BILL NUMBER: SB 174 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 13, 2009
AMENDED IN SENATE MAY 5, 2009
AMENDED IN SENATE APRIL 22, 2009
INTRODUCED BY Senator Strickland
FEBRUARY 14, 2009
An act to amend Section 21606.5 of the Business and Professions
Code, to amend Section 1670.7 of the Civil Code, to amend Section
1219 of the Code of Civil Procedure, to amend Section 27388 of the
Government Code, to amend Section 12101 of the Health and Safety
Code, to amend Sections 290.011, 290.4, 290.46, 484b, 1094,
830.2, 1094, 1369.1, 6125, 6126, 6126.1, 6126.2,
6126.3, 6126.5, 6127.3, 6128, 6129, 6131, 6132, 6133, 11102.1,
12076, 12650, 13010, and 13202 of the Penal Code, to amend
Section 40519 of the Vehicle Code, and to amend Sections
827.9, 1767.35, and 6603.5 of the Welfare and Institutions Code,
relating to public safety.
LEGISLATIVE COUNSEL'S DIGEST
SB 174, as amended, Strickland. Public safety and welfare.
Existing law provides that a person shall not engage in specified
transactions relating to explosives without having received a permit
from the appropriate issuing authority. The authority shall inquire
with the Department of Justice for a determination of whether the
applicant meets specified criteria and should be granted or denied a
permit. The department shall not disclose the contents of a person's
records to any unauthorized person.
This bill would provide that if an applicant becomes ineligible to
hold a permit, the Department of Justice shall provide to the
issuing authority any subsequent arrest and conviction information
supporting that ineligibility.
Existing law, the Sex Offender Registration Act, provides that
every person who is required to register as a sex offender who is
living as a transient is required to register for the rest of his or
her life, as specified. Any person required to register under the act
who willfully violates any requirement of the act is guilty of a
misdemeanor or a felony, as specified.
This bill would provide that if a transient convicted as a sex
offender in another jurisdiction enters the state, he or she shall
register within 5 working days of coming into California with the
chief of the police of the city in which he or she is present or the
sheriff of the county if he or she is present in an unincorporated
area or city that has no police department. This bill would impose a
state-mandated program on local government by expanding the scope of
an existing crime and requiring additional administration by local
agencies.
Existing law requires the Department of Justice to make reports to
the Legislature regarding specified provisions of the Sex Offender
Registration Act.
This bill would delete those reporting provisions.
Existing law specifies persons who are peace officers whose
authority extends to any place in the state.
This bill would state that the Chief Assistant Inspector General,
Deputy Inspector General In Charge, Senior Assistant Inspector
General, and Special Assistant Inspector General are included within
the group of persons who are peace officers whose authority extends
to any place in the state.
Existing law includes a county jail within the term treatment
facility for purposes of administering antipsychotic medication
pursuant to a court order, as specified. Under existing law, that
provision is repealed as of January 1, 2010, unless another statute
deletes or extends that date.
This bill would extend that date to January 1, 2015.
Existing law establishes the Office of the Inspector General for
the purpose of conducting audits and investigations of the Department
of Corrections and Rehabilitation, as specified. Under existing law,
the Department of Corrections and Rehabilitation is required to
establish a certification program for investigators under the
jurisdiction of the Inspector General, in consultation with the
Commission on Correctional Peace Officer Standards and Training and
the Inspector General, as specified. Existing law generally regulates
the employment requirements and training requirements for
investigators under the jurisdiction of the Office of the Inspector
General.
This bill would, instead, require the Inspector General to
establish a certification program for peace officers under the
jurisdiction of the Inspector General. This bill would require that
training course to be consistent with the standard course used by the
Commission on Peace Officer Standards and Training, as specified.
This bill would also require peace officers under the jurisdiction of
the Inspector General who conduct investigations for the Inspector
General to complete an investigation training consistent with
standard courses used by other major law enforcement investigative
offices, as specified. This bill would require all peace officers
under the jurisdiction of the Inspector General to successfully pass
a psychological screening exam before becoming employed with the
Office of the Inspector General, as specified.
Existing law excludes certain books, papers, records, and
correspondence of the Office of the Inspector General from disclosure
requirements for public records. Existing law also excludes those
books, papers, records, and correspondence from the requirements of
certain civil subpoenas, as specified.
This bill would, in addition, exclude any papers, correspondence,
memoranda, electronic communications, or other documents pertaining
to contemporaneous public oversight by the Inspector General from
those requirements. This bill would also exclude all of the specified
books, papers, records, and correspondence from the disclosure
requirements relating to proceedings relating to an adverse action
taken against a state civil servant, as specified.
This bill would also make various technical, nonsubstantive, and
clarifying changes to provisions related to the Office of the
Inspector General, as specified.
Existing law requires a person applying to be a fingerprint roller
to have his or her application notarized.
This bill would delete this requirement.
Existing law requires the Department of Justice to provide to the
Governor a printed annual report containing criminal statistics, as
specified.
This bill would delete the requirement that the report be printed.
Existing law authorizes a person to make a deposit and declare his
or her intent to plead not guilty to an infraction for which the
person has received a written notice to appear, as specified.
This bill would state that a deposit of bail made pursuant to that
provision does not constitute entry of a plea or a court appearance
and that the plea must be made in court at the time of arraignment.
Existing law generally regulates public safety.
This bill would make various technical, nonsubstantive, and
clarifying changes to provisions related to, among other things, junk
dealers, real estate fraud, sex offenders and their victims,
criminal offender records and juvenile police records, and weapons.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 21606.5 of the Business and Professions Code is
amended to read:
21606.5. Every junk dealer or recycler shall, during normal
business hours, allow periodic inspection of any premises maintained
and any junk thereon for the purpose of determining compliance with
the recordkeeping requirements of this article, and shall during
those hours produce his or her records of sales and purchases, except
as provided in subparagraph (B) of paragraph (6) of subdivision (a)
of Section 21608.5, and all property purchased incident to those
transactions which is in the possession of the junk dealer or
recycler for inspection by any of the following persons:
(a) An officer holding a warrant authorizing him or her to search
for personal property.
(b) A person appointed by the sheriff of a county or appointed by
the head of the police department of a city.
(c) An officer holding a court order directing him or her to
examine the records or property.
(d) The amendments to this section made by the act adding this
subdivision shall become operative on December 1, 2008.
SEC. 2. Section 1670.7 of the Civil Code is amended to read:
1670.7. Any provision of a contract that purports to allow a
deduction from a person's wages for the cost of emigrating and
transporting that person to the United States is void as against
public policy.
SEC. 3. Section 1219 of the Code of Civil Procedure is amended to
read:
1219. (a) Except as provided in subdivision (b), when the
contempt consists of the omission to perform an act which is yet in
the power of the person to perform, he or she may be imprisoned until
he or she has performed it, and in that case the act shall be
specified in the warrant of commitment.
(b) Notwithstanding any other law, no court may imprison or
otherwise confine or place in custody the victim of a sexual assault
or domestic violence crime for contempt when the contempt consists of
refusing to testify concerning that sexual assault or domestic
violence crime.
(c) As used in this section, the following terms have the
following meanings:
(1) "Sexual assault" means any act made punishable by Section 261,
262, 264.1, 285, 286, 288, 288a, or 289 of the Penal Code.
(2) "Domestic violence" means "domestic violence" as defined in
Section 6211 of the Family Code.
SEC. 4. Section 27388 of the Government Code is amended to read:
27388. (a) In addition to any other recording fees specified in
this code, upon the adoption of a resolution by the county board of
supervisors, a fee of up to three dollars ($3) shall be paid at the
time of recording of every real estate instrument, paper, or notice
required or permitted by law to be recorded within that county,
except those expressly exempted from payment of recording fees. "Real
estate instrument" is defined for the purpose of this section as a
deed of trust, an assignment of deed of trust, a reconveyance, a
request for notice, a notice of default, a substitution of trustee, a
notice of trustee sale, and a notice of rescission of declaration of
default. "Real estate instrument" does not include any deed,
instrument, or writing subject to the imposition of a documentary
transfer tax as defined in Section 11911 of the Revenue and Taxation
Code, nor any document required to facilitate the transfer subject to
the documentary transfer tax. The fees, after deduction of any
actual and necessary administrative costs incurred by the county in
carrying out this section, shall be paid quarterly to the county
auditor or director of finance, to be placed in the Real Estate Fraud
Prosecution Trust Fund. The amount deducted for administrative costs
shall not exceed 10 percent of the fees paid pursuant to this
section.
(b) Money placed in the Real Estate Fraud Prosecution Trust Fund
shall be expended to fund programs to enhance the capacity of local
police and prosecutors to deter, investigate, and prosecute real
estate fraud crimes. After deduction of the actual and necessary
administrative costs referred to in subdivision (a), 60 percent of
the funds shall be distributed to district attorneys subject to
review pursuant to subdivision (d), and 40 percent of the funds shall
be distributed to local law enforcement agencies within the county
in accordance with subdivision (c). In those counties where the
investigation of real estate fraud is done exclusively by the
district attorney, after deduction of the actual and necessary
administrative costs referred to in subdivision (a), 100 percent of
the funds shall be distributed to the district attorney, subject to
review pursuant to subdivision (d). The funds so distributed shall be
expended for the exclusive purpose of deterring, investigating, and
prosecuting real estate fraud crimes.
(c) The county auditor or director of finance shall distribute
funds in the Real Estate Fraud Prosecution Trust Fund to eligible law
enforcement agencies within the county pursuant to subdivision (b),
as determined by a Real Estate Fraud Prosecution Trust Fund Committee
composed of the district attorney, the county chief administrative
officer, the chief officer responsible for consumer protection within
the county, and the chief law enforcement officer of one law
enforcement agency receiving funding from the Real Estate Fraud
Prosecution Trust Fund, the latter being selected by a majority of
the other three members of the committee. The chief law enforcement
officer shall be a nonvoting member of the committee and shall serve
a one-year term, which may be renewed. Members may appoint
representatives of their offices to serve on the committee. If a
county lacks a chief officer responsible for consumer protection, the
county board of supervisors may appoint an appropriate
representative to serve on the committee. The committee shall
establish and publish deadlines and written procedures for local law
enforcement agencies within the county to apply for the use of funds
and shall review applications and make determinations by majority
vote as to the award of funds using the following criteria:
(1) Each law enforcement agency that seeks funds shall submit a
written application to the committee setting forth in detail the
agency's proposed use of the funds.
(2) In order to qualify for receipt of funds, each law enforcement
agency submitting an application shall provide written evidence that
the agency either:
(A) Has a unit, division, or section devoted to the investigation
or prosecution of real estate fraud, or both, and the unit, division,
or section has been in existence for at least one year prior to the
application date.
(B) Has on a regular basis, during the three years immediately
preceding the application date, accepted for investigation or
prosecution, or both, and assigned to specific persons employed by
the agency, cases of suspected real estate fraud, and actively
investigated and prosecuted those cases.
(3) The committee's determination to award funds to a law
enforcement agency shall be based on, but not be limited to, (A) the
number of real estate fraud cases filed in the prior year; (B) the
number of real estate fraud cases investigated in the prior year; (C)
the number of victims involved in the cases filed; and (D) the total
aggregated monetary loss suffered by victims, including individuals,
associations, institutions, or corporations, as a result of the real
estate fraud cases filed, and those under active investigation by
that law enforcement agency.
(4) Each law enforcement agency that, pursuant to this section,
has been awarded funds in the previous year, upon reapplication for
funds to the committee in each successive year, in addition to any
information the committee may require in paragraph (3), shall be
required to submit a detailed accounting of funds received and
expended in the prior year. The accounting shall include (A) the
amount of funds received and expended; (B) the uses to which those
funds were put, including payment of salaries and expenses, purchase
of equipment and supplies, and other expenditures by type; (C) the
number of filed complaints, investigations, arrests, and convictions
that resulted from the expenditure of the funds; and (D) other
relevant information the committee may reasonably require.
(d) The county board of supervisors shall annually review the
effectiveness of the district attorney in deterring, investigating,
and prosecuting real estate fraud crimes based upon information
provided by the district attorney in an annual report. The district
attorney shall submit the annual report to the board and to the
Legislative Analyst's Office on or before September 1 of each year.
The Legislative Analyst's Office shall compile the results and report
to the Legislature, detailing both:
(1) Facts, based upon, but not limited to, (A) the number of real
estate fraud cases filed in the prior year; (B) the number of real
estate fraud cases investigated in the prior year; (C) the number of
victims involved in the cases filed; (D) the number of convictions
obtained in the prior year; and (E) the total aggregated monetary
loss suffered by victims, including individuals, associations,
institutions, corporations, and other relevant public entities,
according to the number of cases filed, investigations, prosecutions,
and convictions obtained.
(2) An accounting of funds received and expended in the prior
year, which shall include (A) the amount of funds received and
expended; (B) the uses to which those funds were put, including
payment of salaries and expenses, purchase of equipment and supplies,
and other expenditures by type; (C) the number of filed complaints,
investigations, prosecutions, and convictions that resulted from the
expenditure of funds; and (D) other relevant information provided at
the discretion of the district attorney.
(e) A county in which a district attorney fails to submit an
annual report to the Legislative Analyst's Office pursuant to the
requirements of subdivision (d) shall not expend funds held in that
county's Real Estate Fraud Prosecution Trust Fund until the district
attorney has submitted an annual report for the county's most recent
full fiscal year.
(f) Annual reports submitted to the Legislative Analyst's Office
pursuant to subdivision (d) shall be made in a standard form and
manner determined by the Legislative Analyst's Office, in
consultation with participating law enforcement agencies.
(g) The intent of the Legislature in enacting this section is to
have an impact on real estate fraud involving the largest number of
victims. To the extent possible, an emphasis should be placed on
fraud against individuals whose residences are in danger of, or are
in, foreclosure as defined in subdivision (b) of Section 1695.1 of
the Civil Code. Case filing decisions continue to be at the
discretion of the prosecutor.
(h) A district attorney's office or a local enforcement agency
that has undertaken investigations and prosecutions that will
continue into a subsequent program year may receive nonexpended funds
from the previous fiscal year subsequent to the annual submission of
information detailing the accounting of funds received and expended
in the prior year.
(i) No money collected pursuant to this section shall be expended
to offset a reduction in any other source of funds. Funds from the
Real Estate Fraud Prosecution Trust Fund shall be used only in
connection with criminal investigations or prosecutions involving
recorded real estate documents.
SEC. 5. Section 12101 of the Health and Safety Code is amended to
read:
12101. (a) No person shall do any one of the following without
first having made application for and received a permit in accordance
with this section:
(1) Manufacture explosives.
(2) Sell, furnish, or give away explosives.
(3) Receive, store, or possess explosives.
(4) Transport explosives.
(5) Use explosives.
(6) Operate a terminal for handling explosives.
(7) Park or leave standing any vehicle carrying explosives, except
when parked or left standing in or at a safe stopping place
designated as such by the Department of the California Highway Patrol
under Division 14 (commencing with Section 31600) of the Vehicle
Code.
(b) Application for a permit shall be made to the appropriate
issuing authority.
(c) (1) A permit shall be obtained from the issuing authority
having the responsibility in the area where the activity, as
specified in subdivision (a), is to be conducted.
(2) If the person holding a valid permit for the use or storage of
explosives desires to purchase or receive explosives in a
jurisdiction other than that of intended use or storage, the person
shall first present the permit to the issuing authority in the
jurisdiction of purchase or receipt for endorsement. The issuing
authority may include any reasonable restrictions or conditions which
the authority finds necessary for the prevention of fire and
explosion, the preservation of life, safety, or the control and
security of explosives within the authority's jurisdiction. If, for
any reason, the issuing authority refuses to endorse the permit
previously issued in the area of intended use or storage, the
authority shall immediately notify both the issuing authority who
issued the permit and the Department of Justice of the fact of the
refusal and the reasons for the refusal.
(3) Every person who sells, gives away, delivers, or otherwise
disposes of explosives to another person shall first be satisfied
that the person receiving the explosives has a permit valid for that
purpose. When the permit to receive explosives indicates that the
intended storage or use of the explosives is other than in that area
in which the permittee receives the explosives, the person who sells,
gives away, delivers, or otherwise disposes of the explosives shall
insure ensure that the permit has been
properly endorsed by a local issuing authority and, further, shall
immediately send a copy of the record of sale to the issuing
authority who originally issued the permit in the area of intended
storage or use. The issuing authority in the area in which the
explosives are received or sold shall not issue a permit for the
possession, use, or storage of explosives in an area not within the
authority's jurisdiction.
(d) In the event any person desires to receive explosives for use
in an area outside of this state, a permit to receive the explosives
shall be obtained from the State Fire Marshal.
(e) A permit may include any restrictions or conditions which the
issuing authority finds necessary for the prevention of fire and
explosion, the preservation of life, safety, or the control and
security of explosives.
(f) A permit shall remain valid only until the time when the act
or acts authorized by the permit are performed, but in no event shall
the permit remain valid for a period longer than one year from the
date of issuance of the permit.
(g) Any valid permit which authorizes the performance of any act
shall not constitute authorization for the performance of any act not
stipulated in the permit.
(h) An issuing authority shall not issue a permit authorizing the
transportation of explosives pursuant to this section if the display
of placards for that transportation is required by Section 27903 of
the Vehicle Code, unless the driver possesses a license for the
transportation of hazardous materials issued pursuant to Division
14.1 (commencing with Section 32000) of the Vehicle Code, or the
explosives are a hazardous waste or extremely hazardous waste, as
defined in Sections 25117 and 25115 of the Health and Safety Code,
and the transporter is currently registered as a hazardous waste
hauler pursuant to Section 25163 of the Health and Safety Code.
(i) An issuing authority shall not issue a permit pursuant to this
section authorizing the handling or storage of division 1.1, 1.2, or
1.3 explosives in a building, unless the building has caution
placards which meet the standards established pursuant to subdivision
(g) of Section 12081.
(j) (1) A permit shall not be issued to a person who meets any of
the following criteria:
(A) He or she has been convicted of a felony.
(B) He or she is addicted to a narcotic drug.
(C) He or she is in a class prohibited by state or federal law
from possessing, receiving, owning, or purchasing a firearm.
(2) For purposes of determining whether a person meets any of the
criteria set forth in this subdivision, the issuing authority shall
obtain two sets of fingerprints on prescribed cards from all persons
applying for a permit under this section and shall submit these cards
to the Department of Justice. The Department of Justice shall
utilize the fingerprint cards to make inquiries both within this
state and to the Federal Bureau of Investigation regarding the
criminal history of the applicant identified on the fingerprint card.
This paragraph does not apply to any person possessing a current
certificate of eligibility issued pursuant to paragraph (4) of
subdivision (a) of Section 12071 or to any holder of a dangerous
weapons permit or license issued pursuant to Section 12095, 12230,
12250, 12286, or 12305 of the Penal Code.
(k) An issuing authority shall inquire with the Department of
Justice for the purposes of determining whether a person who is
applying for a permit meets any of the criteria specified in
subdivision (j). The Department of Justice shall determine whether a
person who is applying for a permit meets any of the criteria
specified in subdivision (j) and shall either grant or deny clearance
for a permit to be issued pursuant to the determination. The
Department of Justice shall not disclose the contents of a person's
records to any person who is not authorized to receive the
information in order to ensure confidentiality. If an applicant
becomes ineligible to hold a permit, the Department of Justice shall
provide to the issuing authority any subsequent arrest and conviction
information supporting that ineligibility.
SEC. 6. Section 290.011 of the Penal Code is amended to read:
290.011. Every person who is required to register pursuant to the
Act who is living as a transient shall be required to register for
the rest of his or her life as follows:
(a) He or she shall register, or reregister if the person has
previously registered, within five working days from release from
incarceration, placement or commitment, or release on probation,
pursuant to subdivision (b) of Section 290, except that if the person
previously registered as a transient less than 30 days from the date
of his or her release from incarceration, he or she does not need to
reregister as a transient until his or her next required 30-day
update of registration. If a transient convicted as a sex
offender in another jurisdiction enters the state, he or
she shall register within five working days of coming into California
with the chief of the police of the city in which
he or she is present or the sheriff of the county if he or she is
present in an unincorporated area or city that has no police
department. If a transient is not physically present in any one
jurisdiction for five consecutive working days, he or she shall
register in the jurisdiction in which he or she is physically present
on the fifth working day following release, pursuant to subdivision
(b) of Section 290. Beginning on or before the 30th day following
initial registration upon release, a transient shall reregister no
less than once every 30 days thereafter. A transient shall register
with the chief of police of the city in which he or she is physically
present within that 30-day period, or the sheriff of the county if
he or she is physically present in an unincorporated area or city
that has no police department, and additionally, with the chief of
police of a campus of the University of California, the California
State University, or community college if he or she is physically
present upon the campus or in any of its facilities. A transient
shall reregister no less than once every 30 days regardless of the
length of time he or she has been physically present in the
particular jurisdiction in which he or she reregisters. If a
transient fails to reregister within any 30-day period, he or she may
be prosecuted in any jurisdiction in which he or she is physically
present.
(b) A transient who moves to a residence shall have five working
days within which to register at that address, in accordance with
subdivision (b) of Section 290. A person registered at a residence
address in accordance with that provision who becomes transient shall
have five working days within which to reregister as a transient in
accordance with subdivision (a).
(c) Beginning on his or her first birthday following registration,
a transient shall register annually, within five working days of his
or her birthday, to update his or her registration with the entities
described in subdivision (a). A transient shall register in
whichever jurisdiction he or she is physically present on that date.
At the 30-day updates and the annual update, a transient shall
provide current information as required on the Department of Justice
annual update form, including the information described in paragraphs
(1) to (3), inclusive of subdivision (a) of Section 290.015, and the
information specified in subdivision (d).
(d) A transient shall, upon registration and reregistration,
provide current information as required on the Department of Justice
registration forms, and shall also list the places where he or she
sleeps, eats, works, frequents, and engages in leisure activities. If
a transient changes or adds to the places listed on the form during
the 30-day period, he or she does not need to report the new place or
places until the next required reregistration.
(e) Failure to comply with the requirement of reregistering every
30 days following initial registration pursuant to subdivision (a)
shall be punished in accordance with subdivision (g) of Section
290.018. Failure to comply with any other requirement of this section
shall be punished in accordance with either subdivision (a) or (b)
of Section 290.018.
(f) A transient who moves out of state shall inform, in person,
the chief of police in the city in which he or she is physically
present, or the sheriff of the county if he or she is physically
present in an unincorporated area or city that has no police
department, within five working days, of his or her move out of
state. The transient shall inform that registering agency of his or
her planned destination, residence or transient location out of
state, and any plans he or she has to return to California, if known.
The law enforcement agency shall, within three days after receipt of
this information, forward a copy of the change of location
information to the Department of Justice. The department shall
forward appropriate registration data to the law enforcement agency
having local jurisdiction of the new place of residence or location.
(g) For purposes of the act, "transient" means a person who has no
residence. "Residence" means one or more addresses at which a person
regularly resides, regardless of the number of days or nights spent
there, such as a shelter or structure that can be located by a street
address, including, but not limited to, houses, apartment buildings,
motels, hotels, homeless shelters, and recreational and other
vehicles.
(h) The transient registrant's duty to update his or her
registration no less than every 30 days shall begin with his or her
second transient update following the date this section became
effective.
SEC. 7. Section 290.4 of the Penal Code is amended to read:
290.4. (a) The department shall operate a service through which
members of the public may provide a list of at least six persons on a
form approved by the Department of Justice and inquire whether any
of those persons is required to register as a sex offender and is
subject to public notification. The Department of Justice shall
respond with information on any person as to whom information may be
available to the public via the Internet Web site as provided in
Section 290.46, to the extent that information may be disclosed
pursuant to Section 290.46. The Department of Justice may establish a
fee for requests, including all actual and reasonable costs
associated with the service.
(b) The income from the operation of the service specified in
subdivision (a) shall be deposited in the Sexual Predator Public
Information Account within the Department of Justice for the purpose
of the implementation of this section by the Department of Justice.
The moneys in the account shall consist of income from the
operation of the service authorized by subdivision (a), and any other
funds made available to the account by the Legislature. Moneys in
the account shall be available to the Department of Justice upon
appropriation by the Legislature for the purpose specified in
subdivision (a).
(c) (1) Any person who uses information disclosed pursuant to this
section to commit a felony shall be punished, in addition and
consecutive to, any other punishment, by a five-year term of
imprisonment in the state prison.
(2) Any person who, without authorization, uses information
disclosed pursuant to this section to commit a misdemeanor shall be
subject to, in addition to any other penalty or fine imposed, a fine
of not less than five hundred dollars ($500) and not more than one
thousand dollars ($1,000).
(d) (1) A person is authorized to use information disclosed
pursuant to this section only to protect a person at risk.
(2) Except as authorized under paragraph (1) or any other
provision of law, use of any information that is disclosed pursuant
to this section for purposes relating to any of the following is
prohibited:
(A) Health insurance.
(B) Insurance.
(C) Loans.
(D) Credit.
(E) Employment.
(F) Education, scholarships, or fellowships.
(G) Housing or accommodations.
(H) Benefits, privileges, or services provided by any business
establishment.
(3) This section shall not affect authorized access to, or use of,
information pursuant to, among other provisions, Sections 11105 and
11105.3 of this code, Section 226.55 of the Civil Code, Sections
777.5 and 14409.2 of the Financial Code, Sections 1522.01 and
1596.871 of the Health and Safety Code, and Section 432.7 of the
Labor Code.
(4) (A) Any use of information disclosed pursuant to this section
for purposes other than those provided by paragraph (1) or in
violation of paragraph (2) shall make the user liable for the actual
damages, and any amount that may be determined by a jury or a court
sitting without a jury, not exceeding
three times the amount of actual damage, and not less
than two hundred fifty dollars ($250), and attorney's fees, exemplary
damages, or a civil penalty not exceeding twenty-five thousand
dollars ($25,000).
(B) Whenever there is reasonable cause to believe that any person
or group of persons is engaged in a pattern or practice of misuse of
the service specified in subdivision (a), in violation of paragraph
(2), the Attorney General, any district attorney, or city attorney,
or any person aggrieved by the misuse of the service is authorized to
bring a civil action in the appropriate court requesting preventive
relief, including an application for a permanent or temporary
injunction, restraining order, or other order against the person or
group of persons responsible for the pattern or practice of misuse.
The foregoing remedies shall be independent of any other remedies or
procedures that may be available to an aggrieved party under other
provisions of law, including Part 2 (commencing with Section 43) of
Division 1 of the Civil Code.
(e) The Department of Justice and its employees shall be immune
from liability for good faith conduct under this section.
(f) The public notification provisions of this section are
applicable to every person described in subdivision (a), without
regard to when his or her crimes were committed or his or her duty to
register pursuant to Section 290 arose, and to every offense subject
to public notification pursuant to Section 290.46, regardless of
when it was committed.
SEC. 8. Section 290.46 of the Penal Code, as amended by Section
1.5 of Chapter 599 of the Statutes of 2008, is amended to read:
290.46. (a) (1) On or before the dates specified in this section,
the Department of Justice shall make available information
concerning persons who are required to register pursuant to Section
290 to the public via an Internet Web site as specified in this
section. The department shall update the Internet Web site on an
ongoing basis. All information identifying the victim by name, birth
date, address, or relationship to the registrant shall be excluded
from the Internet Web site. The name or address of the person's
employer and the listed person's criminal history other than the
specific crimes for which the person is required to register shall
not be included on the Internet Web site. The Internet Web site shall
be translated into languages other than English as determined by the
department.
(2) (A) On or before July 1, 2010, the Department of Justice shall
make available to the public, via an Internet Web site as specified
in this section, as to any person described in subdivision (b), (c),
or (d), the following information:
(i) The year of conviction of his or her most recent offense
requiring registration pursuant to Section 290.
(ii) The year he or she was released from incarceration for that
offense.
(iii) Whether he or she was subsequently incarcerated for any
other felony, if that fact is reported to the department. If the
department has no information about a subsequent incarceration for
any felony, that fact shall be noted on the Internet Web site.
However, no year of conviction shall be made available to the
public unless the department also is able to make available the
corresponding year of release of incarceration for that offense, and
the required notation regarding any subsequent felony.
(B) (i) Any state facility that releases from incarceration a
person who was incarcerated because of a crime for which he or she is
required to register as a sex offender pursuant to Section 290
shall, within 30 days of release, provide the year of release for his
or her most recent offense requiring registration to the Department
of Justice in a manner and format approved by the department.
(ii) Any state facility that releases a person who is required to
register pursuant to Section 290 from incarceration whose
incarceration was for a felony committed subsequently to the offense
for which he or she is required to register shall, within 30 days of
release, advise the Department of Justice of that fact.
(iii) Any state facility that, prior to January 1, 2007, released
from incarceration a person who was incarcerated because of a crime
for which he or she is required to register as a sex offender
pursuant to Section 290 shall provide the year of release for his or
her most recent offense requiring registration to the Department of
Justice in a manner and format approved by the department. The
information provided by the Department of Corrections and
Rehabilitation shall be limited to information that is currently
maintained in an electronic format.
(iv) Any state facility that, prior to January 1, 2007, released a
person who is required to register pursuant to Section 290 from
incarceration whose incarceration was for a felony committed
subsequently to the offense for which he or she is required to
register shall advise the Department of Justice of that fact in a
manner and format approved by the department. The information
provided by the Department of Corrections and Rehabilitation shall be
limited to information that is currently maintained in an electronic
format.
(3) The State Department of Mental Health shall provide to the
Department of Justice Sex Offender Tracking Program the names of all
persons committed to its custody pursuant to Article 4 (commencing
with Section 6600) of Chapter 2 of Part 2 of Division 6 of the
Welfare and Institutions Code, within 30 days of commitment, and
shall provide the names of all of those persons released from its
custody within five working days of release.
(b) (1) On or before July 1, 2005, with respect to a person who
has been convicted of the commission or the attempted commission of
any of the offenses listed in, or who is described in, paragraph (2),
the Department of Justice shall make available to the public via the
Internet Web site his or her name and known aliases, a photograph, a
physical description, including gender and race, date of birth,
criminal history, prior adjudication as a sexually violent predator,
the address at which the person resides, and any other information
that the Department of Justice deems relevant, but not the
information excluded pursuant to subdivision (a).
(2) This subdivision shall apply to the following offenses and
offenders:
(A) Section 187 committed in the perpetration, or an attempt to
perpetrate, rape or any act punishable under Section 286, 288, 288a,
or 289.
(B) Section 207 committed with intent to violate Section 261, 286,
288, 288a, or 289.
(C) Section 209 committed with intent to violate Section 261, 286,
288, 288a, or 289.
(D) Paragraph (2) or (6) of subdivision (a) of Section 261.
(E) Section 264.1.
(F) Section 269.
(G) Subdivision (c) or (d) of Section 286.
(H) Subdivision (a), (b), or (c) of Section 288, provided that the
offense is a felony.
(I) Subdivision (c) or (d) of Section 288a.
(J) Section 288.3, provided that the offense is a felony.
(K) Section 288.4, provided that the offense is a felony.
(L) Section 288.5.
(M) Subdivision (a) or (j) of Section 289.
(N) Section 288.7.
(O) Any person who has ever been adjudicated a sexually violent
predator, as defined in Section 6600 of the Welfare and Institutions
Code.
(P) A felony violation of Section 311.1.
(Q) A felony violation of subdivision (b), (c), or (d) of Section
311.2.
(R) A felony violation of Section 311.3.
(S) A felony violation of subdivision (a), (b), or (c) of Section
311.4.
(T) Section 311.10.
(U) A felony violation of Section 311.11.
(c) (1) On or before July 1, 2005, with respect to a person who
has been convicted of the commission or the attempted commission of
any of the offenses listed in paragraph (2), the Department of
Justice shall make available to the public via the Internet Web site
his or her name and known aliases, a photograph, a physical
description, including gender and race, date of birth, criminal
history, the community of residence and ZIP Code in which the person
resides or the county in which the person is registered as a
transient, and any other information that the Department of Justice
deems relevant, but not the information excluded pursuant to
subdivision (a). On or before July 1, 2006, the Department of Justice
shall determine whether any person convicted of an offense listed in
paragraph (2) also has one or more prior or subsequent convictions
of an offense listed in subdivision (c) of Section 290, and, for
those persons, the Department of Justice shall make available to the
public via the Internet Web site the address at which the person
resides. However, the address at which the person resides shall not
be disclosed until a determination is made that the person is, by
virtue of his or her additional prior or subsequent conviction of an
offense listed in subdivision (c) of Section 290, subject to this
subdivision.
(2) This subdivision shall apply to the following offenses:
(A) Section 220, except assault to commit mayhem.
(B) Paragraph (1), (3), or (4) of subdivision (a) of Section 261.
(C) Paragraph (2) of subdivision (b), or subdivision (f), (g), or
(i), of Section 286.
(D) Paragraph (2) of subdivision (b), or subdivision (f), (g), or
(i), of Section 288a.
(E) Subdivision (b), (d), (e), or (i) of Section 289.
(d) (1) On or before July 1, 2005, with respect to a person who
has been convicted of the commission or the attempted commission of
any of the offenses listed in, or who is described in, this
subdivision, the Department of Justice shall make available to the
public via the Internet Web site his or her name and known aliases, a
photograph, a physical description, including gender and race, date
of birth, criminal history, the community of residence and ZIP Code
in which the person resides or the county in which the person is
registered as a transient, and any other information that the
Department of Justice deems relevant, but not the information
excluded pursuant to subdivision (a) or the address at which the
person resides.
(2) This subdivision shall apply to the following offenses and
offenders:
(A) Subdivision (a) of Section 243.4, provided that the offense is
a felony.
(B) Section 266, provided that the offense is a felony.
(C) Section 266c, provided that the offense is a felony.
(D) Section 266j.
(E) Section 267.
(F) Subdivision (c) of Section 288, provided that the offense is a
misdemeanor.
(G) Section 288.3, provided that the offense is a misdemeanor.
(H) Section 288.4, provided that the offense is a misdemeanor.
(I) Section 626.81.
(J) Section 647.6.
(K) Section 653c.
(L) Any person required to register pursuant to Section 290 based
upon an out-of-state conviction, unless that person is excluded from
the Internet Web site pursuant to subdivision (e). However, if the
Department of Justice has determined that the out-of-state crime, if
committed or attempted in this state, would have been punishable in
this state as a crime described in subdivision (c) of Section 290,
the person shall be placed on the Internet Web site as provided in
subdivision (b) or (c), as applicable to the crime.
(e) (1) If a person has been convicted of the commission or the
attempted commission of any of the offenses listed in this
subdivision, and he or she has been convicted of no other offense
listed in subdivision (b), (c), or (d) other than those listed in
this subdivision, that person may file an application with the
Department of Justice, on a form approved by the department, for
exclusion from the Internet Web site. If the department determines
that the person meets the requirements of this subdivision, the
department shall grant the exclusion and no information concerning
the person shall be made available via the Internet Web site
described in this section. He or she bears the burden of proving the
facts that make him or her eligible for exclusion from the Internet
Web site. However, a person who has filed for or been granted an
exclusion from the Internet Web site is not relieved of his or her
duty to register as a sex offender pursuant to Section 290 nor from
any otherwise applicable provision of law.
(2) This subdivision shall apply to the following offenses:
(A) A felony violation of subdivision (a) of Section 243.4.
(B) Section 647.6, if the offense is a misdemeanor.
(C) A felony violation of Section 311.1, subdivision (b), (c), or
(d) of Section 311.2, or Section 311.3, 311.4, 311.10, or 311.11 if
the person submits to the department a certified copy of a probation
report filed in court that clearly states that all victims involved
in the commission of the offense were at least 16 years of age or
older at the time of the commission of the offense.
(D) (i) An offense for which the offender successfully completed
probation, provided that the offender submits to the department a
certified copy of a probation report, presentencing report, report
prepared pursuant to Section 288.1, or other official court document
that clearly demonstrates that the offender was the victim's parent,
stepparent, sibling, or grandparent and that the crime did not
involve either oral copulation or penetration of the vagina or rectum
of either the victim or the offender by the penis of the other or by
any foreign object.
(ii) An offense for which the offender is on probation at the time
of his or her application, provided that the offender submits to the
department a certified copy of a probation report, presentencing
report, report prepared pursuant to Section 288.1, or other official
court document that clearly demonstrates that the offender was the
victim's parent, stepparent, sibling, or grandparent and that the
crime did not involve either oral copulation or penetration of the
vagina or rectum of either the victim or the offender by the penis of
the other or by any foreign object.
(iii) If, subsequent to his or her application, the offender
commits a violation of probation resulting in his or her
incarceration in county jail or state prison, his or her exclusion,
or application for exclusion, from the Internet Web site shall be
terminated.
(iv) For the purposes of this subparagraph, "successfully
completed probation" means that during the period of probation the
offender neither received additional county jail or state prison time
for a violation of probation nor was convicted of another offense
resulting in a sentence to county jail or state prison.
(3) If the department determines that a person who was granted an
exclusion under a former version of this subdivision would not
qualify for an exclusion under the current version of this
subdivision, the department shall rescind the exclusion, make a
reasonable effort to provide notification to the person that the
exclusion has been rescinded, and, no sooner than 30 days after
notification is attempted, make information about the offender
available to the public on the Internet Web site as provided in this
section.
(4) Effective January 1, 2012, no person shall be excluded
pursuant to this subdivision unless the offender has submitted to the
department documentation sufficient for the department to determine
that he or she has a SARATSO risk level of low or moderate-low.
(f) The Department of Justice shall make a reasonable effort to
provide notification to persons who have been convicted of the
commission or attempted commission of an offense specified in
subdivision (b), (c), or (d), that on or before July 1, 2005, the
department is required to make information about specified sex
offenders available to the public via an Internet Web site as
specified in this section. The Department of Justice shall also make
a reasonable effort to provide notice that some offenders are
eligible to apply for exclusion from the Internet Web site.
(g) (1) A designated law enforcement entity, as defined in
subdivision (f) of Section 290.45, may make available information
concerning persons who are required to register pursuant to Section
290 to the public via an Internet Web site as specified in paragraph
(2).
(2) The law enforcement entity may make available by way of an
Internet Web site the information described in subdivision (c) if it
determines that the public disclosure of the information about a
specific offender by way of the entity's Internet Web site is
necessary to ensure the public safety based upon information
available to the entity concerning that specific offender.
(3) The information that may be provided pursuant to this
subdivision may include the information specified in subdivision (b)
of Section 290.45. However, that offender's address may not be
disclosed unless he or she is a person whose address is on the
Department of Justice's Internet Web site pursuant to subdivision (b)
or (c).
(h) For purposes of this section, "offense" includes the statutory
predecessors of that offense, or any offense committed in another
jurisdiction that, if committed or attempted to be committed in this
state, would have been punishable in this state as an offense listed
in subdivision (c) of Section 290.
(i) Notwithstanding Section 6254.5 of the Government Code,
disclosure of information pursuant to this section is not a waiver of
exemptions under Chapter 3.5 (commencing with Section 6250) of Title
1 of Division 7 of the Government Code and does not affect other
statutory restrictions on disclosure in other situations.
(j) (1) Any person who uses information disclosed pursuant to this
section to commit a misdemeanor shall be subject to, in addition to
any other penalty or fine imposed, a fine of not less than ten
thousand dollars ($10,000) and not more than fifty thousand dollars
($50,000).
(2) Any person who uses information disclosed pursuant to this
section to commit a felony shall be punished, in addition and
consecutive to any other punishment, by a five-year term of
imprisonment in the state prison.
(k) Any person who is required to register pursuant to Section 290
who enters an Internet Web site established pursuant to this section
shall be punished by a fine not exceeding one thousand dollars
($1,000), imprisonment in a county jail for a period not to exceed
six months, or by both that fine and imprisonment.
(l) (1) A person is authorized to use information disclosed
pursuant to this section only to protect a person at risk.
(2) Except as authorized under paragraph (1) or any other
provision of law, use of any information that is disclosed pursuant
to this section for purposes relating to any of the following is
prohibited:
(A) Health insurance.
(B) Insurance.
(C) Loans.
(D) Credit.
(E) Employment.
(F) Education, scholarships, or fellowships.
(G) Housing or accommodations.
(H) Benefits, privileges, or services provided by any business
establishment.
(3) This section shall not affect authorized access to, or use of,
information pursuant to, among other provisions, Sections 11105 and
11105.3, Section 8808 of the Family Code, Sections 777.5 and 14409.2
of the Financial Code, Sections 1522.01 and 1596.871 of the Health
and Safety Code, and Section 432.7 of the Labor Code.
(4) (A) Any use of information disclosed pursuant to this section
for purposes other than those provided by paragraph (1) or in
violation of paragraph (2) shall make the user liable for the actual
damages, and any amount that may be determined by a jury or a court
sitting without a jury, not exceeding three times the amount of
actual damage, and not less than two hundred fifty dollars ($250),
and attorney's fees, exemplary damages, or a civil penalty not
exceeding twenty-five thousand dollars ($25,000).
(B) Whenever there is reasonable cause to believe that any person
or group of persons is engaged in a pattern or practice of misuse of
the information available via an Internet Web site established
pursuant to this section in violation of paragraph (2), the Attorney
General, any district attorney, or city attorney, or any person
aggrieved by the misuse is authorized to bring a civil action in the
appropriate court requesting preventive relief, including an
application for a permanent or temporary injunction, restraining
order, or other order against the person or group of persons
responsible for the pattern or practice of misuse. The foregoing
remedies shall be independent of any other remedies or procedures
that may be available to an aggrieved party under other provisions of
law, including Part 2 (commencing with Section 43) of Division 1 of
the Civil Code.
(m) The public notification provisions of this section are
applicable to every person described in this section, without regard
to when his or her crimes were committed or his or her duty to
register pursuant to Section 290 arose, and to every offense
described in this section, regardless of when it was committed.
(n) A designated law enforcement entity and its employees shall be
immune from liability for good faith conduct under this section.
(o) The Attorney General, in collaboration with local law
enforcement and others knowledgeable about sex offenders, shall
develop strategies to assist members of the public in understanding
and using publicly available information about registered sex
offenders to further public safety. These strategies may include, but
are not limited to, a hotline for community inquiries, neighborhood
and business guidelines for how to respond to information posted on
this Internet Web site, and any other resource that promotes public
education about these offenders.
SEC. 9. Section 484b of the Penal Code is amended to read:
484b. Any person who receives money for the purpose of obtaining
or paying for services, labor, materials or equipment and willfully
fails to apply such money for such purpose by either willfully
failing to complete the improvements for which funds were provided or
willfully failing to pay for services, labor, materials or equipment
provided incident to such construction, and wrongfully diverts the
funds to a use other than that for which the funds were received,
shall be guilty of a public offense and shall be punishable by a fine
not exceeding ten thousand dollars ($10,000), or by imprisonment in
the state prison, or in a county jail for a period not exceeding one
year, or by both that fine and imprisonment if the amount diverted is
in excess of one thousand dollars ($1,000). If the amount diverted
is one thousand dollars ($1,000) or less, the person shall be guilty
of a misdemeanor.
SEC. 10. Section 830.2 of the Penal
Code is amended to read:
830.2. The following persons are peace officers whose authority
extends to any place in the state:
(a) Any member of the Department of the California Highway Patrol
including those members designated under subdivision (a) of Section
2250.1 of the Vehicle Code, provided that the primary duty of the
peace officer is the enforcement of any law relating to the use or
operation of vehicles upon the highways, or laws pertaining to the
provision of police services for the protection of state officers,
state properties, and the occupants of state properties, or both, as
set forth in the Vehicle Code and Government Code.
(b) A member of the University of California Police Department
appointed pursuant to Section 92600 of the Education Code, provided
that the primary duty of the peace officer shall be the enforcement
of the law within the area specified in Section 92600 of the
Education Code.
(c) A member of the California State University Police Departments
appointed pursuant to Section 89560 of the Education Code, provided
that the primary duty of the peace officer shall be the enforcement
of the law within the area specified in Section 89560 of the
Education Code.
(d) (1) Any member of the Office of Correctional Safety of the
Department of Corrections and Rehabilitation, provided that the
primary duties of the peace officer shall be the investigation or
apprehension of inmates, wards, parolees, parole violators, or
escapees from state institutions, the transportation of those
persons, the investigation of any violation of criminal law
discovered while performing the usual and authorized duties of
employment, and the coordination of those activities with other
criminal justice agencies.
(2) Any member of the Office of Internal Affairs of the Department
of Corrections and Rehabilitation, provided that the primary duties
shall be criminal investigations of Department of Corrections and
Rehabilitation personnel and the coordination of those activities
with other criminal justice agencies. For purposes of this
subdivision, the member of the Office of Internal Affairs shall
possess certification from the Commission on Peace Officer Standards
and Training for investigators, or have completed training pursuant
to Section 6126.1 of the Penal Code.
(e) Employees of the Department of Fish and Game designated by the
director, provided that the primary duty of those peace officers
shall be the enforcement of the law as set forth in Section 856 of
the Fish and Game Code.
(f) Employees of the Department of Parks and Recreation designated
by the director pursuant to Section 5008 of the Public Resources
Code, provided that the primary duty of the peace officer shall be
the enforcement of the law as set forth in Section 5008 of the Public
Resources Code.
(g) The Director of Forestry and Fire Protection and employees or
classes of employees of the Department of Forestry and Fire
Protection designated by the director pursuant to Section 4156 of the
Public Resources Code, provided that the primary duty of the peace
officer shall be the enforcement of the law as that duty is set forth
in Section 4156 of the Public Resources Code.
(h) Persons employed by the Department of Alcoholic Beverage
Control for the enforcement of Division 9 (commencing with Section
23000) of the Business and Professions Code and designated by the
Director of Alcoholic Beverage Control, provided that the primary
duty of any of these peace officers shall be the enforcement of the
laws relating to alcoholic beverages, as that duty is set forth in
Section 25755 of the Business and Professions Code.
(i) Marshals and police appointed by the Board of Directors of the
California Exposition and State Fair pursuant to Section 3332 of the
Food and Agricultural Code, provided that the primary duty of the
peace officers shall be the enforcement of the law as prescribed in
that section.
(j) The Inspector General, pursuant to Section 6125, and the Chief
Deputy Inspector General In Charge, the ,
Chief Assistant Inspector General, Deputy Inspector General
In Charge, Senior Deputy
Inspector General, the Deputy Inspector General,
Senior Assistant Inspector General, Special Assistant Inspector
General, and those employees of the Inspector General as
designated by the Inspector General, are peace officers, provided
that the primary duty of these peace officers shall be conducting
audits of investigatory practices and other audits, as well as
conducting investigations, of the Department of Corrections and
Rehabilitation, Division of Juvenile Justice and the Board of Parole
Hearings.
SEC. 10. SEC. 11. Section 1094 of
the Penal Code is amended to read:
1094. When the state of the pleadings requires it, or in any
other case, for good reasons, and in the sound discretion of the
court, the order prescribed in Section 1093 may be departed from.
SEC. 12. Section 1369.1 of the Penal
Code is amended to read:
1369.1. (a) As used in this chapter, for the sole purpose of
administering antipsychotic medication pursuant to a court order,
"treatment facility" includes a county jail. Upon the concurrence of
the county board of supervisors, the county mental health director,
and the county sheriff, the jail may be designated to provide
medically approved medication to defendants found to be mentally
incompetent and unable to provide informed consent due to a mental
disorder, pursuant to this chapter. In the case of Madera, Napa, and
Santa Clara Counties, the concurrence shall be with the board of
supervisors, the county mental health director, and the county
sheriff or the chief of corrections. The provisions of Sections 1370
and 1370.01 shall apply to antipsychotic medications provided in a
county jail, provided, however, that the maximum period of time a
defendant may be treated in a treatment facility pursuant to this
section shall not exceed six months.
(b) The State Department of Mental Health shall report to the
Legislature on or before January 1, 2009, on all of the following:
(1) The number of defendants in the state who are incompetent to
stand trial.
(2) The resources available at state hospitals and local mental
health facilities, other than jails, for returning these defendants
to competence.
(3) Additional resources that are necessary to reasonably treat,
in a reasonable period of time, at the state and local levels,
excluding jails, defendants who are incompetent to stand trial.
(4) What, if any, statewide standards and organizations exist
concerning local treatment facilities that could treat defendants who
are incompetent to stand trial.
(5) Address the concerns regarding defendants who are incompetent
to stand trial who are currently being held in jail awaiting
treatment.
(c) This section does not abrogate or limit any provision of law
enacted to ensure the due process rights set forth in Sell v. United
States (2003) 539 U.S. 166.
(d) This section shall remain in effect only until January 1,
2010 2015 , and as of that date is
repealed, unless a later enacted statute, that is enacted before
January 1, 2010 2015 , deletes or
extends that date.
SEC. 13. Section 6125 of the Penal Code
is amended to read:
6125. There is hereby created the independent office
Office of the Inspector General which shall not
be a subdivision of any other governmental entity. The Governor shall
appoint, subject to confirmation by the Senate, the Inspector
General to a six-year term. The Inspector General may not be removed
from office during that term, except for good cause.
SEC. 14. Section 6126 of the Penal Code
is amended to read:
6126. (a) (1) The Inspector General shall review departmental
policy and procedures, conduct audits of investigatory practices and
other audits, be responsible for contemporaneous oversight of
internal affairs investigations and the disciplinary process,
and conduct investigations of the Department of Corrections and
Rehabilitation, as requested by either the Secretary of the
Department of Corrections and Rehabilitation or a Member of the
Legislature, pursuant to the approval of the Inspector General under
policies to be developed by the Inspector General. The Inspector
General may, under policies developed by the Inspector General,
initiate an investigation or an audit on his or her own accord.
(2) The Inspector General shall audit each warden of an
institution one year after his or her appointment, and shall audit
each correctional institution at least once every four years. Each
audit of a warden shall include, but not be limited to,
issues relating to personnel, training, investigations, and financial
matters. Each four-year audit shall include an assessment
of the maintenance of the facility managed by the warden. The audit
report shall include all significant findings of the
Inspector General's assessment of facility maintenance. These audit
reports shall be provided to the Legislature and shall be made
public. The requirements of this paragraph shall be phased in by the
Inspector General so that they are fully met by July 1, 2009.
(b) Upon completion of an investigation or audit, the Inspector
General shall provide a response to the requester.
(c) The Inspector General shall, during the course of an
investigatory audit, identify areas of full and partial compliance,
or noncompliance, with departmental investigatory policies and
procedures, specify deficiencies in the completion and documentation
of investigatory processes, and recommend corrective actions,
including, but not limited to, additional training with respect to
investigative policies, additional policies, or changes in policy, as
well as any other findings or recommendations that the Inspector
General deems appropriate.
(d) The Inspector General, pursuant to Section 6126.6, shall
review the Governor's candidates for appointment to serve as warden
for the state's adult correctional institutions and as
superintendents for the state's juvenile facilities .
(e) The Inspector General shall, in consultation with the
Department of Finance, develop a methodology for producing a workload
budget to be used for annually adjusting the budget of the
office Office of the Inspector General,
beginning with the budget for the 2005-06 fiscal year.
SEC. 15. Section 6126.1 of the Penal
Code is amended to read:
6126.1. (a) In consultation with the Commission on
Correctional Peace Officer Standards and Training and the Inspector
General, the Youth and Adult Correctional Agency shall establish a
certification program for investigators under the jurisdiction of the
Inspector General, the Youth and Adult Correctional Agency, the
Department of the Youth Authority, the Department of Corrections, the
Board of Corrections, the Youthful Offender Parole Board, and the
Board of Prison Terms. The Inspector General shall
establish a certification program for peace officers under the
Inspector General's jurisdiction. The investigators'
peace officer training course shall be
consistent with the standard courses utilized by the Commission
of Peace Officer Standards and Training and other major
investigative offices, such as county sheriff and city police
departments and the California Highway Patrol.
(b) Beginning January 1, 1999, all internal affairs
investigators peace officers under the Inspector
General's jurisdiction conducting investigations for the
office Office of the Inspector General,
the Youth and Adult Correctional Agency, the Department of
the Youth Authority, the Department of Corrections, the Board of
Corrections, the Youthful Offender Parole Board, and the Board of
Prison Terms shall complete the
investigation training consistent with standard courses utilized
by other major law enforcement investigative offices and be
certified within six months of employment.
(c) Beginning January 1, 1999, all internal affairs
investigators peace officers under the Inspector
General's jurisdiction shall successfully pass a psychological
screening exam before becoming employed with the office
Office of the Inspector General , the
Youth and Adult Correctional Agency, the Department of the Youth
Authority, the Department of Corrections, the Board of Corrections,
the Youthful Offender Parole Board, or the Board of Prison Terms
.
SEC. 16. Section 6126.2 of the Penal
Code is amended to read:
6126.2. The Inspector General , the Youth and Adult
Correctional Agency, the Department of the Youth Authority, the
Department of Corrections, the Board of Corrections, the Youthful
Offender Parole Board, and the Board of Prison Terms shall
not hire as an internal affairs investigator
a peace officer any person known to be directly or indirectly
involved in an open internal affairs investigation being conducted by
any federal, state, or local law enforcement agency or the Inspector
General.
SEC. 17. Section 6126.3 of the Penal
Code is amended to read:
6126.3. (a) The Inspector General shall not destroy any papers or
memoranda used to support a completed audit within three years after
a report is released.
(b) Except as provided in subdivision (c), all books, papers,
records, and correspondence of the office pertaining to its work are
public records subject to Chapter 3.5 (commencing with Section 6250)
of Division 7 of Title 1 of the Government Code and shall be filed at
any of the regularly maintained offices of the Inspector General.
(c) The following books, papers, records, and correspondence of
the office Office of the Inspector
General pertaining to its work are not public records subject to
Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1
of the Government Code, nor shall they be subject to discovery
pursuant to any provision of Title 3 (commencing with Section 1985)
of Part 4 of the Code of Civil Procedure or Chapter 7
(commencing with Section 19570) of Part 2 of Division 5 of Title 2 of
the Government Code in any manner:
(1) All reports, papers, correspondence, memoranda, electronic
communications, or other documents that are otherwise exempt from
disclosure pursuant to the provisions of subdivision (d) of Section
6126.5, Section 6126.6, subdivision (c) of Section 6128, subdivision
(a) or (b) of Section 6131, or all other applicable laws regarding
confidentiality, including, but not limited to, the California Public
Records Act, the Public Safety Officers' Procedural Bill of Rights,
the Information Practices Act of 1977, the Confidentiality of Medical
Information Act of 1977, and the provisions of Section 832.7,
relating to the disposition notification for complaints against peace
officers.
(2) Any papers, correspondence, memoranda, electronic
communications, or other documents pertaining to any audit or
investigation that has not been completed.
(3) Any papers, correspondence, memoranda, electronic
communications, or other documents pertaining to internal discussions
between the Inspector General and his or her staff, or between staff
members of the Inspector General, or any personal notes of the
Inspector General or his or her staff.
(4) All identifying information, and any personal papers or
correspondence from any person requesting assistance from the
Inspector General, except in those cases where the Inspector General
determines that disclosure of the information is necessary in the
interests of justice.
(5) Any papers, correspondence, memoranda, electronic
communications, or other documents pertaining to contemporaneous
public oversight pursuant to Section 6133.
SEC. 18. Section 6126.5 of the Penal
Code is amended to read:
6126.5. (a) Notwithstanding any other provision of law, the
Inspector General during regular business hours or at any other time
determined necessary by the Inspector General, shall have access to
and authority to examine and reproduce , any and
all books, accounts, reports, vouchers, correspondence files,
documents, and other records, and to examine the bank accounts,
money, or other property , of any entity
defined in Section 6126 the Department of Corrections
and Rehabilitation for any audit or ,
investigation , inspection, or contemporaneous oversight
. Any officer or employee of any agency or entity having these
records or property in his or her possession or under his or her
control shall permit access to, and examination and reproduction
thereof consistent with the provisions of this section, upon the
request of the Inspector General or his or her authorized
representative.
(b) For the purpose of conducting any audit or
, investigation, inspection, or contemporaneous
oversight, the Inspector General or his or her authorized
representative shall have access to the records and property of any
public or private entity or person subject to review or regulation by
the public agency or public entity being audited or
, investigated , or overseen to the
same extent that employees or officers of that agency or public
entity have access. No provision of law or any memorandum of
understanding or any other agreement entered into between the
employing entity and the employee or the employee's representative
providing for the confidentiality or privilege of any records or
property shall prevent disclosure pursuant to subdivision (a).
Access, examination, and reproduction consistent with the
provisions of this section shall not result in the waiver of any
confidentiality or privilege regarding a ny records or
property.
(c) Any officer or person who fails or refuses to permit access,
examination, or reproduction, as required by this section, is guilty
of a misdemeanor.
(d) The Inspector General may require any employee of
those entities specified in Section 6126 the
Department of Corrections and Rehabilitation to be interviewed
on a confidential basis. Any employee requested to be interviewed
shall comply and shall have time afforded by the appointing authority
for the purpose of an interview with the Inspector General or his or
her designee. The Inspector General shall have the discretion to
redact the name or other identifying information of any person
interviewed from any public report issued by the Inspector General,
where required by law or where the failure to redact the information
may hinder prosecution or an action in a criminal, civil, or
administrative proceeding, or where the Inspector General determines
that disclosure of the information is not in the interests of
justice. It is not the purpose of these communications to address
disciplinary action or grievance procedures that may routinely occur.
If it appears that the facts of the case could lead to punitive
action, the Inspector General shall be subject to Sections 3303,
3307, 3307.5, 3308, and 3309 of the Government Code as if the
Inspector General were the employer, except that the Inspector
General shall not be subject to the provisions of any memorandum of
understanding or other agreement entered into between the employing
entity and the employee or the employee's representative that is in
conflict with, or adds to the requirements of, Sections 3303, 3307,
3307.5, 3308, and 3309 of the Government Code.
SEC. 19. Section 6127.3 of the Penal
Code is amended to read:
6127.3. (a) In connection with an audit or
, investigation , or inspection pursuant to
this chapter, the Inspector General, or his or her designee, may do
any of the following:
(1) Administer oaths.
(2) Certify to all official acts.
(3) Issue subpoenas for the attendance of witnesses and the
production of papers, books, accounts, or documents in any medium, or
for the making of oral or written sworn statements, in any
investigative interview conducted as part of an audit or
investigation.
(b) Any subpoena issued under this chapter extends as process to
all parts of the state and may be served by any person authorized to
serve process of courts of record or by any person designated for
that purpose by the Inspector General, or his or her designee. The
person serving this process may receive compensation as is allowed by
the Inspector General, or his or her designee, not to exceed the
fees prescribed by law for similar service.
SEC. 20. Section 6128 of the Penal Code
is amended to read:
6128. (a) The office Office of the
Inspector General may receive communications from any individual,
including those employed by any department, board, or authority who
believes he or she may have information that may describe an improper
governmental activity, as that term is defined in subdivision (b) of
Section 8547.2 of the Government Code. It is not the purpose of
these communications to redress any single disciplinary action or
grievance that may routinely occur.
(b) In order to properly respond to any allegation of improper
governmental activity, the Inspector General shall establish a
toll-free public telephone number for the purpose of identifying any
alleged wrongdoing by an employee of the Department of Corrections
, the Department of the Youth Authority, the Board of Prison
Terms, the Board of Corrections, the Narcotic Addict Evaluation
Authority, the Prison Industry Authority, or the Youth and Adult
Correctional Agency and Rehabilitation . This
telephone number shall be posted by the above-named
departments, and their respective subdivisions,
department in clear view of all employees and the public. When
appropriate, the Inspector General shall initiate an investigation or
audit of any alleged improper governmental activity. However, any
request to conduct an investigation shall be in writing.
(c) All identifying information, and any personal papers or
correspondence from any person who initiated the investigation shall
not be disclosed, except in those cases where the Inspector General
determines that disclosure of the information is necessary in the
interests of justice.
SEC. 21. Section 6129 of the Penal Code
is amended to read:
6129. (a) (1) For purposes of this section, "employee" means any
person employed by the Youth and Adult Correctional Agency,
the Department of Corrections, the Department of the Youth Authority,
the Board of Corrections, the Board of Prison Terms, the Youth
Authority Board or the Inspector General Department of
Corrections and Rehabilitation .
(2) For purposes of this section, "retaliation" means
intentionally engaging in acts of reprisal, retaliation, threats,
coercion, or similar acts against another employee who has done
either any of the following:
(A) Has disclosed or is disclosing to any employee at a
supervisory or managerial level, what the employee, in good faith,
believes to be improper governmental activities.
(B) Has cooperated or is cooperating with any investigation of
improper governmental activities.
(C) Has refused to obey an illegal order or directive.
(b) (1) Upon receiving a complaint of retaliation from an employee
against a member of management at the Department of Corrections
and Rehabilitation , the Inspector General shall commence an
inquiry into the complaint and conduct a formal investigation where a
legally cognizable cause of action is presented. All investigations
conducted pursuant to this section shall be performed in accordance
with Sections 6126.5 and 6127.3. The Inspector General may refer all
other matters for investigation by the appropriate employing entity,
subject to investigative oversight by the Inspector General. In a
case in which the employing entity declines to investigate the
complaint, it shall, within 30 days of receipt of the referral by the
Inspector General, notify the Inspector General of its decision. The
Inspector General shall thereafter, conduct his or her own inquiry
into the complaint. If, after reviewing the complaint, the Inspector
General determines that a legally cognizable cause of action has not
been presented by the complaint, the Inspector General shall
thereafter notify the complaining employee and the State Personnel
Board that a formal investigation is not warranted.
(2) When investigating a complaint, in determining whether
retaliation has occurred, the Inspector General or the employing
entity shall consider, among other things, whether any of the
following either actually occurred or were threatened:
(A) Unwarranted or unjustified staff changes.
(B) Unwarranted or unjustified letters of reprimand or other
disciplinary actions, or unsatisfactory evaluations.
(C) Unwarranted or unjustified formal or informal investigations.
(D) Engaging in acts, or encouraging or permitting other employees
to engage in acts, that are unprofessional, or foster a hostile work
environment.
(E) Engaging in acts, or encouraging or permitting other employees
to engage in acts, that are contrary to the rules, regulations, or
policies of the workplace.
(3) In a case in which the complaining employee has also filed a
retaliation complaint with the State Personnel Board pursuant to
Sections 8547.8 and 19683 of the Government Code, the State Personnel
Board shall have the discretion to toll any investigation, hearing,
or other proceeding that would otherwise be conducted by the State
Personnel Board in response to that complaint, pending either the
completion of the Inspector General's or the employing entity's
investigation, or until the complaint is rejected or otherwise
dismissed by the Inspector General or the employing entity. An
employee, however, may not be required to first file a retaliation
complaint with the Inspector General prior to filing a complaint with
the State Personnel Board.
(A) In a case in which the complaining employee has filed a
retaliation complaint with the Inspector General but not with the
State Personnel Board, the limitation period for filing a retaliation
complaint with the State Personnel Board shall be tolled until the
time the Inspector General or the employing entity either issues its
investigative report to the State Personnel Board, or until the
complaint is rejected or otherwise dismissed by the Inspector General
or the employing entity.
(B) In order to facilitate coordination of efforts between the
Inspector General and the State Personnel Board, the Inspector
General shall notify the State Personnel Board of the identity of any
employee who has filed a retaliation complaint with the Inspector
General, and the State Personnel Board shall notify the Inspector
General of the identity of any employee who has filed a retaliation
complaint with the State Personnel Board.
(c) (1) In a case in which the Inspector General determines, as a
result of his or her own investigation, that an employee has been
subjected to acts of reprisal, retaliation, threats, or similar acts
in violation of this section, the Inspector General shall provide a
copy of the investigative report, together with all other underlying
investigative materials the Inspector General determines to be
relevant, to the appropriate director or chair who shall take
appropriate corrective action. In a case in which the Inspector
General determines, based on an independent review of the
investigation conducted by the employing entity, that an employee has
been subjected to acts of reprisal, retaliation, threats, or similar
acts in violation of this section, the Inspector General shall
submit a written recommendation to the appropriate director or chair
who shall take appropriate corrective action. If the hiring authority
initiates disciplinary action as defined in Section 19570 of the
Government Code, it shall provide the subject with all materials
required by law.
(2) The Inspector General shall publish a quarterly summary of
investigations, with personal identifying information removed,
including, but not limited to, the conduct investigated, any
recommended discipline, and any discipline actually imposed.
(3) Any employee at any rank and file, supervisory, or managerial
level, who intentionally engages in acts of reprisal, retaliation,
threats, coercion, or similar acts against another employee, pursuant
to paragraph (2) of subdivision (a), shall be disciplined by the
employing entity by adverse action as provided in Section 19572 of
the Government Code. The disciplinary action shall require, at a
minimum, a suspension for not less than 30 days without pay, except
in a case in which the employing entity determines that a lesser
penalty is warranted. In that case, the employing entity shall,
within 30 days of receipt of the investigative report, provide
written justification for that decision to the Inspector General. The
employing entity shall also, within 30 days of receipt of the
written report, notify the Inspector General in writing as to what
steps, if any, it has taken to remedy the retaliatory conduct found
to have been committed by any of its employees.
(d) (1) In an instance in which the appropriate director or chair
declines to take adverse action against any employee found by the
Inspector General to have engaged in acts of reprisal, retaliation,
threats, or similar acts in violation of this section, the director
or chair shall notify the Inspector General of that fact in writing
within 30 days of receipt of the investigative report from the
Inspector General, and shall notify the Inspector General of the
specific reasons why the director or chair declined to invoke adverse
action proceedings against the employee.
(2) The Inspector General shall, thereafter, with the written
consent of the complaining employee, forward an unredacted copy of
the investigative report, together with all other underlying
investigative materials the Inspector General deems to be relevant,
to the State Personnel Board so that the complaining employee can
request leave to file charges against the employee found to have
engaged in acts of reprisal, retaliation, threats, or similar acts,
in accordance with the provisions of Section 19583.5 of the
Government Code. If the State Personnel Board accepts the complaint,
the board shall provide the charged and complaining parties with a
copy of all relevant materials.
(3) In addition to all other penalties provided by law,
including Section 8547.8 of the Government Code or any other
penalties that the sanctioning authority may determine to be
appropriate, any state employee at any rank and file, supervisory, or
managerial level found by the State Personnel Board to have
intentionally engaged in acts of reprisal, retaliation, threats, or
coercion shall be suspended for not less than 30 days without pay,
and shall be liable in an action for damages brought against him or
her by the injured party. If the State Personnel Board determines
that a lesser period of suspension is warranted, the reasons for that
determination must be justified in writing in the decision.
(e) Nothing in this section shall prohibit the employing entity
from exercising its authority to terminate, suspend, or discipline an
employee who engages in conduct prohibited by this section.
SEC. 22. Section 6131 of the Penal Code
is amended to read:
6131. (a) Upon the completion of any audit conducted by the
Inspector General, he or she shall prepare a written report, which
shall be disclosed, along with all underlying materials the Inspector
General deems appropriate, to the Governor, the Secretary of the
Youth and Adult Correctional Agency
Department of Corrections and Rehabilitation , the appropriate
director, chair, or law enforcement agency, and the Legislature.
Copies of all those written reports shall be posted on the Inspector
General's Web site within 10 days of being disclosed to the
above-listed entities or persons.
(b) Upon the completion of any investigation conducted by the
Inspector General, he or she shall prepare a complete written report,
which shall be held as confidential and disclosed in confidence,
along with all underlying investigative materials the Inspector
General deems appropriate, to the Governor, the Secretary of the
Youth and Adult Correctional Agency
Department of Corrections and Rehabilitation , and the
appropriate director, chair, or law enforcement agency.
(c) Upon the completion of any investigation conducted by the
Inspector General, he or she shall also prepare and issue on a
quarterly basis, a public investigative report that includes all
investigations completed in the previous quarter. The public
investigative report shall differ from the complete investigative
report in the respect that the Inspector General shall have the
discretion to redact or otherwise protect the names of individuals,
specific locations, or other facts that, if not redacted, might
hinder prosecution related to the investigation, or where disclosure
of the information is otherwise prohibited by law, and to decline to
produce any of the underlying investigative materials. In a case
where allegations were deemed to be unfounded, all applicable
identifying information shall be redacted. The public investigative
report shall be made available to the public upon request and on a
quarterly basis as follows:
(1) In those cases where an investigation is referred only for
disciplinary action before the State Personnel Board or for other
administrative proceedings, the employing entity shall, within 10
days of receipt of the State Personnel Board's order rendered in
other administrative proceedings, provide the Inspector General with
a copy of the order. The Inspector General shall attach the order to
the public investigative report on its Web site and provide copies of
the report and order to the Legislature, as well as to any
complaining employee and any employee who was the subject of the
investigation.
(2) In those cases where the employing entity and the employee
against whom disciplinary action has been taken enter into a
settlement agreement concerning the disciplinary action, the
employing entity shall, within 10 days of the settlement agreement
becoming final, notify the Inspector General in writing of that fact
and shall describe what disciplinary action, if any, was ultimately
imposed on the employee. The Inspector General shall include the
settlement information in the public investigative report on its Web
site and provide copies of the report to the Legislature, as well as
to any complaining employee and any employee who was the subject of
the investigation.
(3) In those cases where the employing entity declines to pursue
disciplinary action against an employee, the employing entity shall,
within 10 days of its decision, notify the Inspector General in
writing of its decision not to pursue disciplinary action, setting
forth the reasons for its decision. The Inspector General shall
include the decision and rationale in the public investigative report
on its Web site and provide copies of the report to the Legislature,
as well as to any complaining employee and any employee who was the
subject of the investigation.
(4) In those cases where an investigation has been referred for
possible criminal prosecution, and the applicable local law
enforcement agency or the Attorney General has decided to commence
criminal proceedings against an employee, the report shall be made
public at a time deemed appropriate by the Inspector General after
consultation with the local law enforcement agency or the Attorney
General, but in all cases no later than when discovery has been
provided to the defendant in the criminal proceedings. The Inspector
General shall thereafter post the public investigative report on its
Web site and provide copies of the report to the Legislature, as well
as to any complaining employee and any employee who was the subject
of the investigation.
(5) In those cases where the local law enforcement agency or the
Attorney General declines to commence criminal proceedings against an
employee, the local law enforcement agency or the Attorney General
shall, within 30 days of reaching that decision, notify the Inspector
General of that fact. The Inspector General shall include the
decision in the public investigative report on its Web site and
provide copies of the report to the Legislature, as well as to any
complaining employee and any employee who was the subject of the
investigation.
(6) In those cases where an investigation has been referred for
neither disciplinary action or other administrative proceedings, nor
for criminal prosecution, the Inspector General shall include the
decision not to refer the matter in the public investigative report
on its Web site and provide copies of the report to the Legislature,
as well as to any complaining employee and any employee who was the
subject of the investigation.
SEC. 23. Section 6132 of the Penal Code
is amended to read:
6132. (a) The Inspector
General shall report annually to the Governor and the Legislature a
summary of his or her investigations and audits. The summary shall be
posted on the Inspector General's Web site and otherwise made
available to the public upon its release to the Governor and the
Legislature. The summary shall include, but not be limited to,
significant problems discovered by the Inspector General, and whether
recommendations the Inspector General has made through audits and
investigations have been implemented by the subject agency,
department, or board.
(b) The Inspector General shall issue regular, and in no case less
than twice per year, reports to the Governor and the Legislature
summarizing its findings concerning its oversight of Youth and Adult
Correctional Agency disciplinary cases and shall thereafter post the
reports summarizing disciplinary cases on its Web site.
SEC. 24. Section 6133 of the Penal Code
is amended to read:
6133. (a) There is created within the office of the Inspector
General a Bureau of Independent Review (BIR), which shall be subject
to the direction of the Inspector General.
(b) The BIR shall be responsible for contemporaneous public
oversight of the Youth and Adult Correctional Agency
Department of Corrections and Rehabilitation
investigations conducted by the Department of Corrections'
Office of Investigative Services and by Corrections
and Rehabilitation's Office of Internal Affairs for
the Department of the Youth Authority . The BIR shall also
be responsible for advising the public regarding the adequacy of each
investigation, and whether discipline of the subject of the
investigation is warranted. The BIR shall have discretion to provide
public oversight of other Youth and Adult Correctional
Agency Department of Corrections and Rehabilitation
personnel investigations as needed.
(c) (1) The BIR shall issue regular reports, no less than
annually, to the Governor and the Legislature summarizing its
recommendations concerning its oversight of Youth and Adult
Correctional Agency the Department of Corrections and
Rehabilitation allegations of internal misconduct and use of
force. The BIR shall also issue regular reports, no less than
semiannually, summarizing its oversight of Office of
Investigative Services and Internal Affairs investigations
pursuant to subdivision (b). The reports shall include, but not be
limited to, the following:
(A) Data on the number, type, and disposition of complaints made
against correctional officers and staff.
(B) A synopsis of each matter reviewed by the BIR.
(C) An assessment of the quality of the investigation, the
appropriateness of any disciplinary charges, the BIR's
recommendations regarding the disposition in the case and when
founded, the level of discipline afforded, and the degree to which
the agency's authorities agreed with the BIR recommendations
regarding disposition and level of discipline.
(D) The report of any settlement and whether the BIR concurred
with the settlement.
(E) The extent to which any discipline was modified after
imposition.
(2) The reports shall be in a form which does not identify the
agency employees involved in the alleged misconduct.
(3) The reports shall be posted on the Inspector General's Web
site and otherwise made available to the public upon their release to
the Governor and the Legislature.
SEC. 11. SEC. 25. Section 11102.1 of
the Penal Code is amended to read:
11102.1. (a) (1) Notwithstanding any other law, the Department of
Justice shall establish, implement, and maintain a certification
program to process fingerprint-based criminal background clearances
on individuals who roll fingerprint impressions, manually or
electronically, for non-law-enforcement purposes. Except as provided
in paragraph (2), no person shall roll fingerprints for
non-law-enforcement purposes unless certified.
(2) The following persons shall be exempt from this section if
they have received training pertaining to applicant fingerprint
rolling and have undergone a criminal offender record information
background investigation:
(A) Law enforcement personnel and state employees.
(B) Employees of a tribal gaming agency or a tribal gaming
operation, provided that the fingerprints are rolled and submitted to
the Department of Justice for purposes of compliance with a
tribal-state compact.
(3) The department shall not accept fingerprint impressions for
non-law-enforcement purposes unless they were rolled by an individual
certified or exempted pursuant to this section.
(b) Individuals who roll fingerprint impressions, either manually
or electronically, for non-law-enforcement purposes, must submit to
the Department of Justice fingerprint images and related information,
along with the appropriate fees and documentation. The department
shall retain one copy of the fingerprint impressions to process a
state level criminal background clearance, and it shall submit one
copy of the fingerprint impressions to the Federal Bureau of
Investigation to process a federal level criminal background
clearance.
(c) The department shall retain the fingerprint impressions for
subsequent arrest notification pursuant to Section 11105.2.
(d) Every individual certified as a fingerprint roller shall meet
the following criteria:
(1) Be a legal resident of this state at the time of
certification.
(2) Be at least 18 years of age.
(3) Have satisfactorily completed a written application prescribed
by the department to determine the fitness of the person to exercise
the functions of a fingerprint roller.
(e) Prior to granting a certificate as a fingerprint roller, the
department shall determine that the applicant possesses the required
honesty, credibility, truthfulness, and integrity to fulfill the
responsibilities of the position.
(f) (1) The department shall refuse to certify any individual as a
fingerprint roller, and shall revoke the certification of any
fingerprint roller, upon either of the following:
(A) Conviction of a felony offense.
(B) Conviction of any other offense that both involves moral
turpitude, dishonesty, or fraud, and bears on the applicant's ability
to perform the duties or responsibilities of a fingerprint roller.
(2) A conviction after a plea of nolo contendere is deemed to be a
conviction for purposes of this subdivision.
(g) In addition to subdivision (f), the department may refuse to
certify any individual as a fingerprint roller, and may revoke or
suspend the certification of any fingerprint roller upon any of the
following:
(1) Substantial and material misstatement or omission in the
application submitted to the department.
(2) Arrest pending adjudication for a felony.
(3) Arrest pending adjudication for a lesser offense that both
involves moral turpitude, dishonesty, or fraud, and bears on the
applicant's ability to perform the duties or responsibilities of a
fingerprint roller.
(4) Revocation, suspension, restriction, or denial of a
professional license, if the revocation, suspension, restriction, or
denial was for misconduct, dishonesty, or for any cause substantially
related to the duties or responsibilities of a fingerprint roller.
(5) Failure to discharge fully and faithfully any of the duties or
responsibilities required of a fingerprint roller.
(6) When adjudged liable for damages in any suit grounded in
fraud, misrepresentation, or in violation of the state regulatory
laws, or in any suit based upon a failure to discharge fully and
faithfully the duties of a fingerprint roller.
(7) Use of false or misleading advertising in which the
fingerprint roller has represented that he or she has duties, rights,
or privileges that he or she does not possess by law.
(8) Commission of any act involving dishonesty, fraud, or deceit
with the intent to substantially benefit the fingerprint roller or
another, or to substantially injure another.
(9) Failure to submit any remittance payable upon demand by the
department or failure to satisfy any court ordered money judgment,
including restitution.
(h) The Department of Justice shall work with applicant regulatory
entities to improve and make more efficient the criminal offender
record information request process related to employment, licensing,
and certification background investigations.
(i) The Department of Justice may adopt regulations as necessary
to implement the provisions of this section.
(j) The department shall charge a fee sufficient to cover its
costs under this section.
SEC. 12. SEC. 26. Section 12076 of
the Penal Code is amended to read:
12076. (a) (1) Before January 1, 1998, the Department of Justice
shall determine the method by which a dealer shall submit firearm
purchaser information to the department and the information shall be
in one of the following formats:
(A) Submission of the register described in Section 12077.
(B) Electronic or telephonic transfer of the information contained
in the register described in Section 12077.
(2) On or after January 1, 1998, electronic or telephonic
transfer, including voice or facsimile transmission, shall be the
exclusive means by which purchaser information is transmitted to the
department.
(3) On or after January 1, 2003, except as permitted by the
department, electronic transfer shall be the exclusive means by which
information is transmitted to the department. Telephonic transfer
shall not be permitted for information regarding sales of any
firearms.
(b) (1) Where the register is used, the purchaser of any firearm
shall be required to present clear evidence of his or her identity
and age, as defined in Section 12071, to the dealer, and the dealer
shall require him or her to sign his or her current legal name and
affix his or her residence address and date of birth to the register
in quadruplicate. The salesperson shall affix his or her signature to
the register in quadruplicate as a witness to the signature and
identification of the purchaser. Any person furnishing a fictitious
name or address or knowingly furnishing any incorrect information or
knowingly omitting any information required to be provided for the
register and any person violating any provision of this section is
guilty of a misdemeanor, provided however, that any person who is
prohibited from obtaining a firearm pursuant to Section 12021 or
12021.1 of this code, or Section 8100 or 8103 of the Welfare and
Institutions Code who knowingly furnishes a fictitious name or
address or knowingly furnishes any incorrect information or knowingly
omits any information required to be provided for the register shall
be punished by imprisonment in a county jail not exceeding one year
or imprisonment in the state prison for a term of 8, 12, or 18
months.
(2) The original of the register shall be retained by the dealer
in consecutive order. Each book of 50 originals shall become the
permanent register of transactions that shall be retained for not
less than three years from the date of the last transaction and shall
be available for the inspection of any peace officer, Department of
Justice employee designated by the Attorney General, or agent of the
federal Bureau of Alcohol, Tobacco, Firearms and Explosives upon the
presentation of proper identification, but no information shall be
compiled therefrom regarding the purchasers or other transferees of
firearms that are not pistols, revolvers, or other firearms capable
of being concealed upon the person.
(3) Two copies of the original sheet of the register, on the date
of the application to purchase, shall be placed in the mail, postage
prepaid, and properly addressed to the Department of Justice.
(4) If requested, a photocopy of the original shall be provided to
the purchaser by the dealer.
(5) If the transaction is a private party transfer conducted
pursuant to Section 12082, a photocopy of the original shall be
provided to the seller or purchaser by the dealer, upon request. The
dealer shall redact all of the purchaser's personal information, as
required pursuant to paragraph (1) of subdivision (b) and paragraph
(1) of subdivision (c) of Section 12077, from the seller's copy, and
the seller's personal information from the purchaser's copy.
(c) (1) Where the electronic or telephonic transfer of applicant
information is used, the purchaser shall be required to present clear
evidence of his or her identity and age, as defined in Section
12071, to the dealer, and the dealer shall require him or her to sign
his or her current legal name to the record of electronic or
telephonic transfer. The salesperson shall affix his or her signature
to the record of electronic or telephonic transfer as a witness to
the signature and identification of the purchaser. Any person
furnishing a fictitious name or address or knowingly furnishing any
incorrect information or knowingly omitting any information required
to be provided for the electronic or telephonic transfer and any
person violating any provision of this section is guilty of a
misdemeanor, provided however, that any person who is prohibited from
obtaining a firearm pursuant to Section 12021 or 12021.1 of this
code, or Section 8100 or 8103 of the Welfare and Institutions Code
who knowingly furnishes a fictitious name or address or knowingly
furnishes any incorrect information or knowingly omits any
information required to be provided for the register shall be
punished by imprisonment in a county jail not exceeding one year or
imprisonment in the state prison for a term of 8, 12, or 18 months.
(2) The record of applicant information shall be transmitted to
the Department of Justice by electronic or telephonic transfer on the
date of the application to purchase.
(3) The original of each record of electronic or telephonic
transfer shall be retained by the dealer in consecutive order. Each
original shall become the permanent record of the transaction that
shall be retained for not less than three years from the date of the
last transaction and shall be provided for the inspection of any
peace officer, Department of Justice employee designated by the
Attorney General, or agent of the federal Bureau of Alcohol, Tobacco,
Firearms and Explosives upon the presentation of proper
identification, but no information shall be compiled therefrom
regarding the purchasers or other transferees of firearms that are
not pistols, revolvers, or other firearms capable of being concealed
upon the person.
(4) If requested, a copy of the record of electronic or telephonic
transfer shall be provided to the purchaser by the dealer.
(5) If the transaction is a private party transfer conducted
pursuant to Section 12082, a copy shall be provided to the seller or
purchaser by the dealer, upon request. The dealer shall redact all of
the purchaser's personal information, as required pursuant to
paragraph (1) of subdivision (b) and paragraph (1) of subdivision (c)
of Section 12077, from the seller's copy, and the seller's personal
information from the purchaser's copy.
(d) (1) The department shall examine its records, as well as those
records that it is authorized to request from the State Department
of Mental Health pursuant to Section 8104 of the Welfare and
Institutions Code, in order to determine if the purchaser is a person
described in subparagraph (A) of paragraph (9) of subdivision (a) of
Section 12072, or is prohibited by state or federal law from
possessing, receiving, owning, or purchasing a firearm.
(2) To the extent that funding is available, the Department of
Justice may participate in the National Instant Criminal Background
Check System (NICS), as described in subsection (t) of Section 922 of
Title 18 of the United States Code, and, if that participation is
implemented, shall notify the dealer and the chief of the police
department of the city or city and county in which the sale was made,
or if the sale was made in a district in which there is no municipal
police department, the sheriff of the county in which the sale was
made, that the purchaser is a person prohibited from acquiring a
firearm under federal law.
(3) If the department determines that the purchaser is prohibited
by state or federal law from possessing, receiving, owning, or
purchasing a firearm or is a person described in subparagraph (A) of
paragraph (9) of subdivision (a) of Section 12072, it shall
immediately notify the dealer and the chief of the police department
of the city or city and county in which the sale was made, or if the
sale was made in a district in which there is no municipal police
department, the sheriff of the county in which the sale was made, of
that fact.
(4) If the department determines that the copies of the register
submitted to it pursuant to paragraph (3) of subdivision (b) contain
any blank spaces or inaccurate, illegible, or incomplete information,
preventing identification of the purchaser or the pistol, revolver,
or other firearm to be purchased, or if any fee required pursuant to
subdivision (e) is not submitted by the dealer in conjunction with
submission of copies of the register, the department may notify the
dealer of that fact. Upon notification by the department, the dealer
shall submit corrected copies of the register to the department, or
shall submit any fee required pursuant to subdivision (e), or both,
as appropriate and, if notification by the department is received by
the dealer at any time prior to delivery of the firearm to be
purchased, the dealer shall withhold delivery until the conclusion of
the waiting period described in Sections 12071 and 12072.
(5) If the department determines that the information transmitted
to it pursuant to subdivision (c) contains inaccurate or incomplete
information preventing identification of the purchaser or the pistol,
revolver, or other firearm capable of being concealed upon the
person to be purchased, or if the fee required pursuant to
subdivision (e) is not transmitted by the dealer in conjunction with
transmission of the electronic or telephonic record, the department
may notify the dealer of that fact. Upon notification by the
department, the dealer shall transmit corrections to the record of
electronic or telephonic transfer to the department, or shall
transmit any fee required pursuant to subdivision (e), or both, as
appropriate, and if notification by the department is received by the
dealer at any time prior to delivery of the firearm to be purchased,
the dealer shall withhold delivery until the conclusion of the
waiting period described in Sections 12071 and 12072.
(e) The Department of Justice may require the dealer to charge
each firearm purchaser a fee not to exceed fourteen dollars ($14),
except that the fee may be increased at a rate not to exceed any
increase in the California Consumer Price Index as compiled and
reported by the Department of Industrial Relations. The fee shall be
no more than is necessary to fund the following:
(1) (A) The department for the cost of furnishing this
information.
(B) The department for the cost of meeting its obligations under
paragraph (2) of subdivision (b) of Section 8100 of the Welfare and
Institutions Code.
(2) Local mental health facilities for state-mandated local costs
resulting from the reporting requirements imposed by Section 8103 of
the Welfare and Institutions Code.
(3) The State Department of Mental Health for the costs resulting
from the requirements imposed by Section 8104 of the Welfare and
Institutions Code.
(4) Local mental hospitals, sanitariums, and institutions for
state-mandated local costs resulting from the reporting requirements
imposed by Section 8105 of the Welfare and Institutions Code.
(5) Local law enforcement agencies for state-mandated local costs
resulting from the notification requirements set forth in subdivision
(a) of Section 6385 of the Family Code.
(6) Local law enforcement agencies for
state-mandated local costs resulting from the notification
requirements set forth in subdivision (c) of Section 8105 of the
Welfare and Institutions Code.
(7) For the actual costs associated with the electronic or
telephonic transfer of information pursuant to subdivision (c).
(8) The Department of Food and Agriculture for the costs resulting
from the notification provisions set forth in Section 5343.5 of the
Food and Agricultural Code.
(9) The department for the costs associated with subparagraph (D)
of paragraph (2) of subdivision (f) of Section 12072.
(10) The department for the costs associated with funding
Department of Justice firearms-related regulatory and enforcement
activities related to the sale, purchase, loan, or transfer of
firearms pursuant to this chapter.
The fee established pursuant to this subdivision shall not exceed
the sum of the actual processing costs of the department, the
estimated reasonable costs of the local mental health facilities for
complying with the reporting requirements imposed by paragraph (2) of
this subdivision, the costs of the State Department of Mental Health
for complying with the requirements imposed by paragraph (3) of this
subdivision, the estimated reasonable costs of local mental
hospitals, sanitariums, and institutions for complying with the
reporting requirements imposed by paragraph (4) of this subdivision,
the estimated reasonable costs of local law enforcement agencies for
complying with the notification requirements set forth in subdivision
(a) of Section 6385 of the Family Code, the estimated reasonable
costs of local law enforcement agencies for complying with the
notification requirements set forth in subdivision (c) of Section
8105 of the Welfare and Institutions Code imposed by paragraph (6) of
this subdivision, the estimated reasonable costs of the Department
of Food and Agriculture for the costs resulting from the notification
provisions set forth in Section 5343.5 of the Food and Agricultural
Code, the estimated reasonable costs of the department for the costs
associated with subparagraph (D) of paragraph (2) of subdivision (f)
of Section 12072, and the estimated reasonable costs of department
firearms-related regulatory and enforcement activities related to the
sale, purchase, loan, or transfer of firearms pursuant to this
chapter.
(f) (1) The Department of Justice may charge a fee sufficient to
reimburse it for each of the following but not to exceed fourteen
dollars ($14), except that the fee may be increased at a rate not to
exceed any increase in the California Consumer Price Index as
compiled and reported by the Department of Industrial Relations:
(A) For the actual costs associated with the preparation, sale,
processing, and filing of forms or reports required or utilized
pursuant to Section 12078.
(B) For the actual processing costs associated with the submission
of a Dealers' Record of Sale to the department.
(C) For the actual costs associated with the preparation, sale,
processing, and filing of reports utilized pursuant to subdivision ()
of Section 12078 or paragraph (18) of subdivision (b) of Section
12071, or clause (i) of subparagraph (A) of paragraph (2) of
subdivision (f) of Section 12072, or paragraph (3) of subdivision (f)
of Section 12072.
(D) For the actual costs associated with the electronic or
telephonic transfer of information pursuant to subdivision (c).
(2) If the department charges a fee pursuant to subparagraph (B)
of paragraph (1) of this subdivision, it shall be charged in the same
amount to all categories of transaction that are within that
subparagraph.
(3) Any costs incurred by the Department of Justice to implement
this subdivision shall be reimbursed from fees collected and charged
pursuant to this subdivision. No fees shall be charged to the dealer
pursuant to subdivision (e) for implementing this subdivision.
(g) All money received by the department pursuant to this section
shall be deposited in the Dealers' Record of Sale Special Account of
the General Fund, which is hereby created, to be available, upon
appropriation by the Legislature, for expenditure by the department
to offset the costs incurred pursuant to this section, paragraph (1)
and subparagraph (D) of paragraph (2) of subdivision (f) of Section
12072, Sections 12083 and 12099, subdivision (c) of Section 12131,
Sections 12234, 12289, and 12289.5, and subdivisions (f) and (g) of
Section 12305.
(h) Where the electronic or telephonic transfer of applicant
information is used, the department shall establish a system to be
used for the submission of the fees described in subdivision (e) to
the department.
(i) (1) Only one fee shall be charged pursuant to this section for
a single transaction on the same date for the sale of any number of
firearms that are not pistols, revolvers, or other firearms capable
of being concealed upon the person or for the taking of possession of
those firearms.
(2) In a single transaction on the same date for the delivery of
any number of firearms that are pistols, revolvers, or other firearms
capable of being concealed upon the person, the department shall
charge a reduced fee pursuant to this section for the second and
subsequent firearms that are part of that transaction.
(j) Only one fee shall be charged pursuant to this section for a
single transaction on the same date for taking title or possession of
any number of firearms pursuant to paragraph (18) of subdivision (b)
of Section 12071 or subdivision (c) or (i) of Section 12078.
(k) Whenever the Department of Justice acts pursuant to this
section as it pertains to firearms other than pistols, revolvers, or
other firearms capable of being concealed upon the person, the
department's acts or omissions shall be deemed to be discretionary
within the meaning of the California Tort Claims Act pursuant to
Division 3.6 (commencing with Section 810) of Title 1 of the
Government Code.
() As used in this section, the following definitions apply:
(1) "Purchaser" means the purchaser or transferee of a firearm or
a person being loaned a firearm.
(2) "Purchase" means the purchase, loan, or transfer of a firearm.
(3) "Sale" means the sale, loan, or transfer of a firearm.
(4) "Seller" means, if the transaction is being conducted pursuant
to Section 12082, the person selling, loaning, or transferring the
firearm.
SEC. 13. SEC. 27. Section 12650 of
the Penal Code is amended to read:
12650. "Stun gun" as used in this chapter means any item, except
a less lethal weapon, as defined in Section 12601, used or intended
to be used as either an offensive or defensive weapon that is capable
of temporarily immobilizing a person by the infliction of an
electrical charge.
SEC. 14. SEC. 28. Section 13010 of
the Penal Code is amended to read:
13010. It shall be the duty of the department:
(a) To collect data necessary for the work of the department from
all persons and agencies mentioned in Section 13020 and from any
other appropriate source.
(b) To prepare and distribute to all those persons and agencies,
cards, forms, or electronic means used in reporting data to the
department. The cards, forms, or electronic means may, in addition to
other items, include items of information needed by federal bureaus
or departments engaged in the development of national and uniform
criminal statistics.
(c) To recommend the form and content of records which must be
kept by those persons and agencies in order to insure
ensure the correct reporting of data to the
department.
(d) To instruct those persons and agencies in the installation,
maintenance, and use of those records and in the reporting of data
therefrom to the department.
(e) To process, tabulate, analyze and interpret the data collected
from those persons and agencies.
(f) To supply, at their request, to federal bureaus or departments
engaged in the collection of national criminal statistics data they
need from this state.
(g) To present to the Governor, on or before July 1st, an annual
report containing the criminal statistics of the preceding calendar
year and to present at other times as the Attorney General may
approve reports on special aspects of criminal statistics. A
sufficient number of copies of all reports shall be prepared to
enable the Attorney General to send a copy to all public officials in
the state dealing with criminals and to distribute them generally in
channels where they will add to the public enlightenment.
(h) To periodically review the requirements of units of government
using criminal justice statistics, and to make recommendations for
changes it deems necessary in the design of criminal justice
statistics systems, including new techniques of collection and
processing made possible by automation.
SEC. 15. SEC. 29. Section 13202 of
the Penal Code is amended to read:
13202. Notwithstanding subdivision (g) of Section 11105 and
subdivision (a) of Section 13305, every public agency or bona fide
research body immediately concerned with the prevention or control of
crime, the quality of criminal justice, or the custody or correction
of offenders may be provided with such criminal offender record
information as is required for the performance of its duties,
provided that any material identifying individuals is not
transferred, revealed, or used for other than research or statistical
activities and reports or publications derived therefrom do not
identify specific individuals, and provided that such agency or body
pays the cost of the processing of such data as determined by the
Attorney General.
SEC. 30. Section 40519 of the Vehicle
Code is amended to read:
40519. (a) Any person who has received a written notice to appear
for an infraction may, prior to the time at which the person is
required to appear, make a deposit and declare the intention to plead
not guilty to the clerk of the court named in the notice to appear.
The deposit shall be in the amount of bail established pursuant to
Section 1269b of the Penal Code, together with any assessment
required by Section 42006 of this code or Section 1464 of the Penal
Code, for the offense charged, and shall be used for the purpose of
guaranteeing the appearance of the defendant at the time and place
scheduled by the clerk for arraignment and for trial, and to apply
toward the payment of any fine or assessment prescribed by the court
in the event of conviction. The case shall thereupon be set for
arraignment and trial on the same date, unless the defendant requests
separate arraignment. A deposit of bail under this section does
not constitute entry of a plea or a court appearance. A plea of not
guilty under this section must be made in court at the arraignment.
(b) Any person who has received a written notice to appear may,
prior to the time at which the person is required to appear, plead
not guilty in writing in lieu of appearing in person. The written
plea shall be directed to the court named in the notice to appear
and, if mailed, shall be sent by certified or registered mail
postmarked not later than five days prior to the day upon which
appearance is required. The written plea and request to the court or
city agency shall be accompanied by a deposit consisting of the
amount of bail established pursuant to Section 1269b of the Penal
Code, together with any assessment required by Section 42006 of this
code or Section 1464 of the Penal Code, for that offense, which
amount shall be used for the purpose of guaranteeing the appearance
of the defendant at the time and place set by the court for trial and
to apply toward the payment of any fine or assessment prescribed by
the court in the event of conviction. Upon receipt of the plea and
deposit, the case shall be set for arraignment and trial on the same
date, unless the defendant requests separate arraignment. Thereafter,
the case shall be conducted in the same manner as if the defendant
had appeared in person, had made his or her plea in open court, and
had deposited that sum as bail. The court or the clerk of the court
shall notify the accused of the time and place of trial by
first-class mail postmarked at least 10 days prior to the time set
for the trial. Any person using this procedure shall be deemed to
have waived the right to be tried within the statutory period.
(c) Any person using the procedure set forth in subdivision (a) or
(b) shall be deemed to have given a written promise to appear at the
time designated by the court for trial, and failure to appear at the
trial shall constitute a misdemeanor.
SEC. 16. SEC. 31. Section 827.9 of
the Welfare and Institutions Code is amended to read:
827.9. (a) It is the intent of the Legislature to reaffirm its
belief that records or information gathered by law enforcement
agencies relating to the taking of a minor into custody, temporary
custody, or detention (juvenile police records) should be
confidential. Confidentiality is necessary to protect those persons
from being denied various opportunities, to further the
rehabilitative efforts of the juvenile justice system, and to prevent
the lifelong stigma that results from having a juvenile police
record. Although these records generally should remain confidential,
the Legislature recognizes that certain circumstances require the
release of juvenile police records to specified persons and entities.
The purpose of this section is to clarify the persons and entities
entitled to receive a complete copy of a juvenile police record, to
specify the persons or entities entitled to receive copies of
juvenile police records with certain identifying information about
other minors removed from the record, and to provide procedures for
others to request a copy of a juvenile police record. This section
does not govern the release of police records involving a minor who
is the witness to or victim of a crime who is protected by other laws
including, but not limited to, Section 841.5 of the Penal Code,
Section 11167 et seq. of the Penal Code, and Section 6254 of the
Government Code.
(b) Except as provided in Sections 389 and 781 of this code or
Section 1203.45 of the Penal Code, a law enforcement agency shall
release, upon request, a complete copy of a juvenile police record,
as defined in subdivision (m), without notice or consent from the
person who is the subject of the juvenile police record to the
following persons or entities:
(1) Other law enforcement agencies including the office of the
Attorney General of California, any district attorney, the Department
of Corrections and Rehabilitation, including the Division of
Juvenile Justice, and any peace officer as specified in subdivision
(a) of Section 830.1 of the Penal Code.
(2) School district police.
(3) Child protective agencies as defined in Section 11165.9 of the
Penal Code.
(4) The attorney representing the juvenile who is the subject of
the juvenile police record in a criminal or juvenile proceeding.
(5) The Department of Motor Vehicles.
(c) Except as provided in Sections 389 and 781 of this code or
Section 1203.45 of the Penal Code, law enforcement agencies shall
release, upon request, a copy of a juvenile police record to the
following persons and entities only if identifying information
pertaining to any other juvenile, within the meaning of subdivision
(n), has been removed from the record:
(1) The person who is the subject of the juvenile police record.
(2) The parents or guardian of a minor who is the subject of the
juvenile police record.
(3) An attorney for a parent or guardian of a minor who is the
subject of the juvenile police record.
(d) (1) (A) If a person or entity listed in subdivision (c) seeks
to obtain a complete copy of a juvenile police record that contains
identifying information concerning the taking into custody or
detention of any other juvenile, within the meaning of subdivision
(n), who is not a dependent child or a ward of the juvenile court,
that person or entity shall submit a completed Petition to Obtain
Report of Law Enforcement Agency, as developed pursuant to
subdivision (i), to the appropriate law enforcement agency. The law
enforcement agency shall send a notice to the following persons that
a Petition to Obtain Report of Law Enforcement Agency has been
submitted to the agency:
(i) The juvenile about whom information is sought.
(ii) The parents or guardian of any minor described in
subparagraph (i). The law enforcement agency shall make reasonable
efforts to obtain the address of the parents or guardian.
(B) For purposes of responding to a request submitted pursuant to
this subdivision, a law enforcement agency may check the Juvenile
Automated Index or may contact the juvenile court to determine
whether a person is a dependent child or a ward of the juvenile court
and whether parental rights have been terminated or the juvenile has
been emancipated.
(C) The notice sent pursuant to this subdivision shall include the
following information:
(i) The identity of the person or entity requesting a copy of the
juvenile police record.
(ii) A copy of the completed Petition to Obtain Report of Law
Enforcement Agency.
(iii) The time period for submitting an objection to the law
enforcement agency, which shall be 20 days if notice is provided by
mail or confirmed fax, or 15 days if notice is provided by personal
service.
(iv) The means to submit an objection.
A law enforcement agency shall issue notice pursuant to this
section within 20 days of the request. If no objections are filed,
the law enforcement agency shall release the juvenile police record
within 15 days of the expiration of the objection period.
(D) If any objections to the disclosure of the other juvenile's
information are submitted to the law enforcement agency, the law
enforcement agency shall send the completed Petition to Obtain Report
of Law Enforcement Agency, the objections, and a copy of the
requested juvenile police record to the presiding judge of the
juvenile court or, in counties with no presiding judge of the
juvenile court, the judge of the juvenile court or his or her
designee, to obtain authorization from the court to release a
complete copy of the juvenile police record.
(2) If a person or entity listed in subdivision (c) seeks to
obtain a complete copy of a juvenile police record that contains
identifying information concerning the taking into custody or
detention of any other juvenile, within the meaning of subdivision
(n), who is a dependent child or a ward of the juvenile court, that
person or entity shall submit a Petition to Obtain Report of Law
Enforcement Agency, as developed pursuant to subdivision (i), to the
appropriate law enforcement agency. The law enforcement agency shall
send that Petition to Obtain Report of Law Enforcement Agency and a
completed petition for authorization to release the information to
that person or entity along with a complete copy of the requested
juvenile police record to the presiding judge of the juvenile court,
or, in counties with no presiding judge of the juvenile court, the
judge of the juvenile court or his or her designees. The juvenile
court shall provide notice of the petition for authorization to the
following persons:
(A) If the person who would be identified if the information is
released is a minor who is a dependent child of the juvenile court,
notice of the petition shall be provided to the following persons:
(i) The minor.
(ii) The attorney of record for the minor.
(iii) The parents or guardian of the minor, unless parental rights
have been terminated.
(iv) The child protective agency responsible for the minor.
(v) The attorney representing the child protective agency
responsible for the minor.
(B) If the person who would be identified if the information is
released is a ward of the juvenile court, notice of the petition
shall be provided to the following:
(i) The ward.
(ii) The attorney of record for the ward.
(iii) The parents or guardian of the ward if the ward is under 18
years of age, unless parental rights have been terminated.
(iv) The district attorney.
(v) The probation department.
(e) Except as otherwise provided in this section or in Sections
389 and 781 of this code or Section 1203.45 of the Penal Code, law
enforcement agencies shall release copies of juvenile police records
to any other person designated by court order upon the filing of a
Petition to Obtain Report of Law Enforcement Agency with the juvenile
court. The petition shall be filed with the presiding judge of the
juvenile court, or, in counties with no presiding judge of the
juvenile court, the judge of the juvenile court or his or her
designee, in the county where the juvenile police record is
maintained.
(f) (1) After considering the petition and any objections
submitted to the juvenile court pursuant to paragraph (1) or (2) of
subdivision (d), the court shall determine whether the law
enforcement agency may release a complete copy of the juvenile police
record to the person or entity that submitted the request.
(2) In determining whether to authorize the release of a juvenile
police record, the court shall balance the interests of the juvenile
who is the subject of the record, the petitioner, and the public. The
juvenile court may issue orders prohibiting or limiting the release
of information contained in the juvenile police record. The court may
also deny the existence of a juvenile police record where the record
is properly sealed or the juvenile who is the subject of the record
has properly denied its existence.
(3) Prior to authorizing the release of any juvenile police
record, the juvenile court shall ensure that notice and an
opportunity to file an objection to the release of the record has
been provided to the juvenile who is the subject of the record or who
would be identified if the information is released, that person's
parents or guardian if he or she is under 18 years of age, and any
additional person or entity described in subdivision (d), as
applicable. The period for filing an objection shall be 20 days from
the date notice is given if notice is provided by mail or confirmed
fax and 15 days from the date notice is given if notice is provided
by personal service. If review of the petition is urgent, the
petitioner may file a motion with the presiding judge of the juvenile
court showing good cause why the objection period should be
shortened. The court shall issue a ruling on the completed petition
within 15 days of the expiration of the objection period.
(g) Any out-of-state entity comparable to the California entities
listed in paragraphs (1) to (5), inclusive, of subdivision (b) shall
file a petition with the presiding judge of the juvenile court in the
county where the juvenile police record is maintained in order to
receive a copy of a juvenile police record. A petition from that
entity may be granted on an ex parte basis.
(h) Nothing in this section shall require the release of
confidential victim or witness information protected by other laws
including, but not limited to, Section 841.5 of the Penal Code,
Section 11167 et seq. of the Penal Code, and Section 6254 of the
Government Code.
(i) The Judicial Council, in consultation with the California Law
Enforcement Association of Record Supervisors (CLEARS), shall develop
forms for distribution by law enforcement agencies to the public to
implement this section. Those forms shall include, but are not
limited to, the Petition to Obtain Report of Law Enforcement Agency.
The material for the public shall include information about the
persons who are entitled to a copy of the juvenile police record and
the specific procedures for requesting a copy of the record if a
petition is necessary. The Judicial Council shall provide law
enforcement agencies with suggested forms for compliance with the
notice provisions set forth in subdivision (d).
(j) Any information received pursuant to subdivisions (a) to (e),
inclusive, and (g) of this section shall be received in confidence
for the limited purpose for which it was provided and shall not be
further disseminated. An intentional violation of the confidentiality
provisions of this section is a misdemeanor, punishable by a fine
not to exceed five hundred dollars ($500).
(k) A court shall consider any information relating to the taking
of a minor into custody, if the information is not contained in a
record which has been sealed, for purposes of determining whether an
adjudication of the commission of a crime as a minor warrants a
finding that there are circumstances in aggravation pursuant to
Section 1170 of the Penal Code or to deny probation.
() When a law enforcement agency has been notified pursuant to
Section 1155 that a minor has escaped from a secure detention
facility, the law enforcement agency shall release the name of, and
any descriptive information about, the minor to a person who
specifically requests this information. The law enforcement agency
may release the information on the minor without a request to do so
if it finds that release of the information would be necessary to
assist in recapturing the minor or that it would be necessary to
protect the public from substantial physical harm.
(m) For purposes of this section, a "juvenile police record"
refers to records or information relating to the taking of a minor
into custody, temporary custody, or detention.
(n) For purposes of this section, with respect to a juvenile
police record, "any other juvenile" refers to additional minors who
were taken into custody or temporary custody, or detained and who
also could be considered a subject of the juvenile police record.
(o) An evaluation of the efficacy of the procedures for the
release of police records containing information about minors as
described in this section shall be conducted by the juvenile court
and law enforcement in Los Angeles County and the results of that
evaluation shall be reported to the Legislature on or before December
31, 2006.
(p) This section shall only apply to Los Angeles County.
SEC. 17. SEC. 32. Section 1767.35 of
the Welfare and Institutions Code is amended to read:
1767.35. Commencing on September 1, 2007, any parolee under the
jurisdiction of the Division of Juvenile Parole Operations shall be
returned to custody upon the suspension, cancellation, or revocation
of parole as follows:
(a) To the custody of the Division of Juvenile Facilities if the
parolee is under the jurisdiction of the division for the commission
of an offense described in subdivision (b) of Section 707 or an
offense described in
subdivision (c) of Section 290.008 of the Penal Code.
(b) To the county of commitment if the parolee is under the
jurisdiction of the division for the commission of an offense not
described in subdivision (b) of Section 707 or subdivision (c) of
Section 290.008 of the Penal Code. If a ward subject to this
subdivision is detained by the Division of Juvenile Parole Operations
for the purpose of initiating proceedings to suspend, cancel, or
revoke the ward's parole, the division shall notify the court and
probation department of the committing county within 48 hours of the
ward's detention that the ward is subject to parole violation
proceedings. Within 15 days of a parole violation notice from the
division, the committing court shall conduct a reentry disposition
hearing for the ward. Pending the hearing, the ward may be detained
by the division, provided that the division shall deliver the ward to
the custody of the probation department in the county of commitment
not more than three judicial days nor less than two judicial days
prior to the reentry disposition hearing. At the hearing, at which
the ward shall be entitled to representation by counsel, the court
shall consider the alleged violation of parole, the risks and needs
presented by the ward, and the reentry disposition programs and
sanctions that are available for the ward, and enter a disposition
order consistent with these considerations and the protection of the
public. The ward shall be fully informed by the court of the terms,
conditions, responsibilities, and sanctions that are relevant to the
reentry plan that is adopted by the court. Upon delivery to the
custody of the probation department for local proceedings under this
subdivision, the Division of Juvenile Facilities and the Board of
Parole Hearings shall have no further jurisdiction or parole
supervision responsibility for a ward subject to this subdivision.
The procedure of the reentry disposition hearing, including the
detention status of the ward in the event continuances are ordered by
the court, shall be consistent with the rules, rights, and
procedures applicable to delinquency disposition hearings, as
described in Article 17 (commencing with Section 675) of Chapter 2 of
Part 1 of Division 2.
SEC. 18. SEC. 33. Section 6603.5 of
the Welfare and Institutions Code is amended to read:
6603.5. No employee or agent of the Department of Corrections and
Rehabilitation, the Board of Parole Hearings, or the State
Department of Mental Health shall disclose to any person, except to
employees or agents of each named department, the prosecutor, the
respondent's counsel, licensed private investigators hired or
appointed for the respondent, or other persons or agencies where
authorized or required by law, the name, address, telephone number,
or other identifying information of a person who was involved in a
civil commitment hearing under this article as the victim of a sex
offense except where authorized or required by law.
SEC. 34. Any section of any act, other than
Assembly Bill 1164, enacted by the Legislature during the 2009
calendar year that takes effect on or before January 1, 2010, and
that amends, amends and renumbers, adds, repeals and adds, or repeals
any one or more of the sections affected by this act shall prevail
over this act, whether this act is enacted prior to, or subsequent
to, the enactment of that 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, other
than Assembly Bill 1164, that is enacted by the Legislature during
the 2009 calendar year and takes effect on or before January 1, 2010,
amends, amends and renumbers, adds, repeals and adds, or repeals any
section contained in that article, chapter, part, title, or
division.
SEC. 19. SEC. 35. No reimbursement
is required by this act pursuant to Section 6 of Article XIII B of
the California Constitution for certain costs that may be incurred by
a local agency or school district because, in that regard, this act
creates a new crime or infraction, eliminates a crime or infraction,
or changes the penalty for a crime or infraction, within the meaning
of Section 17556 of the Government Code, or changes the definition of
a crime within the meaning of Section 6 of Article XIII B of the
California Constitution.
However, if the Commission on State Mandates determines that this
act contains other costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division 4 of
Title 2 of the Government Code.