximum of
5 percent of the county's allocation may be used for administrative
costs associated with the project.
(2) Each county superintendent of schools shall establish and
chair a local coordinating committee to assist the superintendent in
developing and implementing a countywide implementation plan. This
committee shall include the county drug administrator, law
enforcement executives, school district governing board members and
administrators, school faculty, parents, and drug prevention and
intervention program executives selected by the superintendent and
approved by the county board of supervisors.
(d) The Executive Director of the Office of Criminal Justice
Planning, in consultation with the State Department of Alcohol and
Drug Programs and the State Department of Education, shall prepare
and issue guidelines and procedures for the Comprehensive Alcohol and
Drug Prevention Education component consistent with this section.
(e) The Comprehensive Alcohol and Drug Prevention Education
component guidelines shall set forth the terms and conditions upon
which the Office of Criminal Justice Planning is prepared to award
grants of funds pursuant to this section. The guidelines shall not
constitute rules, regulations, orders, or standards of general
application.
(f) Funds awarded under the Comprehensive Alcohol and Drug
Prevention Education Program shall not be subject to Section 10318 of
the Public Contracts Code.
(g) Funds available pursuant to Item 8100-111-001 and Provision 1
of Item 8100-001-001 of the Budget Act of 1989, or the successor
provision of the appropriate Budget Act, shall be allocated to
implement this section.
(h) The Executive Director of the Office of Criminal Justice
Planning shall collaborate, to the extent possible, with other state
agencies that administer drug, alcohol, and tobacco abuse prevention
education programs to streamline and simplify the process whereby
local educational agencies apply for drug, alcohol, and tobacco
education funding under this section and under other state and
federal programs. The Office of Criminal Justice Planning, the State
Department of Alcohol and Drug Programs, the State Department of
Education, and other state agencies, to the extent possible, shall
develop joint policies and collaborate planning in the administration
of drug, alcohol, and tobacco abuse prevention education programs.
SEC. 24. Section 13864 of the Penal Code, as added by Chapter 82
of the Statutes of 1989, is repealed.
SEC. 25. Section 14309 of the Penal Code is amended to read:
14309. (a) The Environmental Circuit Prosecutor Project, a
cooperative project of the California Environmental Protection Agency
and the California District Attorneys Association, is hereby
established.
(b) The Environmental Circuit Prosecutor Project shall have the
following purposes:
(1) Discourage the commission of violations of environmental laws
by demonstrating the effective response of the criminal justice
system to these violations, including, but not limited to, assisting
district attorneys, particularly in rural counties, in the
prosecution of criminal violations of environmental laws and
regulations, where a district attorney has requested assistance.
(2) Establish model environmental crime prevention, enforcement,
and prosecution techniques with statewide application for fair,
uniform, and effective application.
(3) Increase the awareness and effectiveness of efforts to enforce
environmental laws and to better integrate environmental prosecution
into California's established criminal justice system by providing
on the job education and training to local peace officers and
prosecutors and to local and state environmental regulators.
(4) Promote, through uniform and effective prosecution and local
assistance, the effective enforcement of environmental laws and
regulations.
(c) (1) The secretary shall award project
grants and administer funding from the account to the California
District Attorneys Association for the purpose of providing for the
day-to-day operations of the project.
(2) The award may only be used to fund the costs of prosecutors,
investigators, and research attorney staff, including salary,
benefits, and expenses.
(3) Circuit prosecutor project employees may be either employees
of the California District Attorneys Association or employees on loan
from local, state, or federal governmental agencies.
(d) (1) A district attorney may request the assistance of a
circuit prosecutor from the Environmental Circuit Prosecutor Project
for any of the following purposes:
(A) Assistance with the investigation and development of
environmental cases.
(B) Consultation concerning whether an environmental case merits
filing.
(C) Litigation support, including, but not limited to, the actual
prosecution of the case. A district attorney shall, as appropriate,
deputize a circuit prosecutor to prosecute cases within his or her
jurisdiction.
(2) The authority of a deputized circuit prosecutor shall be
consistent with and shall not exceed the authority of the elected
district attorney or his or her deputies.
(3) Violations of city or county ordinances may be prosecuted by
circuit prosecutors when there is an environmental nexus between the
ordinance and a violation of state law, federal law, or both state
and federal law.
(4) Participating district attorney offices shall provide matching
funds or in-kind contributions equivalent to, but not less than, 20
percent of the expense of the deputized environmental circuit
prosecutor.
SEC. 26. Section 14601 of the Vehicle Code is amended to read:
14601. (a) No person shall drive a motor vehicle at any time when
that person's driving privilege is suspended or revoked for reckless
driving in violation of Section 23103 or 23104, any reason listed in
subdivision (a) or (c) of Section 12806 authorizing the department
to refuse to issue a license, negligent or incompetent operation of a
motor vehicle as prescribed in subdivision (e) of Section 12809, or
negligent operation as prescribed in Section 12810.5, if the person
so driving has knowledge of the suspension or revocation. Knowledge
shall be conclusively presumed if mailed notice has been given by the
department to the person pursuant to Section 13106. The presumption
established by this subdivision is a presumption affecting the
burden of proof.
(b) Any person convicted under this section shall be punished as
follows:
(1) Upon a first conviction, by imprisonment in a county jail for
not less than five days or more than six months and by a fine of not
less than three hundred dollars ($300) or more than one thousand
dollars ($1,000).
(2) If the offense occurred within five years of a prior offense
which resulted in a conviction of a violation of this section or
Section 14601.1, 14601.2, or 14601.5, by imprisonment in a county
jail for not less than 10 days or more than one year and by a fine of
not less than five hundred dollars ($500) or more than two thousand
dollars ($2,000).
(c) If the offense occurred within five years of a prior offense
which resulted in a conviction of a violation of this section or
Section 14601.1, 14601.2, or 14601.5, and is granted probation, the
court shall impose as a condition of probation that the person be
confined in a county jail for at least 10 days.
(d) Nothing in this section prohibits a person from driving a
motor vehicle, which is owned or utilized by the person's employer,
during the course of employment on private property which is owned or
utilized by the employer, except an offstreet parking facility as
defined in subdivision (d) of Section 12500.
(e) When the prosecution agrees to a plea of guilty or nolo
contendere to a charge of a violation of this section in satisfaction
of, or as a substitute for, an original charge of a violation of
Section 14601.2, and the court accepts that plea, except, in the
interest of justice, when the court finds it would be inappropriate,
the court shall, pursuant to Section 23575, require the person
convicted, in addition to any other requirements, to install a
certified ignition interlock device on any vehicle that the person
owns or operates for a period not to exceed three years.
SEC. 27. Section 23109.2 of the Vehicle Code, as amended by
Section 2 of Chapter 411 of the Statutes of 2002, is amended to read:
23109.2. (a) (1) Whenever a peace officer determines that a
person was engaged in any of the activities set forth in paragraph
(2), the peace officer may immediately arrest and take into custody
that person and may cause the removal and seizure of the motor
vehicle used in that offense in accordance with Chapter 10
(commencing with Section 22650). A motor vehicle so seized may be
impounded for not more than 30 days.
(2) (A) A motor vehicle speed contest, as described in subdivision
(a) of Section 23109.
(B) Reckless driving on a highway, as described in subdivision (a)
of Section 23103.
(C) Reckless driving in any offstreet parking facility, as
described in subdivision (b) of Section 23103.
(D) Exhibition of speed on a highway, as described in subdivision
(c) of Section 23109.
(b) The registered and legal owner of a vehicle that is removed
and seized under subdivision (a) or their agents shall be provided
the opportunity for a storage hearing to determine the validity of
the storage in accordance with Section 22852.
(c) (1) Notwithstanding Chapter 10 (commencing with Section 22650)
or any other provision of law, an impounding agency shall release a
motor vehicle to the registered owner or his or her agent prior to
the conclusion of the impoundment period described in subdivision (a)
under any of the following circumstances:
(A) If the vehicle is a stolen vehicle.
(B) If the person alleged to have been engaged in the motor
vehicle speed contest, as described in subdivision (a), was not
authorized by the registered owner of the motor vehicle to operate
the motor vehicle at the time of the commission of the offense.
(C) If the registered owner of the vehicle was neither the driver
nor a passenger of the vehicle at the time of the alleged violation
pursuant to subdivision (a), or was unaware that the driver was using
the vehicle to engage in any of the activities described in
subdivision (a).
(D) If the legal owner or registered owner of the vehicle is a
rental car agency.
(E) If, prior to the conclusion of the impoundment period, a
citation or notice is dismissed under Section 40500, criminal charges
are not filed by the district attorney because of a lack of
evidence, or the charges are otherwise dismissed by the court.
(2) A vehicle shall be released pursuant to this subdivision only
if the registered owner or his or her agent presents a currently
valid driver's license to operate the vehicle and proof of current
vehicle registration, or if ordered by a court.
(3) If, pursuant to subparagraph (E) of paragraph (1) a motor
vehicle is released prior to the conclusion of the impoundment
period, neither the person charged with a violation of subdivision
(a) of Section 23109 nor the registered owner of the motor vehicle is
responsible for towing and storage charges nor shall the motor
vehicle be sold to satisfy those charges.
(d) A vehicle seized and removed under subdivision (a) shall be
released to the legal owner of the vehicle, or the legal owner's
agent, on or before the 30th day of impoundment if all of the
following conditions are met:
(1) The legal owner is a motor vehicle dealer, bank, credit union,
acceptance corporation, or other licensed financial institution
legally operating in this state, or is another person, not the
registered owner, holding a security interest in the vehicle.
(2) The legal owner or the legal owner's agent pays all towing and
storage fees related to the impoundment of the vehicle. No lien
sale processing fees shall be charged to a legal owner who redeems
the vehicle on or before the 15th day of impoundment.
(3) The legal owner or the legal owner's agent presents
foreclosure documents or an affidavit of repossession for the
vehicle.
(e) (1) The registered owner or his or her agent is responsible
for all towing and storage charges related to the impoundment, and
any administrative charges authorized under Section 22850.5.
(2) Notwithstanding paragraph (1), if the person convicted of
engaging in the activities set forth in paragraph (2) of subdivision
(a) was not authorized by the registered owner of the motor vehicle
to operate the motor vehicle at the time of the commission of the
offense, the court shall order the convicted person to reimburse the
registered owner for any towing and storage charges related to the
impoundment, and any administrative charges authorized under Section
22850.5 incurred by the registered owner to obtain possession of the
vehicle, unless the court finds that the person convicted does not
have the ability to pay all or part of those charges.
(3) If the vehicle is a rental vehicle, the rental car agency may
require the person to whom the vehicle was rented to pay all towing
and storage charges related to the impoundment and any administrative
charges authorized under Section 22850.5 that were incurred by the
rental car agency in connection with obtaining possession of the
vehicle.
(4) The owner is not liable for any towing and storage charges
related to the impoundment if acquittal or dismissal occurs.
(5) The vehicle may not be sold prior to the defendant's
conviction.
(6) The impounding agency is responsible for the actual costs
incurred by the towing agency as a result of the impoundment should
the registered owner be absolved of liability for those charges
pursuant to paragraph (3) of subdivision (c) of Section 23109.2.
Notwithstanding this provision, nothing shall prohibit impounding
agencies from making prior payment arrangements to satisfy this
requirement.
(f) Any period in which a vehicle is subjected to storage under
this section shall be included as part of the period of impoundment
ordered by the court under subdivision (h) of Section 23109.
(g) This section shall remain in effect only until January 1,
2007, and as of that date is repealed, unless a later enacted
statute, which is enacted before January 1, 2007, deletes or extends
that date.
SEC. 28. Section 23249 of the Vehicle Code is amended to read:
23249. The Department of Motor Vehicles shall conduct two studies
to evaluate the effectiveness of ignition interlock in California
and shall report the findings to the Legislature, as specified in
subdivisions (a) and (b).
(a) The department shall conduct a process study of ignition
interlock in California and report the findings to the Legislature on
or before July 1, 2002. This study shall examine the implementation
of ignition interlock by the courts, the department and ignition
interlock installers, and report the rate at which courts assign
interlock to persons convicted of a violation of Section 14601.2 and
the rate at which these persons install these devices.
(b) The department shall conduct an outcome study of ignition
interlock in California and report the findings to the Legislature on
or before July 1, 2004. This study shall examine the effectiveness
of California's ignition interlock laws in reducing recidivism,
moving violation convictions and crashes among drivers ordered by the
court to install interlock devices, and among drivers applying to
the department, and receiving from it, an ignition interlock
restricted license.
(c) This section shall remain in effect only until January 1, 2005,
and as of that date is repealed, unless a later enacted statute,
that is enacted before January 1, 2005, deletes or extends that date.
SEC. 29. Section 23249.1 of the Vehicle Code is repealed.
SEC. 30. Section 35400 of the Vehicle Code is amended to read:
35400. (a) No vehicle shall exceed a length of 40 feet.
(b) This section does not apply to any of the following:
(1) A vehicle used in a combination of vehicles when the excess
length is caused by auxiliary parts, equipment, or machinery not used
as space to carry any part of the load, except that the combination
of vehicles shall not exceed the length provided for combination
vehicles.
(2) A vehicle, when the excess length is caused by any parts
necessary to comply with the fender and mudguard regulations of this
code.
(3) (A) An articulated bus or articulated trolley coach that does
not exceed a length of 60 feet.
(B) An articulated bus or articulated trolley coach described in
subparagraph (A) may be equipped with a folding device attached to
the front of the bus or trolley if the device is designed and used
exclusively for transporting bicycles. The device, including any
bicycles transported thereon, shall be mounted in a manner that does
not materially affect efficiency or visibility of vehicle safety
equipment, and shall not extend more than 36 inches from the front
body of the bus or trolley coach when fully deployed. The handlebars
of a bicycle that is transported on a device described in this
subparagraph shall not extend more than 42 inches from the front of
the bus.
(4) A semitrailer while being towed by a motortruck or truck
tractor, if the distance from the kingpin to the rearmost axle of the
semitrailer does not exceed 40 feet for semitrailers having two or
more axles, or 38 feet for semitrailers having one axle if the
semitrailer does not, exclusive of attachments, extend forward of the
rear of the cab of the motortruck or truck tractor.
(5) A bus or house car when the excess length is caused by the
projection of a front safety bumper or a rear safety bumper, or both.
The safety bumper shall not cause the length of the vehicle to
exceed the maximum legal limit by more than one foot in the front and
one foot in the rear. For the purposes of this chapter, "safety
bumper" means any device that is fitted on an existing bumper or
which replaces the bumper and is constructed, treated, or
manufactured to absorb energy upon impact.
(6) A schoolbus, when the excess length is caused by the
projection of a crossing control arm. For the purposes of this
chapter, "crossing control arm" means an extendable and retractable
device fitted to the front of a schoolbus that is designed to impede
movement of pupils exiting the schoolbus directly in front of the
schoolbus so that pupils are visible to the driver while they are
moving in front of the schoolbus. An operator of a schoolbus shall
not extend a crossing control arm while the schoolbus is in motion.
Except when activated, a crossing control arm shall not cause the
maximum length of the schoolbus to be extended by more than 10
inches, inclusive of any front safety bumper. Use of a crossing
control arm by the operator of a schoolbus does not, in and of
itself, fulfill his or her responsibility to ensure the safety of
students crossing a highway or private road pursuant to Section
22112.
(7) A bus, when the excess length is caused by a device, located
in front of the front axle, for lifting wheelchairs into the bus.
That device shall not cause the length of the bus to be extended by
more than 18 inches, inclusive of any front safety bumper.
(8) A bus, when the excess length is caused by a device attached
to the rear of the bus designed and used exclusively for the
transporting of bicycles. This device may be up to 10 feet in
length, if the device, along with any other device permitted pursuant
to this section, does not cause the total length of the bus,
including any device or load, to exceed 50 feet.
(9) A bus operated by a public agency or a passenger stage
corporation, as defined in Section 226 of the Public Utilities Code,
used in transit system service, other than a schoolbus, when the
excess length is caused by a folding device attached to the front of
the bus which is designed and used exclusively for transporting
bicycles. The device, including any bicycles transported thereon,
shall be mounted in a manner that does not materially affect
efficiency or visibility of vehicle safety equipment, and shall not
extend more than 36 inches from the front body of the bus when fully
deployed. The handlebars of a bicycle that is transported on a
device described in this paragraph shall not extend more than 42
inches from the front of the bus. A device described in this
paragraph may not be used on any bus which, exclusive of the device,
exceeds 40 feet in length or on any bus having a device attached to
the rear of the bus pursuant to paragraph (8).
(10) A bus of a length of up to 45 feet when operating on those
highways specified in subdivision (a) of Section 35401.5. The
Department of Transportation or local authorities, with respect to
highways under their respective jurisdictions, shall not deny
reasonable access to a bus of a length of up to 45 feet between the
highways specified in subdivision (a) of Section 35401.5 and points
of loading and unloading for motor carriers of passengers as required
by the federal Intermodal Surface Transportation Efficiency Act of
1991 (P.L. 102-240).
(11) (A) A house car of a length of up to 45 feet when operating
on the National System of Interstate and Defense Highways or when
using those portions of federal aid primary system highways that have
been qualified by the United States Secretary of Transportation for
that use, or when using routes appropriately identified by the
Department of Transportation or local authorities, with respect to
highways under their respective jurisdictions.
(B) A house car described in subparagraph (A) may be operated on a
highway that provides reasonable access to facilities for purposes
limited to fuel, food, and lodging when that access is consistent
with the safe operation of the vehicle and when the facility is
within one road mile of identified points of ingress and egress to or
from highways specified in subparagraph (A) for use by that vehicle.
(C) As used in this paragraph and paragraph (10), "reasonable
access" means access substantially similar to that authorized for
combinations of vehicles pursuant to subdivision (c) of Section
35401.5.
(D) Any access route established by a local authority pursuant to
subdivision (d) of Section 35401.5 is open for access by a house car
of a length of up to 45 feet. In addition, local authorities may
establish a process whereby access to services by house cars of a
length of up to 45 feet may be applied for upon a route not
previously established as an access route. The denial of a request
for access to services shall be only on the basis of safety and an
engineering analysis of the proposed access route. In lieu of
processing an access application, local authorities, with respect to
highways under their jurisdiction, may provide signing, mapping, or a
listing of highways, as necessary, to indicate the use of these
specific routes by a house car of a length of up to 45 feet.
(c) The Legislature, by increasing the maximum permissible kingpin
to rearmost axle distance to 40 feet effective January 1, 1987, as
provided in paragraph (4) of subdivision (b), does not intend this
action to be considered a precedent for any future increases in truck
size and length limitations.
(d) Any transit bus equipped with a folding device installed on or
after January 1, 1999, that is permitted under subparagraph (B) of
paragraph (3) of subdivision (b) or under paragraph (9) of
subdivision (b) shall be additionally equipped with any of the
following:
(1) An indicator light that is visible to the driver and is
activated whenever the folding device is in an extended position.
(2) Any other device or mechanism that provides notice to the
driver that the folding device is in an extended position.
(3) A mechanism that causes the folding device to retract
automatically from an extended position.
(e) (1) No person shall improperly or unsafely mount a bicycle on
a device described in subparagraph (B) of paragraph (3) of
subdivision (b), or in paragraph (9) of subdivision (b).
(2) Notwithstanding subdivision (a) of Section 23114 or
subdivision (a) of Section 24002 or any other provision of law, when
a bicycle is improperly or unsafely loaded by a passenger onto a
transit bus, the passenger, and not the driver, is liable for any
violation of this code that is attributable to the improper or
unlawful loading of the bicycle.
SEC. 31. Section 355 of the Welfare and Institutions Code is
amended to read:
355. (a) At the jurisdictional hearing, the court shall first
consider only the question whether the minor is a person described by
Section 300. Any legally admissible evidence that is relevant to
the circumstances or acts that are alleged to bring the minor within
the jurisdiction of the juvenile court is admissible and may be
received in evidence. Proof by a preponderance of evidence must be
adduced to support a finding that the minor is a person described by
Section 300. Objections that could have been made to evidence
introduced shall be deemed to have been made by any parent or
guardian who is present at the hearing and unrepresented by counsel,
unless the court finds that the parent or guardian has made a knowing
and intelligent waiver of the right to counsel. Objections that
could have been made to evidence introduced shall be deemed to have
been made by any unrepresented child.
(b) A social study prepared by the petitioning agency, and hearsay
evidence contained in it, is admissible and constitutes competent
evidence upon which a finding of jurisdiction pursuant to Section 300
may be based, to the extent allowed by subdivisions (c) and (d).
(1) For the purposes of this section, "social study" means any
written report furnished to the juvenile court and to all parties or
their counsel by the county probation or welfare department in any
matter involving the custody, status, or welfare of a minor in a
dependency proceeding pursuant to Article 6 (commencing with Section
300) to 12 (commencing with Section 385), inclusive of Chapter 2 of
Division 2.
(2) The preparer of the social study shall be made available for
cross-examination upon a timely request by any party. The court may
deem the preparer available for cross-examination if it determines
that the preparer is on telephone standby and can be present in court
within a reasonable time of the request.
(3) The court may grant a reasonable continuance not to exceed 10
days upon request by any party if the social study is not provided to
the parties or their counsel within a reasonable time before the
hearing.
(c) (1) If any party to the jurisdictional hearing raises a timely
objection to the admission of specific hearsay evidence contained in
a social study, the specific hearsay evidence shall not be
sufficient by itself to support a jurisdictional finding or any
ultimate fact upon which a jurisdictional finding is based, unless
the petitioner establishes one or more of the following exceptions:
(A) The hearsay evidence would be admissible in any civil or
criminal proceeding under any statutory or decisional exception to
the prohibition against hearsay.
(B) The hearsay declarant is a minor under the age of 12 years who
is the subject of the jurisdictional hearing. However, the hearsay
statement of a minor under the age of 12 years shall not be
admissible if the objecting party establishes that the statement is
unreliable because it was the product of fraud, deceit, or undue
influence.
(C) The hearsay declarant is a peace officer as defined by Chapter
4.5 (commencing with Section 830) of Part 2 of Title 3 of the Penal
Code, a health practitioner as defined by paragraphs (21) to (28),
inclusive, of subdivision (a) of Section 11165.7 of the Penal Code, a
social worker licensed pursuant to Chapter 14 (commencing with
Section 4996) of Division 2 of the Business and Professions Code, or
a teacher who holds a credential pursuant to Chapter 2 (commencing
with Section 44200) of Part 24 of Division 3 of Title 2 of the
Education Code. For the purpose of this subdivision, evidence in a
declaration is admissible only to the extent that it would otherwise
be admissible under this section or if the declarant were present and
testifying in court.
(D) The hearsay declarant is available for cross-examination. For
purposes of this section, the court may deem a witness available for
cross-examination if it determines that the witness is on telephone
standby and can be present in court within a reasonable time of a
request to examine the witness.
(2) For purposes of this subdivision, an objection is timely if it
identifies with reasonable specificity the disputed hearsay evidence
and it gives the petitioner a reasonable period of time to meet the
objection prior to a contested hearing.
(d) This section shall not be construed to limit the right of any
party to the jurisdictional hearing to subpoena a witness whose
statement is contained in the social study or to introduce admissible
evidence relevant to the weight of the hearsay evidence or the
credibility of the hearsay declarant.
SEC. 32. Section 387 of the Welfare and Institutions Code is
amended to read:
387. An order changing or modifying a previous order by removing
a child from the physical custody of a parent, guardian, relative, or
friend and directing placement in a foster home, or commitment to a
private or county institution, shall be made only after noticed
hearing upon a supplemental petition.
(a) The supplemental petition shall be filed by the social worker
in the original matter and shall contain a concise statement of facts
sufficient to support the conclusion that the previous disposition
has not been effective in the rehabilitation or protection of the
child or, in the case of a placement with a relative, sufficient to
show that the placement is not appropriate in view of the criteria in
Section 361.3.
(b) Upon the filing of the supplemental petition, the clerk of the
juvenile court shall immediately set the same for hearing within 30
days, and the social worker shall cause notice thereof to be served
upon the persons and in the manner prescribed by Sections 290.1 and
291.
(c) An order for the detention of the child pending adjudication
of the petition may be made only after a hearing is conducted
pursuant to Article 7 (commencing with Section 305).
SEC. 33. Section 15763 of
the Welfare and Institutions Code is amended to read:
15763. (a) Each county shall establish an emergency response
adult protective services program that shall provide in-person
response, 24 hours per day, seven days per week, to reports of abuse
of an elder or a dependent adult, for the purpose of providing
immediate intake or intervention, or both, to new reports involving
immediate life threats and to crises in existing cases. The program
shall include policies and procedures to accomplish all of the
following:
(1) Provision of case management services that include
investigation of the protection issues, assessment of the person's
concerns, needs, strengths, problems, and limitations, stabilization
and linking with community services, and development of a service
plan to alleviate identified problems utilizing counseling,
monitoring, followup, and reassessment.
(2) Provisions for emergency shelter or in-home protection to
guarantee a safe place for the elder or dependent adult to stay until
the dangers at home can be resolved.
(3) Establishment of multidisciplinary teams to develop
interagency treatment strategies, to ensure maximum coordination with
existing community resources, to ensure maximum access on behalf of
elders and dependent adults, and to avoid duplication of efforts.
(b) (1) A county shall respond immediately to any report of
imminent danger to an elder or dependent adult residing in other than
a long-term care facility, as defined in Section 9701 of the Welfare
and Institutions Code, or a residential facility, as defined in
Section 1502 of the Health and Safety Code. For reports involving
persons residing in a long-term care facility or a residential care
facility, the county shall report to the local long-term care
ombudsman program. Adult protective services staff shall consult,
coordinate, and support efforts of the ombudsman program to protect
vulnerable residents. Except as specified in paragraph (2), the
county shall respond to all other reports of danger to an elder or
dependent adult in other than a long-term care facility or
residential care facility within 10 calendar days or as soon as
practicably possible.
(2) An immediate or 10-day in-person response is not required when
the county, based upon an evaluation of risk, determines and
documents that the elder or dependent adult is not in imminent danger
and that an immediate or 10-day in-person response is not necessary
to protect the health or safety of the elder or dependent adult.
(3) The State Department of Social Services, in consultation with
the County Welfare Directors Association, shall develop requirements
for implementation of paragraph (2), including, but not limited to,
guidelines for determining appropriate application of this section
and any applicable documentation requirements.
(4) Notwithstanding Chapter 3.5 (commencing with Section 11340) of
Part 1 of Division 3 of Title 2 of the Government Code, the
department shall implement the requirements developed pursuant to
paragraph (3) by means of all-county letters or similar instructions
prior to adopting regulations for that purpose. Thereafter, the
department shall adopt regulations in accordance with the
requirements of Chapter 3.5 (commencing with Section 11340) of Part 1
of Division 3 of Title 2 of the Government Code.
(c) A county shall not be required to report or respond to a
report pursuant to subdivision (b) that involves danger to an elder
or dependent adult residing in any facility for the incarceration of
prisoners that is operated by or under contract to the Federal Bureau
of Prisons, the Department of Corrections, the California Department
of the Youth Authority, a county sheriff's department, a city police
department, or any other law enforcement agency when the abuse
reportedly has occurred in that facility.
(d) A county shall provide case management services to elders and
dependent adults who are determined to be in need of adult protective
services for the purpose of bringing about changes in the lives of
victims and to provide a safety net to enable victims to protect
themselves in the future. Case management services shall include the
following, to the extent services are appropriate for the
individual:
(1) Investigation of the protection issues, including, but not
limited to, social, medical, environmental, physical, emotional, and
developmental.
(2) Assessment of the person's concerns and needs on whom the
report has been made and the concerns and needs of other members of
the family and household.
(3) Analysis of problems and strengths.
(4) Establishment of a service plan for each person on whom the
report has been made to alleviate the identified problems.
(5) Client input and acceptance of proposed service plans.
(6) Counseling for clients and significant others to alleviate the
identified problems and to implement the service plan.
(7) Stabilizing and linking with community services.
(8) Monitoring and followup.
(9) Reassessments, as appropriate.
(e) To the extent resources are available, each county shall
provide emergency shelter in the form of a safe haven or in-home
protection for victims. Shelter and care appropriate to the needs of
the victim shall be provided for frail and disabled victims who are
in need of assistance with activities of daily living.
(f) Each county shall designate an adult protective services
agency to establish and maintain multidisciplinary teams including,
but not limited to, adult protective services, law enforcement,
probation departments, home health care agencies, hospitals, adult
protective services staff, the public guardian, private community
service agencies, public health agencies, and mental health agencies
for the purpose of providing interagency treatment strategies.
(g) Each county shall provide tangible support services, to the
extent resources are available, which may include, but not be limited
to, emergency food, clothing, repair or replacement of essential
appliances, plumbing and electrical repair, blankets, linens, and
other household goods, advocacy with utility companies, and emergency
response units.
SEC. 34. Any section of any act enacted by the Legislature during
the 2003 calendar year that takes effect on or before January 1,
2004, and that amends, amends and renumbers, adds, repeals and adds,
or repeals any one or more of the sections affected by this act, with
the exception of Senate Bill 600, shall prevail over this act,
whether that act is enacted prior to, or subsequent to, the enactment
of this act. The repeal, or repeal and addition, of any article,
chapter, part, title, or division of any code by this act shall not
become operative if any section of any other act that is enacted by
the Legislature during the 2003 calendar year and takes effect on or
before January 1, 2004, amends, amends and renumbers, adds, repeals
and adds, or repeals any section contained in that article, chapter,
part, title, or division.