BILL NUMBER: SB 1115 ENROLLED
BILL TEXT
PASSED THE SENATE APRIL 15, 2010
PASSED THE ASSEMBLY AUGUST 2, 2010
INTRODUCED BY Committee on Public Safety (Senators Leno (Chair),
Cedillo, Cogdill, Hancock, Huff, Steinberg, and Wright)
FEBRUARY 17, 2010
An act to amend Sections 7542.1, 7574.14, 7581, 7582.2, 7583.12,
7583.31, 7583.35, 7583.37, 7591.11, 7596.6, 7596.12, 7597.1, 7597.6,
17533.9, 21626, 21628, 21628.2, and 21641 of the Business and
Professions Code, to amend Section 3485 of the Civil Code, to amend
Sections 527.6, 527.8, 527.85, and 527.9 of the Code of Civil
Procedure, to amend Sections 6383, 6385, and 6389 of the Family Code,
to amend Sections 211, 2006, 3001, 3801.6, 10500, and 10506 of the
Fish and Game Code, to amend Sections 6254, 6276.18, and 53071.5 of
the Government Code, to amend Sections 1257.7, 12000, 12101, 12540,
12756, and 12757 of the Health and Safety Code, to amend Sections
136.2, 139, 166, 171b, 171c, 171d, 171.5, 186.22, 186.22a, 189,
244.5, 245, 245.3, 273.6, 417.4, 417.6, 538d, 626.9, 626.95, 626.10,
629.52, 667.5, 667.7, 679.03, 830.5, 830.8, 833.5, 836, 999e,
1170.11, 1174.4, 1192.7, 1203, 1203.1, 1203.4, 1203.4a, 1210.1, 1524,
1601, 2933.5, 2962, 3057, 4852.03, 4852.17, 4854, 11105, 11105.03,
11106, 11108, 11413, 11418, 11460, and 13730 of the Penal Code, to
amend Section 10334 of the Public Contract Code, and to amend
Sections 676, 707, 727, 1772, 4514, 5328.4, 6500, 8100, 8103, 8104,
and 15657.03 of the Welfare and Institutions Code, relating to the
nonsubstantive reorganization of the deadly weapons statutes.
LEGISLATIVE COUNSEL'S DIGEST
SB 1115, Committee on Public Safety. Deadly weapons.
Existing law generally regulates deadly weapons.
This bill would make cross-reference changes to provisions of law
that reference various deadly weapons provisions in the Penal Code,
to be operative January 1, 2012. The operation of this bill is
contingent upon enactment of SB 1080, which would reorganize and make
other nonsubstantive changes to the deadly weapons provisions of
law.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 7542.1 of the Business and Professions Code is
amended to read:
7542.1. Every licensee and any person employed and compensated by
a licensee who in the course of that employment or business carries
tear gas or any other nonlethal chemical agent shall complete the
required course pursuant to Section 22835 of the Penal Code.
SEC. 2. Section 7574.14 of the Business and Professions Code is
amended to read:
7574.14. This chapter shall not apply to the following:
(a) An officer or employee of the United States of America, or of
this state or a political subdivision thereof, while the officer or
employee is engaged in the performance of his or her official duties,
including uniformed peace officers employed part time by a public
agency pursuant to a written agreement between a chief of police or
sheriff and the public agency, provided the part-time employment does
not exceed 50 hours in any calendar month.
(b) A person engaged exclusively in the business of obtaining and
furnishing information as to the financial rating of persons.
(c) A charitable philanthropic society or association incorporated
under the laws of this state that is organized and duly maintained
for the public good and not for private profit.
(d) Patrol special police officers appointed by the police
commission of any city, county, or city and county under the express
terms of its charter who also under the express terms of the charter
(1) are subject to suspension or dismissal after a hearing on charges
duly filed with the commission after a fair and impartial trial, (2)
must be not less than 18 years of age nor more than 40 years of age,
(3) must possess physical qualifications prescribed by the
commission, and (4) are designated by the police commission as the
owners of a certain beat or territory as may be fixed from time to
time by the police commission.
(e) An attorney at law in performing his or her duties as an
attorney at law.
(f) A collection agency or an employee thereof while acting within
the scope of his or her employment, while making an investigation
incidental to the business of the agency, including an investigation
of the location of a debtor or his or her property where the contract
with an assignor creditor is for the collection of claims owed or
due or asserted to be owed or due or the equivalent thereof.
(g) Admitted insurers and agents and insurance brokers licensed by
the state, performing duties in connection with insurance transacted
by them.
(h) Any bank subject to the jurisdiction of the Commissioner of
Financial Institutions of the State of California under Division 1
(commencing with Section 99) of the Financial Code or the Comptroller
of Currency of the United States.
(i) A person engaged solely in the business of securing
information about persons or property from public records.
(j) A peace officer of this state or a political subdivision
thereof while the peace officer is employed by a private employer to
engage in off-duty employment in accordance with Section 1126 of the
Government Code. However, nothing herein shall exempt such a peace
officer who either contracts for his or her services or the services
of others as a private patrol operator or contracts for his or her
services as or is employed as an armed private security officer. For
purposes of this subdivision, "armed security officer" means an
individual who carries or uses a firearm in the course and scope of
that contract or employment.
(k) A retired peace officer of the state or political subdivision
thereof when the retired peace officer is employed by a private
employer in employment approved by the chief law enforcement officer
of the jurisdiction where the employment takes place, provided that
the retired officer is in a uniform of a public law enforcement
agency, has registered with the bureau on a form approved by the
director, and has met any training requirements or their equivalent
as established for security personnel under Section 7583.5. This
officer may not carry a loaded or concealed firearm unless he or she
is exempted under the provisions of Sections 25450 to 25475,
inclusive, of the Penal Code or Sections 25900 to 25910, inclusive,
of the Penal Code or has met the requirements set forth in
subdivision (d) of Section 26030 of the Penal Code. However, nothing
herein shall exempt the retired peace officer who contracts for his
or her services or the services of others as a private patrol
operator.
(l) A licensed insurance adjuster in performing his or her duties
within the scope of his or her license as an insurance adjuster.
(m) Any savings association subject to the jurisdiction of the
Commissioner of Financial Institutions or the Office of Thrift
Supervision.
(n) Any secured creditor engaged in the repossession of the
creditor's collateral and any lessor engaged in the repossession of
leased property in which it claims an interest.
(o) A peace officer in his or her official police uniform acting
in accordance with subdivisions (c) and (d) of Section 70 of the
Penal Code.
(p) An unarmed, uniformed security person employed exclusively and
regularly by a motion picture studio facility employer who does not
provide contract security services for other entities or persons in
connection with the affairs of that employer only and where there
exists an employer-employee relationship if that person at no time
carries or uses any deadly weapon, as defined in subdivision (a), in
the performance of his or her duties, which may include, but are not
limited to, the following business purposes:
(1) The screening and monitoring access of employees of the same
employer.
(2) The screening and monitoring access of prearranged and
preauthorized invited guests.
(3) The screening and monitoring of vendors and suppliers.
(4) Patrolling the private property facilities for the safety and
welfare of all who have been legitimately authorized to have access
to the facility.
(q) An armored contract carrier operating armored vehicles
pursuant to the authority of the Department of the California Highway
Patrol or the Public Utilities Commission, or an armored vehicle
guard employed by an armored contract carrier.
SEC. 3. Section 7581 of the Business and Professions Code is
amended to read:
7581. The director may adopt and enforce reasonable rules, as
follows:
(a) Classifying licensees according to the type of business
regulated by this chapter in which they are engaged, including, but
not limited to, persons employed by any lawful business as security
guards or patrolpersons, and armored contract carriers and limiting
the field and scope of the operations of a licensee to those in which
he or she is classified and qualified to engage.
(b) Fixing the qualifications of licensees and managers, in
addition to those prescribed in this chapter, necessary to promote
and protect the public welfare.
(c) Carrying out generally the provisions of this chapter,
including regulation of the conduct of licensees.
(d) Establishing the qualifications that any person employed by a
private patrol operator or any lawful business as a security guard or
patrolperson, or employed by an armored contract carrier, must meet
as a condition of becoming eligible to carry firearms pursuant to
Section 26030 of the Penal Code.
(e) Requiring each uniformed employee of a private patrol operator
and each armored vehicle guard, as defined in this chapter, and any
other person employed and compensated by a private patrol operator or
any lawful business as a security guard or patrolperson and who in
the course of this employment carries a deadly weapon to be
registered with the bureau upon application on a form prescribed by
the director accompanied by the registration fee and by two
classifiable sets of fingerprints of the applicant or its equivalent
as determined by the director and approved by the Department of
Justice, establishing the term of the registration for a period of
not less than two nor more than four years, and providing for the
renewal thereof upon proper application and payment of the renewal
fee. The director may, after opportunity for a hearing, refuse this
registration to any person who lacks good moral character, and may
impose reasonable additional requirements as are necessary to meet
local needs that are not inconsistent with the provisions of this
chapter.
(f) Establishing procedures whereby the local authorities of any
city, county, or city and county may file charges with, or any person
in this state, may file a complaint with the director alleging that
any licensed private patrol operator, registered security guard, or
patrolperson, or anyone who is an applicant for registration or
licensure with the bureau, fails to meet standards for registration
or licensure, or violates any provision of this chapter, and
providing further for the investigation of the charges and a response
to the charging or complaining party in the manner described in
subdivision (b) of Section 129.
(g) Requiring private patrol operators and any lawful business to
maintain detailed records identifying all firearms in their
possession or under their control, and the employees or persons
authorized to carry or have access to those firearms.
SEC. 4. Section 7582.2 of the Business and Professions Code is
amended to read:
7582.2. This chapter does not apply to the following:
(a) A person who does not meet the requirements to be a
proprietary private security officer, as defined in Section 7574.1,
and is employed exclusively and regularly by any employer who does
not provide contract security services for other entities or persons,
in connection with the affairs of the employer only and where there
exists an employer-employee relationship if that person at no time
carries or uses any deadly weapon in the performance of his or her
duties. For purposes of this subdivision, "deadly weapon" is defined
to include any instrument or weapon of the kind commonly known as a
blackjack, slungshot, billy, sandclub, sandbag, metal knuckles, any
dirk, dagger, pistol, revolver, or any other firearm, any knife
having a blade longer than five inches, any razor with an unguarded
blade and any metal pipe or bar used or intended to be used as a
club.
(b) An officer or employee of the United States of America, or of
this state or a political subdivision thereof, while the officer or
employee is engaged in the performance of his or her official duties,
including uniformed peace officers employed part time by a public
agency pursuant to a written agreement between a chief of police or
sheriff and the public agency, provided the part-time employment does
not exceed 50 hours in any calendar month.
(c) A person engaged exclusively in the business of obtaining and
furnishing information as to the financial rating of persons.
(d) A charitable philanthropic society or association duly
incorporated under the laws of this state that is organized and
maintained for the public good and not for private profit.
(e) Patrol special police officers appointed by the police
commission of any city, county, or city and county under the express
terms of its charter who also under the express terms of the charter
(1) are subject to suspension or dismissal after a hearing on charges
duly filed with the commission after a fair and impartial trial, (2)
must be not less than 18 years of age nor more than 40 years of age,
(3) must possess physical qualifications prescribed by the
commission, and (4) are designated by the police commission as the
owners of a certain beat or territory as may be fixed from time to
time by the police commission.
(f) An attorney at law in performing his or her duties as an
attorney at law.
(g) A collection agency or an employee thereof while acting within
the scope of his or her employment, while making an investigation
incidental to the business of the agency, including an investigation
of the location of a debtor or his or her property where the contract
with an assignor creditor is for the collection of claims owed or
due or asserted to be owed or due or the equivalent thereof.
(h) Admitted insurers and agents and insurance brokers licensed by
the state, performing duties in connection with insurance transacted
by them.
(i) Any bank subject to the jurisdiction of the Commissioner of
Financial Institutions of the State of California under Division 1
(commencing with Section 99) of the Financial Code or the Comptroller
of Currency of the United States.
(j) A person engaged solely in the business of securing
information about persons or property from public records.
(k) A peace officer of this state or a political subdivision
thereof while the peace officer is employed by a private employer to
engage in off-duty employment in accordance with Section 1126 of the
Government Code. However, nothing herein shall exempt a peace officer
who either contracts for his or her services or the services of
others as a private patrol operator or contracts for his or her
services as or is employed as an armed private security officer. For
purposes of this subdivision, "armed security officer" means an
individual who carries or uses a firearm in the course and scope of
that contract or employment.
( l ) A retired peace officer of the state or political
subdivision thereof when the retired peace officer is employed by a
private employer in employment approved by the chief law enforcement
officer of the jurisdiction where the employment takes place,
provided that the retired officer is in a uniform of a public law
enforcement agency, has registered with the bureau on a form approved
by the director, and has met any training requirements or their
equivalent as established for security personnel under Section
7583.5. This officer may not carry a loaded or concealed firearm
unless he or she is exempted under the provisions of Article 2
(commencing with Section 25450) of Chapter 2 of Division 5 of Title 4
of Part 6 of the Penal Code or Sections 25900 to 25910, inclusive,
of the Penal Code or has met the requirements set forth in
subdivision (d) of Section 26030 of the Penal Code. However, nothing
herein shall exempt the retired peace officer who contracts for his
or her services or the services of others as a private patrol
operator.
(m) A licensed insurance adjuster in performing his or her duties
within the scope of his or her license as an insurance adjuster.
(n) Any savings association subject to the jurisdiction of the
Commissioner of Financial Institutions or the Office of Thrift
Supervision.
(o) Any secured creditor engaged in the repossession of the
creditor's collateral and any lessor engaged in the repossession of
leased property in which it claims an interest.
(p) A peace officer in his or her official police uniform acting
in accordance with subdivisions (c) and (d) of Section 70 of the
Penal Code.
(q) An unarmed, uniformed security person employed exclusively and
regularly by a motion picture studio facility employer who does not
provide contract security services for other entities or persons in
connection with the affairs of that employer only and where there
exists an employer-employee relationship if that person at no time
carries or uses any deadly weapon, as defined in subdivision (a), in
the performance of his or her duties, which may include, but are not
limited to, the following business purposes:
(1) The screening and monitoring access of employees of the same
employer.
(2) The screening and monitoring access of prearranged and
preauthorized invited guests.
(3) The screening and monitoring of vendors and suppliers.
(4) Patrolling the private property facilities for the safety and
welfare of all who have been legitimately authorized to have access
to the facility.
(r) The changes made to this section by the act adding this
subdivision during the 2005-06 Regular Session of the Legislature
shall apply as follows:
(1) On and after July 1, 2006, to a person hired as a security
officer on and after January 1, 2006.
(2) On and after January 1, 2007, to a person hired as a security
officer before January 1, 2006.
SEC. 5. Section 7583.12 of the Business and Professions Code is
amended to read:
7583.12. (a) No employee of a licensee shall carry or use a
firearm unless the employee has in his or her possession both of the
following:
(1) A valid guard registration card issued pursuant to this
chapter.
(2) A valid firearm qualification card issued pursuant to this
chapter.
(b) Paragraph (2) of subdivision (a) shall not apply to a duly
appointed peace officer, as defined in Chapter 4.5 (commencing with
Section 830) of Title 3 of Part 2 of the Penal Code, who meets all of
the following:
(1) He or she has successfully completed a course of study in the
use of firearms.
(2) He or she is authorized to carry a concealed firearm in the
course and scope of his or her employment pursuant to Article 2
(commencing with Section 25450) of Chapter 2 of Division 5 of Title 4
of Part 6 of the Penal Code.
(3) He or she has proof that he or she has applied to the bureau
for a firearms qualification card.
(c) (1) This section shall not apply to a duly appointed peace
officer, as defined in Chapter 4.5 (commencing with Section 830) of
Title 3 of Part 2 of the Penal Code, who has written approval from
his or her primary employer, as defined in paragraph (2) of
subdivision (i) of Section 7583.9, to carry a firearm while working
as a security guard or security officer.
(2) A peace officer exempt under this subdivision shall carry on
his or her person a letter of approval from his or her primary
employer authorizing him or her to carry a firearm while working as a
security guard or security officer.
SEC. 6. Section 7583.31 of the Business and Professions Code is
amended to read:
7583.31. A firearms qualification card does not authorize the
holder thereof to carry a pistol, revolver, or other firearm capable
of being concealed upon the person in a concealed manner pursuant to
Section 26150, 26155, 26170, or 26215 of the Penal Code.
SEC. 7. Section 7583.35 of the Business and Professions Code is
amended to read:
7583.35. Every licensee, qualified manager, or a registered
uniformed security guard, who in the course of his or her employment
carries tear gas or any other nonlethal chemical agent, shall
complete the required course pursuant to Section 22835 of the Penal
Code.
SEC. 8. Section 7583.37 of the Business and Professions Code is
amended to read:
7583.37. The director may assess fines as enumerated in Article 7
(commencing with Section 7587). Assessment of administrative fines
shall be independent of any other action by the bureau or any local,
state, or federal governmental agency that may result from a
violation of this article. In addition to other prohibited acts under
this chapter, no licensee, qualified manager, or registered security
guard shall, during the course and scope of licensed activity, do
any of the following:
(a) Carry any inoperable, replica, or other simulated firearm.
(b) Use a firearm in violation of the law, or in knowing violation
of the standards for the carrying and usage of firearms as taught in
the course of training in the carrying and use of firearms. Unlawful
or prohibited uses of firearms shall include, but not be limited to,
the following:
(1) Illegally using, carrying, or possessing a dangerous weapon.
(2) Brandishing a weapon.
(3) Drawing a weapon without proper cause.
(4) Provoking a shooting incident without cause.
(5) Carrying or using a firearm while on duty while under the
influence of alcohol or dangerous drugs.
(6) Carrying or using a firearm of a caliber for which a firearms
permit has not been issued by the bureau.
(c) Carry or use a baton in the performance of his or her duties,
unless he or she has in his or her possession a valid baton
certificate issued pursuant to Section 7585.14.
(d) Carry or use tear gas or any other nonlethal chemical agent in
the performance of his or her duties unless he or she has in his or
her possession proof of completion of a course in the carrying and
use of tear gas or any other nonlethal chemical agent.
(e) Carry a concealed pistol, revolver, or other firearm capable
of being concealed upon the person unless one of the following
circumstances applies:
(1) The person has been issued a permit to carry a pistol,
revolver, or other firearm capable of being concealed upon the person
in a concealed manner by a local law enforcement agency pursuant to
Section 26150, 26155, 26170, or 26215 of the Penal Code.
(2) The person is employed as a guard or messenger of a common
carrier, bank, or other financial institution and he or she carries
the weapon while actually employed in and about the shipment,
transportation, or delivery of any money, treasure, bullion, bonds,
or other thing of value within this state, as specified in Section
25630 of the Penal Code.
(3) The person is an honorably retired peace officer authorized to
carry a concealed firearm pursuant to Section 25650 of the Penal
Code or Article 2 (commencing with Section 25450) of Chapter 2 of
Division 5 of Title 4 of Part 6 of the Penal Code.
(4) The person is a duly appointed peace officer, as defined in
Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the
Penal Code, who is authorized to carry a concealed firearm in the
course and scope of his or her employment pursuant to Article 2
(commencing with Section 25450) of Chapter 2 of Division 5 of Title 4
of Part 6 of the Penal Code.
SEC. 9. Section 7591.11 of the Business and Professions Code is
amended to read:
7591.11. The bureau shall deny a firearms permit, pursuant to
Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of
Part 6 of the Penal Code, to any licensee, qualified manager, or
alarm agent who has been convicted of a felony, unless the felony
conviction has been reduced pursuant to Section 17 of the Penal Code
or the person has been pardoned by the Governor. The licensee,
qualified manager, or alarm agent shall not have a right to a review
or a hearing if the denial is made pursuant to this section.
SEC. 10. Section 7596.6 of the Business and Professions Code is
amended to read:
7596.6. A firearms qualification card does not authorize the
holder thereof to carry a pistol, revolver, or other firearm capable
of being concealed upon the person in a concealed manner pursuant to
Section 26150, 26155, 26170, or 26215 of the Penal Code.
SEC. 11. Section 7596.12 of the Business and Professions Code is
amended to read:
7596.12. Every person licensed, registered, or designated under
this chapter, who in the course of his or her employment carries tear
gas, or any other nonlethal chemical agent, shall complete the
course required pursuant to Section 22835 of the Penal Code.
SEC. 12. Section 7597.1 of the Business and Professions Code is
amended to read:
7597.1. (a) No licensee, qualified manager, branch office
manager, or alarm agent shall carry, use, or possess a loaded or
unloaded firearm in the course and scope of his or her employment,
whether or not it is serviceable or operative, unless he or she has
in his or her possession a valid and current firearms qualification
card issued to him or her by the bureau. The card shall be shown to
any peace officer or bureau representative upon demand.
(b) Subdivision (a) shall not apply to a duly appointed peace
officer, as defined in Chapter 4.5 (commencing with Section 830) of
Title 3 of Part 2 of the Penal Code, who meets all of the following:
(1) He or she has successfully completed a course of study in the
use of firearms.
(2) He or she is authorized to carry a concealed firearm in the
course and scope of his or her employment pursuant to Article 2
(commencing with Section 25450) of Chapter 2 of Division 5 of Title 4
of Part 6 of the Penal Code.
(3) He or she has proof that he or she has applied to the bureau
for a firearms qualification card.
(c) A fine of twenty-five dollars ($25) may be assessed for the
first violation of this section and a fine of one hundred dollars
($100) for each subsequent violation.
SEC. 13. Section 7597.6 of the Business and Professions Code is
amended to read:
7597.6. (a) No licensee, qualified manager, branch office
manager, or alarm agent shall carry a pistol, revolver, or other
firearm capable of being concealed upon the person in a concealed
manner unless one of the following circumstances apply:
(1) The person has been issued a permit to carry that firearm in a
concealed manner by a local law enforcement agency pursuant to
Section 26150, 26155, 26170, or 26215 of the Penal Code.
(2) The person is an honorably retired peace officer authorized to
carry a concealed firearm pursuant to Section 25650 of the Penal
Code or Article 2 (commencing with Section 25450) of Chapter 2 of
Division 5 of Title 4 of Part 6 of the Penal Code.
(3) The person is a duly appointed peace officer, as defined in
Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the
Penal Code, who is authorized to carry a concealed firearm in the
course and scope of his or her employment pursuant to Article 2
(commencing with Section 25450) of Chapter 2 of Division 5 of Title 4
of Part 6 of the Penal Code.
(b) A fine of five hundred dollars ($500) may be assessed for each
violation of subdivision (a).
SEC. 14. Section 17533.9 of the Business and Professions Code is
amended to read:
17533.9. It shall be unlawful for any person, firm, corporation,
or association, in any newspaper, magazine, circular, form letter, or
open publication, published, distributed, or circulated in this
state, including over the Internet, or on any billboard, card, label,
or other advertising medium, or by means of any other advertising
device, to advertise the sale of tear gas, tear gas devices, and tear
gas weapons, as defined in Sections 17240 and 17250 of the Penal
Code, unless there is conspicuously displayed or stated in connection
with the name and description of that tear gas, or those tear gas
weapons or devices, a direct and unequivocal statement that will
clearly indicate that possession or transportation of tear gas and
tear gas weapons or devices is prohibited by law unless specifically
exempted or permitted pursuant to the authority contained in Division
11 (commencing with Section 22810) of Title 3 of Part 6 of the Penal
Code.
SEC. 15. Section 21626 of the Business and Professions Code is
amended to read:
21626. (a) A
"secondhand dealer," as used in this article, means and includes any
person, copartnership, firm, or corporation whose business includes
buying, selling, trading, taking in pawn, accepting for sale on
consignment, accepting for auctioning, or auctioning secondhand
tangible personal property. A "secondhand dealer" does not include a
"coin dealer" or participants at gun shows or events, as defined in
Section 478.100 of Title 27 of the Code of Federal Regulations, or
its successor, who are not required to be licensed pursuant to
Sections 26700 to 26915, inclusive, of the Penal Code, who are acting
in compliance with the requirements of Sections 26500 to 26585,
inclusive, and 27545 of the Penal Code, and who are not a "Gun Show
Trader," as described in Sections 16620 and 26525 of the Penal Code.
(b) As used in this section, a "coin dealer" means any person,
firm, partnership, or corporation whose principal business is the
buying, selling, and trading of coins, monetized bullion, or
commercial grade ingots of gold, or silver, or other precious metals.
SEC. 16. Section 21628 of the Business and Professions Code, as
added by Section 2.5 of Chapter 335 of the Statutes of 2009, is
amended to read:
21628. Every secondhand dealer or coin dealer described in
Section 21626 shall report daily, or on the first working day after
receipt or purchase of the property, on forms either approved or
provided at actual cost by the Department of Justice, all tangible
personal property, except for firearms, which he or she has
purchased, taken in trade, taken in pawn, accepted for sale on
consignment, or accepted for auctioning, to the chief of police or to
the sheriff, in accordance with the provisions of Sections 21630 and
21633 and subdivision (j) of this section. The report shall be
legible, prepared in English, completed where applicable, and
include, but not be limited to, the following information:
(a) The name and current address of the intended seller or pledger
of the property.
(b) The identification of the intended seller or pledger. The
identification of the seller or pledger of the property shall be
verified by the person taking the information. The verification shall
be valid if the person taking the information reasonably relies on
any one of the following documents, provided that the document is
currently valid or has been issued within five years and contains a
photograph or description, or both, of the person named on it, and,
where applicable, is signed by the person, and bears a serial or
other identifying number:
(1) A passport of the United States.
(2) A driver's license issued by any state, or Canada.
(3) An identification card issued by any state.
(4) An identification card issued by the United States.
(5) A passport from any other country in addition to another item
of identification bearing an address.
(6) A Matricula Consular in addition to another item of
identification bearing an address.
(c) A complete and reasonably accurate description of serialized
property, including, but not limited to, the following: serial number
and other identifying marks or symbols, owner-applied numbers,
manufacturer's named brand, and model name or number. Watches need
not be disassembled when special skill or special tools are required
to obtain the required information, unless specifically requested to
do so by a peace officer. A special tool does not include a penknife,
caseknife, or similar instrument and disassembling a watch with a
penknife, caseknife, or similar instrument does not constitute a
special skill. In all instances where the required information may be
obtained by removal of a watchband, then the watchband shall be
removed. The cost associated with opening the watch shall be borne by
the pawnbroker, secondhand dealer, or customer.
(d) A complete and reasonably accurate description of
nonserialized property, including, but not limited to, the following:
size, color, material, manufacturer's pattern name (when known),
owner-applied numbers and personalized inscriptions, and other
identifying marks or symbols. Watches need not be disassembled when
special skill or special tools are required to obtain the required
information, unless specifically requested to do so by a peace
officer. A special tool does not include a penknife, caseknife, or
similar instrument and disassembling a watch with a penknife,
caseknife, or similar instrument does not constitute a special skill.
In all instances where the required information may be obtained by
removal of a watchband, then the watchband shall be removed. The cost
associated with opening the watch shall be borne by the pawnbroker,
secondhand dealer, or customer.
(e) A certification by the intended seller or pledger that he or
she is the owner of the property or has the authority of the owner to
sell or pledge the property.
(f) A certification by the intended seller or pledger that to his
or her knowledge and belief the information is true and complete.
(g) A legible fingerprint taken from the intended seller or
pledger, as prescribed by the Department of Justice. This requirement
does not apply to a coin dealer, unless required pursuant to local
regulation.
(h) When a secondhand dealer complies with all of the provisions
of this section, he or she shall be deemed to have received from the
seller or pledger adequate evidence of authority to sell or pledge
the property for all purposes included in this article, and Division
8 (commencing with Section 21000) of the Financial Code.
In enacting this subdivision, it is the intent of the Legislature
that its provisions shall not adversely affect the implementation of,
or prosecution under, any provision of the Penal Code.
(i) Any person who conducts business as a secondhand dealer at any
gun show or event, as defined in Section 478.100 of Title 27 of the
Code of Federal Regulations, or its successor, outside the
jurisdiction that issued the secondhand dealer license in accordance
with subdivision (d) of Section 21641, may be required to submit a
duplicate of the transaction report prepared pursuant to this section
to the local law enforcement agency where the gun show or event is
conducted.
(j) (1) The Department of Justice shall, in consultation with
appropriate local law enforcement agencies, develop clear and
comprehensive descriptive categories denoting tangible personal
property subject to the reporting requirements of this section. These
categories shall be incorporated by secondhand dealers and coin
dealers described in Section 21626 for purposes of the reporting
requirements set forth herein. Any required report shall be
transmitted by electronic means. The Department of Justice and local
law enforcement agencies, in consultation with representatives from
the secondhand dealer and coin dealer businesses, shall develop a
standard format to be used statewide to transmit this report
electronically.
(2) Twelve months after the format and the categories described in
paragraph (1) have been developed, each secondhand dealer and coin
dealer shall electronically report using this format the information
required by this section under these reporting categories. Until that
time, each secondhand dealer and coin dealer may either continue to
report this information using existing forms and procedures or may
begin electronically reporting this information under the reporting
categories and using the format described in paragraph (1) as soon as
each has been developed.
(3) A coin dealer who engages in less than 10 transactions each
week in which he or she has purchased, taken in trade, taken in pawn,
accepted for sale or consignment, or accepted for auctioning
tangible personal property, shall report the information required by
this section under the reporting categories described in paragraph
(1) on a form developed by the Attorney General that the coin dealer
shall transmit each day by facsimile transmission or by mail to the
chief of police or sheriff. A transaction shall consist of not more
than one item. Nothing in this section shall prohibit up to 10
transactions with the same customer per week, provided that the
cumulative total per week for all customers does not exceed 10
transactions. Until that form is developed, these coin dealers shall
continue to report information required by this section using
existing forms and procedures. If these transactions increase to 10
per week, the coin dealer shall electronically report using the
format described in paragraph (1) the information required by this
section beginning six months after his or her transactions exceed 10
per week or 12 months after the format described in paragraph (1) has
been developed, whichever occurs later.
(4) For purposes of this subdivision, "item" shall mean any single
physical article. However, with respect to a commonly accepted
grouping of articles that are purchased as a set, including, but not
limited to, a pair of earrings or place settings of china,
silverware, or other tableware, "item" shall mean that commonly
accepted grouping.
(5) Nothing in this subdivision shall be construed as excepting a
secondhand dealer from the fingerprinting requirement of subdivision
(g).
(k) Nothing in this section shall be construed to exempt a person
licensed as a firearms dealer pursuant to Sections 26700 to 26915,
inclusive, of the Penal Code from the reporting requirements for the
delivery of firearms pursuant to Sections 26700 to 26915, inclusive,
of the Penal Code.
(l) This section shall become operative on July 1, 2010.
SEC. 17. Section 21628.2 of the Business and Professions Code, as
added by Section 5 of Chapter 335 of the Statutes of 2009, is amended
to read:
21628.2. (a) For purposes of this section, the "department" shall
mean the Department of Justice.
(b) Every secondhand dealer described in Section 21626 shall, in a
format prescribed by the department, and on the day of the
transaction, electronically report to the department each firearm
purchased, taken in trade, taken in pawn, accepted for sale on
consignment, or accepted for auctioning. The secondhand dealer shall
retain a copy of the report submitted to the department and make it
available for inspection by the department, any peace officer, or any
local law enforcement employee who is authorized by Sections 26700
to 26915, inclusive, of the Penal Code to inspect a firearms
transaction record.
(c) The department may retain secondhand dealer reports to
determine whether a firearm taken in by a secondhand dealer has been
reported lost or stolen. If the department's records indicate that
the firearm is lost or stolen, the department shall notify the law
enforcement agency that entered the information in the department's
records and a law enforcement agency with jurisdiction over the
secondhand dealer's business location about the status of the
firearm. The Dealers' Record of Sale shall be retained by the
department pursuant to paragraph (1) of subdivision (b) of Section
11106 of the Penal Code.
(d) All information in the secondhand dealer report of each
firearm described in subdivision (a) shall be electronically provided
by the department to the secure mailbox of the local law enforcement
agency described in Section 21630 within one working day of receipt
by the department.
(e) This section shall become operative on July 1, 2010.
SEC. 18. Section 21641 of the Business and Professions Code is
amended to read:
21641. (a) The chief of police, the sheriff or, where
appropriate, the police commission, shall accept an application for
and grant a license permitting the licensee to engage in the business
of secondhand dealer, as defined in Section 21626, to an applicant
who has not been convicted of an attempt to receive stolen property
or any other offense involving stolen property. Prior to the granting
of a license, the licensing authority shall submit the application
to the Department of Justice. If the Department of Justice does not
comment on the application within 30 days thereafter, the licensing
authority may grant the applicant a license. All forms for
application and licensure, and license renewal, shall be prescribed
and provided by the Department of Justice. A fee may be charged to
the applicant as specified by the Department of Justice and the local
licensing authority for processing the initial license application.
(b) For the purposes of this section, "convicted" means a plea or
verdict of guilty or a conviction following a plea of nolo
contendere.
(c) Notwithstanding subdivisions (a) and (b), no person shall be
denied a secondhand dealer's license solely on the grounds that he or
she violated any provision contained in Article 4 (commencing with
Section 21625) or Article 5 (commencing with Section 21650) of this
chapter, or any provision contained in Chapter 2 (commencing with
Section 21200) of Division 8 of the Financial Code, unless the
violation demonstrates a pattern of conduct.
(d) Any person licensed as a firearms dealer pursuant to Sections
26700 to 26915, inclusive, of the Penal Code, who is conducting
business at gun shows or events pursuant to subdivision (b) of
Section 26805 of the Penal Code, and who has a valid secondhand
dealer license granted by the appropriate local authorities in the
jurisdiction where the firearms dealer license has been granted,
shall be authorized to conduct business as a secondhand dealer at any
gun show or event, as defined in Section 478.100 of Title 27 of the
Code of Federal Regulations, or its successor, without regard to the
jurisdiction within this state that issued the secondhand dealer
license pursuant to subdivision (a) of this section. No additional
fees or separate secondhand dealer license shall be required by any
agency having jurisdiction over the locality where the gun show or
event is conducted. However, the person shall otherwise be subject
to, and comply with, the requirements of this article when he or she
acts as a secondhand dealer at the gun show or event to the same
extent as if he or she were licensed as a secondhand dealer in the
jurisdiction in which the gun show or event is being conducted.
SEC. 19. Section 3485 of the Civil Code is amended to read:
3485. (a) To abate the nuisance caused by illegal conduct
involving an unlawful weapons or ammunition purpose on real property,
the city prosecutor or city attorney may file, in the name of the
people, an action for unlawful detainer against any person who is in
violation of the nuisance or illegal purpose provisions of
subdivision 4 of Section 1161 of the Code of Civil Procedure, with
respect to that unlawful weapons or ammunition purpose. In filing
this action, which shall be based upon an arrest report or other
report by a law enforcement agency, reporting an offense committed on
the property and documented by the observations of a police officer,
the city prosecutor or city attorney shall utilize the procedures
set forth in Chapter 4 (commencing with Section 1159) of Title 3 of
Part 3 of the Code of Civil Procedure, except that in cases filed
under this section, the following also shall apply:
(1) (A) Prior to filing an action pursuant to this section, the
city prosecutor or city attorney shall give 30 calendar days' written
notice to the owner, requiring the owner to file an action for the
removal of the person who is in violation of the nuisance or illegal
purpose provisions of subdivision 4 of Section 1161 of the Code of
Civil Procedure with respect to an unlawful weapons or ammunition
purpose.
(B) This notice shall include sufficient documentation
establishing a violation of the nuisance or illegal purpose
provisions of subdivision 4 of Section 1161 of the Code of Civil
Procedure and an advisement to the owner of the assignment provision
contained in subparagraph (D). The notice shall be served upon the
owner and the tenant in accordance with subdivision (e).
(C) The notice to the tenant shall, in at least 14-point bold
type, meet the following requirements:
(i) The notice shall contain the following language:
"(Date)
(Name of tenant)
(Address of tenant)
Re: Civil Code Section 3485
Dear (name of tenant):
This letter is to inform you that an eviction action may soon be
filed in court against you for suspected firearms activity. According
to state law, Civil Code Section 3485 provides for eviction of
persons engaging in such conduct, as described below.
(Name of police department) records indicate that you, (name of
arrestee), were arrested on (date) for violations of (list
violations) on (address of property).
A letter has been sent to the property owner(s) advising of your
arrest and the requirements of state law, as well as the landlord's
option to assign the unlawful detainer action to the (name of city
attorney or prosecutor's office).
A list of legal assistance providers is provided below. Please
note, this list is not exclusive and is provided for your information
only; the (name of city attorney or prosecutor's office) does not
endorse or recommend any of the listed agencies.
Sincerely,
(Name of deputy city attorney or city prosecutor)
Deputy City (Attorney or Prosecutor)
Notice to Tenant: This notice is not a notice of eviction. You
should call (name of the city attorney or prosecutor pursuing the
action) at (telephone number) or a legal assistance provider to stop
the eviction action if any of the following is applicable:
(1) You are not the person named in this notice.
(2) The person named in the notice does not live with you.
(3) The person named in the notice has permanently moved.
(4) You do not know the person named in the notice.
(5) You want to request that only the person involved in the
nuisance be evicted, allowing the other residents to stay.
(6) You have any other legal defense or legal reason to stop
the eviction action. A list of legal assistance providers is attached
to this notice. Some provide free legal assistance if you are
eligible."
(ii) The notice shall be provided to the tenant in English and, as
translated, in all of the languages identified in subdivision (a) of
Section 1632 of the Civil Code.
(D) The owner shall, within 30 calendar days of the mailing of the
written notice, either provide the city prosecutor or city attorney
with all relevant information pertaining to the unlawful detainer
case, or provide a written explanation setting forth any
safety-related reasons for noncompliance, and an assignment to the
city prosecutor or city attorney of the right to bring an unlawful
detainer action against the tenant.
(E) The assignment shall be on a form provided by the city
prosecutor or city attorney and may contain a provision for costs of
investigation, discovery, and reasonable attorney's fees, in an
amount not to exceed six hundred dollars ($600).
(F) If the city prosecutor or city attorney accepts the assignment
of the right of the owner to bring the unlawful detainer action, the
owner shall retain all other rights and duties, including the
handling of the tenant's personal property, following issuance of the
writ of possession and its delivery to and execution by the
appropriate agency.
(2) Upon the failure of the owner to file an action pursuant to
this section, or to respond to the city prosecutor or city attorney
as provided in paragraph (1), or having filed an action, if the owner
fails to prosecute it diligently and in good faith, the city
prosecutor or city attorney may file and prosecute the action, and
join the owner as a defendant in the action. This action shall have
precedence over any similar proceeding thereafter brought by the
owner, or to one previously brought by the owner and not prosecuted
diligently and in good faith. Service of the summons and complaint
upon the defendant owner shall be in accordance with Sections 415.10,
415.20, 415.30, 415.40, and 415.50 of the Code of Civil Procedure.
(3) If a jury or court finds the defendant tenant guilty of
unlawful detainer in a case filed pursuant to paragraph (2), the city
prosecutor or city attorney may be awarded costs, including the
costs of investigation and discovery and reasonable attorney's fees.
These costs shall be assessed against the defendant owner, to whom
notice was directed pursuant to paragraph (1), and once an abstract
of judgment is recorded, it shall constitute a lien on the subject
real property.
(4) This section shall not prevent a local governing body from
adopting and enforcing laws, consistent with this section, relating
to weapons or ammunition abatement. If local laws duplicate or
supplement this section, this section shall be construed as providing
alternative remedies and not preempting the field.
(5) This section shall not prevent a tenant from receiving relief
against a forfeiture of a lease pursuant to Section 1179 of the Code
of Civil Procedure.
(b) In any proceeding brought under this section, the court may,
upon a showing of good cause, issue a partial eviction ordering the
removal of any person, including, but not limited to, members of the
tenant's household if the court finds that the person has engaged in
the activities described in subdivision (a). Persons removed pursuant
to this section may be permanently barred from returning to or
reentering any portion of the entire premises. The court may further
order as an express condition of the tenancy that the remaining
tenants shall not give permission to or invite any person who has
been removed pursuant to this subdivision to return to or reenter any
portion of the entire premises.
(c) For purposes of this section, "unlawful weapons or ammunition
purpose" means the illegal use, manufacture, causing to be
manufactured, importation, possession, possession for sale, sale,
furnishing, or giving away of any of the following:
(1) A firearm, as defined in subdivision (a) of Section 16520 of
the Penal Code.
(2) Any ammunition, as defined in subdivision (b) of Section 16150
of the Penal Code or in Section 16650 or 16660 of the Penal Code.
(3) Any assault weapon, as defined in Section 30510 or 30515 of
the Penal Code.
(4) Any .50 BMG rifle, as defined in Section 30530 of the Penal
Code.
(5) Any tear gas weapon, as defined in Section 17250 of the Penal
Code.
(d) Notwithstanding subdivision (b) of Section 68097.2 of the
Government Code, a public entity may waive all or part of the costs
incurred in furnishing the testimony of a peace officer in an
unlawful detainer action brought pursuant to this section.
(e) The notice and documentation described in paragraph (1) of
subdivision (a) shall be given in writing and may be given either by
personal delivery or by deposit in the United States mail in a sealed
envelope, postage prepaid, addressed to the owner at the address
known to the public entity giving the notice, or as shown on the last
equalized assessment roll, if not known. Separate notice of not less
than 30 calendar days and documentation shall be provided to the
tenant in accordance with this subdivision. Service by mail shall be
deemed to be completed at the time of deposit in the United States
mail. Proof of giving the notice may be made by a declaration signed
under penalty of perjury by any employee of the public entity which
shows service in conformity with this section.
(f) This section shall apply only to the following courts:
(1) In the County of Los Angeles, any court having jurisdiction
over unlawful detainer cases involving real property situated in the
City of Los Angeles or the City of Long Beach.
(2) In the County of San Diego, any court having jurisdiction over
unlawful detainer cases involving real property situated in the City
of San Diego.
(3) In the County of Alameda, any court with jurisdiction over
unlawful detainer cases involving real property situated in the City
of Oakland.
(4) In the County of Sacramento, any court with jurisdiction over
unlawful detainer cases involving real property situated in the City
of Sacramento.
(g) (1) The city attorney and city prosecutor of each
participating jurisdiction shall provide to the California Research
Bureau the following information:
(A) The number of notices provided pursuant to paragraph (1) of
subdivision (a).
(B) For each notice provided pursuant to paragraph (1) of
subdivision (a), the following information:
(i) The name and age, as provided by the landlord, of each person
residing at the noticed address.
(ii) Whether the person has previously received a notice pursuant
to this section from the reporting city attorney or prosecutor, and
if so, whether the tenant vacated or was evicted as a result.
(C) For the tenant receiving the notice, whether the tenant has
previously been arrested (other than an arrest that is the basis of
this notice) for any of the offenses specified in subdivision (c).
(D) The number of cases filed by an owner, upon notice.
(E) The number of assignments executed by owners to the city
attorney or city prosecutor.
(F) The number of 3-day, 30-day, or 60-day notices issued by the
city attorney or city prosecutor.
(G) The number of cases filed by the city attorney or city
prosecutor.
(H) The number of times that an owner is joined as a defendant
pursuant to this section.
(I) For the subtotal of cases filed by an owner, the city
attorney, or the city prosecutor, the following information:
(i) The number of judgments ordering an eviction or partial
eviction, and specifying whether each was a default judgment,
stipulated judgment, or judgment following trial.
(ii) The number of cases, listed by separate categories, in which
the case was withdrawn or in which the tenant prevailed.
(iii) The number of other dispositions, and specifying the
disposition.
(iv) The number of defendants represented by counsel.
(v) Whether the case was a trial by the court or a trial by a
jury.
(vi) Whether an appeal was taken, and, if so, the result of the
appeal.
(vii) The number of cases in which partial eviction was requested,
and the number of cases in which the court ordered a partial
eviction.
(J) For the subtotal of cases in which a notice was provided
pursuant to subdivision (a), but no case was filed, the following
information:
(i) The number of instances in which a tenant voluntarily vacated
subsequent to receiving the notice.
(ii) The number of instances in which a tenant vacated a unit
prior to the providing of the notice.
(iii) The number of cases in which the notice provided pursuant to
subdivision (a) was erroneously sent to the tenant. This shall
include a list of the reasons, if known, for
the erroneously sent notice, such as reliance on
information on the suspected violator's name or address that was
incorrect, a clerical error, or any other reason.
(iv) The number of other resolutions, and specifying the type of
resolution.
(K) For each case in which a notice was issued and the tenants
either vacated the premises before a judgment in the unlawful
detainer action or were evicted, the street address, city, and ZIP
Code of residence where the tenants relocated, to the extent known.
(2) (A) Information compiled pursuant to this section shall be
reported annually to the California Research Bureau on or before
January 20.
(B) The California Research Bureau shall thereafter submit a brief
report to the Senate and Assembly Committees on Judiciary once on or
before March 20, 2011, and once on or before March 20, 2013,
summarizing the information collected pursuant to this section and
evaluating the merits of the pilot programs established by this
section. The report for this section may be combined with the
California Research Bureau report submitted for the pilot program
established by Section 3486 of the Civil Code. The 2013 report shall
indicate whether the City of Los Angeles has regularly reported to
the bureau.
(3) Personally identifiable information submitted to the
California Research Bureau pursuant to this section shall be
confidential and shall not be publicly disclosed.
(h) This section shall remain in effect only until January 1,
2014, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2014, deletes or extends
that date.
SEC. 20. Section 527.6 of the Code of Civil Procedure is amended
to read:
527.6. (a) A person who has suffered harassment as defined in
subdivision (b) may seek a temporary restraining order and an
injunction prohibiting harassment as provided in this section.
(b) For the purposes of this section, "harassment" is unlawful
violence, a credible threat of violence, or a knowing and willful
course of conduct directed at a specific person that seriously
alarms, annoys, or harasses the person, and that serves no legitimate
purpose. The course of conduct must be such as would cause a
reasonable person to suffer substantial emotional distress, and must
actually cause substantial emotional distress to the plaintiff.
As used in this subdivision:
(1) "Unlawful violence" is any assault or battery, or stalking as
prohibited in Section 646.9 of the Penal Code, but shall not include
lawful acts of self-defense or defense of others.
(2) "Credible threat of violence" is a knowing and willful
statement or course of conduct that would place a reasonable person
in fear for his or her safety, or the safety of his or her immediate
family, and that serves no legitimate purpose.
(3) "Course of conduct" is a pattern of conduct composed of a
series of acts over a period of time, however short, evidencing a
continuity of purpose, including following or stalking an individual,
making harassing telephone calls to an individual, or sending
harassing correspondence to an individual by any means, including,
but not limited to, the use of public or private mails, interoffice
mail, fax, or computer e-mail. Constitutionally protected activity is
not included within the meaning of "course of conduct."
(c) Upon filing a petition for an injunction under this section,
the plaintiff may obtain a temporary restraining order in accordance
with Section 527, except to the extent this section provides a rule
that is inconsistent. A temporary restraining order may be issued
with or without notice upon an affidavit that, to the satisfaction of
the court, shows reasonable proof of harassment of the plaintiff by
the defendant, and that great or irreparable harm would result to the
plaintiff. In the discretion of the court, and on a showing of good
cause, a temporary restraining order or injunction, issued under this
section may include other named family or household members who
reside with the plaintiff. A temporary restraining order issued under
this section shall remain in effect, at the court's discretion, for
a period not to exceed 15 days, or, if the court extends the time for
hearing under subdivision (d), not to exceed 22 days, unless
otherwise modified or terminated by the court.
(d) Within 15 days, or, if good cause appears to the court, 22
days from the date the temporary restraining order is issued, a
hearing shall be held on the petition for the injunction. The
defendant may file a response that explains, excuses, justifies, or
denies the alleged harassment or may file a cross-complaint under
this section. At the hearing, the judge shall receive any testimony
that is relevant, and may make an independent inquiry. If the judge
finds by clear and convincing evidence that unlawful harassment
exists, an injunction shall issue prohibiting the harassment. An
injunction issued pursuant to this section shall have a duration of
not more than three years. At any time within the three months before
the expiration of the injunction, the plaintiff may apply for a
renewal of the injunction by filing a new petition for an injunction
under this section.
(e) This section does not preclude either party from
representation by private counsel or from appearing on the party's
own behalf.
(f) In a proceeding under this section if there are allegations or
threats of domestic violence, a support person may accompany a party
in court and, if the party is not represented by an attorney, may
sit with the party at the table that is generally reserved for the
party and the party's attorney. The support person is present to
provide moral and emotional support for a person who alleges he or
she is a victim of domestic violence. The support person is not
present as a legal adviser and may not provide legal advice. The
support person may assist the person who alleges he or she is a
victim of domestic violence in feeling more confident that he or she
will not be injured or threatened by the other party during the
proceedings if the person who alleges he or she is a victim of
domestic violence and the other party are required to be present in
close proximity. This subdivision does not preclude the court from
exercising its discretion to remove the support person from the
courtroom if the court believes the support person is prompting,
swaying, or influencing the party assisted by the support person.
(g) Upon the filing of a petition for an injunction under this
section, the defendant shall be personally served with a copy of the
petition, temporary restraining order, if any, and notice of hearing
of the petition. Service shall be made at least five days before the
hearing. The court may for good cause, on motion of the plaintiff or
on its own motion, shorten the time for service on the defendant.
(h) The court shall order the plaintiff or the attorney for the
plaintiff to deliver a copy of each temporary restraining order or
injunction, or modification or termination thereof, granted under
this section, by the close of the business day on which the order was
granted, to the law enforcement agencies within the court's
discretion as are requested by the plaintiff. Each appropriate law
enforcement agency shall make available information as to the
existence and current status of these orders to law enforcement
officers responding to the scene of reported harassment.
An order issued under this section shall, on request of the
plaintiff, be served on the defendant, whether or not the defendant
has been taken into custody, by any law enforcement officer who is
present at the scene of reported harassment involving the parties to
the proceeding. The plaintiff shall provide the officer with an
endorsed copy of the order and a proof of service that the officer
shall complete and send to the issuing court.
Upon receiving information at the scene of an incident of
harassment that a protective order has been issued under this
section, or that a person who has been taken into custody is the
subject of an order, if the protected person cannot produce a
certified copy of the order, a law enforcement officer shall
immediately attempt to verify the existence of the order.
If the law enforcement officer determines that a protective order
has been issued, but not served, the officer shall immediately notify
the defendant of the terms of the order and shall at that time also
enforce the order. Verbal notice of the terms of the order shall
constitute service of the order and is sufficient notice for the
purposes of this section and for the purposes of Sections 273.6 and
29825 of the Penal Code.
(i) The prevailing party in any action brought under this section
may be awarded court costs and attorney's fees, if any.
(j) Any willful disobedience of any temporary restraining order or
injunction granted under this section is punishable pursuant to
Section 273.6 of the Penal Code.
(k) (1) A person subject to a protective order issued under this
section shall not own, possess, purchase, receive, or attempt to
purchase or receive a firearm while the protective order is in
effect.
(2) The court shall order a person subject to a protective order
issued under this section to relinquish any firearms he or she owns
or possesses pursuant to Section 527.9.
(3) Every person who owns, possesses, purchases or receives, or
attempts to purchase or receive a firearm while the protective order
is in effect is punishable pursuant to Section 29825 of the Penal
Code.
( l ) This section does not apply to any action or
proceeding covered by Title 1.6C (commencing with Section 1788) of
the Civil Code or by Division 10 (commencing with Section 6200) of
the Family Code. This section does not preclude a plaintiff from
using other existing civil remedies.
(m) The Judicial Council shall promulgate forms and instructions
therefor, and rules for service of process, scheduling of hearings,
and any other matters required by this section. The petition and
response forms shall be simple and concise, and their use by parties
in actions brought pursuant to this section shall be mandatory.
(n) A temporary restraining order or injunction relating to
harassment or domestic violence issued by a court pursuant to this
section shall be issued on forms adopted by the Judicial Council of
California and that have been approved by the Department of Justice
pursuant to subdivision (i) of Section 6380 of the Family Code.
However, the fact that an order issued by a court pursuant to this
section was not issued on forms adopted by the Judicial Council and
approved by the Department of Justice shall not, in and of itself,
make the order unenforceable.
(o) Information on any temporary restraining order or injunction
relating to harassment or domestic violence issued by a court
pursuant to this section shall be transmitted to the Department of
Justice in accordance with subdivision (b) of Section 6380 of the
Family Code.
(p) There is no filing fee for a petition that alleges that a
person has inflicted or threatened violence against the petitioner,
or stalked the petitioner, or acted or spoken in any other manner
that has placed the petitioner in reasonable fear of violence, and
that seeks a protective or restraining order or injunction
restraining stalking or future violence or threats of violence, in
any action brought pursuant to this section. No fee shall be paid for
a subpoena filed in connection with a petition alleging these acts.
No fee shall be paid for filing a response to a petition alleging
these acts.
(q) (1) Subject to paragraph (4) of subdivision (b) of Section
6103.2 of the Government Code, there shall be no fee for the service
of process of a protective order, restraining order, or injunction to
be issued, if any of the following conditions apply:
(A) The protective order, restraining order, or injunction issued
pursuant to this section is based upon stalking, as prohibited by
Section 646.9 of the Penal Code.
(B) The protective order, restraining order, or injunction issued
pursuant to this section is based upon a credible threat of violence.
(C) The protective order, restraining order, or injunction is
issued pursuant to Section 6222 of the Family Code.
(2) The Judicial Council shall prepare and develop application
forms for applicants who wish to avail themselves of the services
described in this subdivision.
SEC. 21. Section 527.8 of the Code of Civil Procedure is amended
to read:
527.8. (a) Any employer, whose employee has suffered unlawful
violence or a credible threat of violence from any individual, that
can reasonably be construed to be carried out or to have been carried
out at the workplace, may seek a temporary restraining order and an
injunction on behalf of the employee and, at the discretion of the
court, any number of other employees at the workplace, and, if
appropriate, other employees at other workplaces of the employer.
(b) For the purposes of this section:
(1) "Unlawful violence" is any assault or battery, or stalking as
prohibited in Section 646.9 of the Penal Code, but shall not include
lawful acts of self-defense or defense of others.
(2) "Credible threat of violence" is a knowing and willful
statement or course of conduct that would place a reasonable person
in fear for his or her safety, or the safety of his or her immediate
family, and that serves no legitimate purpose.
(3) "Course of conduct" is a pattern of conduct composed of a
series of acts over a period of time, however short, evidencing a
continuity of purpose, including following or stalking an employee to
or from the place of work; entering the workplace; following an
employee during hours of employment; making telephone calls to an
employee; or sending correspondence to an employee by any means,
including, but not limited to, the use of the public or private
mails, interoffice mail, fax, or computer e-mail.
(c) This section does not permit a court to issue a temporary
restraining order or injunction prohibiting speech or other
activities that are constitutionally protected, or otherwise
protected by Section 527.3 or any other provision of law.
(d) For purposes of this section, the terms "employer" and
"employee" mean persons defined in Section 350 of the Labor Code.
"Employer" also includes a federal agency, the state, a state agency,
a city, county, or district, and a private, public, or quasi-public
corporation, or any public agency thereof or therein. "Employee" also
includes the members of boards of directors of private, public, and
quasi-public corporations and elected and appointed public officers.
For purposes of this section only, "employee" also includes a
volunteer or independent contractor who performs services for the
employer at the employer's worksite.
(e) Upon filing a petition for an injunction under this section,
the plaintiff may obtain a temporary restraining order in accordance
with subdivision (a) of Section 527, if the plaintiff also files an
affidavit that, to the satisfaction of the court, shows reasonable
proof that an employee has suffered unlawful violence or a credible
threat of violence by the defendant, and that great or irreparable
harm would result to an employee. In the discretion of the court, and
on a showing of good cause, a temporary restraining order or
injunction issued under this section may include other named family
or household members who reside with the employee, or other persons
employed at his or her workplace or workplaces.
A temporary restraining order granted under this section shall
remain in effect, at the court's discretion, for a period not to
exceed 15 days, unless otherwise modified or terminated by the court.
(f) Within 15 days of the filing of the petition, a hearing shall
be held on the petition for the injunction. The defendant may file a
response that explains, excuses, justifies, or denies the alleged
unlawful violence or credible threats of violence or may file a
cross-complaint under this section. At the hearing, the judge shall
receive any testimony that is relevant and may make an independent
inquiry. Moreover, if the defendant is a current employee of the
entity requesting the injunction, the judge shall receive evidence
concerning the employer's decision to retain, terminate, or otherwise
discipline the defendant. If the judge finds by clear and convincing
evidence that the defendant engaged in unlawful violence or made a
credible threat of violence, an injunction shall issue prohibiting
further unlawful violence or threats of violence. An injunction
issued pursuant to this section shall have a duration of not more
than three years. At any time within the three months before the
expiration of the injunction, the plaintiff may apply for a renewal
of the injunction by filing a new petition for an injunction under
this section.
(g) This section does not preclude either party from
representation by private counsel or from appearing on his or her own
behalf.
(h) Upon filing of a petition for an injunction under this
section, the defendant shall be personally served with a copy of the
petition, temporary restraining order, if any, and notice of hearing
of the petition. Service shall be made at least five days before the
hearing. The court may, for good cause, on motion of the plaintiff or
on its own motion, shorten the time for service on the defendant.
(i) (1) The court shall order the plaintiff or the attorney for
the plaintiff to deliver a copy of each temporary restraining order
or injunction, or modification or termination thereof, granted under
this section, by the close of the business day on which the order was
granted, to the law enforcement agencies within the court's
discretion as are requested by the plaintiff. Each appropriate law
enforcement agency shall make available information as to the
existence and current status of these orders to law enforcement
officers responding to the scene of reported unlawful violence or a
credible threat of violence.
(2) At the request of the plaintiff, an order issued under this
section shall be served on the defendant, regardless of whether the
defendant has been taken into custody, by any law enforcement officer
who is present at the scene of reported unlawful violence or a
credible threat of violence involving the parties to the proceedings.
The plaintiff shall provide the officer with an endorsed copy of the
order and proof of service that the officer shall complete and send
to the issuing court.
(3) Upon receiving information at the scene of an incident of
unlawful violence or a credible threat of violence that a protective
order has been issued under this section, or that a person who has
been taken into custody is the subject of an order, if the plaintiff
or the protected person cannot produce an endorsed copy of the order,
a law enforcement officer shall immediately attempt to verify the
existence of the order.
(4) If the law enforcement officer determines that a protective
order has been issued, but not served, the officer shall immediately
notify the defendant of the terms of the order and obtain the
defendant's address. The law enforcement officer shall at that time
also enforce the order, but may not arrest or take the defendant into
custody for acts in violation of the order that were committed prior
to the verbal notice of the terms and conditions of the order. The
law enforcement officer's verbal notice of the terms of the order
shall constitute service of the order and constitutes sufficient
notice for the purposes of this section and for the purposes of
Sections 273.6 and 29825 of the Penal Code. The plaintiff shall mail
an endorsed copy of the order to the defendant's mailing address
provided to the law enforcement officer within one business day of
the reported incident of unlawful violence or a credible threat of
violence at which a verbal notice of the terms of the order was
provided by a law enforcement officer.
(j) (1) A person subject to a protective order issued under this
section shall not own, possess, purchase, receive, or attempt to
purchase or receive a firearm while the protective order is in
effect.
(2) The court shall order a person subject to a protective order
issued under this section to relinquish any firearms he or she owns
or possesses pursuant to Section 527.9.
(3) Every person who owns, possesses, purchases or receives, or
attempts to purchase or receive a firearm while the protective order
is in effect is punishable pursuant to Section 29825 of the Penal
Code.
(k) Any intentional disobedience of any temporary restraining
order or injunction granted under this section is punishable pursuant
to Section 273.6 of the Penal Code.
( l ) Nothing in this section may be construed as
expanding, diminishing, altering, or modifying the duty, if any, of
an employer to provide a safe workplace for employees and other
persons.
(m) The Judicial Council shall develop forms, instructions, and
rules for scheduling of hearings and other procedures established
pursuant to this section. The forms for the petition and response
shall be simple and concise, and their use by parties in actions
brought pursuant to this section shall be mandatory.
(n) A temporary restraining order or injunction relating to
harassment or domestic violence issued by a court pursuant to this
section shall be issued on forms adopted by the Judicial Council of
California and that have been approved by the Department of Justice
pursuant to subdivision (i) of Section 6380 of the Family Code.
However, the fact that an order issued by a court pursuant to this
section was not issued on forms adopted by the Judicial Council and
approved by the Department of Justice shall not, in and of itself,
make the order unenforceable.
(o) Information on any temporary restraining order or injunction
relating to harassment or domestic violence issued by a court
pursuant to this section shall be transmitted to the Department of
Justice in accordance with subdivision (b) of Section 6380 of the
Family Code.
(p) There is no filing fee for a petition that alleges that a
person has inflicted or threatened violence against an employee of
the petitioner, or stalked the employee, or acted or spoken in any
other manner that has placed the employee in reasonable fear of
violence, and that seeks a protective or restraining order or
injunction restraining stalking or future violence or threats of
violence, in any action brought pursuant to this section. No fee
shall be paid for a subpoena filed in connection with a petition
alleging these acts. No fee shall be paid for filing a response to a
petition alleging these acts.
(q) (1) Subject to paragraph (4) of subdivision (b) of Section
6103.2 of the Government Code, there shall be no fee for the service
of process of a temporary restraining order or injunction to be
issued pursuant to this section if either of the following conditions
apply:
(A) The temporary restraining order or injunction issued pursuant
to this section is based upon stalking, as prohibited by Section
646.9 of the Penal Code.
(B) The temporary restraining order or injunction issued pursuant
to this section is based upon a credible threat of violence.
(2) The Judicial Council shall prepare and develop application
forms for applicants who wish to avail themselves of the services
described in this subdivision.
SEC. 22. Section 527.85 of the Code of Civil Procedure is amended
to read:
527.85. (a) Any chief administrative officer of a postsecondary
educational institution, or an officer or employee designated by the
chief administrative officer to maintain order on the school campus
or facility, a student of which has suffered a credible threat of
violence made off the school campus or facility from any individual,
which can reasonably be construed to be carried out or to have been
carried out at the school campus or facility, may, with the written
consent of the student, seek a temporary restraining order and an
injunction, on behalf of the student and, at the discretion of the
court, any number of other students at the campus or facility who are
similarly situated.
(b) For the purposes of this section, the following definitions
shall apply:
(1) "Chief administrative officer" means the principal, president,
or highest ranking official of the postsecondary educational
institution.
(2) "Course of conduct" means a pattern of conduct composed of a
series of acts over a period of time, however short, evidencing a
continuity of purpose, including any of the following:
(A) Following or stalking a student to or from school.
(B) Entering the school campus or facility.
(C) Following a student during school hours.
(D) Making telephone calls to a student.
(E) Sending correspondence to a student by any means, including,
but not limited to, the use of the public or private mails,
interoffice mail, fax, or computer e-mail.
(3) "Credible threat of violence" means a knowing and willful
statement or course of conduct that would place a reasonable person
in fear for his or her safety, or the safety of his or her immediate
family, and that serves no legitimate purpose.
(4) "Postsecondary educational institution" means a private
institution of vocational, professional, or postsecondary education.
(5) "Student" means an adult currently enrolled in or applying for
admission to a postsecondary educational institution.
(6) "Unlawful violence" means any assault or battery, or stalking
as prohibited in Section 646.9 of the Penal Code, but shall not
include lawful acts of self-defense or defense of others.
(c) This section does not permit a court to issue a temporary
restraining order or injunction prohibiting speech or other
activities that are constitutionally protected, or otherwise
protected by Section 527.3 or any other provision of law.
(d) Upon filing a petition for an injunction under this section,
the plaintiff may obtain a temporary restraining order in accordance
with subdivision (a) of Section 527, if the plaintiff also files an
affidavit that, to the satisfaction of the court, shows reasonable
proof that a student has suffered a credible threat of violence made
off the school campus or facility by the defendant, and that great or
irreparable harm would result to the student. In the discretion of
the court, and on a showing of good cause, a temporary restraining
order or injunction issued under this section may include other named
family or household members who reside with the student, or other
students at the campus or facility. A temporary restraining order
granted under this section shall remain in effect, at the court's
discretion, for a period
not to exceed 15 days, unless otherwise modified or terminated by the
court.
(e) Within 15 days of the filing of the petition, a hearing shall
be held on the petition for the injunction. The defendant may file a
response that explains, excuses, justifies, or denies the alleged
credible threats of violence or may file a cross-complaint under this
section. At the hearing, the judge shall receive any testimony that
is relevant and may make an independent inquiry. Moreover, if the
defendant is a current student of the entity requesting the
injunction, the judge shall receive evidence concerning the decision
of the postsecondary educational institution decision to retain,
terminate, or otherwise discipline the defendant. If the judge finds
by clear and convincing evidence that the defendant made a credible
threat of violence off the school campus or facility, an injunction
shall be issued prohibiting further threats of violence. An
injunction issued pursuant to this section shall have a duration of
not more than three years. At any time within three months before the
expiration of the injunction, the plaintiff may apply for a renewal
of the injunction by filing a new petition for an injunction under
this section.
(f) This section does not preclude either party from
representation by private counsel or from appearing on his or her own
behalf.
(g) Upon filing of a petition for an injunction under this
section, the defendant shall be personally served with a copy of the
petition, temporary restraining order, if any, and notice of hearing
of the petition. Service shall be made at least five days before the
hearing. The court may, for good cause, on motion of the plaintiff or
on its own motion, shorten the time for service on the defendant.
(h) (1) The court shall order the plaintiff or the attorney for
the plaintiff to deliver a copy of each temporary restraining order
or injunction, or modification or termination thereof, granted under
this section, by the close of the business day on which the order was
granted, to the law enforcement agencies within the court's
discretion as are requested by the plaintiff. Each appropriate law
enforcement agency shall make available information as to the
existence and current status of these orders to law enforcement
officers responding to the scene of reported unlawful violence or a
credible threat of violence.
(2) At the request of the plaintiff, an order issued under this
section shall be served on the defendant, regardless of whether the
defendant has been taken into custody, by any law enforcement officer
who is present at the scene of reported unlawful violence or a
credible threat of violence involving the parties to the proceedings.
The plaintiff shall provide the officer with an endorsed copy of the
order and proof of service that the officer shall complete and send
to the issuing court.
(3) Upon receiving information at the scene of an incident of
unlawful violence or a credible threat of violence that a protective
order has been issued under this section, or that a person who has
been taken into custody is the subject of an order, if the plaintiff
or the protected person cannot produce an endorsed copy of the order,
a law enforcement officer shall immediately attempt to verify the
existence of the order.
(4) If the law enforcement officer determines that a protective
order has been issued, but not served, the officer shall immediately
notify the defendant of the terms of the order and obtain the
defendant's address. The law enforcement officer shall at that time
also enforce the order, but may not arrest or take the defendant into
custody for acts in violation of the order that were committed prior
to the verbal notice of the terms and conditions of the order. The
law enforcement officer's verbal notice of the terms of the order
shall constitute service of the order and constitutes sufficient
notice for the purposes of this section, and Sections 273.6 and 29825
of the Penal Code. The plaintiff shall mail an endorsed copy of the
order to the defendant's mailing address provided to the law
enforcement officer within one business day of the reported incident
of unlawful violence or a credible threat of violence at which a
verbal notice of the terms of the order was provided by a law
enforcement officer.
(i) (1) A person subject to a protective order issued under this
section shall not own, possess, purchase, receive, or attempt to
purchase or receive a firearm while the protective order is in
effect.
(2) The court shall order a person subject to a protective order
issued under this section to relinquish any firearms he or she owns
or possesses pursuant to Section 527.9.
(3) Every person who owns, possesses, purchases, or receives, or
attempts to purchase or receive a firearm while the protective order
is in effect is punishable pursuant to Section 29825 of the Penal
Code.
(j) Any intentional disobedience of any temporary restraining
order or injunction granted under this section is punishable pursuant
to Section 273.6 of the Penal Code.
(k) Nothing in this section may be construed as expanding,
diminishing, altering, or modifying the duty, if any, of a
postsecondary educational institution to provide a safe environment
for students and other persons.
(l) The Judicial Council shall develop forms, instructions, and
rules for scheduling of hearings and other procedures established
pursuant to this section. The forms for the petition and response
shall be simple and concise, and their use by parties in actions
brought pursuant to this section shall be mandatory.
(m) A temporary restraining order or injunction relating to
harassment or domestic violence issued by a court pursuant to this
section shall be issued on forms adopted by the Judicial Council and
that have been approved by the Department of Justice pursuant to
subdivision (i) of Section 6380 of the Family Code. However, the fact
that an order issued by a court pursuant to this section was not
issued on forms adopted by the Judicial Council and approved by the
Department of Justice shall not, in and of itself, make the order
unenforceable.
(n) Information on any temporary restraining order or injunction
relating to harassment or domestic violence issued by a court
pursuant to this section shall be transmitted to the Department of
Justice in accordance with subdivision (b) of Section 6380 of the
Family Code.
(o) There is no filing fee for a petition that alleges that a
person has threatened violence against a student of the petitioner,
or stalked the student, or acted or spoken in any other manner that
has placed the student in reasonable fear of violence, and that seeks
a protective or restraining order or injunction restraining stalking
or future threats of violence, in any action brought pursuant to
this section. No fee shall be paid for a subpoena filed in connection
with a petition alleging these acts. No fee shall be paid for filing
a response to a petition alleging these acts.
(p) (1) Subject to paragraph (4) of subdivision (b) of Section
6103.2 of the Government Code, there shall be no fee for the service
of process of a temporary restraining order or injunction to be
issued pursuant to this section if either of the following conditions
apply:
(A) The temporary restraining order or injunction issued pursuant
to this section is based upon stalking, as prohibited by Section
646.9 of the Penal Code.
(B) The temporary restraining order or injunction issued pursuant
to this section is based upon a credible threat of violence.
(2) The Judicial Council shall prepare and develop application
forms for applicants who wish to avail themselves of the services
described in this subdivision.
SEC. 23. Section 527.9 of the Code of Civil Procedure is amended
to read:
527.9. (a) A person subject to a temporary restraining order or
injunction issued pursuant to Section 527.6 or 527.8 of the Code of
Civil Procedure, or subject to a restraining order issued pursuant to
Section 136.2 of the Penal Code, or Section 15657.03 of the Welfare
and Institutions Code, shall relinquish the firearm pursuant to this
section.
(b) Upon the issuance of a protective order pursuant to
subdivision (a), the court shall order the person to relinquish any
firearm in that person's immediate possession or control, or subject
to that person's immediate possession or control, within 24 hours of
being served with the order, either by surrendering the firearm to
the control of local law enforcement officials, or by selling the
firearm to a licensed gun dealer, as specified in Sections 26700 to
26915, inclusive, of the Penal Code. A person ordered to relinquish
any firearm pursuant to this subdivision shall file with the court a
receipt showing the firearm was surrendered to the local law
enforcement agency or sold to a licensed gun dealer within 48 hours
after receiving the order. In the event that it is necessary to
continue the date of any hearing due to a request for a
relinquishment order pursuant to this section, the court shall ensure
that all applicable protective orders described in Section 6218 of
the Family Code remain in effect or bifurcate the issues and grant
the permanent restraining order pending the date of the hearing.
(c) A local law enforcement agency may charge the person subject
to the order or injunction a fee for the storage of any firearm
relinquished pursuant to this section. The fee shall not exceed the
actual cost incurred by the local law enforcement agency for the
storage of the firearm. For purposes of this subdivision, "actual
cost" means expenses directly related to taking possession of a
firearm, storing the firearm, and surrendering possession of the
firearm to a licensed dealer as defined in Section 26700 of the Penal
Code or to the person relinquishing the firearm.
(d) The restraining order requiring a person to relinquish a
firearm pursuant to subdivision (b) shall state on its face that the
respondent is prohibited from owning, possessing, purchasing, or
receiving a firearm while the protective order is in effect and that
the firearm shall be relinquished to the local law enforcement agency
for that jurisdiction or sold to a licensed gun dealer, and that
proof of surrender or sale shall be filed with the court within a
specified period of receipt of the order. The order shall also state
on its face the expiration date for relinquishment. Nothing in this
section shall limit a respondent's right under existing law to
petition the court at a later date for modification of the order.
(e) The restraining order requiring a person to relinquish a
firearm pursuant to subdivision (b) shall prohibit the person from
possessing or controlling any firearm for the duration of the order.
At the expiration of the order, the local law enforcement agency
shall return possession of any surrendered firearm to the respondent,
within five days after the expiration of the relinquishment order,
unless the local law enforcement agency determines that (1) the
firearm has been stolen, (2) the respondent is prohibited from
possessing a firearm because the respondent is in any prohibited
class for the possession of firearms, as defined in Chapter 2
(commencing with Section 29800) and Chapter 3 (commencing with
Section 29900) of Division 9 of Title 4 of Part 6 of the Penal Code
and Sections 8100 and 8103 of the Welfare and Institutions Code, or
(3) another successive restraining order is used against the
respondent under this section. If the local law enforcement agency
determines that the respondent is the legal owner of any firearm
deposited with the local law enforcement agency and is prohibited
from possessing any firearm, the respondent shall be entitled to sell
or transfer the firearm to a licensed dealer as defined in Section
26700 of the Penal Code. If the firearm has been stolen, the firearm
shall be restored to the lawful owner upon his or her identification
of the firearm and proof of ownership.
(f) The court may, as part of the relinquishment order, grant an
exemption from the relinquishment requirements of this section for a
particular firearm if the respondent can show that a particular
firearm is necessary as a condition of continued employment and that
the current employer is unable to reassign the respondent to another
position where a firearm is unnecessary. If an exemption is granted
pursuant to this subdivision, the order shall provide that the
firearm shall be in the physical possession of the respondent only
during scheduled work hours and during travel to and from his or her
place of employment. In any case involving a peace officer who as a
condition of employment and whose personal safety depends on the
ability to carry a firearm, a court may allow the peace officer to
continue to carry a firearm, either on duty or off duty, if the court
finds by a preponderance of the evidence that the officer does not
pose a threat of harm. Prior to making this finding, the court shall
require a mandatory psychological evaluation of the peace officer and
may require the peace officer to enter into counseling or other
remedial treatment program to deal with any propensity for domestic
violence.
(g) During the period of the relinquishment order, a respondent is
entitled to make one sale of all firearms that are in the possession
of a local law enforcement agency pursuant to this section. A
licensed gun dealer, who presents a local law enforcement agency with
a bill of sale indicating that all firearms owned by the respondent
that are in the possession of the local law enforcement agency have
been sold by the respondent to the licensed gun dealer, shall be
given possession of those firearms, at the location where a
respondent's firearms are stored, within five days of presenting the
local law enforcement agency with a bill of sale.
SEC. 24. Section 6383 of the Family Code is amended to read:
6383. (a) A temporary restraining order or emergency protective
order issued under this part shall, on request of the petitioner, be
served on the respondent, whether or not the respondent has been
taken into custody, by any law enforcement officer who is present at
the scene of reported domestic violence involving the parties to the
proceeding.
(b) The petitioner shall provide the officer with an endorsed copy
of the order and a proof of service that the officer shall complete
and transmit to the issuing court.
(c) It is a rebuttable presumption that the proof of service was
signed on the date of service.
(d) Upon receiving information at the scene of a domestic violence
incident that a protective order has been issued under this part, or
that a person who has been taken into custody is the respondent to
that order, if the protected person cannot produce an endorsed copy
of the order, a law enforcement officer shall immediately inquire of
the Department of Justice Domestic Violence Restraining Order System
to verify the existence of the order.
(e) If the law enforcement officer determines that a protective
order has been issued, but not served, the officer shall immediately
notify the respondent of the terms of the order and where a written
copy of the order can be obtained and the officer shall, at that
time, also enforce the order. The law enforcement officer's verbal
notice of the terms of the order shall constitute service of the
order and is sufficient notice for the purposes of this section and
for the purposes of Sections 273.6 and 29825 of the Penal Code.
(f) If a report is required under Section 13730 of the Penal Code,
or if no report is required, then in the daily incident log, the
officer shall provide the name and assignment of the officer
notifying the respondent pursuant to subdivision (e) and the case
number of the order.
(g) Upon service of the order outside of the court, a law
enforcement officer shall advise the respondent to go to the local
court to obtain a copy of the order containing the full terms and
conditions of the order.
(h) There shall be no civil liability on the part of, and no cause
of action for, false arrest or false imprisonment against any peace
officer who makes an arrest pursuant to a protective or restraining
order that is regular upon its face, if the peace officer in making
the arrest acts in good faith and has reasonable cause to believe
that the person against whom the order is issued has notice of the
order and has committed an act in violation of the order. If there is
more than one civil order regarding the same parties, the peace
officer shall enforce the order that was issued last. If there are
both civil and criminal orders regarding the same parties, the peace
officer shall enforce the criminal order issued last, subject to the
provisions of subdivisions (h) and (i) of Section 136.2 of the Penal
Code. Nothing in this section shall be deemed to exonerate a peace
officer from liability for the unreasonable use of force in the
enforcement of the order. The immunities afforded by this section
shall not affect the availability of any other immunity which may
apply, including, but not limited to, Sections 820.2 and 820.4 of the
Government Code.
SEC. 25. Section 6385 of the Family Code is amended to read:
6385. (a) Proof of service of the protective order is not
required for the purposes of Section 6380 if the order indicates on
its face that both parties were personally present at the hearing at
which the order was issued and that, for the purpose of Section 6384,
no proof of service is required, or if the order was served by a law
enforcement officer pursuant to Section 6383.
(b) The failure of the petitioner to provide the Department of
Justice with the personal descriptive information regarding the
person restrained does not invalidate the protective order.
(c) There is no civil liability on the part of, and no cause of
action arises against, an employee of a local law enforcement agency,
a court, or the Department of Justice, acting within the scope of
employment, if a person described in Section 29825 of the Penal Code
unlawfully purchases or receives or attempts to purchase or receive a
firearm and a person is injured by that firearm or a person who is
otherwise entitled to receive a firearm is denied a firearm and
either wrongful action is due to a failure of a court to provide the
notification provided for in this chapter.
SEC. 26. Section 6389 of the Family Code is amended to read:
6389. (a) A person subject to a protective order, as defined in
Section 6218, shall not own, possess, purchase, or receive a firearm
while that protective order is in effect. Every person who owns,
possesses, purchases or receives, or attempts to purchase or receive
a firearm while the protective order is in effect is punishable
pursuant to Section 29825 of the Penal Code.
(b) On all forms providing notice that a protective order has been
requested or granted, the Judicial Council shall include a notice
that, upon service of the order, the respondent shall be ordered to
relinquish possession or control of any firearms and not to purchase
or receive or attempt to purchase or receive any firearms for a
period not to exceed the duration of the restraining order.
(c) (1) Upon issuance of a protective order, as defined in Section
6218, the court shall order the respondent to relinquish any firearm
in the respondent's immediate possession or control or subject to
the respondent's immediate possession or control.
(2) The relinquishment ordered pursuant to paragraph (1) shall
occur by immediately surrendering the firearm in a safe manner, upon
request of any law enforcement officer, to the control of the
officer, after being served with the protective order. Alternatively,
if no request is made by a law enforcement officer, the
relinquishment shall occur within 24 hours of being served with the
order, by either surrendering the firearm in a safe manner to the
control of local law enforcement officials, or by selling the firearm
to a licensed gun dealer, as specified in Sections 26700 to 26915,
inclusive, of the Penal Code. The law enforcement officer or licensed
gun dealer taking possession of the firearm pursuant to this
subdivision shall issue a receipt to the person relinquishing the
firearm at the time of relinquishment. A person ordered to relinquish
any firearm pursuant to this subdivision shall file with the court
that issued the protective order, within 48 hours after being served
with the order, the receipt showing the firearm was surrendered to a
local law enforcement agency or sold to a licensed gun dealer.
Failure to timely file a receipt shall constitute a violation of the
protective order.
(3) The application forms for protective orders adopted by the
Judicial Council and approved by the Department of Justice shall be
amended to require the petitioner to describe the number, types, and
locations of any firearms presently known by the petitioner to be
possessed or controlled by the respondent.
(4) It is recommended that every law enforcement agency in the
state develop, adopt, and implement written policies and standards
for law enforcement officers who request immediate relinquishment of
firearms.
(d) If the respondent declines to relinquish possession of any
firearm based on the assertion of the right against
self-incrimination, as provided by the Fifth Amendment to the United
States Constitution and Section 15 of Article I of the California
Constitution, the court may grant use immunity for the act of
relinquishing the firearm required under this section.
(e) A local law enforcement agency may charge the respondent a fee
for the storage of any firearm pursuant to this section. This fee
shall not exceed the actual cost incurred by the local law
enforcement agency for the storage of the firearm. For purposes of
this subdivision, "actual cost" means expenses directly related to
taking possession of a firearm, storing the firearm, and surrendering
possession of the firearm to a licensed dealer as defined in Section
26700 of the Penal Code or to the respondent.
(f) The restraining order requiring a person to relinquish a
firearm pursuant to subdivision (c) shall state on its face that the
respondent is prohibited from owning, possessing, purchasing, or
receiving a firearm while the protective order is in effect and that
the firearm shall be relinquished to the local law enforcement agency
for that jurisdiction or sold to a licensed gun dealer, and that
proof of surrender or sale shall be filed with the court within a
specified period of receipt of the order. The order shall also state
on its face the expiration date for relinquishment. Nothing in this
section shall limit a respondent's right under existing law to
petition the court at a later date for modification of the order.
(g) The restraining order requiring a person to relinquish a
firearm pursuant to subdivision (c) shall prohibit the person from
possessing or controlling any firearm for the duration of the order.
At the expiration of the order, the local law enforcement agency
shall return possession of any surrendered firearm to the respondent,
within five days after the expiration of the relinquishment order,
unless the local law enforcement agency determines that (1) the
firearm has been stolen, (2) the respondent is prohibited from
possessing a firearm because the respondent is in any prohibited
class for the possession of firearms, as defined in Chapter 2
(commencing with Section 29800) and Chapter 3 (commencing with
Section 29900) of Division 9 of Title 4 of Part 6 of the Penal Code
and Sections 8100 and 8103 of the Welfare and Institutions Code, or
(3) another successive restraining order is used against the
respondent under this section. If the local law enforcement agency
determines that the respondent is the legal owner of any firearm
deposited with the local law enforcement agency and is prohibited
from possessing any firearm, the respondent shall be entitled to sell
or transfer the firearm to a licensed dealer as defined in Section
26700 of the Penal Code. If the firearm has been stolen, the firearm
shall be restored to the lawful owner upon his or her identification
of the firearm and proof of ownership.
(h) The court may, as part of the relinquishment order, grant an
exemption from the relinquishment requirements of this section for a
particular firearm if the respondent can show that a particular
firearm is necessary as a condition of continued employment and that
the current employer is unable to reassign the respondent to another
position where a firearm is unnecessary. If an exemption is granted
pursuant to this subdivision, the order shall provide that the
firearm shall be in the physical possession of the respondent only
during scheduled work hours and during travel to and from his or her
place of employment. In any case involving a peace officer who as a
condition of employment and whose personal safety depends on the
ability to carry a firearm, a court may allow the peace officer to
continue to carry a firearm, either on duty or off duty, if the court
finds by a preponderance of the evidence that the officer does not
pose a threat of harm. Prior to making this finding, the court shall
require a mandatory psychological evaluation of the peace officer and
may require the peace officer to enter into counseling or other
remedial treatment program to deal with any propensity for domestic
violence.
(i) During the period of the relinquishment order, a respondent is
entitled to make one sale of all firearms that are in the possession
of a local law enforcement agency pursuant to this section. A
licensed gun dealer, who presents a local law enforcement agency with
a bill of sale indicating that all firearms owned by the respondent
that are in the possession of the local law enforcement agency have
been sold by the respondent to the licensed gun dealer, shall be
given possession of those firearms, at the location where a
respondent's firearms are stored, within five days of presenting the
local law enforcement agency with a bill of sale.
(j) The disposition of any unclaimed property under this section
shall be made pursuant to Section 1413 of the Penal Code.
(k) The return of a firearm to any person pursuant to subdivision
(g) shall not be subject to the requirements of Section 27545 of the
Penal Code.
(l) If the respondent notifies the court that he or she owns a
firearm that is not in his or her immediate possession, the court may
limit the order to exclude that firearm if the judge is satisfied
the respondent is unable to gain access to that firearm while the
protective order is in effect.
(m) Any
respondent to a protective order who violates any order issued
pursuant to this section shall be punished under the provisions of
Section 29825 of the Penal Code.
SEC. 27. Section 211 of the Fish and Game Code is amended to read:
211. (a) Material printed pursuant to subdivision (d) of Section
210 that contains advertisements shall meet all specifications
prescribed by the department. The printed material shall not contain
advertisements for tobacco products, alcohol, firearms and devices
prohibited pursuant to Section 32625 of the Penal Code, Article 2
(commencing with Section 30600) of Chapter 2 of Division 10 of Title
4 of Part 6 of the Penal Code, or any provision listed in Section
16590 of the Penal Code, or firearms not authorized by the commission
as a legal method of sport-hunting, political statements,
solicitations for membership in organizations, or any other
statement, solicitation, or product advertisement that is in conflict
with the purposes for which the material is produced, as determined
by the commission. The printing contract shall include criteria to
ensure that the public information provided in the publication is
easy to reference, read, and understand.
(b) Neither the department nor the commission shall contract with
private entities to print the materials described in subdivision (d)
of Section 210 if the letting of those contracts will result in the
elimination of civil service positions.
SEC. 28. Section 2006 of the Fish and Game Code is amended to
read:
2006. (a) It is unlawful to possess a loaded rifle or shotgun in
any vehicle or conveyance or its attachments which is standing on or
along or is being driven on or along any public highway or other way
open to the public.
(b) A rifle or shotgun shall be deemed to be loaded for the
purposes of this section when there is an unexpended cartridge or
shell in the firing chamber but not when the only cartridges or
shells are in the magazine.
(c) The provisions of this section shall not apply to peace
officers or members of the Armed Forces of this state or the United
States, while on duty or going to or returning from duty.
SEC. 29. Section 3001 of the Fish and Game Code is amended to
read:
3001. It is unlawful to take birds or mammals with firearms, BB
devices as defined in Section 16250 of the Penal Code, crossbows, or
with bow and arrow when intoxicated.
SEC. 30. Section 3801.6 of the Fish and Game Code is amended to
read:
3801.6. (a) Except as otherwise provided in this code or
regulations made pursuant thereto, it is unlawful to possess the
carcass, skin, or parts of any nongame bird. The feathers, carcass,
skin, or parts of any nongame bird possessed by any person in
violation of any of the provisions of this code shall be seized by
the department and delivered to a California Native American tribal
government or a scientific or educational institution, used by the
department, or destroyed.
(b) (1) It shall be an affirmative defense to a violation of this
section if the possessor of feathers, carcass, skin, or parts of a
nongame bird legally acquired the feathers, carcass, skin, or parts,
possesses them for tribal, cultural, or spiritual purposes, and
satisfies either of the following criteria:
(A) The possessor is an enrolled member of a federally recognized
Native American tribe or nonfederally recognized California Native
American tribe listed on the California Tribal Consultation List
maintained by the Native American Heritage Commission who has, in his
or her immediate possession, valid tribal identification or other
irrefutable proof of current enrollment.
(B) The possessor has a certificate of degree of Indian blood
issued by the United States Bureau of Indian Affairs in his or her
immediate possession.
(2) Nothing in this section allows any person to sell nongame bird
feathers, carcasses, skins, or parts. Native Americans meeting the
affirmative defense requirements may salvage dead nongame birds so
long as the person salvaging these birds does not possess, nor is in
the company of any person who possesses, a firearm, BB device as
defined in Section 16250 of the Penal Code, trap, snare, net archery
equipment, device capable of discharging a projectile, or any
apparatus designed to take birds. Salvaging shall not take place by
any person involved in the take of the nongame bird to be salvaged,
any person present at the time of the take, or by any person who
received related information originating from any person present at
the time of the take of the nongame bird. Salvaging pursuant to this
subdivision shall not take place if a bird has been struck with any
thrown or discharged projectile, trapped, netted, caught, or snared.
(c) Notwithstanding subdivisions (a) and (b), any officer
deputized pursuant to this code may interrupt any ongoing salvaging
of dead nongame carcasses, feathers, skins, or parts if, in the
officer's judgment, the activity causes a public disruption, safety
hazard, or is detrimental to the ability of the department to prevent
a possible violation of this section. The officer may seize any of
the salvaged feathers, carcasses, skins, or parts and has the option
of returning them to the general location from where they were
salvaged.
SEC. 31. Section 10500 of the Fish and Game Code is amended to
read:
10500. Except under a permit or specific authorization, it is
unlawful to do any of the following:
(a) To take or possess any bird or mammal, or part thereof, in any
game refuge.
(b) To use or have in possession in a game refuge, any firearm, BB
device as defined in Section 16250 of the Penal Code, crossbow, bow
and arrow, or any trap or other contrivance designed to be, or
capable of being, used to take birds or mammals, or to discharge any
firearm or BB device or to release any arrow or crossbow bolt into
any game refuge.
(c) To take or possess any species of fish or amphibian, or part
thereof, in any fish refuge, or to use or have in possession in that
refuge any contrivance designed to be used for catching fish.
(d) To take or possess any bird in, or to discharge any firearm or
BB device, or to release any arrow or crossbow bolt within or into,
any waterfowl refuge.
(e) To take or possess any quail in a quail refuge.
(f) To take or possess any invertebrate or specimen of marine
plant life in a marine life refuge.
(g) To take or possess any clam in a clam refuge or to possess in
such a refuge any instrument or apparatus capable of being used to
dig clams.
SEC. 32. Section 10506 of the Fish and Game Code is amended to
read:
10506. Nothing in this code prohibits the possession of firearms,
BB devices as defined in Section 16250 of the Penal Code, crossbows
and bolts, or bows and arrows by persons when traveling through any
game refuges when the firearms are taken apart or encased and
unloaded and the bows are unstrung or stored separately from any
arrow or bolt. When the traveling is done on a route other than a
public highway or other public thoroughfare or right of way, notice
shall be given to the department at least 24 hours before that
traveling. The notice shall give the name and address of the person
intending to travel through the refuge, the name of the refuge, the
approximate route, and the approximate time when that person intends
to travel through the refuge.
SEC. 33. Section 6254 of the Government Code is amended to read:
6254. Except as provided in Sections 6254.7 and 6254.13, nothing
in this chapter shall be construed to require disclosure of records
that are any of the following:
(a) Preliminary drafts, notes, or interagency or intra-agency
memoranda that are not retained by the public agency in the ordinary
course of business, if the public interest in withholding those
records clearly outweighs the public interest in disclosure.
(b) Records pertaining to pending litigation to which the public
agency is a party, or to claims made pursuant to Division 3.6
(commencing with Section 810), until the pending litigation or claim
has been finally adjudicated or otherwise settled.
(c) Personnel, medical, or similar files, the disclosure of which
would constitute an unwarranted invasion of personal privacy.
(d) Contained in or related to any of the following:
(1) Applications filed with any state agency responsible for the
regulation or supervision of the issuance of securities or of
financial institutions, including, but not limited to, banks, savings
and loan associations, industrial loan companies, credit unions, and
insurance companies.
(2) Examination, operating, or condition reports prepared by, on
behalf of, or for the use of, any state agency referred to in
paragraph (1).
(3) Preliminary drafts, notes, or interagency or intra-agency
communications prepared by, on behalf of, or for the use of, any
state agency referred to in paragraph (1).
(4) Information received in confidence by any state agency
referred to in paragraph (1).
(e) Geological and geophysical data, plant production data, and
similar information relating to utility systems development, or
market or crop reports, that are obtained in confidence from any
person.
(f) Records of complaints to, or investigations conducted by, or
records of intelligence information or security procedures of, the
office of the Attorney General and the Department of Justice, the
California Emergency Management Agency, and any state or local police
agency, or any investigatory or security files compiled by any other
state or local police agency, or any investigatory or security files
compiled by any other state or local agency for correctional, law
enforcement, or licensing purposes. However, state and local law
enforcement agencies shall disclose the names and addresses of
persons involved in, or witnesses other than confidential informants
to, the incident, the description of any property involved, the date,
time, and location of the incident, all diagrams, statements of the
parties involved in the incident, the statements of all witnesses,
other than confidential informants, to the victims of an incident, or
an authorized representative thereof, an insurance carrier against
which a claim has been or might be made, and any person suffering
bodily injury or property damage or loss, as the result of the
incident caused by arson, burglary, fire, explosion, larceny,
robbery, carjacking, vandalism, vehicle theft, or a crime as defined
by subdivision (b) of Section 13951, unless the disclosure would
endanger the safety of a witness or other person involved in the
investigation, or unless disclosure would endanger the successful
completion of the investigation or a related investigation. However,
nothing in this division shall require the disclosure of that portion
of those investigative files that reflects the analysis or
conclusions of the investigating officer.
Customer lists provided to a state or local police agency by an
alarm or security company at the request of the agency shall be
construed to be records subject to this subdivision.
Notwithstanding any other provision of this subdivision, state and
local law enforcement agencies shall make public the following
information, except to the extent that disclosure of a particular
item of information would endanger the safety of a person involved in
an investigation or would endanger the successful completion of the
investigation or a related investigation:
(1) The full name and occupation of every individual arrested by
the agency, the individual's physical description including date of
birth, color of eyes and hair, sex, height and weight, the time and
date of arrest, the time and date of booking, the location of the
arrest, the factual circumstances surrounding the arrest, the amount
of bail set, the time and manner of release or the location where the
individual is currently being held, and all charges the individual
is being held upon, including any outstanding warrants from other
jurisdictions and parole or probation holds.
(2) Subject to the restrictions imposed by Section 841.5 of the
Penal Code, the time, substance, and location of all complaints or
requests for assistance received by the agency and the time and
nature of the response thereto, including, to the extent the
information regarding crimes alleged or committed or any other
incident investigated is recorded, the time, date, and location of
occurrence, the time and date of the report, the name and age of the
victim, the factual circumstances surrounding the crime or incident,
and a general description of any injuries, property, or weapons
involved. The name of a victim of any crime defined by Section 220,
236.1, 261, 261.5, 262, 264, 264.1, 265, 266, 266a, 266b, 266c, 266e,
266f, 266j, 267, 269, 273a, 273d, 273.5, 285, 286, 288, 288a, 288.2,
288.3 (as added by Chapter 337 of the Statutes of 2006), 288.3 (as
added by Section 6 of Proposition 83 of the November 7, 2006,
statewide general election), 288.5, 288.7, 289, 422.6, 422.7, 422.75,
646.9, or 647.6 of the Penal Code may be withheld at the victim's
request, or at the request of the victim's parent or guardian if the
victim is a minor. When a person is the victim of more than one
crime, information disclosing that the person is a victim of a crime
defined in any of the sections of the Penal Code set forth in this
subdivision may be deleted at the request of the victim, or the
victim's parent or guardian if the victim is a minor, in making the
report of the crime, or of any crime or incident accompanying the
crime, available to the public in compliance with the requirements of
this paragraph.
(3) Subject to the restrictions of Section 841.5 of the Penal Code
and this subdivision, the current address of every individual
arrested by the agency and the current address of the victim of a
crime, where the requester declares under penalty of perjury that the
request is made for a scholarly, journalistic, political, or
governmental purpose, or that the request is made for investigation
purposes by a licensed private investigator as described in Chapter
11.3 (commencing with Section 7512) of Division 3 of the Business and
Professions Code. However, the address of the victim of any crime
defined by Section 220, 236.1, 261, 261.5, 262, 264, 264.1, 265, 266,
266a, 266b, 266c, 266e, 266f, 266j, 267, 269, 273a, 273d, 273.5,
285, 286, 288, 288a, 288.2, 288.3 (as added by Chapter 337 of the
Statutes of 2006), 288.3 (as added by Section 6 of Proposition 83 of
the November 7, 2006, statewide general election), 288.5, 288.7, 289,
422.6, 422.7, 422.75, 646.9, or 647.6 of the Penal Code shall remain
confidential. Address information obtained pursuant to this
paragraph may not be used directly or indirectly, or furnished to
another, to sell a product or service to any individual or group of
individuals, and the requester shall execute a declaration to that
effect under penalty of perjury. Nothing in this paragraph shall be
construed to prohibit or limit a scholarly, journalistic, political,
or government use of address information obtained pursuant to this
paragraph.
(g) Test questions, scoring keys, and other examination data used
to administer a licensing examination, examination for employment, or
academic examination, except as provided for in Chapter 3
(commencing with Section 99150) of Part 65 of Division 14 of Title 3
of the Education Code.
(h) The contents of real estate appraisals or engineering or
feasibility estimates and evaluations made for or by the state or
local agency relative to the acquisition of property, or to
prospective public supply and construction contracts, until all of
the property has been acquired or all of the contract agreement
obtained. However, the law of eminent domain shall not be affected by
this provision.
(i) Information required from any taxpayer in connection with the
collection of local taxes that is received in confidence and the
disclosure of the information to other persons would result in unfair
competitive disadvantage to the person supplying the information.
(j) Library circulation records kept for the purpose of
identifying the borrower of items available in libraries, and library
and museum materials made or acquired and presented solely for
reference or exhibition purposes. The exemption in this subdivision
shall not apply to records of fines imposed on the borrowers.
(k) Records, the disclosure of which is exempted or prohibited
pursuant to federal or state law, including, but not limited to,
provisions of the Evidence Code relating to privilege.
( l ) Correspondence of and to the Governor or
employees of the Governor's office or in the custody of or maintained
by the Governor's Legal Affairs Secretary. However, public records
shall not be transferred to the custody of the Governor's Legal
Affairs Secretary to evade the disclosure provisions of this chapter.
(m) In the custody of or maintained by the Legislative Counsel,
except those records in the public database maintained by the
Legislative Counsel that are described in Section 10248.
(n) Statements of personal worth or personal financial data
required by a licensing agency and filed by an applicant with the
licensing agency to establish his or her personal qualification for
the license, certificate, or permit applied for.
(o) Financial data contained in applications for financing under
Division 27 (commencing with Section 44500) of the Health and Safety
Code, where an authorized officer of the California Pollution Control
Financing Authority determines that disclosure of the financial data
would be competitively injurious to the applicant and the data is
required in order to obtain guarantees from the United States Small
Business Administration. The California Pollution Control Financing
Authority shall adopt rules for review of individual requests for
confidentiality under this section and for making available to the
public those portions of an application that are subject to
disclosure under this chapter.
(p) Records of state agencies related to activities governed by
Chapter 10.3 (commencing with Section 3512), Chapter 10.5 (commencing
with Section 3525), and Chapter 12 (commencing with Section 3560) of
Division 4, that reveal a state agency's deliberative processes,
impressions, evaluations, opinions, recommendations, meeting minutes,
research, work products, theories, or strategy, or that provide
instruction, advice, or training to employees who do not have full
collective bargaining and representation rights under these chapters.
Nothing in this subdivision shall be construed to limit the
disclosure duties of a state agency with respect to any other records
relating to the activities governed by the employee relations acts
referred to in this subdivision.
(q) Records of state agencies related to activities governed by
Article 2.6 (commencing with Section 14081), Article 2.8 (commencing
with Section 14087.5), and Article 2.91 (commencing with Section
14089) of Chapter 7 of Part 3 of Division 9 of the Welfare and
Institutions Code, that reveal the special negotiator's deliberative
processes, discussions, communications, or any other portion of the
negotiations with providers of health care services, impressions,
opinions, recommendations, meeting minutes, research, work product,
theories, or strategy, or that provide instruction, advice, or
training to employees.
Except for the portion of a contract containing the rates of
payment, contracts for inpatient services entered into pursuant to
these articles, on or after April 1, 1984, shall be open to
inspection one year after they are fully executed. If a contract for
inpatient services that is entered into prior to April 1, 1984, is
amended on or after April 1, 1984, the amendment, except for any
portion containing the rates of payment, shall be open to inspection
one year after it is fully executed. If the California Medical
Assistance Commission enters into contracts with health care
providers for other than inpatient hospital services, those contracts
shall be open to inspection one year after they are fully executed.
Three years after a contract or amendment is open to inspection
under this subdivision, the portion of the contract or amendment
containing the rates of payment shall be open to inspection.
Notwithstanding any other provision of law, the entire contract or
amendment shall be open to inspection by the Joint Legislative Audit
Committee and the Legislative Analyst's Office. The committee and
that office shall maintain the confidentiality of the contracts and
amendments until the time a contract or amendment is fully open to
inspection by the public.
(r) Records of Native American graves, cemeteries, and sacred
places and records of Native American places, features, and objects
described in Sections 5097.9 and 5097.993 of the Public Resources
Code maintained by, or in the possession of, the Native American
Heritage Commission, another state agency, or a local agency.
(s) A final accreditation report of the Joint Commission on
Accreditation of Hospitals that has been transmitted to the State
Department of Health Care Services pursuant to subdivision (b) of
Section 1282 of the Health and Safety Code.
(t) Records of a local hospital district, formed pursuant to
Division 23 (commencing with Section 32000) of the Health and Safety
Code, or the records of a municipal hospital, formed pursuant to
Article 7 (commencing with Section 37600) or Article 8 (commencing
with Section 37650) of Chapter 5 of Part 2 of Division 3 of Title 4
of this code, that relate to any contract with an insurer or
nonprofit hospital service plan for inpatient or outpatient services
for alternative rates pursuant to Section 10133 of the Insurance
Code. However, the record shall be open to inspection within one year
after the contract is fully executed.
(u) (1) Information contained in applications for licenses to
carry firearms issued pursuant to Section 26150, 26155, 26170, or
26215 of the Penal Code by the sheriff of a county or the chief or
other head of a municipal police department that indicates when or
where the applicant is vulnerable to attack or that concerns the
applicant's medical or psychological history or that of members of
his or her family.
(2) The home address and telephone number of peace officers,
judges, court commissioners, and magistrates that are set forth in
applications for licenses to carry firearms issued pursuant to
Section 26150, 26155, 26170, or 26215 of the Penal Code by the
sheriff of a county or the chief or other head of a municipal police
department.
(3) The home address and telephone number of peace officers,
judges, court commissioners, and magistrates that are set forth in
licenses to carry firearms issued pursuant to Section 26150, 26155,
26170, or 26215 of the Penal Code by the sheriff of a county or the
chief or other head of a municipal police department.
(v) (1) Records of the Managed Risk Medical Insurance Board
related to activities governed by Part 6.3 (commencing with Section
12695) and Part 6.5 (commencing with Section 12700) of Division 2 of
the Insurance Code, and that reveal the deliberative processes,
discussions, communications, or any other portion of the negotiations
with entities contracting or seeking to contract with the board, or
the impressions, opinions, recommendations, meeting minutes,
research, work product, theories, or strategy of the board or its
staff, or records that provide instructions, advice, or training to
employees.
(2) (A) Except for the portion of a contract that contains the
rates of payment, contracts for health coverage entered into pursuant
to Part 6.3 (commencing with Section 12695) or Part 6.5 (commencing
with Section 12700) of Division 2 of the Insurance Code, on or after
July 1, 1991, shall be open to inspection one year after their
effective dates.
(B) If a contract that is entered into prior to July 1, 1991, is
amended on or after July 1, 1991, the amendment, except for any
portion containing the rates of payment, shall be open to inspection
one year after the amendment has been fully executed.
(3) Three years after a contract or amendment is open to
inspection pursuant to this subdivision, the portion of the contract
or amendment containing the rates of payment shall be open to
inspection.
(4) Notwithstanding any other provision of law, the entire
contract or amendments to a contract shall be open to inspection by
the Joint Legislative Audit Committee. The committee shall maintain
the confidentiality of the contracts and amendments thereto, until
the contracts or amendments to the contracts are open to inspection
pursuant to paragraph (3).
(w) (1) Records of the Managed Risk Medical Insurance Board
related to activities governed by Chapter 8 (commencing with Section
10700) of Part 2 of Division 2 of the Insurance Code, and that reveal
the deliberative processes, discussions, communications, or any
other portion of the negotiations with health plans, or the
impressions, opinions, recommendations, meeting minutes, research,
work product, theories, or strategy of the board or its staff, or
records that provide instructions, advice, or training to employees.
(2) Except for the portion of a contract that contains the rates
of payment, contracts for health coverage entered into pursuant to
Chapter 8 (commencing with Section 10700) of Part 2 of Division 2 of
the Insurance Code, on or after January 1, 1993, shall be open to
inspection one year after they have been fully executed.
(3) Notwithstanding any other provision of law, the entire
contract or amendments to a contract shall be open to inspection by
the Joint Legislative Audit Committee. The committee shall maintain
the confidentiality of the contracts and amendments thereto, until
the contracts or amendments to the contracts are open to inspection
pursuant to paragraph (2).
(x) Financial data contained in applications for registration, or
registration renewal, as a service contractor filed with the Director
of Consumer Affairs pursuant to Chapter 20 (commencing with Section
9800) of Division 3 of the Business and Professions Code, for the
purpose of establishing the service contractor's net worth, or
financial data regarding the funded accounts held in escrow for
service contracts held in force in this state by a service
contractor.
(y) (1) Records of the Managed Risk Medical Insurance Board
related to activities governed by Part 6.2 (commencing with Section
12693) or Part 6.4 (commencing with Section 12699.50) of Division 2
of the Insurance Code, and that reveal the deliberative processes,
discussions, communications, or any other portion of the negotiations
with entities contracting or
seeking to contract with the board, or the impressions, opinions,
recommendations, meeting minutes, research, work product, theories,
or strategy of the board or its staff, or records that provide
instructions, advice, or training to employees.
(2) (A) Except for the portion of a contract that contains the
rates of payment, contracts entered into pursuant to Part 6.2
(commencing with Section 12693) or Part 6.4 (commencing with Section
12699.50) of Division 2 of the Insurance Code, on or after January 1,
1998, shall be open to inspection one year after their effective
dates.
(B) If a contract entered into pursuant to Part 6.2 (commencing
with Section 12693) or Part 6.4 (commencing with Section 12699.50) of
Division 2 of the Insurance Code is amended, the amendment shall be
open to inspection one year after the amendment has been fully
executed.
(3) Three years after a contract or amendment is open to
inspection pursuant to this subdivision, the portion of the contract
or amendment containing the rates of payment shall be open to
inspection.
(4) Notwithstanding any other provision of law, the entire
contract or amendments to a contract shall be open to inspection by
the Joint Legislative Audit Committee. The committee shall maintain
the confidentiality of the contracts and amendments thereto until the
contract or amendments to a contract are open to inspection pursuant
to paragraph (2) or (3).
(5) The exemption from disclosure provided pursuant to this
subdivision for the contracts, deliberative processes, discussions,
communications, negotiations, impressions, opinions, recommendations,
meeting minutes, research, work product, theories, or strategy of
the board or its staff shall also apply to the contracts,
deliberative processes, discussions, communications, negotiations,
impressions, opinions, recommendations, meeting minutes, research,
work product, theories, or strategy of applicants pursuant to Part
6.4 (commencing with Section 12699.50) of Division 2 of the Insurance
Code.
(z) Records obtained pursuant to paragraph (2) of subdivision (c)
of Section 2891.1 of the Public Utilities Code.
(aa) A document prepared by or for a state or local agency that
assesses its vulnerability to terrorist attack or other criminal acts
intended to disrupt the public agency's operations and that is for
distribution or consideration in a closed session.
(ab) Critical infrastructure information, as defined in Section
131(3) of Title 6 of the United States Code, that is voluntarily
submitted to the California Emergency Management Agency for use by
that office, including the identity of the person who or entity that
voluntarily submitted the information. As used in this subdivision,
"voluntarily submitted" means submitted in the absence of the office
exercising any legal authority to compel access to or submission of
critical infrastructure information. This subdivision shall not
affect the status of information in the possession of any other state
or local governmental agency.
(ac) All information provided to the Secretary of State by a
person for the purpose of registration in the Advance Health Care
Directive Registry, except that those records shall be released at
the request of a health care provider, a public guardian, or the
registrant's legal representative.
(ad) The following records of the State Compensation Insurance
Fund:
(1) Records related to claims pursuant to Chapter 1 (commencing
with Section 3200) of Division 4 of the Labor Code, to the extent
that confidential medical information or other individually
identifiable information would be disclosed.
(2) Records related to the discussions, communications, or any
other portion of the negotiations with entities contracting or
seeking to contract with the fund, and any related deliberations.
(3) Records related to the impressions, opinions, recommendations,
meeting minutes of meetings or sessions that are lawfully closed to
the public, research, work product, theories, or strategy of the fund
or its staff, on the development of rates, contracting strategy,
underwriting, or competitive strategy pursuant to the powers granted
to the fund in Chapter 4 (commencing with Section 11770) of Part 3 of
Division 2 of the Insurance Code.
(4) Records obtained to provide workers' compensation insurance
under Chapter 4 (commencing with Section 11770) of Part 3 of Division
2 of the Insurance Code, including, but not limited to, any medical
claims information, policyholder information provided that nothing in
this paragraph shall be interpreted to prevent an insurance agent or
broker from obtaining proprietary information or other information
authorized by law to be obtained by the agent or broker, and
information on rates, pricing, and claims handling received from
brokers.
(5) (A) Records that are trade secrets pursuant to Section
6276.44, or Article 11 (commencing with Section 1060) of Chapter 4 of
Division 8 of the Evidence Code, including without limitation,
instructions, advice, or training provided by the State Compensation
Insurance Fund to its board members, officers, and employees
regarding the fund's special investigation unit, internal audit unit,
and informational security, marketing, rating, pricing,
underwriting, claims handling, audits, and collections.
(B) Notwithstanding subparagraph (A), the portions of records
containing trade secrets shall be available for review by the Joint
Legislative Audit Committee, the Bureau of State Audits, Division of
Workers' Compensation, and the Department of Insurance to ensure
compliance with applicable law.
(6) (A) Internal audits containing proprietary information and the
following records that are related to an internal audit:
(i) Personal papers and correspondence of any person providing
assistance to the fund when that person has requested in writing that
his or her papers and correspondence be kept private and
confidential. Those papers and correspondence shall become public
records if the written request is withdrawn, or upon order of the
fund.
(ii) Papers, correspondence, memoranda, or any substantive
information pertaining to any audit not completed or an internal
audit that contains proprietary information.
(B) Notwithstanding subparagraph (A), the portions of records
containing proprietary information, or any information specified in
subparagraph (A) shall be available for review by the Joint
Legislative Audit Committee, the Bureau of State Audits, Division of
Workers' Compensation, and the Department of Insurance to ensure
compliance with applicable law.
(7) (A) Except as provided in subparagraph (C), contracts entered
into pursuant to Chapter 4 (commencing with Section 11770) of Part 3
of Division 2 of the Insurance Code shall be open to inspection one
year after the contract has been fully executed.
(B) If a contract entered into pursuant to Chapter 4 (commencing
with Section 11770) of Part 3 of Division 2 of the Insurance Code is
amended, the amendment shall be open to inspection one year after the
amendment has been fully executed.
(C) Three years after a contract or amendment is open to
inspection pursuant to this subdivision, the portion of the contract
or amendment containing the rates of payment shall be open to
inspection.
(D) Notwithstanding any other provision of law, the entire
contract or amendments to a contract shall be open to inspection by
the Joint Legislative Audit Committee. The committee shall maintain
the confidentiality of the contracts and amendments thereto until the
contract or amendments to a contract are open to inspection pursuant
to this paragraph.
(E) Nothing in this paragraph is intended to apply to documents
related to contracts with public entities that are not otherwise
expressly confidential as to that public entity.
(F) For purposes of this paragraph, "fully executed" means the
point in time when all of the necessary parties to the contract have
signed the contract.
Nothing in this section prevents any agency from opening its
records concerning the administration of the agency to public
inspection, unless disclosure is otherwise prohibited by law.
Nothing in this section prevents any health facility from
disclosing to a certified bargaining agent relevant financing
information pursuant to Section 8 of the National Labor Relations Act
(29 U.S.C. Sec. 158).
SEC. 34. Section 6276.18 of the Government Code is amended to
read:
6276.18. Family Court, records, Section 1818, Family Code.
Farm product processor license, confidentiality of financial
statements, Section 55523.6, Food and Agricultural Code.
Farm product processor licensee, confidentiality of grape
purchases, Section 55601.5, Food and Agricultural Code.
Fee payer information, prohibition against disclosure by Board of
Equalization and others, Section 55381, Revenue and Taxation Code.
Financial institutions, issuance of securities, reports and
records of state agencies, subdivision (d), Section 6254.
Financial statements of insurers, confidentiality of information
received, Section 925.3, Insurance Code.
Financial statements and questionnaires, of prospective bidders
for the state, confidentiality of, Section 10165, Public Contract
Code.
Financial statements and questionnaires, of prospective bidders
for California State University contracts, confidentiality of,
Section 10763, Public Contract Code.
Firearms, centralized list of exempted federal firearms licensees,
disclosure of information compiled from, Sections 24850 to 24890,
inclusive, Penal Code.
Firearms, centralized list of dealers and licensees, disclosure of
information compiled from, Sections 26700 to 26915, inclusive, Penal
Code.
Firearm license applications, subdivision (u), Section 6254.
Firearm sale or transfer, confidentiality of records, Chapter 5
(commencing with Section 28050) of Division 6 of Title 4 of Part 6,
Penal Code.
Fishing and hunting licenses, confidentiality of names and
addresses contained in records submitted to the Department of Fish
and Game to obtain recreational fishing and hunting licenses, Section
1050.6, Fish and Game Code.
Food stamps, disclosure of information, Section 18909, Welfare and
Institutions Code.
Foreign marketing of agricultural products, confidentiality of
financial information, Section 58577, Food and Agricultural Code.
Forest fires, anonymity of informants, Section 4417, Public
Resources Code.
Foster homes, identifying information, Section 1536, Health and
Safety Code.
Franchise Tax Board, access to Franchise Tax Board information by
the State Department of Social Services, Section 11025, Welfare and
Institutions Code.
Franchise Tax Board, auditing, confidentiality of, Section 90005.
Franchises, applications, and reports filed with Commissioner of
Corporations, disclosure and withholding from public inspection,
Section 31504, Corporations Code.
Fur dealer licensee, confidentiality of records, Section 4041,
Fish and Game Code.
SEC. 35. Section 53071.5 of the Government Code is amended to
read:
53071.5. By the enforcement of this section, the Legislature
occupies the whole field of regulation of the manufacture, sale, or
possession of imitation firearms, as defined in subdivision (a) of
Section 16700 of the Penal Code, and that section shall preempt and
be exclusive of all regulations relating to the manufacture, sale, or
possession of imitation firearms, including regulations governing
the manufacture, sale, or possession of BB devices and air rifles
described in Section 16250 of the Penal Code.
SEC. 36. Section 1257.7 of the Health and Safety Code is amended
to read:
1257.7. (a) After July 1, 2010, all hospitals licensed pursuant
to subdivisions (a), (b), and (f) of Section 1250 shall conduct, not
less than annually, a security and safety assessment and, using the
assessment, develop, and annually update based on the assessment, a
security plan with measures to protect personnel, patients, and
visitors from aggressive or violent behavior. The security and safety
assessment shall examine trends of aggressive or violent behavior at
the facility. These hospitals shall track incidents of aggressive or
violent behavior as part of the quality assessment and improvement
program and for the purposes of developing a security plan to deter
and manage further aggressive or violent acts of a similar nature.
The plan may include, but shall not be limited to, security
considerations relating to all of the following:
(1) Physical layout.
(2) Staffing.
(3) Security personnel availability.
(4) Policy and training related to appropriate responses to
violent acts.
(5) Efforts to cooperate with local law enforcement regarding
violent acts in the facility.
In developing this plan, the hospital shall consider guidelines or
standards on violence in health care facilities issued by the
department, the Division of Occupational Safety and Health, and the
federal Occupational Safety and Health Administration. As part of the
security plan, a hospital shall adopt security policies including,
but not limited to, personnel training policies designed to protect
personnel, patients, and visitors from aggressive or violent
behavior. In developing the plan and the assessment, the hospital
shall consult with affected employees, including the recognized
collective bargaining agent or agents, if any, and members of the
hospital medical staff organized pursuant to Section 2282 of the
Business and Professions Code. This consultation may occur through
hospital committees.
(b) The individual or members of a hospital committee responsible
for developing the security plan shall be familiar with all of the
following:
(1) The role of security in hospital operations.
(2) Hospital organization.
(3) Protective measures, including alarms and access control.
(4) The handling of disturbed patients, visitors, and employees.
(5) Identification of aggressive and violent predicting factors.
(6) Hospital safety and emergency preparedness.
(7) The rudiments of documenting and reporting crimes, including,
by way of example, not disturbing a crime scene.
(c) The hospital shall have sufficient personnel to provide
security pursuant to the security plan developed pursuant to
subdivision (a). Persons regularly assigned to provide security in a
hospital setting shall be trained regarding the role of security in
hospital operations, including the identification of aggressive and
violent predicting factors and management of violent disturbances.
(d) Any act of assault, as defined in Section 240 of the Penal
Code, or battery, as defined in Section 242 of the Penal Code, that
results in injury or involves the use of a firearm or other dangerous
weapon, against any on-duty hospital personnel shall be reported to
the local law enforcement agency within 72 hours of the incident. Any
other act of assault, as defined in Section 240 of the Penal Code,
or battery, as defined in Section 242 of the Penal Code, against any
on-duty hospital personnel may be reported to the local law
enforcement agency within 72 hours of the incident. No health
facility or employee of a health facility who reports a known or
suspected instance of assault or battery pursuant to this section
shall be civilly or criminally liable for any report required by this
section. No health facility or employee of a health facility who
reports a known or suspected instance of assault or battery that is
authorized, but not required, by this section, shall be civilly or
criminally liable for the report authorized by this section unless it
can be proven that a false report was made and the health facility
or its employee knew that the report was false or was made with
reckless disregard of the truth or falsity of the report, and any
health facility or employee of a health facility who makes a report
known to be false or with reckless disregard of the truth or falsity
of the report shall be liable for any damages caused. Any individual
knowingly interfering with or obstructing the lawful reporting
process shall be guilty of a misdemeanor. "Dangerous weapon," as used
in this section, means any weapon the possession or concealed
carrying of which is prohibited by any provision listed in Section
16590 of the Penal Code.
SEC. 37. Section 12000 of the Health and Safety Code is amended to
read:
12000. For the purposes of this part, "explosives" means any
substance, or combination of substances, the primary or common
purpose of which is detonation or rapid combustion, and which is
capable of a relatively instantaneous or rapid release of gas and
heat, or any substance, the primary purpose of which, when combined
with others, is to form a substance capable of a relatively
instantaneous or rapid release of gas and heat. "Explosives"
includes, but is not limited to, any explosives as defined in Section
841 of Title 18 of the United States Code and published pursuant to
Section 555.23 of Title 27 of the Code of Federal Regulations, and
any of the following:
(a) Dynamite, nitroglycerine, picric acid, lead azide, fulminate
of mercury, black powder, smokeless powder, propellant explosives,
detonating primers, blasting caps, or commercial boosters.
(b) Substances determined to be division 1.1, 1.2, 1.3, or 1.6
explosives as classified by the United States Department of
Transportation.
(c) Nitro carbo nitrate substances (blasting agent) classified as
division 1.5 explosives by the United States Department of
Transportation.
(d) Any material designated as an explosive by the State Fire
Marshal. The designation shall be made pursuant to the classification
standards established by the United States Department of
Transportation. The State Fire Marshal shall adopt regulations in
accordance with the Government Code to establish procedures for the
classification and designation of explosive materials or explosive
devices that are not under the jurisdiction of the United States
Department of Transportation pursuant to provisions of Section 841 of
Title 18 of the United States Code and published pursuant to Section
555.23 of Title 27 of the Code of Federal Regulations that define
explosives.
(e) Certain division 1.4 explosives as designated by the United
States Department of Transportation when listed in regulations
adopted by the State Fire Marshal.
(f) For the purposes of this part, "explosives" does not include
any destructive device, as defined in Section 16460 of the Penal
Code, nor does it include ammunition or small arms primers
manufactured for use in shotguns, rifles, and pistols.
SEC. 38. 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
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 subdivisions (a) to
(c), inclusive, of Section 26710 of the Penal Code or to any holder
of a dangerous weapons permit or license issued pursuant to Section
31000, 32650, or 33300 of the Penal Code, or pursuant to Sections
18900 to 18910, inclusive, or Sections 32700 to 32720, inclusive, 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. 39. Section 12540 of the Health and Safety Code is amended to
read:
12540. The provisions of this part shall not apply to any of the
following:
(a) Explosives regulated under Part 1 (commencing with Section
12000) of Division 11.
(b) Arms and handguns defined as firearms by the Federal Gun
Control Act of 1968, as well as such devices and weapons classified
under Section 16460 of the Penal Code or any provision listed in
Section 16590 of the Penal Code, including blank cartridge pistols of
the type used at sporting events or theatrical productions.
(c) Research or experiments with rockets or missiles or the
production or transportation of rockets or missiles by the Department
of Defense of the United States, or by any agency or organization
acting pursuant to a contract with the Department of Defense for the
development and production of rockets or missiles.
(d) Paper caps which contain less than 0.25 grain of pyrotechnic
composition per unit load.
SEC. 40. Section 12756 of the Health and Safety Code is amended to
read:
12756. The State Fire Marshal shall adopt regulations to
administer this part and establish standards for the background
investigation of an applicant for, and holder of, a flamethrowing
device permit, and for the use, storage, and transportation of a
flamethrowing device. In adopting these regulations, the State Fire
Marshal shall consult with the Department of Justice regarding
regulations for the use and
possession of destructive devices (Chapter 12.5 (commencing
with Section 970) of Division 1 of Title 11 of the California Code
of Regulations). These regulations for the use and possession of
destructive devices may provide suggestions for potential methods to
utilize in developing standards and shall serve as guidance only. At
a minimum, the regulations adopted by the State Fire Marshal shall
require a permitholder to possess a current, valid certificate of
eligibility issued by the Department of Justice pursuant to
subdivisions (a) to (c), inclusive, of Section 26710 of the Penal
Code.
SEC. 41. Section 12757 of the Health and Safety Code is amended to
read:
12757. The State Fire Marshal may issue or renew a permit to use
and possess a flamethrowing device only if all of the following
conditions are met:
(a) The applicant or permitholder is not addicted to any
controlled substance.
(b) The applicant or permitholder possesses a current, valid
certificate of eligibility issued by the Department of Justice
pursuant to subdivisions (a) to (c), inclusive, of Section 26710 of
the Penal Code.
(c) The applicant or permitholder meets the other standards
specified in regulations adopted pursuant to Section 12756.
SEC. 42. Section 136.2 of the Penal Code is amended to read:
136.2. (a) Except as provided in subdivision (c), upon a good
cause belief that harm to, or intimidation or dissuasion of, a victim
or witness has occurred or is reasonably likely to occur, any court
with jurisdiction over a criminal matter may issue orders including,
but not limited to, the following:
(1) Any order issued pursuant to Section 6320 of the Family Code.
(2) An order that a defendant shall not violate any provision of
Section 136.1.
(3) An order that a person before the court other than a
defendant, including, but not limited to, a subpoenaed witness or
other person entering the courtroom of the court, shall not violate
any provisions of Section 136.1.
(4) An order that any person described in this section shall have
no communication whatsoever with any specified witness or any victim,
except through an attorney under any reasonable restrictions that
the court may impose.
(5) An order calling for a hearing to determine if an order as
described in paragraphs (1) to (4), inclusive, should be issued.
(6) An order that a particular law enforcement agency within the
jurisdiction of the court provide protection for a victim or a
witness, or both, or for immediate family members of a victim or a
witness who reside in the same household as the victim or witness or
within reasonable proximity of the victim's or witness' household, as
determined by the court. The order shall not be made without the
consent of the law enforcement agency except for limited and
specified periods of time and upon an express finding by the court of
a clear and present danger of harm to the victim or witness or
immediate family members of the victim or witness.
For purposes of this paragraph, "immediate family members" include
the spouse, children, or parents of the victim or witness.
(7) (A) Any order protecting victims of violent crime from all
contact by the defendant, or contact, with the intent to annoy,
harass, threaten, or commit acts of violence, by the defendant. The
court or its designee shall transmit orders made under this paragraph
to law enforcement personnel within one business day of the
issuance, modification, extension, or termination of the order,
pursuant to subdivision (a) of Section 6380 of the Family Code. It is
the responsibility of the court to transmit the modification,
extension, or termination orders made under this paragraph to the
same agency that entered the original protective order into the
Domestic Violence Restraining Order System.
(B) (i) If a court does not issue an order pursuant to
subparagraph (A) in a case in which the defendant is charged with a
crime of domestic violence as defined in Section 13700, the court on
its own motion shall consider issuing a protective order upon a good
cause belief that harm to, or intimidation or dissuasion of, a victim
or witness has occurred or is reasonably likely to occur, that
provides as follows:
(I) The defendant shall not own, possess, purchase, receive, or
attempt to purchase or receive, a firearm while the protective order
is in effect.
(II) The defendant shall relinquish any firearms that he or she
owns or possesses pursuant to Section 527.9 of the Code of Civil
Procedure.
(ii) Every person who owns, possesses, purchases, or receives, or
attempts to purchase or receive, a firearm while this protective
order is in effect is punishable pursuant to Section 29825.
(C) Any order issued, modified, extended, or terminated by a court
pursuant to this paragraph shall be issued on forms adopted by the
Judicial Council of California and that have been approved by the
Department of Justice pursuant to subdivision (i) of Section 6380 of
the Family Code. However, the fact that an order issued by a court
pursuant to this section was not issued on forms adopted by the
Judicial Council and approved by the Department of Justice shall not,
in and of itself, make the order unenforceable.
(b) Any person violating any order made pursuant to paragraphs (1)
to (7), inclusive, of subdivision (a) may be punished for any
substantive offense described in Section 136.1, or for a contempt of
the court making the order. A finding of contempt shall not be a bar
to prosecution for a violation of Section 136.1. However, any person
so held in contempt shall be entitled to credit for any punishment
imposed therein against any sentence imposed upon conviction of an
offense described in Section 136.1. Any conviction or acquittal for
any substantive offense under Section 136.1 shall be a bar to a
subsequent punishment for contempt arising out of the same act.
(c) (1) Notwithstanding subdivisions (a) and (e), an emergency
protective order issued pursuant to Chapter 2 (commencing with
Section 6250) of Part 3 of Division 10 of the Family Code or Section
646.91 of the Penal Code shall have precedence in enforcement over
any other restraining or protective order, provided the emergency
protective order meets all of the following requirements:
(A) The emergency protective order is issued to protect one or
more individuals who are already protected persons under another
restraining or protective order.
(B) The emergency protective order restrains the individual who is
the restrained person in the other restraining or protective order
specified in subparagraph (A).
(C) The provisions of the emergency protective order are more
restrictive in relation to the restrained person than are the
provisions of the other restraining or protective order specified in
subparagraph (A).
(2) An emergency protective order that meets the requirements of
paragraph (1) shall have precedence in enforcement over the
provisions of any other restraining or protective order only with
respect to those provisions of the emergency protective order that
are more restrictive in relation to the restrained person.
(d) (1) A person subject to a protective order issued under this
section shall not own, possess, purchase, receive, or attempt to
purchase or receive a firearm while the protective order is in
effect.
(2) The court shall order a person subject to a protective order
issued under this section to relinquish any firearms he or she owns
or possesses pursuant to Section 527.9 of the Code of Civil
Procedure.
(3) Every person who owns, possesses, purchases or receives, or
attempts to purchase or receive a firearm while the protective order
is in effect is punishable pursuant to Section 29825.
(e) (1) In all cases where the defendant is charged with a crime
of domestic violence, as defined in Section 13700, the court shall
consider issuing the above-described orders on its own motion. All
interested parties shall receive a copy of those orders. In order to
facilitate this, the court's records of all criminal cases involving
domestic violence shall be marked to clearly alert the court to this
issue.
(2) In those cases in which a complaint, information, or
indictment charging a crime of domestic violence, as defined in
Section 13700, has been issued, a restraining order or protective
order against the defendant issued by the criminal court in that case
has precedence in enforcement over any civil court order against the
defendant, unless a court issues an emergency protective order
pursuant to Chapter 2 (commencing with Section 6250) of Part 3 of
Division 10 of the Family Code or Section 646.91 of the Penal Code,
in which case the emergency protective order shall have precedence in
enforcement over any other restraining or protective order, provided
the emergency protective order meets the following requirements:
(A) The emergency protective order is issued to protect one or
more individuals who are already protected persons under another
restraining or protective order.
(B) The emergency protective order restrains the individual who is
the restrained person in the other restraining or protective order
specified in subparagraph (A).
(C) The provisions of the emergency protective order are more
restrictive in relation to the restrained person than are the
provisions of the other restraining or protective order specified in
subparagraph (A).
(3) Custody and visitation with respect to the defendant and his
or her minor children may be ordered by a family or juvenile court
consistent with the protocol established pursuant to subdivision (f),
but if ordered after a criminal protective order has been issued
pursuant to this section, the custody and visitation order shall make
reference to, and acknowledge the precedence of enforcement of, any
appropriate criminal protective order. On or before July 1, 2006, the
Judicial Council shall modify the criminal and civil court forms
consistent with this subdivision.
(f) On or before January 1, 2003, the Judicial Council shall
promulgate a protocol, for adoption by each local court in
substantially similar terms, to provide for the timely coordination
of all orders against the same defendant and in favor of the same
named victim or victims. The protocol shall include, but shall not be
limited to, mechanisms for assuring appropriate communication and
information sharing between criminal, family, and juvenile courts
concerning orders and cases that involve the same parties, and shall
permit a family or juvenile court order to coexist with a criminal
court protective order subject to the following conditions:
(1) Any order that permits contact between the restrained person
and his or her children shall provide for the safe exchange of the
children and shall not contain language either printed or handwritten
that violates a "no contact order" issued by a criminal court.
(2) Safety of all parties shall be the courts' paramount concern.
The family or juvenile court shall specify the time, day, place, and
manner of transfer of the child, as provided in Section 3100 of the
Family Code.
(g) On or before January 1, 2003, the Judicial Council shall
modify the criminal and civil court protective order forms consistent
with this section.
(h) In any case in which a complaint, information, or indictment
charging a crime of domestic violence, as defined in Section 13700,
has been filed, the court may consider, in determining whether good
cause exists to issue an order under paragraph (1) of subdivision
(a), the underlying nature of the offense charged, and the
information provided to the court pursuant to Section 273.75.
SEC. 43. Section 139 of the Penal Code is amended to read:
139. (a) Except as provided in Sections 71 and 136.1, any person
who has been convicted of any felony offense specified in Chapter 3
(commencing with Section 29900) of Division 9 of Title 4 of Part 6
who willfully and maliciously communicates to a witness to, or a
victim of, the crime for which the person was convicted, a credible
threat to use force or violence upon that person or that person's
immediate family, shall be punished by imprisonment in the county
jail not exceeding one year or by imprisonment in the state prison
for two, three, or four years.
(b) Any person who is convicted of violating subdivision (a) who
subsequently is convicted of making a credible threat, as defined in
subdivision (c), which constitutes a threat against the life of, or a
threat to cause great bodily injury to, a person described in
subdivision (a), shall be sentenced to consecutive terms of
imprisonment as prescribed in Section 1170.13.
(c) As used in this section, "a credible threat" is a threat made
with the intent and the apparent ability to carry out the threat so
as to cause the target of the threat to reasonably fear for his or
her safety or the safety of his or her immediate family.
(d) The present incarceration of the person making the threat
shall not be a bar to prosecution under this section.
(e) As used in this section, "malice," "witness," and "victim"
have the meanings given in Section 136.
SEC. 44. Section 166 of the Penal Code is amended to read:
166. (a) Except as provided in subdivisions (b), (c), and (d),
every person guilty of any contempt of court, of any of the following
kinds, is guilty of a misdemeanor:
(1) Disorderly, contemptuous, or insolent behavior committed
during the sitting of any court of justice, in the immediate view and
presence of the court, and directly tending to interrupt its
proceedings or to impair the respect due to its authority.
(2) Behavior as specified in paragraph (1) committed in the
presence of any referee, while actually engaged in any trial or
hearing, pursuant to the order of any court, or in the presence of
any jury while actually sitting for the trial of a cause, or upon any
inquest or other proceedings authorized by law.
(3) Any breach of the peace, noise, or other disturbance directly
tending to interrupt the proceedings of any court.
(4) Willful disobedience of the terms as written of any process or
court order or out-of-state court order, lawfully issued by any
court, including orders pending trial.
(5) Resistance willfully offered by any person to the lawful order
or process of any court.
(6) The contumacious and unlawful refusal of any person to be
sworn as a witness or, when so sworn, the like refusal to answer any
material question.
(7) The publication of a false or grossly inaccurate report of the
proceedings of any court.
(8) Presenting to any court having power to pass sentence upon any
prisoner under conviction, or to any member of the court, any
affidavit or testimony or representation of any kind, verbal or
written, in aggravation or mitigation of the punishment to be imposed
upon the prisoner, except as provided in this code.
(b) (1) Any person who is guilty of contempt of court under
paragraph (4) of subdivision (a) by willfully contacting a victim by
telephone or mail, or directly, and who has been previously convicted
of a violation of Section 646.9 shall be punished by imprisonment in
a county jail for not more than one year, by a fine of five thousand
dollars ($5,000), or by both that fine and imprisonment.
(2) For the purposes of sentencing under this subdivision, each
contact shall constitute a separate violation of this subdivision.
(3) The present incarceration of a person who makes contact with a
victim in violation of paragraph (1) is not a defense to a violation
of this subdivision.
(c) (1) Notwithstanding paragraph (4) of subdivision (a), any
willful and knowing violation of any protective order or stay-away
court order issued pursuant to Section 136.2, in a pending criminal
proceeding involving domestic violence, as defined in Section 13700,
or issued as a condition of probation after a conviction in a
criminal proceeding involving domestic violence, as defined in
Section 13700, or elder or dependent adult abuse, as defined in
Section 368, or that is an order described in paragraph (3), shall
constitute contempt of court, a misdemeanor, punishable by
imprisonment in a county jail for not more than one year, by a fine
of not more than one thousand dollars ($1,000), or by both that
imprisonment and fine.
(2) If a violation of paragraph (1) results in a physical injury,
the person shall be imprisoned in a county jail for at least 48
hours, whether a fine or imprisonment is imposed, or the sentence is
suspended.
(3) Paragraphs (1) and (2) apply to the following court orders:
(A) Any order issued pursuant to Section 6320 or 6389 of the
Family Code.
(B) An order excluding one party from the family dwelling or from
the dwelling of the other.
(C) An order enjoining a party from specified behavior that the
court determined was necessary to effectuate the orders described in
paragraph (1).
(4) A second or subsequent conviction for a violation of any order
described in paragraph (1) occurring within seven years of a prior
conviction for a violation of any of those orders and involving an
act of violence or "a credible threat" of violence, as provided in
subdivisions (c) and (d) of Section 139, is punishable by
imprisonment in a county jail not to exceed one year, or in the state
prison for 16 months or two or three years.
(5) The prosecuting agency of each county shall have the primary
responsibility for the enforcement of the orders described in
paragraph (1).
(d) (1) A person who owns, possesses, purchases, or receives a
firearm knowing he or she is prohibited from doing so by the
provisions of a protective order as defined in Section 136.2 of this
code, Section 6218 of the Family Code, or Section 527.6 or 527.8 of
the Code of Civil Procedure, shall be punished under the provisions
of Section 29825.
(2) A person subject to a protective order described in paragraph
(1) shall not be prosecuted under this section for owning,
possessing, purchasing, or receiving a firearm to the extent that
firearm is granted an exemption pursuant to subdivision (h) of
Section 6389 of the Family Code.
(e) (1) If probation is granted upon conviction of a violation of
subdivision (c), the court shall impose probation consistent with
Section 1203.097.
(2) If probation is granted upon conviction of a violation of
subdivision (c), the conditions of probation may include, in lieu of
a fine, one or both of the following requirements:
(A) That the defendant make payments to a battered women's
shelter, up to a maximum of one thousand dollars ($1,000).
(B) That the defendant provide restitution to reimburse the victim
for reasonable costs of counseling and other reasonable expenses
that the court finds are the direct result of the defendant's
offense.
(3) For any order to pay a fine, make payments to a battered women'
s shelter, or pay restitution as a condition of probation under this
subdivision or subdivision (c), the court shall make a determination
of the defendant's ability to pay. In no event shall any order to
make payments to a battered women's shelter be made if it would
impair the ability of the defendant to pay direct restitution to the
victim or court-ordered child support.
(4) If the injury to a married person is caused in whole or in
part by the criminal acts of his or her spouse in violation of
subdivision (c), the community property may not be used to discharge
the liability of the offending spouse for restitution to the injured
spouse required by Section 1203.04, as operative on or before August
2, 1995, or Section 1202.4, or to a shelter for costs with regard to
the injured spouse and dependents required by this subdivision, until
all separate property of the offending spouse is exhausted.
(5) Any person violating any order described in subdivision (c)
may be punished for any substantive offenses described under Section
136.1 or 646.9. No finding of contempt shall be a bar to prosecution
for a violation of Section 136.1 or 646.9. However, any person held
in contempt for a violation of subdivision (c) shall be entitled to
credit for any punishment imposed as a result of that violation
against any sentence imposed upon conviction of an offense described
in Section 136.1 or 646.9. Any conviction or acquittal for any
substantive offense under Section 136.1 or 646.9 shall be a bar to a
subsequent punishment for contempt arising out of the same act.
SEC. 45. Section 171b of the Penal Code is amended to read:
171b. (a) Any person who brings or possesses within any state or
local public building or at any meeting required to be open to the
public pursuant to Chapter 9 (commencing with Section 54950) of Part
1 of Division 2 of Title 5 of, or Article 9 (commencing with Section
11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of, the
Government Code, any of the following is guilty of a public offense
punishable by imprisonment in a county jail for not more than one
year, or in the state prison:
(1) Any firearm.
(2) Any deadly weapon described in Section 17235 or in any
provision listed in Section 16590.
(3) Any knife with a blade length in excess of four inches, the
blade of which is fixed or is capable of being fixed in an unguarded
position by the use of one or two hands.
(4) Any unauthorized tear gas weapon.
(5) Any taser or stun gun, as defined in Section 244.5.
(6) Any instrument that expels a metallic projectile, such as a BB
or pellet, through the force of air pressure, CO2 pressure, or
spring action, or any spot marker gun or paint gun.
(b) Subdivision (a) shall not apply to, or affect, any of the
following:
(1) A person who possesses weapons in, or transports weapons into,
a court of law to be used as evidence.
(2) (A) A duly appointed peace officer as defined in Chapter 4.5
(commencing with Section 830) of Title 3 of Part 2, a retired peace
officer with authorization to carry concealed weapons as described in
Article 2 (commencing with Section 25450) of Chapter 2 of Division 5
of Title 4 of Part 6, a full-time paid peace officer of another
state or the federal government who is carrying out official duties
while in California, or any person summoned by any of these officers
to assist in making arrests or preserving the peace while he or she
is actually engaged in assisting the officer.
(B) Notwithstanding subparagraph (A), subdivision (a) shall apply
to any person who brings or possesses any weapon specified therein
within any courtroom if he or she is a party to an action pending
before the court.
(3) A person holding a valid license to carry the firearm pursuant
to Chapter 4 (commencing with Section 26150) of Division 5 of Title
4 of Part 6.
(4) A person who has permission to possess that weapon granted in
writing by a duly authorized official who is in charge of the
security of the state or local government building.
(5) A person who lawfully resides in, lawfully owns, or is in
lawful possession of, that building with respect to those portions of
the building that are not owned or leased by the state or local
government.
(6) A person licensed or registered in accordance with, and acting
within the course and scope of, Chapter 11.5 (commencing with
Section 7512) or Chapter 11.6 (commencing with Section 7590) of
Division 3 of the Business and Professions Code who has been hired by
the owner or manager of the building if the person has permission
pursuant to paragraph (5).
(7) (A) A person who, for the purpose of sale or trade, brings any
weapon that may otherwise be lawfully transferred, into a gun show
conducted pursuant to Article 1 (commencing with Section 27200) and
Article 2 (commencing with Section 27300) of Chapter 3 of Division 6
of Title 4 of Part 6.
(B) A person who, for purposes of an authorized public exhibition,
brings any weapon that may otherwise be lawfully possessed, into a
gun show conducted pursuant to Article 1 (commencing with Section
27200) and Article 2 (commencing with Section 27300) of Chapter 3 of
Division 6 of Title 4 of Part 6.
(c) As used in this section, "state or local public building"
means a building that meets all of the following criteria:
(1) It is a building or part of a building owned or leased by the
state or local government, if state or local public employees are
regularly present for the purposes of performing their official
duties. A state or local public building includes, but is not limited
to, a building that contains a courtroom.
(2) It is not a building or facility, or a part thereof, that is
referred to in Section 171c, 171d, 626.9, 626.95, or 626.10 of this
code, or in Section 18544 of the Elections Code.
(3) It is a building not regularly used, and not intended to be
used, by state or local employees as a place of residence.
SEC. 46. Section 171c of the Penal Code is amended to read:
171c. Any person, except a duly appointed peace officer as
defined in Chapter 4.5 (commencing with Section 830) of Title 3 of
Part 2, a full-time paid peace officer of another state or the
federal government who is carrying out official duties while in
California, any person summoned by one of those officers to assist in
making arrests or preserving the peace while actually engaged in
assisting that officer, a member of the military forces of this state
or the United States engaged in the performance of that person's
duties, or a person holding a valid license to carry the firearm
pursuant to Chapter 4 (commencing with Section 26150) of Division 5
of Title 4 of Part 6, who brings a loaded firearm into, or possesses
a loaded firearm within, the State Capitol, any legislative office,
any office of the Governor or other constitutional officer, or any
hearing room in which any committee of the Senate or Assembly is
conducting a hearing, or upon the grounds of the State Capitol, which
is bounded by 10th, L, 15th, and N Streets in the City of
Sacramento, shall be punished by imprisonment in the county jail for
a period of not more than one year, a fine of not more than one
thousand dollars ($1,000), or both that imprisonment and fine, or by
imprisonment in the state prison.
SEC. 47. Section 171d of the Penal Code is amended to read:
171d. Any person, except a duly appointed peace officer as
defined in Chapter 4.5 (commencing with Section 830) of Title 3 of
Part 2, a full-time paid peace officer of another state or the
federal government who is carrying out official duties while in
California, any person summoned by that officer to assist in making
arrests or preserving the peace while he or she is actually engaged
in assisting the officer, a member of the military forces of this
state or of the United States engaged in the performance of his
or her duties, a person
holding a valid license to carry the firearm pursuant to Chapter 4
(commencing with Section 26150) of Division 5 of Title 4 of Part 6,
the Governor or a member of his or her immediate family or a person
acting with his or her permission with respect to the Governor's
Mansion or any other residence of the Governor, any other
constitutional officer or a member of his or her immediate family or
a person acting with his or her permission with respect to the
officer's residence, or a Member of the Legislature or a member of
his or her immediate family or a person acting with his or her
permission with respect to the Member's residence, shall be punished
by imprisonment in a county jail for not more than one year, by fine
of not more than one thousand dollars ($1,000), or by both the fine
and imprisonment, or by imprisonment in the state prison, if he or
she does any of the following:
(a) Brings a loaded firearm into, or possesses a loaded firearm
within, the Governor's Mansion, or any other residence of the
Governor, the residence of any other constitutional officer, or the
residence of any Member of the Legislature.
(b) Brings a loaded firearm upon, or possesses a loaded firearm
upon, the grounds of the Governor's Mansion or any other residence of
the Governor, the residence of any other constitutional officer, or
the residence of any Member of the Legislature.
SEC. 48. Section 171.5 of the Penal Code is amended to read:
171.5. (a) For purposes of this section:
(1) "Airport" means an airport, with a secured area, that
regularly serves an air carrier holding a certificate issued by the
United States Secretary of Transportation.
(2) "Passenger vessel terminal" means only that portion of a
harbor or port facility, as described in Section 105.105(a)(2) of
Title 33 of the Code of Federal Regulations, with a secured area that
regularly serves scheduled commuter or passenger operations.
(3) "Sterile area" means a portion of an airport defined in the
airport security program to which access generally is controlled
through the screening of persons and property, as specified in
Section 1540.5 of Title 49 of the Code of Federal Regulations, or a
portion of any passenger vessel terminal to which, pursuant to the
requirements set forth in Sections 105.255(a)(1), 105.255(c)(1), and
105.260(a) of Title 33 of the Code of Federal Regulations, access is
generally controlled in a manner consistent with the passenger vessel
terminal's security plan and the MARSEC level in effect at the time.
(b) It is unlawful for any person to knowingly possess, within any
sterile area of an airport or a passenger vessel terminal, any of
the items listed in subdivision (c).
(c) The following items are unlawful to possess as provided in
subdivision (b):
(1) Any firearm.
(2) Any knife with a blade length in excess of four inches, the
blade of which is fixed, or is capable of being fixed, in an
unguarded position by the use of one or two hands.
(3) Any box cutter or straight razor.
(4) Any metal military practice hand grenade.
(5) Any metal replica hand grenade.
(6) Any plastic replica hand grenade.
(7) Any imitation firearm as defined in Section 417.4.
(8) Any frame, receiver, barrel, or magazine of a firearm.
(9) Any unauthorized tear gas weapon.
(10) Any taser or stun gun, as defined in Section 244.5.
(11) Any instrument that expels a metallic projectile, such as a
BB or pellet, through the force of air pressure, CO2 pressure, or
spring action, or any spot marker gun or paint gun.
(12) Any ammunition as defined in Section 16150.
(d) Subdivision (b) shall not apply to, or affect, any of the
following:
(1) A duly appointed peace officer, as defined in Chapter 4.5
(commencing with Section 830) of Title 3 of Part 2, a retired peace
officer with authorization to carry concealed weapons as described in
Article 2 (commencing with Section 25450) of Chapter 2 of Division 5
of Title 4 of Part 6, a full-time paid peace officer of another
state or the federal government who is carrying out official duties
while in California, or any person summoned by any of these officers
to assist in making arrests or preserving the peace while he or she
is actually engaged in assisting the officer.
(2) A person who has authorization to possess a weapon specified
in subdivision (c), granted in writing by an airport security
coordinator who is designated as specified in Section 1542.3 of Title
49 of the Code of Federal Regulations, and who is responsible for
the security of the airport.
(3) A person, including an employee of a licensed contract guard
service, who has authorization to possess a weapon specified in
subdivision (c) granted in writing by a person discharging the duties
of Facility Security Officer or Company Security Officer pursuant to
an approved United States Coast Guard facility security plan, and
who is responsible for the security of the passenger vessel terminal.
(e) A violation of this section is punishable by imprisonment in a
county jail for a period not exceeding six months, or by a fine not
exceeding one thousand dollars ($1,000), or by both that fine and
imprisonment.
(f) The provisions of this section are cumulative, and shall not
be construed as restricting the application of any other law.
However, an act or omission that is punishable in different ways by
this and any other provision of law shall not be punished under more
than one provision.
(g) Nothing in this section is intended to affect existing state
or federal law regarding the transportation of firearms on airplanes
in checked luggage, or the possession of the items listed in
subdivision (c) in areas that are not "sterile areas."
SEC. 49. Section 186.22 of the Penal Code, as added by Section 2
of Chapter 171 of the Statutes of 2009, is amended to read:
186.22. (a) Any person who actively participates in any criminal
street gang with knowledge that its members engage in or have engaged
in a pattern of criminal gang activity, and who willfully promotes,
furthers, or assists in any felonious criminal conduct by members of
that gang, shall be punished by imprisonment in a county jail for a
period not to exceed one year, or by imprisonment in the state prison
for 16 months, or two or three years.
(b) (1) Except as provided in paragraphs (4) and (5), any person
who is convicted of a felony committed for the benefit of, at the
direction of, or in association with any criminal street gang, with
the specific intent to promote, further, or assist in any criminal
conduct by gang members, shall, upon conviction of that felony, in
addition and consecutive to the punishment prescribed for the felony
or attempted felony of which he or she has been convicted, be
punished as follows:
(A) Except as provided in subparagraphs (B) and (C), the person
shall be punished by an additional term of two, three, or four years
at the court's discretion.
(B) If the felony is a serious felony, as defined in subdivision
(c) of Section 1192.7, the person shall be punished by an additional
term of five years.
(C) If the felony is a violent felony, as defined in subdivision
(c) of Section 667.5, the person shall be punished by an additional
term of 10 years.
(2) If the underlying felony described in paragraph (1) is
committed on the grounds of, or within 1,000 feet of, a public or
private elementary, vocational, junior high, or high school, during
hours in which the facility is open for classes or school-related
programs or when minors are using the facility, that fact shall be a
circumstance in aggravation of the crime in imposing a term under
paragraph (1).
(3) The court shall order the imposition of the middle term of the
sentence enhancement, unless there are circumstances in aggravation
or mitigation. The court shall state the reasons for its choice of
sentencing enhancements on the record at the time of the sentencing.
(4) Any person who is convicted of a felony enumerated in this
paragraph committed for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific intent
to promote, further, or assist in any criminal conduct by gang
members, shall, upon conviction of that felony, be sentenced to an
indeterminate term of life imprisonment with a minimum term of the
indeterminate sentence calculated as the greater of:
(A) The term determined by the court pursuant to Section 1170 for
the underlying conviction, including any enhancement applicable under
Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or
any period prescribed by Section 3046, if the felony is any of the
offenses enumerated in subparagraph (B) or (C) of this paragraph.
(B) Imprisonment in the state prison for 15 years, if the felony
is a home invasion robbery, in violation of subparagraph (A) of
paragraph (1) of subdivision (a) of Section 213; carjacking, as
defined in Section 215; a felony violation of Section 246; or a
violation of Section 12022.55.
(C) Imprisonment in the state prison for seven years, if the
felony is extortion, as defined in Section 519; or threats to victims
and witnesses, as defined in Section 136.1.
(5) Except as provided in paragraph (4), any person who violates
this subdivision in the commission of a felony punishable by
imprisonment in the state prison for life shall not be paroled until
a minimum of 15 calendar years have been served.
(c) If the court grants probation or suspends the execution of
sentence imposed upon the defendant for a violation of subdivision
(a), or in cases involving a true finding of the enhancement
enumerated in subdivision (b), the court shall require that the
defendant serve a minimum of 180 days in a county jail as a condition
thereof.
(d) Any person who is convicted of a public offense punishable as
a felony or a misdemeanor, which is committed for the benefit of, at
the direction of or in association with, any criminal street gang
with the specific intent to promote, further, or assist in any
criminal conduct by gang members, shall be punished by imprisonment
in the county jail not to exceed one year, or by imprisonment in the
state prison for one, two, or three years, provided that any person
sentenced to imprisonment in the county jail shall be imprisoned for
a period not to exceed one year, but not less than 180 days, and
shall not be eligible for release upon completion of sentence,
parole, or any other basis, until he or she has served 180 days. If
the court grants probation or suspends the execution of sentence
imposed upon the defendant, it shall require as a condition thereof
that the defendant serve 180 days in a county jail.
(e) As used in this chapter, "pattern of criminal gang activity"
means the commission of, attempted commission of, conspiracy to
commit, or solicitation of, sustained juvenile petition for, or
conviction of two or more of the following offenses, provided at
least one of these offenses occurred after the effective date of this
chapter and the last of those offenses occurred within three years
after a prior offense, and the offenses were committed on separate
occasions, or by two or more persons:
(1) Assault with a deadly weapon or by means of force likely to
produce great bodily injury, as defined in Section 245.
(2) Robbery, as defined in Chapter 4 (commencing with Section 211)
of Title 8 of Part 1.
(3) Unlawful homicide or manslaughter, as defined in Chapter 1
(commencing with Section 187) of Title 8 of Part 1.
(4) The sale, possession for sale, transportation, manufacture,
offer for sale, or offer to manufacture controlled substances as
defined in Sections 11054, 11055, 11056, 11057, and 11058 of the
Health and Safety Code.
(5) Shooting at an inhabited dwelling or occupied motor vehicle,
as defined in Section 246.
(6) Discharging or permitting the discharge of a firearm from a
motor vehicle, as defined in subdivisions (a) and (b) of Section
26100.
(7) Arson, as defined in Chapter 1 (commencing with Section 450)
of Title 13.
(8) The intimidation of witnesses and victims, as defined in
Section 136.1.
(9) Grand theft, as defined in subdivision (a) or (c) of Section
487.
(10) Grand theft of any firearm, vehicle, trailer, or vessel.
(11) Burglary, as defined in Section 459.
(12) Rape, as defined in Section 261.
(13) Looting, as defined in Section 463.
(14) Money laundering, as defined in Section 186.10.
(15) Kidnapping, as defined in Section 207.
(16) Mayhem, as defined in Section 203.
(17) Aggravated mayhem, as defined in Section 205.
(18) Torture, as defined in Section 206.
(19) Felony extortion, as defined in Sections 518 and 520.
(20) Felony vandalism, as defined in paragraph (1) of subdivision
(b) of Section 594.
(21) Carjacking, as defined in Section 215.
(22) The sale, delivery, or transfer of a firearm, as defined in
Article 1 (commencing with Section 27500) of Chapter 4 of Division 6
of Title 4 of Part 6.
(23) Possession of a pistol, revolver, or other firearm capable of
being concealed upon the person in violation of Section 29610.
(24) Threats to commit crimes resulting in death or great bodily
injury, as defined in Section 422.
(25) Theft and unlawful taking or driving of a vehicle, as defined
in Section 10851 of the Vehicle Code.
(26) Felony theft of an access card or account information, as
defined in Section 484e.
(27) Counterfeiting, designing, using, attempting to use an access
card, as defined in Section 484f.
(28) Felony fraudulent use of an access card or account
information, as defined in Section 484g.
(29) Unlawful use of personal identifying information to obtain
credit, goods, services, or medical information, as defined in
Section 530.5.
(30) Wrongfully obtaining Department of Motor Vehicles
documentation, as defined in Section 529.7.
(31) Prohibited possession of a firearm in violation of Chapter 2
(commencing with Section 29800) of Division 9 of Title 4 of Part 6.
(32) Carrying a concealed firearm in violation of Section 25400.
(33) Carrying a loaded firearm in violation of Section 25850.
(f) As used in this chapter, "criminal street gang" means any
ongoing organization, association, or group of three or more persons,
whether formal or informal, having as one of its primary activities
the commission of one or more of the criminal acts enumerated in
paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of
subdivision (e), having a common name or common identifying sign or
symbol, and whose members individually or collectively engage in or
have engaged in a pattern of criminal gang activity.
(g) Notwithstanding any other law, the court may strike the
additional punishment for the enhancements provided in this section
or refuse to impose the minimum jail sentence for misdemeanors in an
unusual case where the interests of justice would best be served, if
the court specifies on the record and enters into the minutes the
circumstances indicating that the interests of justice would best be
served by that disposition.
(h) Notwithstanding any other provision of law, for each person
committed to the Division of Juvenile Facilities for a conviction
pursuant to subdivision (a) or (b) of this section, the offense shall
be deemed one for which the state shall pay the rate of 100 percent
of the per capita institutional cost of the Division of Juvenile
Facilities, pursuant to Section 912.5 of the Welfare and Institutions
Code.
(i) In order to secure a conviction or sustain a juvenile
petition, pursuant to subdivision (a) it is not necessary for the
prosecution to prove that the person devotes all, or a substantial
part, of his or her time or efforts to the criminal street gang, nor
is it necessary to prove that the person is a member of the criminal
street gang. Active participation in the criminal street gang is all
that is required.
(j) A pattern of gang activity may be shown by the commission of
one or more of the offenses enumerated in paragraphs (26) to (30),
inclusive, of subdivision (e), and the commission of one or more of
the offenses enumerated in paragraphs (1) to (25), inclusive, or (31)
to (33), inclusive of subdivision (e). A pattern of gang activity
cannot be established solely by proof of commission of offenses
enumerated in paragraphs (26) to (30), inclusive, of subdivision (e),
alone.
(k) This section shall become operative on January 1, 2011.
SEC. 50. Section 186.22a of the Penal Code is amended to read:
186.22a. (a) Every building or place used by members of a
criminal street gang for the purpose of the commission of the
offenses listed in subdivision (e) of Section 186.22 or any offense
involving dangerous or deadly weapons, burglary, or rape, and every
building or place wherein or upon which that criminal conduct by gang
members takes place, is a nuisance which shall be enjoined, abated,
and prevented, and for which damages may be recovered, whether it is
a public or private nuisance.
(b) Any action for injunction or abatement filed pursuant to
subdivision (a), including an action filed by the Attorney General,
shall proceed according to the provisions of Article 3 (commencing
with Section 11570) of Chapter 10 of Division 10 of the Health and
Safety Code, except that all of the following shall apply:
(1) The court shall not assess a civil penalty against any person
unless that person knew or should have known of the unlawful acts.
(2) No order of eviction or closure may be entered.
(3) All injunctions issued shall be limited to those necessary to
protect the health and safety of the residents or the public or those
necessary to prevent further criminal activity.
(4) Suit may not be filed until 30-day notice of the unlawful use
or criminal conduct has been provided to the owner by mail, return
receipt requested, postage prepaid, to the last known address.
(c) Whenever an injunction is issued pursuant to subdivision (a),
or Section 3479 of the Civil Code, to abate gang activity
constituting a nuisance, the Attorney General or any district
attorney or any prosecuting city attorney may maintain an action for
money damages on behalf of the community or neighborhood injured by
that nuisance. Any money damages awarded shall be paid by or
collected from assets of the criminal street gang or its members.
Only members of the criminal street gang who created, maintained, or
contributed to the creation or maintenance of the nuisance shall be
personally liable for the payment of the damages awarded. In a civil
action for damages brought pursuant to this subdivision, the Attorney
General, district attorney, or city attorney may use, but is not
limited to the use of, the testimony of experts to establish damages
suffered by the community or neighborhood injured by the nuisance.
The damages recovered pursuant to this subdivision shall be deposited
into a separate segregated fund for payment to the governing body of
the city or county in whose political subdivision the community or
neighborhood is located, and that governing body shall use those
assets solely for the benefit of the community or neighborhood that
has been injured by the nuisance.
(d) No nonprofit or charitable organization which is conducting
its affairs with ordinary care or skill, and no governmental entity,
shall be abated pursuant to subdivisions (a) and (b).
(e) Nothing in this chapter shall preclude any aggrieved person
from seeking any other remedy provided by law.
(f) (1) Any firearm, ammunition which may be used with the
firearm, or any deadly or dangerous weapon which is owned or
possessed by a member of a criminal street gang for the purpose of
the commission of any of the offenses listed in subdivision (e) of
Section 186.22, or the commission of any burglary or rape, may be
confiscated by any law enforcement agency or peace officer.
(2) In those cases where a law enforcement agency believes that
the return of the firearm, ammunition, or deadly weapon confiscated
pursuant to this subdivision, is or will be used in criminal street
gang activity or that the return of the item would be likely to
result in endangering the safety of others, the law enforcement
agency shall initiate a petition in the superior court to determine
if the item confiscated should be returned or declared a nuisance.
(3) No firearm, ammunition, or deadly weapon shall be sold or
destroyed unless reasonable notice is given to its lawful owner if
his or her identity and address can be reasonably ascertained. The
law enforcement agency shall inform the lawful owner, at that person'
s last known address by registered mail, that he or she has 30 days
from the date of receipt of the notice to respond to the court clerk
to confirm his or her desire for a hearing and that the failure to
respond shall result in a default order forfeiting the confiscated
firearm, ammunition, or deadly weapon as a nuisance.
(4) If the person requests a hearing, the court clerk shall set a
hearing no later than 30 days from receipt of that request. The court
clerk shall notify the person, the law enforcement agency involved,
and the district attorney of the date, time, and place of the
hearing.
(5) At the hearing, the burden of proof is upon the law
enforcement agency or peace officer to show by a preponderance of the
evidence that the seized item is or will be used in criminal street
gang activity or that return of the item would be likely to result in
endangering the safety of others. All returns of firearms shall be
subject to Chapter 2 (commencing with Section 33850) of Division 11
of Title 4 of Part 6.
(6) If the person does not request a hearing within 30 days of the
notice or the lawful owner cannot be ascertained, the law
enforcement agency may file a petition that the confiscated firearm,
ammunition, or deadly weapon be declared a nuisance. If the items are
declared to be a nuisance, the law enforcement agency shall dispose
of the items as provided in Sections 18000 and 18005.
SEC. 51. Section 189 of the Penal Code is amended to read:
189. All murder which is perpetrated by means of a destructive
device or explosive, a weapon of mass destruction, knowing use of
ammunition designed primarily to penetrate metal or armor, poison,
lying in wait, torture, or by any other kind of willful, deliberate,
and premeditated killing, or which is committed in the perpetration
of, or attempt to perpetrate, arson, rape, carjacking, robbery,
burglary, mayhem, kidnapping, train wrecking, or any act punishable
under Section 206, 286, 288, 288a, or 289, or any murder which is
perpetrated by means of discharging a firearm from a motor vehicle,
intentionally at another person outside of the vehicle with the
intent to inflict death, is murder of the first degree. All other
kinds of murders are of the second degree.
As used in this section, "destructive device" means any
destructive device as defined in Section 16460, and "explosive" means
any explosive as defined in Section 12000 of the Health and Safety
Code.
As used in this section, "weapon of mass destruction" means any
item defined in Section 11417.
To prove the killing was "deliberate and premeditated," it shall
not be necessary to prove the defendant maturely and meaningfully
reflected upon the gravity of his or her act.
SEC. 52. Section 244.5 of the Penal Code is amended to read:
244.5. (a) As used in this section, "stun gun" means any item,
except a less lethal weapon, as defined in Section 16780, 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.
(b) Every person who commits an assault upon the person of another
with a stun gun or less lethal weapon, as defined in Section 16780,
shall be punished by imprisonment in a county jail for a term not
exceeding one year, or by imprisonment in the state prison for 16
months, two, or three years.
(c) Every person who commits an assault upon the person of a peace
officer or firefighter with a stun gun or less lethal weapon, as
defined in Section 16780, who knows or reasonably should know that
the person is a peace officer or firefighter engaged in the
performance of his or her duties, when the peace officer or
firefighter is engaged in the performance of his or her duties, shall
be punished by imprisonment in the county jail for a term not
exceeding one year, or by imprisonment in the state prison for two,
three, or four years.
(d) This section shall not be construed to preclude or in any way
limit the applicability of Section 245 in any criminal prosecution.
SEC. 53. Section 245 of the Penal Code is amended to read:
245. (a) (1) Any person who commits an assault upon the person of
another with a deadly weapon or instrument other than a firearm or
by any means of force likely to produce great bodily injury shall be
punished by imprisonment in the state prison for two, three, or four
years, or in a county jail for not exceeding one year, or by a fine
not exceeding ten thousand dollars ($10,000), or by both the fine and
imprisonment.
(2) Any person who commits an assault upon the person of another
with a firearm shall be punished by imprisonment in the state prison
for two, three, or four years, or in a county jail for not less than
six months and not exceeding one year, or by both a fine not
exceeding ten thousand dollars ($10,000) and imprisonment.
(3) Any person who commits an assault upon the person of another
with a machinegun, as defined in Section 16880, or an assault weapon,
as defined in Section 30510 or 30515, or a .50 BMG rifle, as defined
in Section 30530, shall be punished by imprisonment in the state
prison for 4, 8, or 12 years.
(b) Any person who commits an assault upon the person of another
with a semiautomatic firearm shall be punished by imprisonment in the
state prison for three, six, or nine years.
(c) Any person who commits an assault with a deadly weapon or
instrument, other than a firearm, or by any means likely to produce
great bodily injury upon the person of a peace officer or
firefighter, and who knows or reasonably should know that the victim
is a peace officer or firefighter engaged in the performance of his
or her duties, when the peace officer or firefighter is engaged in
the performance of his or her duties, shall be punished by
imprisonment in the state prison for three, four, or five years.
(d) (1) Any person who commits an assault with a firearm upon the
person of a peace officer or firefighter, and who knows or reasonably
should know that the victim is a peace officer or firefighter
engaged in the performance of his
or her duties, when the peace officer or firefighter is engaged
in the performance of his or her duties, shall be punished by
imprisonment in the state prison for four, six, or eight years.
(2) Any person who commits an assault upon the person of a peace
officer or firefighter with a semiautomatic firearm and who knows or
reasonably should know that the victim is a peace officer or
firefighter engaged in the performance of his or her duties, when the
peace officer or firefighter is engaged in the performance of his or
her duties, shall be punished by imprisonment in the state prison
for five, seven, or nine years.
(3) Any person who commits an assault with a machinegun, as
defined in Section 16880, or an assault weapon, as defined in Section
30510 or 30515, or a .50 BMG rifle, as defined in Section 30530,
upon the person of a peace officer or firefighter, and who knows or
reasonably should know that the victim is a peace officer or
firefighter engaged in the performance of his or her duties, shall be
punished by imprisonment in the state prison for 6, 9, or 12 years.
(e) When a person is convicted of a violation of this section in a
case involving use of a deadly weapon or instrument or firearm, and
the weapon or instrument or firearm is owned by that person, the
court shall order that the weapon or instrument or firearm be deemed
a nuisance, and it shall be confiscated and disposed of in the manner
provided by Sections 18000 and 18005.
(f) As used in this section, "peace officer" refers to any person
designated as a peace officer in Chapter 4.5 (commencing with Section
830) of Title 3 of Part 2.
SEC. 54. Section 245.3 of the Penal Code is amended to read:
245.3. Every person who commits an assault with a deadly weapon
or instrument or by any means likely to produce great bodily injury
upon the person of a custodial officer as defined in Section 831 or
831.5, and who knows or reasonably should know that the victim is a
custodial officer engaged in the performance of that person's duties,
shall be punished by imprisonment in the state prison for three,
four, or five years.
When a person is convicted of a violation of this section in a
case involving use of a deadly weapon or instrument, and such weapon
or instrument is owned by that person, the court may, in its
discretion, order that the weapon or instrument be deemed a nuisance
and shall be confiscated and destroyed in the manner provided by
Sections 18000 and 18005.
SEC. 55. Section 273.6 of the Penal Code is amended to read:
273.6. (a) Any intentional and knowing violation of a protective
order, as defined in Section 6218 of the Family Code, or of an order
issued pursuant to Section 527.6, 527.8, or 527.85 of the Code of
Civil Procedure, or Section 15657.03 of the Welfare and Institutions
Code, is a misdemeanor punishable by a fine of not more than one
thousand dollars ($1,000), or by imprisonment in a county jail for
not more than one year, or by both that fine and imprisonment.
(b) In the event of a violation of subdivision (a) that results in
physical injury, the person shall be punished by a fine of not more
than two thousand dollars ($2,000), or by imprisonment in a county
jail for not less than 30 days nor more than one year, or by both
that fine and imprisonment. However, if the person is imprisoned in a
county jail for at least 48 hours, the court may, in the interest of
justice and for reasons stated on the record, reduce or eliminate
the 30-day minimum imprisonment required by this subdivision. In
determining whether to reduce or eliminate the minimum imprisonment
pursuant to this subdivision, the court shall consider the
seriousness of the facts before the court, whether there are
additional allegations of a violation of the order during the
pendency of the case before the court, the probability of future
violations, the safety of the victim, and whether the defendant has
successfully completed or is making progress with counseling.
(c) Subdivisions (a) and (b) shall apply to the following court
orders:
(1) Any order issued pursuant to Section 6320 or 6389 of the
Family Code.
(2) An order excluding one party from the family dwelling or from
the dwelling of the other.
(3) An order enjoining a party from specified behavior that the
court determined was necessary to effectuate the order described in
subdivision (a).
(4) Any order issued by another state that is recognized under
Part 5 (commencing with Section 6400) of Division 10 of the Family
Code.
(d) A subsequent conviction for a violation of an order described
in subdivision (a), occurring within seven years of a prior
conviction for a violation of an order described in subdivision (a)
and involving an act of violence or "a credible threat" of violence,
as defined in subdivision (c) of Section 139, is punishable by
imprisonment in a county jail not to exceed one year, or in the state
prison.
(e) In the event of a subsequent conviction for a violation of an
order described in subdivision (a) for an act occurring within one
year of a prior conviction for a violation of an order described in
subdivision (a) that results in physical injury to a victim, the
person shall be punished by a fine of not more than two thousand
dollars ($2,000), or by imprisonment in a county jail for not less
than six months nor more than one year, by both that fine and
imprisonment, or by imprisonment in the state prison. However, if the
person is imprisoned in a county jail for at least 30 days, the
court may, in the interest of justice and for reasons stated in the
record, reduce or eliminate the six-month minimum imprisonment
required by this subdivision. In determining whether to reduce or
eliminate the minimum imprisonment pursuant to this subdivision, the
court shall consider the seriousness of the facts before the court,
whether there are additional allegations of a violation of the order
during the pendency of the case before the court, the probability of
future violations, the safety of the victim, and whether the
defendant has successfully completed or is making progress with
counseling.
(f) The prosecuting agency of each county shall have the primary
responsibility for the enforcement of orders described in
subdivisions (a), (b), (d), and (e).
(g) (1) Every person who owns, possesses, purchases, or receives a
firearm knowing he or she is prohibited from doing so by the
provisions of a protective order as defined in Section 136.2 of this
code, Section 6218 of the Family Code, or Section 527.6 or 527.8 of
the Code of Civil Procedure, or Section 15657.03 of the Welfare and
Institutions Code, shall be punished under Section 29825.
(2) Every person subject to a protective order described in
paragraph (1) shall not be prosecuted under this section for owning,
possessing, purchasing, or receiving a firearm to the extent that
firearm is granted an exemption pursuant to subdivision (f) of
Section 527.9 of the Code of Civil Procedure, or subdivision (h) of
Section 6389 of the Family Code.
(h) If probation is granted upon conviction of a violation of
subdivision (a), (b), (c), (d), or (e), the court shall impose
probation consistent with Section 1203.097, and the conditions of
probation may include, in lieu of a fine, one or both of the
following requirements:
(1) That the defendant make payments to a battered women's shelter
or to a shelter for abused elder persons or dependent adults, up to
a maximum of five thousand dollars ($5,000), pursuant to Section
1203.097.
(2) That the defendant reimburse the victim for reasonable costs
of counseling and other reasonable expenses that the court finds are
the direct result of the defendant's offense.
(i) For any order to pay a fine, make payments to a battered women'
s shelter, or pay restitution as a condition of probation under
subdivision (e), the court shall make a determination of the
defendant's ability to pay. In no event shall any order to make
payments to a battered women's shelter be made if it would impair the
ability of the defendant to pay direct restitution to the victim or
court-ordered child support. Where the injury to a married person is
caused in whole or in part by the criminal acts of his or her spouse
in violation of this section, the community property may not be used
to discharge the liability of the offending spouse for restitution to
the injured spouse, required by Section 1203.04, as operative on or
before August 2, 1995, or Section 1202.4, or to a shelter for costs
with regard to the injured spouse and dependents, required by this
section, until all separate property of the offending spouse is
exhausted.
SEC. 56. Section 417.4 of the Penal Code is amended to read:
417.4. Every person who, except in self-defense, draws or
exhibits an imitation firearm, as defined in subdivision (a) of
Section 16700, in a threatening manner against another in such a way
as to cause a reasonable person apprehension or fear of bodily harm
is guilty of a misdemeanor punishable by imprisonment in a county
jail for a term of not less than 30 days.
SEC. 57. Section 417.6 of the Penal Code is amended to read:
417.6. (a) If, in the commission of a violation of Section 417 or
417.8, serious bodily injury is intentionally inflicted by the
person drawing or exhibiting the firearm or deadly weapon, the
offense shall be punished by imprisonment in the county jail not
exceeding one year or by imprisonment in the state prison.
(b) As used in this section, "serious bodily injury" means a
serious impairment of physical condition, including, but not limited
to, the following: loss of consciousness; concussion; bone fracture;
protracted loss or impairment of function of any bodily member or
organ; a wound requiring extensive suturing; and serious
disfigurement.
(c) When a person is convicted of a violation of Section 417 or
417.8 and the deadly weapon or firearm used by the person is owned by
that person, the court shall order that the weapon or firearm be
deemed a nuisance and disposed of in the manner provided by Sections
18000 and 18005.
SEC. 58. Section 538d of the Penal Code is amended to read:
538d. (a) Any person other than one who by law is given the
authority of a peace officer, who willfully wears, exhibits, or uses
the authorized uniform, insignia, emblem, device, label, certificate,
card, or writing, of a peace officer, with the intent of
fraudulently impersonating a peace officer, or of fraudulently
inducing the belief that he or she is a peace officer, is guilty of a
misdemeanor.
(b) (1) Any person, other than the one who by law is given the
authority of a peace officer, who willfully wears, exhibits, or uses
the badge of a peace officer with the intent of fraudulently
impersonating a peace officer, or of fraudulently inducing the belief
that he or she is a peace officer, is guilty of a misdemeanor
punishable by imprisonment in a county jail not to exceed one year,
by a fine not to exceed two thousand dollars ($2,000), or by both
that imprisonment and fine.
(2) Any person who willfully wears or uses any badge that falsely
purports to be authorized for the use of one who by law is given the
authority of a peace officer, or which so resembles the authorized
badge of a peace officer as would deceive any ordinary reasonable
person into believing that it is authorized for the use of one who by
law is given the authority of a peace officer, for the purpose of
fraudulently impersonating a peace officer, or of fraudulently
inducing the belief that he or she is a peace officer, is guilty of a
misdemeanor punishable by imprisonment in a county jail not to
exceed one year, by a fine not to exceed two thousand dollars
($2,000), or by both that imprisonment and fine.
(c) Except as provided in subdivision (d), any person who
willfully wears, exhibits, or uses, or who willfully makes, sells,
loans, gives, or transfers to another, any badge, insignia, emblem,
device, or any label, certificate, card, or writing, which falsely
purports to be authorized for the use of one who by law is given the
authority of a peace officer, or which so resembles the authorized
badge, insignia, emblem, device, label, certificate, card, or writing
of a peace officer as would deceive an ordinary reasonable person
into believing that it is authorized for the use of one who by law is
given the authority of a peace officer, is guilty of a misdemeanor,
except that any person who makes or sells any badge under the
circumstances described in this subdivision is subject to a fine not
to exceed fifteen thousand dollars ($15,000).
(d) (1) The head of an agency that employs peace officers, as
defined in Sections 830.1 and 830.2, is authorized to issue
identification in the form of a badge, insignia, emblem, device,
label, certificate, card, or writing that clearly states that the
person has honorably retired following service as a peace officer
from that agency. The identification authorized pursuant to this
subdivision is separate and distinct from the identification
authorized by Article 2 (commencing with Section 25450) of Chapter 2
of Division 5 of Title 4 of Part 6.
(2) If the head of an agency issues a badge to an honorably
retired peace officer that is not affixed to a plaque or other
memento commemorating the retiree's service for the agency, the words
"Honorably Retired" shall be clearly visible above, underneath, or
on the badge itself.
(3) The head of an agency that employs peace officers as defined
in Sections 830.1 and 830.2 is authorized to revoke identification
granted pursuant to this subdivision in the event of misuse or abuse.
(4) For the purposes of this subdivision, the term "honorably
retired" does not include an officer who has agreed to a service
retirement in lieu of termination.
(e) (1) Vendors of law enforcement uniforms shall verify that a
person purchasing a uniform identifying a law enforcement agency is
an employee of the agency identified on the uniform. Presentation and
examination of a valid identification card with a picture of the
person purchasing the uniform and identification, on the letterhead
of the law enforcement agency, of the person buying the uniform as an
employee of the agency identified on the uniform shall be sufficient
verification.
(2) Any uniform vendor who sells a uniform identifying a law
enforcement agency, without verifying that the purchaser is an
employee of the agency, is guilty of a misdemeanor, punishable by a
fine of not more than one thousand dollars ($1,000).
(3) This subdivision shall not apply if the uniform is to be used
solely as a prop for a motion picture, television, video production,
or a theatrical event, and prior written permission has been obtained
from the identified law enforcement agency.
SEC. 59. Section 626.9 of the Penal Code is amended to read:
626.9. (a) This section shall be known, and may be cited, as the
Gun-Free School Zone Act of 1995.
(b) Any person who possesses a firearm in a place that the person
knows, or reasonably should know, is a school zone, as defined in
paragraph (1) of subdivision (e), unless it is with the written
permission of the school district superintendent, his or her
designee, or equivalent school authority, shall be punished as
specified in subdivision (f).
(c) Subdivision (b) does not apply to the possession of a firearm
under any of the following circumstances:
(1) Within a place of residence or place of business or on private
property, if the place of residence, place of business, or private
property is not part of the school grounds and the possession of the
firearm is otherwise lawful.
(2) When the firearm is an unloaded pistol, revolver, or other
firearm capable of being concealed on the person and is in a locked
container or within the locked trunk of a motor vehicle.
This section does not prohibit or limit the otherwise lawful
transportation of any other firearm, other than a pistol, revolver,
or other firearm capable of being concealed on the person, in
accordance with state law.
(3) When the person possessing the firearm reasonably believes
that he or she is in grave danger because of circumstances forming
the basis of a current restraining order issued by a court against
another person or persons who has or have been found to pose a threat
to his or her life or safety. This subdivision may not apply when
the circumstances involve a mutual restraining order issued pursuant
to Division 10 (commencing with Section 6200) of the Family Code
absent a factual finding of a specific threat to the person's life or
safety. Upon a trial for violating subdivision (b), the trier of a
fact shall determine whether the defendant was acting out of a
reasonable belief that he or she was in grave danger.
(4) When the person is exempt from the prohibition against
carrying a concealed firearm pursuant to Section 25615, 25625, 25630,
or 25645.
(d) Except as provided in subdivision (b), it shall be unlawful
for any person, with reckless disregard for the safety of another, to
discharge, or attempt to discharge, a firearm in a school zone, as
defined in paragraph (1) of subdivision (e).
The prohibition contained in this subdivision does not apply to
the discharge of a firearm to the extent that the conditions of
paragraph (1) of subdivision (c) are satisfied.
(e) As used in this section, the following definitions shall
apply:
(1) "School zone" means an area in, or on the grounds of, a public
or private school providing instruction in kindergarten or grades 1
to 12, inclusive, or within a distance of 1,000 feet from the grounds
of the public or private school.
(2) "Firearm" has the same meaning as that term is given in
subdivisions (a) to (d), inclusive, of Section 16520.
(3) "Locked container" has the same meaning as that term is given
in Section 16850.
(4) "Concealed firearm" has the same meaning as that term is given
in Sections 25400 and 25610.
(f) (1) Any person who violates subdivision (b) by possessing a
firearm in, or on the grounds of, a public or private school
providing instruction in kindergarten or grades 1 to 12, inclusive,
shall be punished by imprisonment in the state prison for two, three,
or five years.
(2) Any person who violates subdivision (b) by possessing a
firearm within a distance of 1,000 feet from the grounds of a public
or private school providing instruction in kindergarten or grades 1
to 12, inclusive, shall be punished as follows:
(A) By imprisonment in the state prison for two, three, or five
years, if any of the following circumstances apply:
(i) If the person previously has been convicted of any felony, or
of any crime made punishable by any provision listed in Section
16580.
(ii) If the person is within a class of persons prohibited from
possessing or acquiring a firearm pursuant to Chapter 2 (commencing
with Section 29800) or Chapter 3 (commencing with Section 29900) of
Division 9 of Title 4 of Part 6 of this code or Section 8100 or 8103
of the Welfare and Institutions Code.
(iii) If the firearm is any pistol, revolver, or other firearm
capable of being concealed upon the person and the offense is
punished as a felony pursuant to Section 25400.
(B) By imprisonment in a county jail for not more than one year or
by imprisonment in the state prison for two, three, or five years,
in all cases other than those specified in subparagraph (A).
(3) Any person who violates subdivision (d) shall be punished by
imprisonment in the state prison for three, five, or seven years.
(g) (1) Every person convicted under this section for a
misdemeanor violation of subdivision (b) who has been convicted
previously of a misdemeanor offense enumerated in Section 23515 shall
be punished by imprisonment in a county jail for not less than three
months, or if probation is granted or if the execution or imposition
of sentence is suspended, it shall be a condition thereof that he or
she be imprisoned in a county jail for not less than three months.
(2) Every person convicted under this section of a felony
violation of subdivision (b) or (d) who has been convicted previously
of a misdemeanor offense enumerated in Section 23515, if probation
is granted or if the execution of sentence is suspended, it shall be
a condition thereof that he or she be imprisoned in a county jail for
not less than three months.
(3) Every person convicted under this section for a felony
violation of subdivision (b) or (d) who has been convicted previously
of any felony, or of any crime made punishable by any provision
listed in Section 16580, if probation is granted or if the execution
or imposition of sentence is suspended, it shall be a condition
thereof that he or she be imprisoned in a county jail for not less
than three months.
(4) The court shall apply the three-month minimum sentence
specified in this subdivision, except in unusual cases where the
interests of justice would best be served by granting probation or
suspending the execution or imposition of sentence without the
minimum imprisonment required in this subdivision or by granting
probation or suspending the execution or imposition of sentence with
conditions other than those set forth in this subdivision, in which
case the court shall specify on the record and shall enter on the
minutes the circumstances indicating that the interests of justice
would best be served by this disposition.
(h) Notwithstanding Section 25605, any person who brings or
possesses a loaded firearm upon the grounds of a campus of, or
buildings owned or operated for student housing, teaching, research,
or administration by, a public or private university or college, that
are contiguous or are clearly marked university property, unless it
is with the written permission of the university or college
president, his or her designee, or equivalent university or college
authority, shall be punished by imprisonment in the state prison for
two, three, or four years. Notwithstanding subdivision (k), a
university or college shall post a prominent notice at primary
entrances on noncontiguous property stating that firearms are
prohibited on that property pursuant to this subdivision.
(i) Notwithstanding Section 25605, any person who brings or
possesses a firearm upon the grounds of a campus of, or buildings
owned or operated for student housing, teaching, research, or
administration by, a public or private university or college, that
are contiguous or are clearly marked university property, unless it
is with the written permission of the university or college
president, his or her designee, or equivalent university or college
authority, shall be punished by imprisonment in the state prison for
one, two, or three years. Notwithstanding subdivision (k), a
university or college shall post a prominent notice at primary
entrances on noncontiguous property stating that firearms are
prohibited on that property pursuant to this subdivision.
(j) For purposes of this section, a firearm shall be deemed to be
loaded when there is an unexpended cartridge or shell, consisting of
a case that holds a charge of powder and a bullet or shot, in, or
attached in any manner to, the firearm, including, but not limited
to, in the firing chamber, magazine, or clip thereof attached to the
firearm. A muzzle-loader firearm shall be deemed to be loaded when it
is capped or primed and has a powder charge and ball or shot in the
barrel or cylinder.
(k) This section does not require that notice be posted regarding
the proscribed conduct.
( l ) This section does not apply to a duly appointed
peace officer as defined in Chapter 4.5 (commencing with Section 830)
of Title 3 of Part 2, a full-time paid peace officer of another
state or the federal government who is carrying out official duties
while in California, any person summoned by any of these officers to
assist in making arrests or preserving the peace while he or she is
actually engaged in assisting the officer, a member of the military
forces of this state or of the United States who is engaged in the
performance of his or her duties, a person holding a valid license to
carry the firearm pursuant to Chapter 4 (commencing with Section
26150) of Division 5 of Title 4 of Part 6, or an armored vehicle
guard, engaged in the performance of his or her duties, as defined in
subdivision (e) of Section 7521 of the Business and Professions
Code.
(m) This section does not apply to a security guard authorized to
carry a loaded firearm pursuant to Article 4 (commencing with Section
26000) of Chapter 3 of Division 5 of Title 4 of Part 6.
(n) This section does not apply to an existing shooting range at a
public or private school or university or college campus.
(o) This section does not apply to an honorably retired peace
officer authorized to carry a concealed or loaded firearm pursuant to
any of the following:
(1) Article 2 (commencing with Section 25450) of Chapter 2 of
Division 5 of Title 4 of Part 6.
(2) Section 25650.
(3) Sections 25900 to 25910, inclusive.
(4) Section 26020.
SEC. 60. Section 626.95 of the Penal Code is amended to read:
626.95. (a) Any person who is in violation of paragraph (2) of
subdivision (a), or subdivision (b), of Section 417, or 25400 or
25850, upon the grounds of or within a playground, or a public or
private youth center during hours in which the facility is open for
business, classes, or school-related programs, or at any time when
minors are using the facility, knowing that he or she is on or within
those grounds, shall be punished by imprisonment in the state prison
for one, two, or three years, or in a county jail not exceeding one
year.
(b) State and local authorities are encouraged to cause signs to
be posted around playgrounds and youth centers giving warning of
prohibition of the possession of firearms upon the grounds of or
within playgrounds or youth centers.
(c) For purposes of this section, the following definitions shall
apply:
(1) "Playground" means any park or recreational area specifically
designed to be used by children that has play equipment installed,
including public grounds designed for athletic activities such as
baseball, football, soccer, or basketball, or any similar facility
located on public or private school grounds, or on city or county
parks.
(2) "Youth center" means any public or private facility that is
used to host recreational or social activities for minors while
minors are present.
(d) It is the Legislature's intent that only an actual conviction
of a felony of one of the offenses specified in this section would
subject the person to firearms disabilities under the federal Gun
Control Act of 1968 (P.L. 90-618; 18 U.S.C. Sec. 921).
SEC. 61.
Section 626.10 of the Penal Code is amended to read:
626.10. (a) (1) Any person, except a duly appointed peace officer
as defined in Chapter 4.5 (commencing with Section 830) of Title 3
of Part 2, a full-time paid peace officer of another state or the
federal government who is carrying out official duties while in this
state, a person summoned by any officer to assist in making arrests
or preserving the peace while the person is actually engaged in
assisting any officer, or a member of the military forces of this
state or the United States who is engaged in the performance of his
or her duties, who brings or possesses any dirk, dagger, ice pick,
knife having a blade longer than 21/2 inches, folding knife with a
blade that locks into place, razor with an unguarded blade, taser, or
stun gun, as defined in subdivision (a) of Section 244.5, any
instrument that expels a metallic projectile such as a BB or a
pellet, through the force of air pressure, CO2 pressure, or spring
action, or any spot marker gun, upon the grounds of, or within, any
public or private school providing instruction in kindergarten or any
of grades 1 to 12, inclusive, is guilty of a public offense,
punishable by imprisonment in a county jail not exceeding one year,
or by imprisonment in the state prison.
(2) Any person, except a duly appointed peace officer as defined
in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, a
full-time paid peace officer of another state or the federal
government who is carrying out official duties while in this state, a
person summoned by any officer to assist in making arrests or
preserving the peace while the person is actually engaged in
assisting any officer, or a member of the military forces of this
state or the United States who is engaged in the performance of his
or her duties, who brings or possesses a razor blade or a box cutter
upon the grounds of, or within, any public or private school
providing instruction in kindergarten or any of grades 1 to 12,
inclusive, is guilty of a public offense, punishable by imprisonment
in a county jail not exceeding one year.
(b) Any person, except a duly appointed peace officer as defined
in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, a
full-time paid peace officer of another state or the federal
government who is carrying out official duties while in this state, a
person summoned by any officer to assist in making arrests or
preserving the peace while the person is actually engaged in
assisting any officer, or a member of the military forces of this
state or the United States who is engaged in the performance of his
or her duties, who brings or possesses any dirk, dagger, ice pick, or
knife having a fixed blade longer than 21/2 inches upon the grounds
of, or within, any private university, the University of California,
the California State University, or the California Community Colleges
is guilty of a public offense, punishable by imprisonment in a
county jail not exceeding one year, or by imprisonment in the state
prison.
(c) Subdivisions (a) and (b) do not apply to any person who brings
or possesses a knife having a blade longer than 21/2 inches, a razor
with an unguarded blade, a razor blade, or a box cutter upon the
grounds of, or within, a public or private school providing
instruction in kindergarten or any of grades 1 to 12, inclusive, or
any private university, state university, or community college at the
direction of a faculty member of the private university, state
university, or community college, or a certificated or classified
employee of the school for use in a private university, state
university, community college, or school-sponsored activity or class.
(d) Subdivisions (a) and (b) do not apply to any person who brings
or possesses an ice pick, a knife having a blade longer than 21/2
inches, a razor with an unguarded blade, a razor blade, or a box
cutter upon the grounds of, or within, a public or private school
providing instruction in kindergarten or any of grades 1 to 12,
inclusive, or any private university, state university, or community
college for a lawful purpose within the scope of the person's
employment.
(e) Subdivision (b) does not apply to any person who brings or
possesses an ice pick or a knife having a fixed blade longer than
21/2 inches upon the grounds of, or within, any private university,
state university, or community college for lawful use in or around a
residence or residential facility located upon those grounds or for
lawful use in food preparation or consumption.
(f) Subdivision (a) does not apply to any person who brings an
instrument that expels a metallic projectile such as a BB or a
pellet, through the force of air pressure, CO2 pressure, or spring
action, or any spot marker gun, or any razor blade or box cutter upon
the grounds of, or within, a public or private school providing
instruction in kindergarten or any of grades 1 to 12, inclusive, if
the person has the written permission of the school principal or his
or her designee.
(g) Any certificated or classified employee or school peace
officer of a public or private school providing instruction in
kindergarten or any of grades 1 to 12, inclusive, may seize any of
the weapons described in subdivision (a), and any certificated or
classified employee or school peace officer of any private
university, state university, or community college may seize any of
the weapons described in subdivision (b), from the possession of any
person upon the grounds of, or within, the school if he or she knows,
or has reasonable cause to know, the person is prohibited from
bringing or possessing the weapon upon the grounds of, or within, the
school.
(h) As used in this section, "dirk" or "dagger" means a knife or
other instrument with or without a handguard that is capable of ready
use as a stabbing weapon that may inflict great bodily injury or
death.
(i) Any person who, without the written permission of the college
or university president or chancellor or his or her designee, brings
or possesses a less lethal weapon, as defined in Section 16780, or a
stun gun, as defined in Section 17230, upon the grounds of or within,
a public or private college or university campus is guilty of a
misdemeanor.
SEC. 62. Section 629.52 of the Penal Code is amended to read:
629.52. Upon application made under Section 629.50, the judge may
enter an ex parte order, as requested or modified, authorizing
interception of wire, electronic pager, or electronic cellular
telephone communications initially intercepted within the territorial
jurisdiction of the court in which the judge is sitting, if the
judge determines, on the basis of the facts submitted by the
applicant, all of the following:
(a) There is probable cause to believe that an individual is
committing, has committed, or is about to commit, one of the
following offenses:
(1) Importation, possession for sale, transportation, manufacture,
or sale of controlled substances in violation of Section 11351,
11351.5, 11352, 11370.6, 11378, 11378.5, 11379, 11379.5, or 11379.6
of the Health and Safety Code with respect to a substance containing
heroin, cocaine, PCP, methamphetamine, or their precursors or analogs
where the substance exceeds 10 gallons by liquid volume or three
pounds of solid substance by weight.
(2) Murder, solicitation to commit murder, the commission of a
felony involving a destructive device in violation of Section 18710,
18715, 18720, 18725, 18730, 18740, 18745, 18750, or 18755, or a
violation of Section 209.
(3) Any felony violation of Section 186.22.
(4) Any felony violation of Section 11418, relating to weapons of
mass destruction, Section 11418.5, relating to threats to use weapons
of mass destruction, or Section 11419, relating to restricted
biological agents.
(5) An attempt or conspiracy to commit any of the above-mentioned
crimes.
(b) There is probable cause to believe that particular
communications concerning the illegal activities will be obtained
through that interception, including, but not limited to,
communications that may be utilized for locating or rescuing a kidnap
victim.
(c) There is probable cause to believe that the facilities from
which, or the place where, the wire, electronic pager, or electronic
cellular telephone communications are to be intercepted are being
used, or are about to be used, in connection with the commission of
the offense, or are leased to, listed in the name of, or commonly
used by the person whose communications are to be intercepted.
(d) Normal investigative procedures have been tried and have
failed or reasonably appear either to be unlikely to succeed if tried
or to be too dangerous.
SEC. 63. Section 667.5 of the Penal Code is amended to read:
667.5. Enhancement of prison terms for new offenses because of
prior prison terms shall be imposed as follows:
(a) Where one of the new offenses is one of the violent felonies
specified in subdivision (c), in addition to and consecutive to any
other prison terms therefor, the court shall impose a three-year term
for each prior separate prison term served by the defendant where
the prior offense was one of the violent felonies specified in
subdivision (c). However, no additional term shall be imposed under
this subdivision for any prison term served prior to a period of 10
years in which the defendant remained free of both prison custody and
the commission of an offense which results in a felony conviction.
(b) Except where subdivision (a) applies, where the new offense is
any felony for which a prison sentence is imposed, in addition and
consecutive to any other prison terms therefor, the court shall
impose a one-year term for each prior separate prison term served for
any felony; provided that no additional term shall be imposed under
this subdivision for any prison term served prior to a period of five
years in which the defendant remained free of both prison custody
and the commission of an offense which results in a felony
conviction.
(c) For the purpose of this section, "violent felony" shall mean
any of the following:
(1) Murder or voluntary manslaughter.
(2) Mayhem.
(3) Rape as defined in paragraph (2) or (6) of subdivision (a) of
Section 261 or paragraph (1) or (4) of subdivision (a) of Section
262.
(4) Sodomy as defined in subdivision (c) or (d) of Section 286.
(5) Oral copulation as defined in subdivision (c) or (d) of
Section 288a.
(6) Lewd or lascivious act as defined in subdivision (a) or (b) of
Section 288.
(7) Any felony punishable by death or imprisonment in the state
prison for life.
(8) Any felony in which the defendant inflicts great bodily injury
on any person other than an accomplice which has been charged and
proved as provided for in Section 12022.7, 12022.8, or 12022.9 on or
after July 1, 1977, or as specified prior to July 1, 1977, in
Sections 213, 264, and 461, or any felony in which the defendant uses
a firearm which use has been charged and proved as provided in
subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55.
(9) Any robbery.
(10) Arson, in violation of subdivision (a) or (b) of Section 451.
(11) Sexual penetration as defined in subdivision (a) or (j) of
Section 289.
(12) Attempted murder.
(13) A violation of Section 18745, 18750, or 18755.
(14) Kidnapping.
(15) Assault with the intent to commit a specified felony, in
violation of Section 220.
(16) Continuous sexual abuse of a child, in violation of Section
288.5.
(17) Carjacking, as defined in subdivision (a) of Section 215.
(18) Rape, spousal rape, or sexual penetration, in concert, in
violation of Section 264.1.
(19) Extortion, as defined in Section 518, which would constitute
a felony violation of Section 186.22 of the Penal Code.
(20) Threats to victims or witnesses, as defined in Section 136.1,
which would constitute a felony violation of Section 186.22 of the
Penal Code.
(21) Any burglary of the first degree, as defined in subdivision
(a) of Section 460, wherein it is charged and proved that another
person, other than an accomplice, was present in the residence during
the commission of the burglary.
(22) Any violation of Section 12022.53.
(23) A violation of subdivision (b) or (c) of Section 11418. The
Legislature finds and declares that these specified crimes merit
special consideration when imposing a sentence to display society's
condemnation for these extraordinary crimes of violence against the
person.
(d) For the purposes of this section, the defendant shall be
deemed to remain in prison custody for an offense until the official
discharge from custody or until release on parole, whichever first
occurs, including any time during which the defendant remains subject
to reimprisonment for escape from custody or is reimprisoned on
revocation of parole. The additional penalties provided for prior
prison terms shall not be imposed unless they are charged and
admitted or found true in the action for the new offense.
(e) The additional penalties provided for prior prison terms shall
not be imposed for any felony for which the defendant did not serve
a prior separate term in state prison.
(f) A prior conviction of a felony shall include a conviction in
another jurisdiction for an offense which, if committed in
California, is punishable by imprisonment in the state prison if the
defendant served one year or more in prison for the offense in the
other jurisdiction. A prior conviction of a particular felony shall
include a conviction in another jurisdiction for an offense which
includes all of the elements of the particular felony as defined
under California law if the defendant served one year or more in
prison for the offense in the other jurisdiction.
(g) A prior separate prison term for the purposes of this section
shall mean a continuous completed period of prison incarceration
imposed for the particular offense alone or in combination with
concurrent or consecutive sentences for other crimes, including any
reimprisonment on revocation of parole which is not accompanied by a
new commitment to prison, and including any reimprisonment after an
escape from incarceration.
(h) Serving a prison term includes any confinement time in any
state prison or federal penal institution as punishment for
commission of an offense, including confinement in a hospital or
other institution or facility credited as service of prison time in
the jurisdiction of the confinement.
(i) For the purposes of this section, a commitment to the State
Department of Mental Health as a mentally disordered sex offender
following a conviction of a felony, which commitment exceeds one year
in duration, shall be deemed a prior prison term.
(j) For the purposes of this section, when a person subject to the
custody, control, and discipline of the Director of Corrections is
incarcerated at a facility operated by the Department of the Youth
Authority, that incarceration shall be deemed to be a term served in
state prison.
(k) Notwithstanding subdivisions (d) and (g) or any other
provision of law, where one of the new offenses is committed while
the defendant is temporarily removed from prison pursuant to Section
2690 or while the defendant is transferred to a community facility
pursuant to Section 3416, 6253, or 6263, or while the defendant is on
furlough pursuant to Section 6254, the defendant shall be subject to
the full enhancements provided for in this section.
This subdivision shall not apply when a full, separate, and
consecutive term is imposed pursuant to any other provision of law.
SEC. 64. Section 667.7 of the Penal Code is amended to read:
667.7. (a) Any person convicted of a felony in which the person
inflicted great bodily injury as provided in Section 12022.53 or
12022.7, or personally used force which was likely to produce great
bodily injury, who has served two or more prior separate prison terms
as defined in Section 667.5 for the crime of murder; attempted
murder; voluntary manslaughter; mayhem; rape by force, violence, or
fear of immediate and unlawful bodily injury on the victim or another
person; oral copulation by force, violence, duress, menace, or fear
of immediate and unlawful bodily injury on the victim or another
person; sodomy by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person;
lewd acts on a child under the age of 14 years by use of force,
violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person; a violation of subdivision
(a) of Section 289 where the act is accomplished against the victim's
will by means of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person;
kidnapping as punished in former subdivision (d) of Section 208, or
for ransom, extortion, or robbery; robbery involving the use of force
or a deadly weapon; carjacking involving the use of a deadly weapon;
assault with intent to commit murder; assault with a deadly weapon;
assault with a force likely to produce great bodily injury; assault
with intent to commit rape, sodomy, oral copulation, sexual
penetration in violation of Section 289, or lewd and lascivious acts
on a child; arson of a structure; escape or attempted escape by an
inmate with force or violence in violation of subdivision (a) of
Section 4530, or of Section 4532; exploding a destructive device with
intent to murder in violation of Section 18745; exploding a
destructive device which causes bodily injury in violation of Section
18750, or mayhem or great bodily injury in violation of Section
18755; exploding a destructive device with intent to injure,
intimidate, or terrify, in violation of Section 18740; any felony in
which the person inflicted great bodily injury as provided in Section
12022.53 or 12022.7; or any felony punishable by death or life
imprisonment with or without the possibility of parole is a habitual
offender and shall be punished as follows:
(1) A person who served two prior separate prison terms shall be
punished by imprisonment in the state prison for life and shall not
be eligible for release on parole for 20 years, or the term
determined by the court pursuant to Section 1170 for the underlying
conviction, including any enhancement applicable under Chapter 4.5
(commencing with Section 1170) of Title 7 of Part 2, or any period
prescribed by Section 190 or 3046, whichever is greatest. Article 2.5
(commencing with Section 2930) of Chapter 7 of Title 1 of Part 3
shall apply to reduce any minimum term in a state prison imposed
pursuant to this section, but the person shall not otherwise be
released on parole prior to that time.
(2) Any person convicted of a felony specified in this subdivision
who has served three or more prior separate prison terms, as defined
in Section 667.5, for the crimes specified in subdivision (a) of
this section shall be punished by imprisonment in the state prison
for life without the possibility of parole.
(b) This section shall not prevent the imposition of the
punishment of death or imprisonment for life without the possibility
of parole. No prior prison term shall be used for this determination
which was served prior to a period of 10 years in which the person
remained free of both prison custody and the commission of an offense
which results in a felony conviction. As used in this section, a
commitment to the Department of the Youth Authority after conviction
for a felony shall constitute a prior prison term. The term imposed
under this section shall be imposed only if the prior prison terms
are alleged under this section in the accusatory pleading, and either
admitted by the defendant in open court, or found to be true by the
jury trying the issue of guilt or by the court where guilt is
established by a plea of guilty or nolo contendere or by a trial by
the court sitting without a jury.
SEC. 65. Section 679.03 of the Penal Code is amended to read:
679.03. (a) With respect to the conviction of a defendant
involving a violent offense, as defined in Section 29905, the county
district attorney, probation department, and victim-witness
coordinator shall confer and establish an annual policy within
existing resources to decide which one of their agencies shall inform
each witness involved in the conviction who was threatened by the
defendant following the defendant's arrest and each victim or next of
kin of the victim of that offense of the right to request and
receive a notice pursuant to Section 3058.8 or 3605. If no agreement
is reached, the presiding judge shall designate the appropriate
county agency or department to provide this notification.
(b) The Department of Corrections shall supply a form to the
agency designated pursuant to subdivision (a) in order to enable
persons specified in subdivision (a) to request and receive
notification from the department of the release, escape, scheduled
execution, or death of the violent offender. That agency shall give
the form to the victim, witness, or next of kin of the victim for
completion, explain to that person or persons the right to be so
notified, and forward the completed form to the department. The
department or the Board of Prison Terms is responsible for notifying
all victims, witnesses, or next of kin of victims who request to be
notified of a violent offender's release or scheduled execution, as
provided by Sections 3058.8 and 3605.
(c) All information relating to any person receiving notice
pursuant to subdivision (b) shall remain confidential and is not
subject to disclosure pursuant to the California Public Records Act
(Chapter 3.5 (commencing with Section 6250) of Title 7 of Division 1
of the Government Code).
SEC. 66. Section 830.5 of the Penal Code is amended to read:
830.5. The following persons are peace officers whose authority
extends to any place in the state while engaged in the performance of
the duties of their respective employment and for the purpose of
carrying out the primary function of their employment or as required
under Sections 8597, 8598, and 8617 of the Government Code. Except as
specified in this section, these peace officers may carry firearms
only if authorized and under those terms and conditions specified by
their employing agency:
(a) A parole officer of the Department of Corrections or the
Department of the Youth Authority, probation officer, deputy
probation officer, or a board coordinating parole agent employed by
the Youthful Offender Parole Board. Except as otherwise provided in
this subdivision, the authority of these parole or probation officers
shall extend only as follows:
(1) To conditions of parole or of probation by any person in this
state on parole or probation.
(2) To the escape of any inmate or ward from a state or local
institution.
(3) To the transportation of persons on parole or probation.
(4) To violations of any penal provisions of law which are
discovered while performing the usual or authorized duties of his or
her employment.
(5) To the rendering of mutual aid to any other law enforcement
agency.
For the purposes of this subdivision, "parole agent" shall have
the same meaning as parole officer of the Department of Corrections
or of the Department of the Youth Authority.
Any parole officer of the Department of Corrections, the
Department of the Youth Authority, or the Youthful Offender Parole
Board is authorized to carry firearms, but only as determined by the
director on a case-by-case or unit-by-unit basis and only under those
terms and conditions specified by the director or chairperson. The
Department of the Youth Authority shall develop a policy for arming
peace officers of the Department of the Youth Authority who comprise
"high-risk transportation details" or "high-risk escape details" no
later than June 30, 1995. This policy shall be implemented no later
than December 31, 1995.
The Department of the Youth Authority shall train and arm those
peace officers who comprise tactical teams at each facility for use
during "high-risk escape details."
(b) A correctional officer employed by the Department of
Corrections or any employee of the Department of the Youth Authority
having custody of wards or the Inspector General of the Youth and
Adult Correctional Agency or any internal affairs investigator under
the authority of the Inspector General or any employee of the
Department of Corrections designated by the Director of Corrections
or any correctional counselor series employee of the Department of
Corrections or any medical technical assistant series employee
designated by the Director of Corrections or designated by the
Director of Corrections and employed by the State Department of
Mental Health or employee of the Board of Prison Terms designated by
the Secretary of the Youth and Adult Correctional Agency or employee
of the Department of the Youth Authority designated by the Director
of the Youth Authority or any superintendent, supervisor, or employee
having custodial responsibilities in an institution operated by a
probation department, or any transportation officer of a probation
department.
(c) The following persons may carry a firearm while not on duty: a
parole officer of the Department of Corrections or the Department of
the Youth Authority, a correctional officer or correctional
counselor employed by the Department of Corrections or any employee
of the Department of the Youth Authority having custody of wards or
any employee of the Department of Corrections designated by the
Director of Corrections. A parole officer of the Youthful Offender
Parole Board may carry a firearm while not on duty only when so
authorized by the chairperson of the board and only under the terms
and conditions specified by the chairperson. Nothing in this section
shall be interpreted to require licensure pursuant to Section 25400.
The director or chairperson may deny, suspend, or revoke for good
cause a person's right to carry a firearm under this subdivision.
That person shall, upon request, receive a hearing, as provided for
in the negotiated grievance procedure between the exclusive employee
representative and the Department of Corrections, the Department of
the Youth Authority, or the Youthful Offender Parole Board, to review
the director's or the chairperson's decision.
(d) Persons permitted to carry firearms pursuant to this section,
either on or off duty, shall meet the training requirements of
Section 832 and shall qualify with the firearm at least quarterly. It
is the responsibility of the individual officer or designee to
maintain his or her eligibility to carry concealable firearms off
duty. Failure to maintain
quarterly qualifications by an officer or designee with any
concealable firearms carried off duty shall constitute good cause to
suspend or revoke that person's right to carry firearms off duty.
(e) The Department of Corrections shall allow reasonable access to
its ranges for officers and designees of either department to
qualify to carry concealable firearms off duty. The time spent on the
range for purposes of meeting the qualification requirements shall
be the person's own time during the person's off-duty hours.
(f) The Director of Corrections shall promulgate regulations
consistent with this section.
(g) "High-risk transportation details" and "high-risk escape
details" as used in this section shall be determined by the Director
of the Youth Authority, or his or her designee. The director, or his
or her designee, shall consider at least the following in determining
"high-risk transportation details" and "high-risk escape details":
protection of the public, protection of officers, flight risk, and
violence potential of the wards.
(h) "Transportation detail" as used in this section shall include
transportation of wards outside the facility, including, but not
limited to, court appearances, medical trips, and interfacility
transfers.
SEC. 67. Section 830.8 of the Penal Code is amended to read:
830.8. (a) Federal criminal investigators and law enforcement
officers are not California peace officers, but may exercise the
powers of arrest of a peace officer in any of the following
circumstances:
(1) Any circumstances specified in Section 836 or Section 5150 of
the Welfare and Institutions Code for violations of state or local
laws.
(2) When these investigators and law enforcement officers are
engaged in the enforcement of federal criminal laws and exercise the
arrest powers only incidental to the performance of these duties.
(3) When requested by a California law enforcement agency to be
involved in a joint task force or criminal investigation.
(4) When probable cause exists to believe that a public offense
that involves immediate danger to persons or property has just
occurred or is being committed.
In all of these instances, the provisions of Section 847 shall
apply. These investigators and law enforcement officers, prior to the
exercise of these arrest powers, shall have been certified by their
agency heads as having satisfied the training requirements of Section
832, or the equivalent thereof.
This subdivision does not apply to federal officers of the Bureau
of Land Management or the Forest Service of the Department of
Agriculture. These officers have no authority to enforce California
statutes without the written consent of the sheriff or the chief of
police in whose jurisdiction they are assigned.
(b) Duly authorized federal employees who comply with the training
requirements set forth in Section 832 are peace officers when they
are engaged in enforcing applicable state or local laws on property
owned or possessed by the United States government, or on any street,
sidewalk, or property adjacent thereto, and with the written consent
of the sheriff or the chief of police, respectively, in whose
jurisdiction the property is situated.
(c) National park rangers are not California peace officers but
may exercise the powers of arrest of a peace officer as specified in
Section 836 and the powers of a peace officer specified in Section
5150 of the Welfare and Institutions Code for violations of state or
local laws provided these rangers are exercising the arrest powers
incidental to the performance of their federal duties or providing or
attempting to provide law enforcement services in response to a
request initiated by California state park rangers to assist in
preserving the peace and protecting state parks and other property
for which California state park rangers are responsible. National
park rangers, prior to the exercise of these arrest powers, shall
have been certified by their agency heads as having satisfactorily
completed the training requirements of Section 832.3, or the
equivalent thereof.
(d) Notwithstanding any other provision of law, during a state of
war emergency or a state of emergency, as defined in Section 8558 of
the Government Code, federal criminal investigators and law
enforcement officers who are assisting California law enforcement
officers in carrying out emergency operations are not deemed
California peace officers, but may exercise the powers of arrest of a
peace officer as specified in Section 836 and the powers of a peace
officer specified in Section 5150 of the Welfare and Institutions
Code for violations of state or local laws. In these instances, the
provisions of Section 847 and of Section 8655 of the Government Code
shall apply.
(e) (1) Any qualified person who is appointed as a Washoe tribal
law enforcement officer is not a California peace officer, but may
exercise the powers of a Washoe tribal peace officer when engaged in
the enforcement of Washoe tribal criminal laws against any person who
is an Indian, as defined in subsection (a) of Section 450b of Title
25 of the United States Code, on Washoe tribal land. The respective
prosecuting authorities, in consultation with law enforcement
agencies, may agree on who shall have initial responsibility for
prosecution of specified infractions. This subdivision is not meant
to confer cross-deputized status as California peace officers, nor to
confer California peace officer status upon Washoe tribal law
enforcement officers when enforcing state or local laws in the State
of California. Nothing in this section shall be construed to impose
liability upon or to require indemnification by the County of Alpine
or the State of California for any act performed by an officer of the
Washoe Tribe. Washoe tribal law enforcement officers shall have the
right to travel to and from Washoe tribal lands within California in
order to carry out tribal duties.
(2) Washoe tribal law enforcement officers are exempted from the
provisions of subdivision (a) of Section 25400 and subdivision (a)
and subdivisions (c) to (h), inclusive, of Section 25850 while
performing their official duties on their tribal lands or while
proceeding by a direct route to or from the tribal lands. Tribal law
enforcement vehicles are deemed to be emergency vehicles within the
meaning of Section 30 of the Vehicle Code while performing official
police services.
(3) As used in this subdivision, the term "Washoe tribal lands"
includes the following:
(A) All lands located in the County of Alpine within the limits of
the reservation created for the Washoe Tribe of Nevada and
California, notwithstanding the issuance of any patent and including
rights-of-way running through the reservation and all tribal trust
lands.
(B) All Indian allotments, the Indian titles to which have not
been extinguished, including rights-of-way running through the same.
(4) As used in this subdivision, the term "Washoe tribal law"
refers to the laws codified in the Law and Order Code of the Washoe
Tribe of Nevada and California, as adopted by the Tribal Council of
the Washoe Tribe of Nevada and California.
SEC. 68. Section 833.5 of the Penal Code is amended to read:
833.5. (a) In addition to any other detention permitted by law,
if a peace officer has reasonable cause to believe that a person has
a firearm or other deadly weapon with him or her in violation of any
provision of law relating to firearms or deadly weapons the peace
officer may detain that person to determine whether a crime relating
to firearms or deadly weapons has been committed.
For purposes of this section "reasonable cause to detain" requires
that the circumstances known or apparent to the officer must include
specific and articulable facts causing him or her to suspect that
some offense relating to firearms or deadly weapons has taken place
or is occurring or is about to occur and that the person he or she
intends to detain is involved in that offense. The circumstances must
be such as would cause any reasonable peace officer in like
position, drawing when appropriate on his or her training and
experience, to suspect the same offense and the same involvement by
the person in question.
(b) Incident to any detention permitted pursuant to subdivision
(a), a peace officer may conduct a limited search of the person for
firearms or weapons if the peace officer reasonably concludes that
the person detained may be armed and presently dangerous to the peace
officer or others. Any firearm or weapon seized pursuant to a valid
detention or search pursuant to this section shall be admissible in
evidence in any proceeding for any purpose permitted by law.
(c) This section shall not be construed to otherwise limit the
authority of a peace officer to detain any person or to make an
arrest based on reasonable cause.
(d) This section shall not be construed to permit a peace officer
to conduct a detention or search of any person at the person's
residence or place of business absent a search warrant or other
reasonable cause to detain or search.
(e) If a firearm or weapon is seized pursuant to this section and
the person from whom it was seized owned the firearm or weapon and is
convicted of a violation of any offense relating to the possession
of such firearm or weapon, the court shall order the firearm or
weapon to be deemed a nuisance and disposed of in the manner provided
by Sections 18000 and 18005.
SEC. 69. Section 836 of the Penal Code is amended to read:
836. (a) A peace officer may arrest a person in obedience to a
warrant, or, pursuant to the authority granted to him or her by
Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2,
without a warrant, may arrest a person whenever any of the following
circumstances occur:
(1) The officer has probable cause to believe that the person to
be arrested has committed a public offense in the officer's presence.
(2) The person arrested has committed a felony, although not in
the officer's presence.
(3) The officer has probable cause to believe that the person to
be arrested has committed a felony, whether or not a felony, in fact,
has been committed.
(b) Any time a peace officer is called out on a domestic violence
call, it shall be mandatory that the officer make a good faith effort
to inform the victim of his or her right to make a citizen's arrest.
This information shall include advising the victim how to safely
execute the arrest.
(c) (1) When a peace officer is responding to a call alleging a
violation of a domestic violence protective or restraining order
issued under Section 527.6 of the Code of Civil Procedure, the Family
Code, Section 136.2, 646.91, or paragraph (2) of subdivision (a) of
Section 1203.097 of this code, Section 213.5 or 15657.03 of the
Welfare and Institutions Code, or of a domestic violence protective
or restraining order issued by the court of another state, tribe, or
territory and the peace officer has probable cause to believe that
the person against whom the order is issued has notice of the order
and has committed an act in violation of the order, the officer
shall, consistent with subdivision (b) of Section 13701, make a
lawful arrest of the person without a warrant and take that person
into custody whether or not the violation occurred in the presence of
the arresting officer. The officer shall, as soon as possible after
the arrest, confirm with the appropriate authorities or the Domestic
Violence Protection Order Registry maintained pursuant to Section
6380 of the Family Code that a true copy of the protective order has
been registered, unless the victim provides the officer with a copy
of the protective order.
(2) The person against whom a protective order has been issued
shall be deemed to have notice of the order if the victim presents to
the officer proof of service of the order, the officer confirms with
the appropriate authorities that a true copy of the proof of service
is on file, or the person against whom the protective order was
issued was present at the protective order hearing or was informed by
a peace officer of the contents of the protective order.
(3) In situations where mutual protective orders have been issued
under Division 10 (commencing with Section 6200) of the Family Code,
liability for arrest under this subdivision applies only to those
persons who are reasonably believed to have been the dominant
aggressor. In those situations, prior to making an arrest under this
subdivision, the peace officer shall make reasonable efforts to
identify, and may arrest, the dominant aggressor involved in the
incident. The dominant aggressor is the person determined to be the
most significant, rather than the first, aggressor. In identifying
the dominant aggressor, an officer shall consider (A) the intent of
the law to protect victims of domestic violence from continuing
abuse, (B) the threats creating fear of physical injury, (C) the
history of domestic violence between the persons involved, and (D)
whether either person involved acted in self-defense.
(d) Notwithstanding paragraph (1) of subdivision (a), if a suspect
commits an assault or battery upon a current or former spouse,
fiance, fiancee, a current or former cohabitant as defined in Section
6209 of the Family Code, a person with whom the suspect currently is
having or has previously had an engagement or dating relationship,
as defined in paragraph (10) of subdivision (f) of Section 243, a
person with whom the suspect has parented a child, or is presumed to
have parented a child pursuant to the Uniform Parentage Act (Part 3
(commencing with Section 7600) of Division 12 of the Family Code), a
child of the suspect, a child whose parentage by the suspect is the
subject of an action under the Uniform Parentage Act, a child of a
person in one of the above categories, any other person related to
the suspect by consanguinity or affinity within the second degree, or
any person who is 65 years of age or older and who is related to the
suspect by blood or legal guardianship, a peace officer may arrest
the suspect without a warrant where both of the following
circumstances apply:
(1) The peace officer has probable cause to believe that the
person to be arrested has committed the assault or battery, whether
or not it has in fact been committed.
(2) The peace officer makes the arrest as soon as probable cause
arises to believe that the person to be arrested has committed the
assault or battery, whether or not it has in fact been committed.
(e) In addition to the authority to make an arrest without a
warrant pursuant to paragraphs (1) and (3) of subdivision (a), a
peace officer may, without a warrant, arrest a person for a violation
of Section 25400 when all of the following apply:
(1) The officer has reasonable cause to believe that the person to
be arrested has committed the violation of Section 25400.
(2) The violation of Section 25400 occurred within an airport, as
defined in Section 21013 of the Public Utilities Code, in an area to
which access is controlled by the inspection of persons and property.
(3) The peace officer makes the arrest as soon as reasonable cause
arises to believe that the person to be arrested has committed the
violation of Section 25400.
SEC. 70. Section 999e of the Penal Code is amended to read:
999e. (a) An individual who is under arrest for the commission or
attempted commission of one or more of the felonies listed in
paragraph (1) and who is either being prosecuted for three or more
separate offenses not arising out of the same transaction involving
one or more of those felonies, or has been convicted during the
preceding 10 years for any felony listed in paragraph (2) of this
subdivision, or at least two convictions during the preceding 10
years for any felony listed in paragraph (3) of this subdivision
shall be the subject of career criminal prosecution efforts.
(1) Murder, manslaughter, rape, sexual assault, child molestation,
robbery, carjacking, burglary, arson, receiving stolen property,
grand theft, grand theft auto, lewd and lascivious conduct upon a
child, assault with a firearm, discharging a firearm into an
inhabited structure or vehicle, owning, possessing, or having custody
or control of a firearm, as specified in subdivision (a) or (b) of
Section 29800, or any unlawful act relating to controlled substances
in violation of Section 11351, 11351.5, 11352, or 11378 of the Health
and Safety Code.
(2) Robbery of the first degree, carjacking, burglary of the first
degree, arson as defined in Section 451, unlawfully causing a fire
as defined in Section 452, forcible rape, sodomy or oral copulation
committed with force, lewd or lascivious conduct committed upon a
child, kidnapping as defined in Section 209 or 209.5, murder, or
manslaughter.
(3) Grand theft, grand theft auto, receiving stolen property,
robbery of the second degree, burglary of the second degree,
kidnapping as defined in Section 207, assault with a deadly weapon or
instrument, or any unlawful act relating to controlled substances in
violation of Section 11351 or 11352 of the Health and Safety Code.
For purposes of this chapter, the 10-year periods specified in
this section shall be exclusive of any time which the arrested person
has served in state prison.
(b) In applying the career criminal selection criteria set forth
above, a district attorney may elect to limit career criminal
prosecution efforts to persons arrested for any one or more of the
felonies listed in subdivision (a) of this section if crime
statistics demonstrate that the incidence of one or more of these
felonies presents a particularly serious problem in the county.
(c) In exercising the prosecutorial discretion granted by Section
999g, the district attorney shall consider the character, background,
and prior criminal background of the defendant, and the number and
the seriousness of the offenses currently charged against the
defendant.
SEC. 71. Section 1170.11 of the Penal Code is amended to read:
1170.11. As used in Section 1170.1, the term "specific
enhancement" means an enhancement that relates to the circumstances
of the crime. It includes, but is not limited to, the enhancements
provided in Sections 186.10, 186.11, 186.22, 186.26, 186.33, 192.5,
273.4, 289.5, 290.4, 290.45, 290.46, 347, and 368, subdivisions (a)
and (b) of Section 422.75, paragraphs (2), (3), (4), and (5) of
subdivision (a) of Section 451.1, paragraphs (2), (3), and (4) of
subdivision (a) of Section 452.1, subdivision (g) of Section 550,
Sections 593a, 600, 667.8, 667.85, 667.9, 667.10, 667.15, 667.16,
667.17, 674, 675, 12021.5, 12022, 12022.2, 12022.3, 12022.4, 12022.5,
12022.53, 12022.55, 12022.6, 12022.7, 12022.75, 12022.8, 12022.85,
12022.9, 12022.95, 27590, 30600, and 30615 of this code, and in
Sections 1522.01 and 11353.1, subdivision (b) of Section 11353.4,
Sections 11353.6, 11356.5, 11370.4, 11379.7, 11379.8, 11379.9,
11380.1, 11380.7, 25189.5, and 25189.7 of the Health and Safety Code,
and in Sections 20001 and 23558 of the Vehicle Code, and in Sections
10980 and 14107 of the Welfare and Institutions Code.
SEC. 72. Section 1174.4 of the Penal Code is amended to read:
1174.4. (a) Persons eligible for participation in this
alternative sentencing program shall meet all of the following
criteria:
(1) Pregnant women with an established history of substance abuse,
or pregnant or parenting women with an established history of
substance abuse who have one or more children under six years old at
the time of entry into the program. For women with children, at least
one eligible child shall reside with the mother in the facility.
(2) Never served a prior prison term for, nor been convicted in
the present proceeding of, committing or attempting to commit, any of
the following offenses:
(A) Murder or voluntary manslaughter.
(B) Mayhem.
(C) Rape.
(D) Kidnapping.
(E) Sodomy by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person.
(F) Oral copulation by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another
person.
(G) Lewd acts on a child under 14 years of age, as defined in
Section 288.
(H) Any felony punishable by death or imprisonment in the state
prison for life.
(I) Any felony in which the defendant inflicts great bodily injury
on any person, other than an accomplice, that has been charged and
proved as provided for in Section 12022.53, 12022.7, or 12022.9, or
any felony in which the defendant uses a firearm, as provided in
Section 12022.5, 12022.53, or 12022.55, in which the use has been
charged and proved.
(J) Robbery.
(K) Any robbery perpetrated in an inhabited dwelling house or
trailer coach as defined in the Vehicle Code, or in the inhabited
portion of any other building, wherein it is charged and proved that
the defendant personally used a deadly or dangerous weapon, as
provided in subdivision (b) of Section 12022, in the commission of
that robbery.
(L) Arson in violation of subdivision (a) of Section 451.
(M) Sexual penetration in violation of subdivision (a) of Section
289 if the act is accomplished against the victim's will by force,
violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person.
(N) Rape or sexual penetration in concert, in violation of Section
264.1.
(O) Continual sexual abuse of a child in violation of Section
288.5.
(P) Assault with intent to commit mayhem, rape, sodomy, oral
copulation, rape in concert with another, lascivious acts upon a
child, or sexual penetration.
(Q) Assault with a deadly weapon or with force likely to produce
great bodily injury in violation of subdivision (a) of Section 245.
(R) Any violent felony defined in Section 667.5.
(S) A violation of Section 12022.
(T) A violation of Section 18745.
(U) Burglary of the first degree.
(V) A violation of Section 11351, 11351.5, 11352, 11353, 11358,
11359, 11360, 11370.1, 11370.6, 11378, 11378.5, 11379, 11379.5,
11379.6, 11380, or 11383 of the Health and Safety Code.
(3) Has not been sentenced to state prison for a term exceeding 36
months.
(b) Prior to sentencing, if the court proposes to give
consideration to a placement, the court shall consider a written
evaluation by the probation department, which shall include the
following:
(1) Whether the defendant is eligible for participation pursuant
to this section.
(2) Whether participation by the defendant and her eligible
children is deemed to be in the best interests of the children.
(3) Whether the defendant is amenable to treatment for substance
abuse and would benefit from participation in the program.
(4) Whether the program is deemed to be in the best interests of
an eligible child of the defendant, as determined by a representative
of the appropriate child welfare services agency of the county if
the child is a dependent child of the juvenile court pursuant to
Section 300 of the Welfare and Institutions Code.
(c) The district attorney shall make a recommendation to the court
as to whether or not the defendant would benefit from the program,
which the court shall consider in making its decision. If the court's
decision is without the concurrence of the district attorney, the
court shall specify its reasons in writing and enter them into the
record.
(d) If the court determines that the defendant may benefit from
participation in this program, the court may impose a state prison
sentence with the recommendation that the defendant participate in
the program pursuant to this chapter. The court shall notify the
department within 48 hours of imposition of this sentence.
(e) The Director of Corrections shall consider the court's
recommendation in making a determination on the inmate's placement in
the program.
(f) Women accepted for the program by the Director of Corrections
shall be delivered by the county, pursuant to Section 1202a, to the
facility selected by the department. Before the director accepts a
woman for the program, the county shall provide to the director the
necessary information to determine her eligibility and appropriate
placement status. Priority for services and aftercare shall be given
to inmates who are incarcerated in a county, or adjacent to a county,
in which a program facility is located.
(g) Prior to being admitted to the program, each participant shall
voluntarily sign an agreement specifying the terms and conditions of
participation in the program.
(h) The department may refer inmates back to the sentencing court
if the department determines that an eligible inmate has not been
recommended for the program. The department shall refer the inmate to
the court by an evaluative report so stating the department's
assessment of eligibility, and requesting a recommendation by the
court.
(i) Women who successfully complete the program, including the
minimum of one year of transition services under intensive parole
supervision, shall be discharged from parole. Women who do not
successfully complete the program shall be returned to the state
prison where they shall serve their original sentences. These persons
shall receive full credit against their original sentences for the
time served in the program, pursuant to Section 2933.
SEC. 73. Section 1192.7 of the Penal Code is amended to read:
1192.7. (a) (1) It is the intent of the Legislature that district
attorneys prosecute violent sex crimes under statutes that provide
sentencing under a "one strike," "three strikes" or habitual sex
offender statute instead of engaging in plea bargaining over those
offenses.
(2) Plea bargaining in any case in which the indictment or
information charges any serious felony, any felony in which it is
alleged that a firearm was personally used by the defendant, or any
offense of driving while under the influence of alcohol, drugs,
narcotics, or any other intoxicating substance, or any combination
thereof, is prohibited, unless there is insufficient evidence to
prove the people's case, or testimony of a material witness cannot be
obtained, or a reduction or dismissal would not result in a
substantial change in sentence.
(3) If the indictment or information charges the defendant with a
violent sex crime, as listed in subdivision (c) of Section 667.61,
that could be prosecuted under Sections 269, 288.7, subdivisions (b)
through (i) of Section 667, Section 667.61, or 667.71, plea
bargaining is prohibited unless there is insufficient evidence to
prove the people's case, or testimony of a material witness cannot be
obtained, or a reduction or dismissal would
not result in a substantial change in
sentence. At the time of presenting the agreement to the court, the
district attorney shall state on the record why a sentence under one
of those sections was not sought.
(b) As used in this section "plea bargaining" means any
bargaining, negotiation, or discussion between a criminal defendant,
or his or her counsel, and a prosecuting attorney or judge, whereby
the defendant agrees to plead guilty or nolo contendere, in exchange
for any promises, commitments, concessions, assurances, or
consideration by the prosecuting attorney or judge relating to any
charge against the defendant or to the sentencing of the defendant.
(c) As used in this section, "serious felony" means any of the
following:
(1) Murder or voluntary manslaughter; (2) mayhem; (3) rape; (4)
sodomy by force, violence, duress, menace, threat of great bodily
injury, or fear of immediate and unlawful bodily injury on the victim
or another person; (5) oral copulation by force, violence, duress,
menace, threat of great bodily injury, or fear of immediate and
unlawful bodily injury on the victim or another person; (6) lewd or
lascivious act on a child under 14 years of age; (7) any felony
punishable by death or imprisonment in the state prison for life; (8)
any felony in which the defendant personally inflicts great bodily
injury on any person, other than an accomplice, or any felony in
which the defendant personally uses a firearm; (9) attempted murder;
(10) assault with intent to commit rape or robbery; (11) assault with
a deadly weapon or instrument on a peace officer; (12) assault by a
life prisoner on a noninmate; (13) assault with a deadly weapon by an
inmate; (14) arson; (15) exploding a destructive device or any
explosive with intent to injure; (16) exploding a destructive device
or any explosive causing bodily injury, great bodily injury, or
mayhem; (17) exploding a destructive device or any explosive with
intent to murder; (18) any burglary of the first degree; (19) robbery
or bank robbery; (20) kidnapping; (21) holding of a hostage by a
person confined in a state prison; (22) attempt to commit a felony
punishable by death or imprisonment in the state prison for life;
(23) any felony in which the defendant personally used a dangerous or
deadly weapon; (24) selling, furnishing, administering, giving, or
offering to sell, furnish, administer, or give to a minor any heroin,
cocaine, phencyclidine (PCP), or any methamphetamine-related drug,
as described in paragraph (2) of subdivision (d) of Section 11055 of
the Health and Safety Code, or any of the precursors of
methamphetamines, as described in subparagraph (A) of paragraph (1)
of subdivision (f) of Section 11055 or subdivision (a) of Section
11100 of the Health and Safety Code; (25) any violation of
subdivision (a) of Section 289 where the act is accomplished against
the victim's will by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person;
(26) grand theft involving a firearm; (27) carjacking; (28) any
felony offense, which would also constitute a felony violation of
Section 186.22; (29) assault with the intent to commit mayhem, rape,
sodomy, or oral copulation, in violation of Section 220; (30)
throwing acid or flammable substances, in violation of Section 244;
(31) assault with a deadly weapon, firearm, machinegun, assault
weapon, or semiautomatic firearm or assault on a peace officer or
firefighter, in violation of Section 245; (32) assault with a deadly
weapon against a public transit employee, custodial officer, or
school employee, in violation of Section 245.2, 245.3, or 245.5; (33)
discharge of a firearm at an inhabited dwelling, vehicle, or
aircraft, in violation of Section 246; (34) commission of rape or
sexual penetration in concert with another person, in violation of
Section 264.1; (35) continuous sexual abuse of a child, in violation
of Section 288.5; (36) shooting from a vehicle, in violation of
subdivision (c) or (d) of Section 26100; (37) intimidation of victims
or witnesses, in violation of Section 136.1; (38) criminal threats,
in violation of Section 422; (39) any attempt to commit a crime
listed in this subdivision other than an assault; (40) any violation
of Section 12022.53; (41) a violation of subdivision (b) or (c) of
Section 11418; and (42) any conspiracy to commit an offense described
in this subdivision.
(d) As used in this section, "bank robbery" means to take or
attempt to take, by force or violence, or by intimidation from the
person or presence of another any property or money or any other
thing of value belonging to, or in the care, custody, control,
management, or possession of, any bank, credit union, or any savings
and loan association.
As used in this subdivision, the following terms have the
following meanings:
(1) "Bank" means any member of the Federal Reserve System, and any
bank, banking association, trust company, savings bank, or other
banking institution organized or operating under the laws of the
United States, and any bank the deposits of which are insured by the
Federal Deposit Insurance Corporation.
(2) "Savings and loan association" means any federal savings and
loan association and any "insured institution" as defined in Section
401 of the National Housing Act, as amended, and any federal credit
union as defined in Section 2 of the Federal Credit Union Act.
(3) "Credit union" means any federal credit union and any
state-chartered credit union the accounts of which are insured by the
Administrator of the National Credit Union administration.
(e) The provisions of this section shall not be amended by the
Legislature except by statute passed in each house by rollcall vote
entered in the journal, two-thirds of the membership concurring, or
by a statute that becomes effective only when approved by the
electors.
SEC. 74. Section 1203 of the Penal Code is amended to read:
1203. (a) As used in this code, "probation" means the suspension
of the imposition or execution of a sentence and the order of
conditional and revocable release in the community under the
supervision of a probation officer. As used in this code,
"conditional sentence" means the suspension of the imposition or
execution of a sentence and the order of revocable release in the
community subject to conditions established by the court without the
supervision of a probation officer. It is the intent of the
Legislature that both conditional sentence and probation are
authorized whenever probation is authorized in any code as a
sentencing option for infractions or misdemeanors.
(b) (1) Except as provided in subdivision (j), if a person is
convicted of a felony and is eligible for probation, before judgment
is pronounced, the court shall immediately refer the matter to a
probation officer to investigate and report to the court, at a
specified time, upon the circumstances surrounding the crime and the
prior history and record of the person, which may be considered
either in aggravation or mitigation of the punishment.
(2) (A) The probation officer shall immediately investigate and
make a written report to the court of his or her findings and
recommendations, including his or her recommendations as to the
granting or denying of probation and the conditions of probation, if
granted.
(B) Pursuant to Section 828 of the Welfare and Institutions Code,
the probation officer shall include in his or her report any
information gathered by a law enforcement agency relating to the
taking of the defendant into custody as a minor, which shall be
considered for purposes of determining whether adjudications of
commissions of crimes as a juvenile warrant a finding that there are
circumstances in aggravation pursuant to Section 1170 or to deny
probation.
(C) If the person was convicted of an offense that requires him or
her to register as a sex offender pursuant to Sections 290 to
290.023, inclusive, or if the probation report recommends that
registration be ordered at sentencing pursuant to Section 290.006,
the probation officer's report shall include the results of the
State-Authorized Risk Assessment Tool for Sex Offenders (SARATSO)
administered pursuant to Sections 290.04 to 290.06, inclusive, if
applicable.
(D) The probation officer shall also include in the report his or
her recommendation of both of the following:
(i) The amount the defendant should be required to pay as a
restitution fine pursuant to subdivision (b) of Section 1202.4.
(ii) Whether the court shall require, as a condition of probation,
restitution to the victim or to the Restitution Fund and the amount
thereof.
(E) The report shall be made available to the court and the
prosecuting and defense attorneys at least five days, or upon request
of the defendant or prosecuting attorney nine days, prior to the
time fixed by the court for the hearing and determination of the
report, and shall be filed with the clerk of the court as a record in
the case at the time of the hearing. The time within which the
report shall be made available and filed may be waived by written
stipulation of the prosecuting and defense attorneys that is filed
with the court or an oral stipulation in open court that is made and
entered upon the minutes of the court.
(3) At a time fixed by the court, the court shall hear and
determine the application, if one has been made, or, in any case, the
suitability of probation in the particular case. At the hearing, the
court shall consider any report of the probation officer, including
the results of the SARATSO, if applicable, and shall make a statement
that it has considered the report, which shall be filed with the
clerk of the court as a record in the case. If the court determines
that there are circumstances in mitigation of the punishment
prescribed by law or that the ends of justice would be served by
granting probation to the person, it may place the person on
probation. If probation is denied, the clerk of the court shall
immediately send a copy of the report to the Department of
Corrections and Rehabilitation at the prison or other institution to
which the person is delivered.
(4) The preparation of the report or the consideration of the
report by the court may be waived only by a written stipulation of
the prosecuting and defense attorneys that is filed with the court or
an oral stipulation in open court that is made and entered upon the
minutes of the court, except that there shall be no waiver unless the
court consents thereto. However, if the defendant is ultimately
sentenced and committed to the state prison, a probation report shall
be completed pursuant to Section 1203c.
(c) If a defendant is not represented by an attorney, the court
shall order the probation officer who makes the probation report to
discuss its contents with the defendant.
(d) If a person is convicted of a misdemeanor, the court may
either refer the matter to the probation officer for an investigation
and a report or summarily pronounce a conditional sentence. If the
person was convicted of an offense that requires him or her to
register as a sex offender pursuant to Sections 290 to 290.023,
inclusive, or if the probation officer recommends that the court, at
sentencing, order the offender to register as a sex offender pursuant
to Section 290.006, the court shall refer the matter to the
probation officer for the purpose of obtaining a report on the
results of the State-Authorized Risk Assessment Tool for Sex
Offenders administered pursuant to Sections 290.04 to 290.06,
inclusive, if applicable, which the court shall consider. If the case
is not referred to the probation officer, in sentencing the person,
the court may consider any information concerning the person that
could have been included in a probation report. The court shall
inform the person of the information to be considered and permit him
or her to answer or controvert the information. For this purpose,
upon the request of the person, the court shall grant a continuance
before the judgment is pronounced.
(e) Except in unusual cases where the interests of justice would
best be served if the person is granted probation, probation shall
not be granted to any of the following persons:
(1) Unless the person had a lawful right to carry a deadly weapon,
other than a firearm, at the time of the perpetration of the crime
or his or her arrest, any person who has been convicted of arson,
robbery, carjacking, burglary, burglary with explosives, rape with
force or violence, torture, aggravated mayhem, murder, attempt to
commit murder, trainwrecking, kidnapping, escape from the state
prison, or a conspiracy to commit one or more of those crimes and who
was armed with the weapon at either of those times.
(2) Any person who used, or attempted to use, a deadly weapon upon
a human being in connection with the perpetration of the crime of
which he or she has been convicted.
(3) Any person who willfully inflicted great bodily injury or
torture in the perpetration of the crime of which he or she has been
convicted.
(4) Any person who has been previously convicted twice in this
state of a felony or in any other place of a public offense which, if
committed in this state, would have been punishable as a felony.
(5) Unless the person has never been previously convicted once in
this state of a felony or in any other place of a public offense
which, if committed in this state, would have been punishable as a
felony, any person who has been convicted of burglary with
explosives, rape with force or violence, torture, aggravated mayhem,
murder, attempt to commit murder, trainwrecking, extortion,
kidnapping, escape from the state prison, a violation of Section 286,
288, 288a, or 288.5, or a conspiracy to commit one or more of those
crimes.
(6) Any person who has been previously convicted once in this
state of a felony or in any other place of a public offense which, if
committed in this state, would have been punishable as a felony, if
he or she committed any of the following acts:
(A) Unless the person had a lawful right to carry a deadly weapon
at the time of the perpetration of the previous crime or his or her
arrest for the previous crime, he or she was armed with a weapon at
either of those times.
(B) The person used, or attempted to use, a deadly weapon upon a
human being in connection with the perpetration of the previous
crime.
(C) The person willfully inflicted great bodily injury or torture
in the perpetration of the previous crime.
(7) Any public official or peace officer of this state or any
city, county, or other political subdivision who, in the discharge of
the duties of his or her public office or employment, accepted or
gave or offered to accept or give any bribe, embezzled public money,
or was guilty of extortion.
(8) Any person who knowingly furnishes or gives away
phencyclidine.
(9) Any person who intentionally inflicted great bodily injury in
the commission of arson under subdivision (a) of Section 451 or who
intentionally set fire to, burned, or caused the burning of, an
inhabited structure or inhabited property in violation of subdivision
(b) of Section 451.
(10) Any person who, in the commission of a felony, inflicts great
bodily injury or causes the death of a human being by the discharge
of a firearm from or at an occupied motor vehicle proceeding on a
public street or highway.
(11) Any person who possesses a short-barreled rifle or a
short-barreled shotgun under Section 33215, a machinegun under
Section 32625, or a silencer under Section 33410.
(12) Any person who is convicted of violating Section 8101 of the
Welfare and Institutions Code.
(13) Any person who is described in subdivision (b) or (c) of
Section 27590.
(f) When probation is granted in a case which comes within
subdivision (e), the court shall specify on the record and shall
enter on the minutes the circumstances indicating that the interests
of justice would best be served by that disposition.
(g) If a person is not eligible for probation, the judge shall
refer the matter to the probation officer for an investigation of the
facts relevant to determination of the amount of a restitution fine
pursuant to subdivision (b) of Section 1202.4 in all cases where the
determination is applicable. The judge, in his or her discretion, may
direct the probation officer to investigate all facts relevant to
the sentencing of the person. Upon that referral, the probation
officer shall immediately investigate the circumstances surrounding
the crime and the prior record and history of the person and make a
written report to the court of his or her findings. The findings
shall include a recommendation of the amount of the restitution fine
as provided in subdivision (b) of Section 1202.4.
(h) If a defendant is convicted of a felony and a probation report
is prepared pursuant to subdivision (b) or (g), the probation
officer may obtain and include in the report a statement of the
comments of the victim concerning the offense. The court may direct
the probation officer not to obtain a statement if the victim has in
fact testified at any of the court proceedings concerning the
offense.
(i) No probationer shall be released to enter another state unless
his or her case has been referred to the Administrator of the
Interstate Probation and Parole Compacts, pursuant to the Uniform Act
for Out-of-State Probationer or Parolee Supervision (Article 3
(commencing with Section 11175) of Chapter 2 of Title 1 of Part 4)
and the probationer has reimbursed the county that has jurisdiction
over his or her probation case the reasonable costs of processing his
or her request for interstate compact supervision. The amount and
method of reimbursement shall be in accordance with Section 1203.1b.
(j) In any court where a county financial evaluation officer is
available, in addition to referring the matter to the probation
officer, the court may order the defendant to appear before the
county financial evaluation officer for a financial evaluation of the
defendant's ability to pay restitution, in which case the county
financial evaluation officer shall report his or her findings
regarding restitution and other court-related costs to the probation
officer on the question of the defendant's ability to pay those
costs.
Any order made pursuant to this subdivision may be enforced as a
violation of the terms and conditions of probation upon willful
failure to pay and at the discretion of the court, may be enforced in
the same manner as a judgment in a civil action, if any balance
remains unpaid at the end of the defendant's probationary period.
(k) Probation shall not be granted to, nor shall the execution of,
or imposition of sentence be suspended for, any person who is
convicted of a violent felony, as defined in subdivision (c) of
Section 667.5, or a serious felony, as defined in subdivision (c) of
Section 1192.7, and who was on probation for a felony offense at the
time of the commission of the new felony offense.
SEC. 75. Section 1203.1 of the Penal Code is amended to read:
1203.1. (a) The court, or judge thereof, in the order granting
probation, may suspend the imposing or the execution of the sentence
and may direct that the suspension may continue for a period of time
not exceeding the maximum possible term of the sentence, except as
hereinafter set forth, and upon those terms and conditions as it
shall determine. The court, or judge thereof, in the order granting
probation and as a condition thereof, may imprison the defendant in a
county jail for a period not exceeding the maximum time fixed by law
in the case.
However, where the maximum possible term of the sentence is five
years or less, then the period of suspension of imposition or
execution of sentence may, in the discretion of the court, continue
for not over five years. The following shall apply to this
subdivision:
(1) The court may fine the defendant in a sum not to exceed the
maximum fine provided by law in the case.
(2) The court may, in connection with granting probation, impose
either imprisonment in a county jail or a fine, both, or neither.
(3) The court shall provide for restitution in proper cases. The
restitution order shall be fully enforceable as a civil judgment
forthwith and in accordance with Section 1202.4 of the Penal Code.
(4) The court may require bonds for the faithful observance and
performance of any or all of the conditions of probation.
(b) The court shall consider whether the defendant as a condition
of probation shall make restitution to the victim or the Restitution
Fund. Any restitution payment received by a court or probation
department in the form of cash or money order shall be forwarded to
the victim within 30 days from the date the payment is received by
the department. Any restitution payment received by a court or
probation department in the form of a check or draft shall be
forwarded to the victim within 45 days from the date the payment is
received, provided, that payment need not be forwarded to a victim
until 180 days from the date the first payment is received, if the
restitution payments for that victim received by the court or
probation department total less than fifty dollars ($50). In cases
where the court has ordered the defendant to pay restitution to
multiple victims and where the administrative cost of disbursing
restitution payments to multiple victims involves a significant cost,
any restitution payment received by a probation department shall be
forwarded to multiple victims when it is cost effective to do so, but
in no event shall restitution disbursements be delayed beyond 180
days from the date the payment is received by the probation
department.
(c) In counties or cities and counties where road camps, farms, or
other public work is available the court may place the probationer
in the road camp, farm, or other public work instead of in jail. In
this case, Section 25359 of the Government Code shall apply to
probation and the court shall have the same power to require adult
probationers to work, as prisoners confined in the county jail are
required to work, at public work. Each county board of supervisors
may fix the scale of compensation of the adult probationers in that
county.
(d) In all cases of probation the court may require as a condition
of probation that the probationer go to work and earn money for the
support of his or her dependents or to pay any fine imposed or
reparation condition, to keep an account of his or her earnings, to
report them to the probation officer and apply those earnings as
directed by the court.
(e) The court shall also consider whether the defendant as a
condition of probation shall make restitution to a public agency for
the costs of an emergency response pursuant to Article 8 (commencing
with Section 53150) of Chapter 1 of Part 1 of Division 2 of the
Government Code.
(f) In all felony cases in which, as a condition of probation, a
judge of the superior court sitting by authority of law elsewhere
than at the county seat requires a convicted person to serve his or
her sentence at intermittent periods the sentence may be served on
the order of the judge at the city jail nearest to the place at which
the court is sitting, and the cost of his or her maintenance shall
be a county charge.
(g) (1) The court and prosecuting attorney shall consider whether
any defendant who has been convicted of a nonviolent or nonserious
offense and ordered to participate in community service as a
condition of probation shall be required to engage in the removal of
graffiti in the performance of the community service. For the purpose
of this subdivision, a nonserious offense shall not include the
following:
(A) Offenses in violation of the Dangerous Weapons Control Law, as
defined in Section 23500.
(B) Offenses involving the use of a dangerous or deadly weapon,
including all violations of Section 417.
(C) Offenses involving the use or attempted use of violence
against the person of another or involving injury to a victim.
(D) Offenses involving annoying or molesting children.
(2) Notwithstanding subparagraph (A) of paragraph (1), any person
who violates Chapter 1 (commencing with Section 29610) of Division 9
of Title 4 of Part 6 shall be ordered to perform not less than 100
hours and not more than 500 hours of community service as a condition
of probation.
(3) The court and the prosecuting attorney need not consider a
defendant pursuant to paragraph (1) if the following circumstances
exist:
(A) The defendant was convicted of any offense set forth in
subdivision (c) of Section 667.5 or subdivision (c) of Section
1192.7.
(B) The judge believes that the public safety may be endangered if
the person is ordered to do community service or the judge believes
that the facts or circumstances or facts and circumstances call for
imposition of a more substantial penalty.
(h) The probation officer or his or her designated representative
shall consider whether any defendant who has been convicted of a
nonviolent and nonserious offense and ordered to participate in
community service as a condition of probation shall be required to
engage in the performance of house repairs or yard services for
senior citizens and the performance of repairs to senior centers
through contact with local senior service organizations in the
performance of the community service.
(i) (1) Upon conviction of any offense involving child abuse or
neglect, the court may require, in addition to any or all of the
above-mentioned terms of imprisonment, fine, and other reasonable
conditions, that the defendant shall participate in counseling or
education programs, or both, including, but not limited to, parent
education or parenting programs operated by community colleges,
school districts, other public agencies, or private agencies.
(2) Upon conviction of any sex offense subjecting the defendant to
the registration requirements of Section 290, the court may order as
a condition of probation, at the request of the victim or in the
court's discretion, that the defendant stay away from the victim and
the victim's residence or place of employment, and that the defendant
have no contact with the victim in person, by telephone or
electronic means, or by mail.
(j) The court may impose and require any or all of the
above-mentioned terms of imprisonment, fine, and conditions, and
other reasonable conditions, as it may determine are fitting and
proper to the end that justice may be done, that amends may be made
to society for the breach of the law, for any injury done to any
person resulting from that breach, and generally and specifically for
the reformation and rehabilitation of
the probationer, and that should the probationer
violate any of the terms or conditions imposed by the court in the
matter, it shall have authority to modify and change any and all the
terms and conditions and to reimprison the probationer in the county
jail within the limitations of the penalty of the public offense
involved. Upon the defendant being released from the county jail
under the terms of probation as originally granted or any
modification subsequently made, and in all cases where confinement in
a county jail has not been a condition of the grant of probation,
the court shall place the defendant or probationer in and under the
charge of the probation officer of the court, for the period or term
fixed for probation. However, upon the payment of any fine imposed
and the fulfillment of all conditions of probation, probation shall
cease at the end of the term of probation, or sooner, in the event of
modification. In counties and cities and counties in which there are
facilities for taking fingerprints, those of each probationer shall
be taken and a record of them kept and preserved.
(k) Notwithstanding any other provisions of law to the contrary,
except as provided in Section 13967, as operative on or before
September 28, 1994, of the Government Code and Section 13967.5 of the
Government Code and Sections 1202.4, 1463.16, paragraph (1) of
subdivision (a) of Section 1463.18, and Section 1464, and Section
1203.04, as operative on or before August 2, 1995, all fines
collected by a county probation officer in any of the courts of this
state, as a condition of the granting of probation or as a part of
the terms of probation, shall be paid into the county treasury and
placed in the general fund for the use and benefit of the county.
(l) If the court orders restitution to be made to the victim, the
entity collecting the restitution may add a fee to cover the actual
administrative cost of collection, but not to exceed 15 percent of
the total amount ordered to be paid. The amount of the fee shall be
set by the board of supervisors if it is collected by the county and
the fee collected shall be paid into the general fund of the county
treasury for the use and benefit of the county. The amount of the fee
shall be set by the court if it is collected by the court and the
fee collected shall be paid into the Trial Court Operations Fund or
account established by Section 77009 of the Government Code for the
use and benefit of the court.
SEC. 76. Section 1203.4 of the Penal Code is amended to read:
1203.4. (a) In any case in which a defendant has fulfilled the
conditions of probation for the entire period of probation, or has
been discharged prior to the termination of the period of probation,
or in any other case in which a court, in its discretion and the
interests of justice, determines that a defendant should be granted
the relief available under this section, the defendant shall, at any
time after the termination of the period of probation, if he or she
is not then serving a sentence for any offense, on probation for any
offense, or charged with the commission of any offense, be permitted
by the court to withdraw his or her plea of guilty or plea of nolo
contendere and enter a plea of not guilty; or, if he or she has been
convicted after a plea of not guilty, the court shall set aside the
verdict of guilty; and, in either case, the court shall thereupon
dismiss the accusations or information against the defendant and
except as noted below, he or she shall thereafter be released from
all penalties and disabilities resulting from the offense of which he
or she has been convicted, except as provided in Section 13555 of
the Vehicle Code. The probationer shall be informed, in his or her
probation papers, of this right and privilege and his or her right,
if any, to petition for a certificate of rehabilitation and pardon.
The probationer may make the application and change of plea in person
or by attorney, or by the probation officer authorized in writing.
However, in any subsequent prosecution of the defendant for any other
offense, the prior conviction may be pleaded and proved and shall
have the same effect as if probation had not been granted or the
accusation or information dismissed. The order shall state, and the
probationer shall be informed, that the order does not relieve him or
her of the obligation to disclose the conviction in response to any
direct question contained in any questionnaire or application for
public office, for licensure by any state or local agency, or for
contracting with the California State Lottery.
Dismissal of an accusation or information pursuant to this section
does not permit a person to own, possess, or have in his or her
custody or control any firearm or prevent his or her conviction under
Chapter 2 (commencing with Section 29800) of Division 9 of Title 4
of Part 6.
Dismissal of an accusation or information underlying a conviction
pursuant to this section does not permit a person prohibited from
holding public office as a result of that conviction to hold public
office.
This subdivision shall apply to all applications for relief under
this section which are filed on or after November 23, 1970.
(b) Subdivision (a) of this section does not apply to any
misdemeanor that is within the provisions of subdivision (b) of
Section 42001 of the Vehicle Code, to any violation of subdivision
(c) of Section 286, Section 288, subdivision (c) of Section 288a,
Section 288.5, or subdivision (j) of Section 289, any felony
conviction pursuant to subdivision (d) of Section 261.5, or to any
infraction.
(c) (1) Except as provided in paragraph (2), subdivision (a) does
not apply to a person who receives a notice to appear or is otherwise
charged with a violation of an offense described in subdivisions (a)
to (e), inclusive, of Section 12810 of the Vehicle Code.
(2) If a defendant who was convicted of a violation listed in
paragraph (1) petitions the court, the court in its discretion and in
the interests of justice, may order the relief provided pursuant to
subdivision (a) to that defendant.
(d) A person who petitions for a change of plea or setting aside
of a verdict under this section may be required to reimburse the
court for the actual costs of services rendered, whether or not the
petition is granted and the records are sealed or expunged, at a rate
to be determined by the court not to exceed one hundred fifty
dollars ($150), and to reimburse the county for the actual costs of
services rendered, whether or not the petition is granted and the
records are sealed or expunged, at a rate to be determined by the
county board of supervisors not to exceed one hundred fifty dollars
($150), and to reimburse any city for the actual costs of services
rendered, whether or not the petition is granted and the records are
sealed or expunged, at a rate to be determined by the city council
not to exceed one hundred fifty dollars ($150). Ability to make this
reimbursement shall be determined by the court using the standards
set forth in paragraph (2) of subdivision (g) of Section 987.8 and
shall not be a prerequisite to a person's eligibility under this
section. The court may order reimbursement in any case in which the
petitioner appears to have the ability to pay, without undue
hardship, all or any portion of the costs for services established
pursuant to this subdivision.
(e) Relief shall not be granted under this section unless the
prosecuting attorney has been given 15 days' notice of the petition
for relief. The probation officer shall notify the prosecuting
attorney when a petition is filed, pursuant to this section.
It shall be presumed that the prosecuting attorney has received
notice if proof of service is filed with the court.
(f) If, after receiving notice pursuant to subdivision (e), the
prosecuting attorney fails to appear and object to a petition for
dismissal, the prosecuting attorney may not move to set aside or
otherwise appeal the grant of that petition.
(g) Notwithstanding the above provisions or any other provision of
law, the Governor shall have the right to pardon a person convicted
of a violation of subdivision (c) of Section 286, Section 288,
subdivision (c) of Section 288a, Section 288.5, or subdivision (j) of
Section 289, if there are extraordinary circumstances.
SEC. 77. Section 1203.4a of the Penal Code is amended to read:
1203.4a. (a) Every defendant convicted of a misdemeanor and not
granted probation shall, at any time after the lapse of one year from
the date of pronouncement of judgment, if he or she has fully
complied with and performed the sentence of the court, is not then
serving a sentence for any offense and is not under charge of
commission of any crime and has, since the pronouncement of judgment,
lived an honest and upright life and has conformed to and obeyed the
laws of the land, be permitted by the court to withdraw his or her
plea of guilty or nolo contendere and enter a plea of not guilty; or
if he or she has been convicted after a plea of not guilty, the court
shall set aside the verdict of guilty; and in either case the court
shall thereupon dismiss the accusatory pleading against the
defendant, who shall thereafter be released from all penalties and
disabilities resulting from the offense of which he or she has been
convicted, except as provided in Chapter 3 (commencing with Section
29900) of Division 9 of Title 4 of Part 6 of this code or Section
13555 of the Vehicle Code. The defendant shall be informed of the
provisions of this section, either orally or in writing, at the time
he or she is sentenced. The defendant may make an application and
change of plea in person or by attorney, or by the probation officer
authorized in writing; provided, that in any subsequent prosecution
of the defendant for any other offense, the prior conviction may be
pleaded and proved and shall have the same effect as if relief had
not been granted pursuant to this section.
This subdivision applies to convictions which occurred before as
well as those occurring after, the effective date of this section.
(b) Subdivision (a) does not apply to any misdemeanor falling
within the provisions of subdivision (b) of Section 42001 of the
Vehicle Code, or to any infraction.
(c) A person who petitions for a dismissal of a charge under this
section may be required to reimburse the county and the court for the
cost of services rendered at a rate to be determined by the county
board of supervisors for the county and by the court for the court,
not to exceed sixty dollars ($60), and to reimburse any city for the
cost of services rendered at a rate to be determined by the city
council not to exceed sixty dollars ($60). Ability to make this
reimbursement shall be determined by the court using the standards
set forth in paragraph (2) of subdivision (g) of Section 987.8 and
shall not be a prerequisite to a person's eligibility under this
section. The court may order reimbursement in any case in which the
petitioner appears to have the ability to pay, without undue
hardship, all or any portion of the cost for services established
pursuant to this subdivision.
(d) Any determination of amount made by a court under this section
shall be valid only if either (1) made under procedures adopted by
the Judicial Council or (2) approved by the Judicial Council.
SEC. 78. Section 1210.1 of the Penal Code is amended to read:
1210.1. (a) Notwithstanding any other provision of law, and
except as provided in subdivision (b), any person convicted of a
nonviolent drug possession offense shall receive probation. As a
condition of probation the court shall require participation in and
completion of an appropriate drug treatment program. The court shall
impose appropriate drug testing as a condition of probation. The
court may also impose, as a condition of probation, participation in
vocational training, family counseling, literacy training and/or
community service. A court may not impose incarceration as an
additional condition of probation. Aside from the limitations imposed
in this subdivision, the trial court is not otherwise limited in the
type of probation conditions it may impose. Probation shall be
imposed by suspending the imposition of sentence. No person shall be
denied the opportunity to benefit from the provisions of the
Substance Abuse and Crime Prevention Act of 2000 based solely upon
evidence of a co-occurring psychiatric or developmental disorder. To
the greatest extent possible, any person who is convicted of, and
placed on probation pursuant to this section for a nonviolent drug
possession offense shall be monitored by the court through the use of
a dedicated court calendar and the incorporation of a collaborative
court model of oversight that includes close collaboration with
treatment providers and probation, drug testing commensurate with
treatment needs, and supervision of progress through review hearings.
In addition to any fine assessed under other provisions of law,
the trial judge may require any person convicted of a nonviolent drug
possession offense who is reasonably able to do so to contribute to
the cost of his or her own placement in a drug treatment program.
(b) Subdivision (a) shall not apply to any of the following:
(1) Any defendant who previously has been convicted of one or more
violent or serious felonies as defined in subdivision (c) of Section
667.5 or subdivision (c) of Section 1192.7, respectively, unless the
nonviolent drug possession offense occurred after a period of five
years in which the defendant remained free of both prison custody and
the commission of an offense that results in a felony conviction
other than a nonviolent drug possession offense, or a misdemeanor
conviction involving physical injury or the threat of physical injury
to another person.
(2) Any defendant who, in addition to one or more nonviolent drug
possession offenses, has been convicted in the same proceeding of a
misdemeanor not related to the use of drugs or any felony.
(3) Any defendant who, while armed with a deadly weapon, with the
intent to use the same as a deadly weapon, unlawfully possesses or is
under the influence of any controlled substance identified in
Section 11054, 11055, 11056, 11057, or 11058 of the Health and Safety
Code.
(4) Any defendant who refuses drug treatment as a condition of
probation.
(5) Any defendant who has two separate convictions for nonviolent
drug possession offenses, has participated in two separate courses of
drug treatment pursuant to subdivision (a), and is found by the
court, by clear and convincing evidence, to be unamenable to any and
all forms of available drug treatment, as defined in subdivision (b)
of Section 1210. Notwithstanding any other provision of law, the
trial court shall sentence that defendant to 30 days in jail.
(c) (1) Any defendant who has previously been convicted of at
least three non-drug-related felonies for which the defendant has
served three separate prison terms within the meaning of subdivision
(b) of Section 667.5 shall be presumed eligible for treatment under
subdivision (a). The court may exclude the defendant from treatment
under subdivision (a) where the court, pursuant to the motion of the
prosecutor or its own motion, finds that the defendant poses a
present danger to the safety of others and would not benefit from a
drug treatment program. The court shall, on the record, state its
findings, the reasons for those findings.
(2) Any defendant who has previously been convicted of a
misdemeanor or felony at least five times within the prior 30 months
shall be presumed to be eligible for treatment under subdivision (a).
The court may exclude the defendant from treatment under subdivision
(a) if the court, pursuant to the motion of the prosecutor, or on
its own motion, finds that the defendant poses a present danger to
the safety of others or would not benefit from a drug treatment
program. The court shall, on the record, state its findings and the
reasons for those findings.
(d) Within seven days of an order imposing probation under
subdivision (a), the probation department shall notify the drug
treatment provider designated to provide drug treatment under
subdivision (a). Within 30 days of receiving that notice, the
treatment provider shall prepare a treatment plan and forward it to
the probation department for distribution to the court and counsel.
The treatment provider shall provide to the probation department
standardized treatment progress reports, with minimum data elements
as determined by the department, including all drug testing results.
At a minimum, the reports shall be provided to the court every 90
days, or more frequently, as the court directs.
(1) If at any point during the course of drug treatment the
treatment provider notifies the probation department and the court
that the defendant is unamenable to the drug treatment being
provided, but may be amenable to other drug treatments or related
programs, the probation department may move the court to modify the
terms of probation, or on its own motion, the court may modify the
terms of probation after a hearing to ensure that the defendant
receives the alternative drug treatment or program.
(2) If at any point during the course of drug treatment the
treatment provider notifies the probation department and the court
that the defendant is unamenable to the drug treatment provided and
all other forms of drug treatment programs pursuant to subdivision
(b) of Section 1210, the probation department may move to revoke
probation. At the revocation hearing, if it is proved that the
defendant is unamenable to all drug treatment programs pursuant to
subdivision (b) of Section 1210, the court may revoke probation.
(3) Drug treatment services provided by subdivision (a) as a
required condition of probation may not exceed 12 months, unless the
court makes a finding supported by the record, that the continuation
of treatment services beyond 12 months is necessary for drug
treatment to be successful. If that finding is made, the court may
order up to two six-month extensions of treatment services. The
provision of treatment services under the Substance Abuse and Crime
Prevention Act of 2000 shall not exceed 24 months.
(e) (1) At any time after completion of drug treatment and the
terms of probation, the court shall conduct a hearing, and if the
court finds that the defendant successfully completed drug treatment,
and substantially complied with the conditions of probation,
including refraining from the use of drugs after the completion of
treatment, the conviction on which the probation was based shall be
set aside and the court shall dismiss the indictment, complaint, or
information against the defendant. In addition, except as provided in
paragraphs (2) and (3), both the arrest and the conviction shall be
deemed never to have occurred. The defendant may additionally
petition the court for a dismissal of charges at any time after
completion of the prescribed course of drug treatment. Except as
provided in paragraph (2) or (3), the defendant shall thereafter be
released from all penalties and disabilities resulting from the
offense of which he or she has been convicted.
(2) Dismissal of an indictment, complaint, or information pursuant
to paragraph (1) does not permit a person to own, possess, or have
in his or her custody or control any firearm capable of being
concealed upon the person or prevent his or her conviction under
Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of
Part 6.
(3) Except as provided below, after an indictment, complaint, or
information is dismissed pursuant to paragraph (1), the defendant may
indicate in response to any question concerning his or her prior
criminal record that he or she was not arrested or convicted for the
offense. Except as provided below, a record pertaining to an arrest
or conviction resulting in successful completion of a drug treatment
program under this section may not, without the defendant's consent,
be used in any way that could result in the denial of any employment,
benefit, license, or certificate.
Regardless of his or her successful completion of drug treatment,
the arrest and conviction on which the probation was based may be
recorded by the Department of Justice and disclosed in response to
any peace officer application request or any law enforcement inquiry.
Dismissal of an information, complaint, or indictment under this
section does not relieve a defendant of the obligation to disclose
the arrest and conviction in response to any direct question
contained in any questionnaire or application for public office, for
a position as a peace officer as defined in Section 830, for
licensure by any state or local agency, for contracting with the
California State Lottery, or for purposes of serving on a jury.
(f) (1) If probation is revoked pursuant to the provisions of this
subdivision, the defendant may be incarcerated pursuant to otherwise
applicable law without regard to the provisions of this section. The
court may modify or revoke probation if the alleged violation is
proved.
(2) If a defendant receives probation under subdivision (a), and
violates that probation either by committing an offense that is not a
nonviolent drug possession offense, or by violating a
non-drug-related condition of probation, and the state moves to
revoke probation, the court may remand the defendant for a period not
exceeding 30 days during which time the court may receive input from
treatment, probation, the state, and the defendant, and the court
may conduct further hearings as it deems appropriate to determine
whether or not probation should be reinstated under this section. If
the court reinstates the defendant on probation, the court may modify
the treatment plan and any other terms of probation, and continue
the defendant in a treatment program under the Substance Abuse and
Crime Prevention Act of 2000. If the court reinstates the defendant
on probation, the court may, after receiving input from the treatment
provider and probation, if available, intensify or alter the
treatment plan under subdivision (a), and impose sanctions, including
jail sanctions not exceeding 30 days, a tool to enhance treatment
compliance.
(3) (A) If a defendant receives probation under subdivision (a),
and violates that probation either by committing a nonviolent drug
possession offense, or a misdemeanor for simple possession or use of
drugs or drug paraphernalia, being present where drugs are used, or
failure to register as a drug offender, or any activity similar to
those listed in subdivision (d) of Section 1210, or by violating a
drug-related condition of probation, and the state moves to revoke
probation, the court shall conduct a hearing to determine whether
probation shall be revoked. The trial court shall revoke probation if
the alleged probation violation is proved and the state proves by a
preponderance of the evidence that the defendant poses a danger to
the safety of others. If the court does not revoke probation, it may
intensify or alter the drug treatment plan and in addition, if the
violation does not involve the recent use of drugs as a circumstance
of the violation, including, but not limited to, violations relating
to failure to appear at treatment or court, noncompliance with
treatment, and failure to report for drug testing, the court may
impose sanctions including jail sanctions that may not exceed 48
hours of continuous custody as a tool to enhance treatment compliance
and impose other changes in the terms and conditions of probation.
The court shall consider, among other factors, the seriousness of the
violation, previous treatment compliance, employment, education,
vocational training, medical conditions, medical treatment, including
narcotics replacement treatment, and including the opinion of the
defendant's licensed and treating physician if immediately available
and presented at the hearing, child support obligations, and family
responsibilities. The court shall consider additional conditions of
probation, which may include, but are not limited to, community
service and supervised work programs. If one of the circumstances of
the violation involves recent drug use, as well as other
circumstances of violation, and the circumstance of recent drug use
is demonstrated to the court by satisfactory evidence and a finding
made on the record, the court may, after receiving input from
treatment and probation, if available, direct the defendant to enter
a licensed detoxification or residential treatment facility, and if
there is no bed immediately available in that type of facility, the
court may order that the defendant be confined in a county jail for
detoxification purposes only, if the jail offers detoxification
services, for a period not to exceed 10 days. The detoxification
services must provide narcotic replacement therapy for those
defendants presently actually receiving narcotic replacement therapy.
(B) If a defendant receives probation under subdivision (a), and
for the second time violates that probation either by committing a
nonviolent drug possession offense, or a misdemeanor for simple
possession or use of drugs or drug paraphernalia, being present where
drugs are used, or failure to register as a drug offender, or any
activity similar to those listed in subdivision (d) of Section 1210,
or by violating a drug-related condition of probation, and the state
moves to revoke probation, the court shall conduct a hearing to
determine whether probation shall be revoked. The trial court shall
revoke probation if the alleged probation violation is proved and the
state proves by a preponderance of the evidence either that the
defendant poses a danger to the safety of others or is unamenable to
drug treatment. In determining whether a defendant is unamenable to
drug treatment, the court may consider, to the extent relevant,
whether the defendant (i) has committed a serious violation of rules
at the drug treatment program, (ii) has repeatedly committed
violations of program rules that inhibit the defendant's ability to
function in the program, or (iii) has continually refused to
participate in the program or asked to be removed from the program.
If the court does not revoke probation, it may intensify or alter the
drug treatment plan, and may, in addition, if the violation does not
involve the recent use of drugs as a circumstance of the violation,
including, but not limited to, violations relating to failure to
appear at treatment or court, noncompliance with treatment, and
failure to report for drug testing, impose sanctions including jail
sanctions that may not exceed 120 hours of continuous custody as a
tool to enhance
treatment compliance and impose other changes in the terms and
conditions of probation. The court shall consider, among other
factors, the seriousness of the violation, previous treatment
compliance, employment, education, vocational training, medical
conditions, medical treatment, including narcotics replacement
treatment, and including the opinion of the defendant's licensed and
treating physician if immediately available and presented at the
hearing, child support obligations, and family responsibilities. The
court shall consider additional conditions of probation, which may
include, but are not limited to, community service and supervised
work programs. If one of the circumstances of the violation involves
recent drug use, as well as other circumstances of violation, and the
circumstance of recent drug use is demonstrated to the court by
satisfactory evidence and a finding made on the record, the court
may, after receiving input from treatment and probation, if
available, direct the defendant to enter a licensed detoxification or
residential treatment facility, and if there is no bed immediately
available in the facility, the court may order that the defendant be
confined in a county jail for detoxification purposes only, if the
jail offers detoxification services, for a period not to exceed 10
days. Detoxification services must provide narcotic replacement
therapy for those defendants presently actually receiving narcotic
replacement therapy.
(C) If a defendant receives probation under subdivision (a), and
for the third or subsequent time violates that probation either by
committing a nonviolent drug possession offense, or by violating a
drug-related condition of probation, and the state moves for a third
or subsequent time to revoke probation, the court shall conduct a
hearing to determine whether probation shall be revoked. If the
alleged probation violation is proved, the defendant is not eligible
for continued probation under subdivision (a) unless the court
determines that the defendant is not a danger to the community and
would benefit from further treatment under subdivision (a). The court
may then either intensify or alter the treatment plan under
subdivision (a) or transfer the defendant to a highly structured drug
court. If the court continues the defendant in treatment under
subdivision (a), or drug court, the court may impose appropriate
sanctions including jail sanctions as the court deems appropriate.
(D) If a defendant on probation at the effective date of this act
for a nonviolent drug possession offense violates that probation
either by committing a nonviolent drug possession offense, or a
misdemeanor for simple possession or use of drugs or drug
paraphernalia, being present where drugs are used, or failure to
register as a drug offender, or any activity similar to those listed
in subdivision (d) of Section 1210, or by violating a drug-related
condition of probation, and the state moves to revoke probation, the
court shall conduct a hearing to determine whether probation shall be
revoked. The trial court shall revoke probation if the alleged
probation violation is proved and the state proves by a preponderance
of the evidence that the defendant poses a danger to the safety of
others. If the court does not revoke probation, it may modify or
alter the treatment plan, and in addition, if the violation does not
involve the recent use of drugs as a circumstance of the violation,
including, but not limited to, violations relating to failure to
appear at treatment or court, noncompliance with treatment, and
failure to report for drug testing, the court may impose sanctions
including jail sanctions that may not exceed 48 hours of continuous
custody as a tool to enhance treatment compliance and impose other
changes in the terms and conditions of probation. The court shall
consider, among other factors, the seriousness of the violation,
previous treatment compliance, employment, education, vocational
training, medical conditions, medical treatment, including narcotics
replacement treatment, and including the opinion of the defendant's
licensed and treating physician if immediately available and
presented at the hearing, child support obligations, and family
responsibilities. The court shall consider additional conditions of
probation, which may include, but are not limited to, community
service and supervised work programs. If one of the circumstances of
the violation involves recent drug use, as well as other
circumstances of violation, and the circumstance of recent drug use
is demonstrated to the court by satisfactory evidence and a finding
made on the record, the court may, after receiving input from
treatment and probation, if available, direct the defendant to enter
a licensed detoxification or residential treatment facility, and if
there is no bed immediately available in that type of facility, the
court may order that the defendant be confined in a county jail for
detoxification purposes only, if the jail offers detoxification
services, for a period not to exceed 10 days. The detoxification
services must provide narcotic replacement therapy for those
defendants presently actually receiving narcotic replacement therapy.
(E) If a defendant on probation at the effective date of this act
for a nonviolent drug possession offense violates that probation a
second time either by committing a nonviolent drug possession
offense, or a misdemeanor for simple possession or use of drugs or
drug paraphernalia, being present where drugs are used, or failure to
register as a drug offender, or any activity similar to those listed
in subdivision (d) of Section 1210, or by violating a drug-related
condition of probation, and the state moves for a second time to
revoke probation, the court shall conduct a hearing to determine
whether probation shall be revoked. The trial court shall revoke
probation if the alleged probation violation is proved and the state
proves by a preponderance of the evidence either that the defendant
poses a danger to the safety of others or that the defendant is
unamenable to drug treatment. If the court does not revoke probation,
it may modify or alter the treatment plan, and in addition, if the
violation does not involve the recent use of drugs as a circumstance
of the violation, including, but not limited to, violations relating
to failure to appear at treatment or court, noncompliance with
treatment, and failure to report for drug testing, the court may
impose sanctions including jail sanctions that may not exceed 120
hours of continuous custody as a tool to enhance treatment compliance
and impose other changes in the terms and conditions of probation.
The court shall consider, among other factors, the seriousness of the
violation, previous treatment compliance, employment, education,
vocational training, medical conditions, medical treatment including
narcotics replacement treatment, and including the opinion of the
defendant's licensed and treating physician if immediately available
and presented at the hearing, child support obligations, and family
responsibilities. The court shall consider additional conditions of
probation, which may include, but are not limited to, community
service and supervised work programs. If one of the circumstances of
the violation involves recent drug use, as well as other
circumstances of violation, and the circumstance of recent drug use
is demonstrated to the court by satisfactory evidence and a finding
made on the record, the court may, after receiving input from
treatment and probation, if available, direct the defendant to enter
a licensed detoxification or residential treatment facility, and if
there is no bed immediately available in that type of facility, the
court may order that the defendant be confined in a county jail for
detoxification purposes only, if the jail offers detoxification
services, for a period not to exceed 10 days. The detoxification
services must provide narcotic replacement therapy for those
defendants presently actually receiving narcotic replacement therapy.
(F) If a defendant on probation at the effective date of this act
for a nonviolent drug offense violates that probation a third or
subsequent time either by committing a nonviolent drug possession
offense, or by violating a drug-related condition of probation, and
the state moves for a third or subsequent time to revoke probation,
the court shall conduct a hearing to determine whether probation
shall be revoked. If the alleged probation violation is proved, the
defendant is not eligible for continued probation under subdivision
(a), unless the court determines that the defendant is not a danger
to the community and would benefit from further treatment under
subdivision (a). The court may then either intensify or alter the
treatment plan under subdivision (a) or transfer the defendant to a
highly structured drug court. If the court continues the defendant in
treatment under subdivision (a), or drug court, the court may impose
appropriate sanctions including jail sanctions.
(g) The term "drug-related condition of probation" shall include a
probationer's specific drug treatment regimen, employment,
vocational training, educational programs, psychological counseling,
and family counseling.
SEC. 79. Section 1524 of the Penal Code is amended to read:
1524. (a) A search warrant may be issued upon any of the
following grounds:
(1) When the property was stolen or embezzled.
(2) When the property or things were used as the means of
committing a felony.
(3) When the property or things are in the possession of any
person with the intent to use them as a means of committing a public
offense, or in the possession of another to whom he or she may have
delivered them for the purpose of concealing them or preventing them
from being discovered.
(4) When the property or things to be seized consist of any item
or constitute any evidence that tends to show a felony has been
committed, or tends to show that a particular person has committed a
felony.
(5) When the property or things to be seized consist of evidence
that tends to show that sexual exploitation of a child, in violation
of Section 311.3, or possession of matter depicting sexual conduct of
a person under the age of 18 years, in violation of Section 311.11,
has occurred or is occurring.
(6) When there is a warrant to arrest a person.
(7) When a provider of electronic communication service or remote
computing service has records or evidence, as specified in Section
1524.3, showing that property was stolen or embezzled constituting a
misdemeanor, or that property or things are in the possession of any
person with the intent to use them as a means of committing a
misdemeanor public offense, or in the possession of another to whom
he or she may have delivered them for the purpose of concealing them
or preventing their discovery.
(8) When the property or things to be seized include an item or
any evidence that tends to show a violation of Section 3700.5 of the
Labor Code, or tends to show that a particular person has violated
Section 3700.5 of the Labor Code.
(9) When the property or things to be seized include a firearm or
any other deadly weapon at the scene of, or at the premises occupied
or under the control of the person arrested in connection with, a
domestic violence incident involving a threat to human life or a
physical assault as provided in Section 18250. This section does not
affect warrantless seizures otherwise authorized by Section 18250.
(10) When the property or things to be seized include a firearm or
any other deadly weapon that is owned by, or in the possession of,
or in the custody or control of, a person described in subdivision
(a) of Section 8102 of the Welfare and Institutions Code.
(11) When the property or things to be seized include a firearm
that is owned by, or in the possession of, or in the custody or
control of, a person who is subject to the prohibitions regarding
firearms pursuant to Section 6389 of the Family Code, if a prohibited
firearm is possessed, owned, in the custody of, or controlled by a
person against whom a protective order has been issued pursuant to
Section 6218 of the Family Code, the person has been lawfully served
with that order, and the person has failed to relinquish the firearm
as required by law.
(b) The property, things, person, or persons described in
subdivision (a) may be taken on the warrant from any place, or from
any person in whose possession the property or things may be.
(c) Notwithstanding subdivision (a) or (b), no search warrant
shall issue for any documentary evidence in the possession or under
the control of any person who is a lawyer as defined in Section 950
of the Evidence Code, a physician as defined in Section 990 of the
Evidence Code, a psychotherapist as defined in Section 1010 of the
Evidence Code, or a member of the clergy as defined in Section 1030
of the Evidence Code, and who is not reasonably suspected of engaging
or having engaged in criminal activity related to the documentary
evidence for which a warrant is requested unless the following
procedure has been complied with:
(1) At the time of the issuance of the warrant, the court shall
appoint a special master in accordance with subdivision (d) to
accompany the person who will serve the warrant. Upon service of the
warrant, the special master shall inform the party served of the
specific items being sought and that the party shall have the
opportunity to provide the items requested. If the party, in the
judgment of the special master, fails to provide the items requested,
the special master shall conduct a search for the items in the areas
indicated in the search warrant.
(2) (A) If the party who has been served states that an item or
items should not be disclosed, they shall be sealed by the special
master and taken to court for a hearing.
(B) At the hearing, the party searched shall be entitled to raise
any issues that may be raised pursuant to Section 1538.5 as well as a
claim that the item or items are privileged, as provided by law. The
hearing shall be held in the superior court. The court shall provide
sufficient time for the parties to obtain counsel and make any
motions or present any evidence. The hearing shall be held within
three days of the service of the warrant unless the court makes a
finding that the expedited hearing is impracticable. In that case the
matter shall be heard at the earliest possible time.
(C) If an item or items are taken to court for a hearing, any
limitations of time prescribed in Chapter 2 (commencing with Section
799) of Title 3 of Part 2 shall be tolled from the time of the
seizure until the final conclusion of the hearing, including any
associated writ or appellate proceedings.
(3) The warrant shall, whenever practicable, be served during
normal business hours. In addition, the warrant shall be served upon
a party who appears to have possession or control of the items
sought. If, after reasonable efforts, the party serving the warrant
is unable to locate the person, the special master shall seal and
return to the court, for determination by the court, any item that
appears to be privileged as provided by law.
(d) (1) As used in this section, a "special master" is an attorney
who is a member in good standing of the California State Bar and who
has been selected from a list of qualified attorneys that is
maintained by the State Bar particularly for the purposes of
conducting the searches described in this section. These attorneys
shall serve without compensation. A special master shall be
considered a public employee, and the governmental entity that caused
the search warrant to be issued shall be considered the employer of
the special master and the applicable public entity, for purposes of
Division 3.6 (commencing with Section 810) of Title 1 of the
Government Code, relating to claims and actions against public
entities and public employees. In selecting the special master, the
court shall make every reasonable effort to ensure that the person
selected has no relationship with any of the parties involved in the
pending matter. Any information obtained by the special master shall
be confidential and may not be divulged except in direct response to
inquiry by the court.
(2) In any case in which the magistrate determines that, after
reasonable efforts have been made to obtain a special master, a
special master is not available and would not be available within a
reasonable period of time, the magistrate may direct the party
seeking the order to conduct the search in the manner described in
this section in lieu of the special master.
(e) Any search conducted pursuant to this section by a special
master may be conducted in a manner that permits the party serving
the warrant or his or her designee to accompany the special master as
he or she conducts his or her search. However, that party or his or
her designee may not participate in the search nor shall he or she
examine any of the items being searched by the special master except
upon agreement of the party upon whom the warrant has been served.
(f) As used in this section, "documentary evidence" includes, but
is not limited to, writings, documents, blueprints, drawings,
photographs, computer printouts, microfilms, X-rays, files, diagrams,
ledgers, books, tapes, audio and video recordings, films, and papers
of any type or description.
(g) No warrant shall issue for any item or items described in
Section 1070 of the Evidence Code.
(h) Notwithstanding any other law, no claim of attorney work
product as described in Chapter 4 (commencing with Section 2018.010)
of Title 4 of Part 4 of the Code of Civil Procedure shall be
sustained where there is probable cause to believe that the lawyer is
engaging or has engaged in criminal activity related to the
documentary evidence for which a warrant is requested unless it is
established at the hearing with respect to the documentary evidence
seized under the warrant that the services of the lawyer were not
sought or obtained to enable or aid anyone to commit or plan to
commit a crime or a fraud.
(i) Nothing in this section is intended to limit an attorney's
ability to request an in camera hearing pursuant to the holding of
the Supreme Court of California in People v. Superior Court (Laff)
(2001) 25 Cal.4th 703.
(j) In addition to any other circumstance permitting a magistrate
to issue a warrant for a person or property in another county, when
the property or things to be seized consist of any item or constitute
any evidence that tends to show a violation of Section 530.5, the
magistrate may issue a warrant to search a person or property located
in another county if the person whose identifying information was
taken or used resides in the same county as the issuing court.
SEC. 80. Section 1601 of the Penal Code is amended to read:
1601. (a) In the case of any person charged with and found
incompetent on a charge of, convicted of, or found not guilty by
reason of insanity of murder, mayhem, aggravated mayhem, a violation
of Section 207, 209, or 209.5 in which the victim suffers
intentionally inflicted great bodily injury, robbery or carjacking
with a deadly or dangerous weapon or in which the victim suffers
great bodily injury, a violation of subdivision (a) or (b) of Section
451, a violation of paragraph (2), (3), or (6) of subdivision (a) of
Section 261, a violation of paragraph (1) or (4) of subdivision (a)
of Section 262, a violation of Section 459 in the first degree, a
violation of Section 220 in which the victim suffers great bodily
injury, a violation of Section 288, a violation of Section 18715,
18725, 18740, 18745, 18750, or 18755, or any felony involving death,
great bodily injury, or an act which poses a serious threat of bodily
harm to another person, outpatient status under this title shall not
be available until that person has actually been confined in a state
hospital or other facility for 180 days or more after having been
committed under the provisions of law specified in Section 1600.
(b) In the case of any person charged with, and found incompetent
on a charge of, or convicted of, any misdemeanor or any felony other
than those described in subdivision (a), or found not guilty of any
misdemeanor by reason of insanity, outpatient status under this title
may be granted by the court prior to actual confinement in a state
hospital or other treatment facility under the provisions of law
specified in Section 1600.
SEC. 81. Section 2933.5 of the Penal Code is amended to read:
2933.5. (a) (1) Notwithstanding any other law, every person who
is convicted of any felony offense listed in paragraph (2), and who
previously has been convicted two or more times, on charges
separately brought and tried, and who previously has served two or
more separate prior prison terms, as defined in subdivision (g) of
Section 667.5, of any offense or offenses listed in paragraph (2),
shall be ineligible to earn credit on his or her term of imprisonment
pursuant to this article.
(2) As used in this subdivision, "felony offense" includes any of
the following:
(A) Murder, as defined in Sections 187 and 189.
(B) Voluntary manslaughter, as defined in subdivision (a) of
Section 192.
(C) Mayhem as defined in Section 203.
(D) Aggravated mayhem, as defined in Section 205.
(E) Kidnapping, as defined in Section 207, 209, or 209.5.
(F) Assault with vitriol, corrosive acid, or caustic chemical of
any nature, as described in Section 244.
(G) Rape, as defined in paragraph (2) or (6) of subdivision (a) of
Section 261 or paragraph (1) or (4) of subdivision (a) of Section
262.
(H) Sodomy by means of force, violence, duress, menace or fear of
immediate and unlawful bodily injury on the victim or another person,
as described in subdivision (c) of Section 286.
(I) Sodomy while voluntarily acting in concert, as described in
subdivision (d) of Section 286.
(J) Lewd or lascivious acts on a child under the age of 14 years,
as described in subdivision (b) of Section 288.
(K) Oral copulation by means of force, violence, duress, menace,
or fear of immediate and unlawful bodily injury on the victim or
another person, as described in subdivision (c) of Section 288a.
(L) Continuous sexual abuse of a child, as described in Section
288.5.
(M) Sexual penetration, as described in subdivision (a) of Section
289.
(N) Exploding a destructive device or explosive with intent to
injure, as described in Section 12303.3, with intent to murder, as
described in Section 18745, or resulting in great bodily injury or
mayhem, as described in Section 18750.
(O) Any felony in which the defendant personally inflicted great
bodily injury, as provided in Section 12022.53 or 12022.7.
(b) A prior conviction of an offense listed in subdivision (a)
shall include a conviction in another jurisdiction for an offense
which includes all of the elements of the particular felony as
defined under California law.
(c) This section shall apply whenever the present felony is
committed on or after the effective date of this section, regardless
of the date of commission of the prior offense or offenses resulting
in credit-earning ineligibility.
(d) This section shall be in addition to, and shall not preclude
the imposition of, any applicable sentence enhancement terms, or
probation ineligibility and habitual offender provisions authorized
under any other section.
SEC. 82. Section 2962 of the Penal Code is amended to read:
2962. As a condition of parole, a prisoner who meets the
following criteria shall be required to be treated by the State
Department of Mental Health, and the State Department of Mental
Health shall provide the necessary treatment:
(a) The prisoner has a severe mental disorder that is not in
remission or cannot be kept in remission without treatment.
The term "severe mental disorder" means an illness or disease or
condition that substantially impairs the person's thought, perception
of reality, emotional process, or judgment; or which grossly impairs
behavior; or that demonstrates evidence of an acute brain syndrome
for which prompt remission, in the absence of treatment, is unlikely.
The term "severe mental disorder" as used in this section does not
include a personality or adjustment disorder, epilepsy, mental
retardation or other developmental disabilities, or addiction to or
abuse of intoxicating substances.
The term "remission" means a finding that the overt signs and
symptoms of the severe mental disorder are controlled either by
psychotropic medication or psychosocial support. A person "cannot be
kept in remission without treatment" if during the year prior to the
question being before the Board of Prison Terms or a trial court, he
or she has been in remission and he or she has been physically
violent, except in self-defense, or he or she has made a serious
threat of substantial physical harm upon the person of another so as
to cause the target of the threat to reasonably fear for his or her
safety or the safety of his or her immediate family, or he or she has
intentionally caused property damage, or he or she has not
voluntarily followed the treatment plan. In determining if a person
has voluntarily followed the treatment plan, the standard shall be
whether the person has acted as a reasonable person would in
following the treatment plan.
(b) The severe mental disorder was one of the causes of or was an
aggravating factor in the commission of a crime for which the
prisoner was sentenced to prison.
(c) The prisoner has been in treatment for the severe mental
disorder for 90 days or more within the year prior to the prisoner's
parole or release.
(d) (1) Prior to release on parole, the person in charge of
treating the prisoner and a practicing psychiatrist or psychologist
from the State Department of Mental Health have evaluated the
prisoner at a facility of the Department of Corrections, and a chief
psychiatrist of the Department of Corrections has certified to the
Board of Prison Terms that the prisoner has a severe mental disorder,
that the disorder is not in remission, or cannot be kept in
remission without treatment, that the severe mental disorder was one
of the causes or was an aggravating factor in the prisoner's criminal
behavior, that the prisoner has been in treatment for the severe
mental disorder for 90 days or more within the year prior to his or
her parole release day, and that by reason of his or her severe
mental disorder the prisoner represents a substantial danger of
physical harm to others. For prisoners being treated by the State
Department of Mental Health pursuant to Section 2684, the
certification shall be by a chief
psychiatrist of the Department of Corrections, and the
evaluation shall be done at a state hospital by the person at the
state hospital in charge of treating the prisoner and a practicing
psychiatrist or psychologist from the Department of Corrections.
(2) If the professionals doing the evaluation pursuant to
paragraph (1) do not concur that (A) the prisoner has a severe mental
disorder, (B) that the disorder is not in remission or cannot be
kept in remission without treatment, or (C) that the severe mental
disorder was a cause of, or aggravated, the prisoner's criminal
behavior, and a chief psychiatrist has certified the prisoner to the
Board of Prison Terms pursuant to this paragraph, then the Board of
Prison Terms shall order a further examination by two independent
professionals, as provided for in Section 2978.
(3) Only if both independent professionals who evaluate the
prisoner pursuant to paragraph (2) concur with the chief psychiatrist'
s certification of the issues described in paragraph (2), shall this
subdivision be applicable to the prisoner. The professionals
appointed pursuant to Section 2978 shall inform the prisoner that the
purpose of their examination is not treatment but to determine if
the prisoner meets certain criteria to be involuntarily treated as a
mentally disordered offender. It is not required that the prisoner
appreciate or understand that information.
(e) The crime referred to in subdivision (b) meets both of the
following criteria:
(1) The defendant received a determinate sentence pursuant to
Section 1170 for the crime.
(2) The crime is one of the following:
(A) Voluntary manslaughter.
(B) Mayhem.
(C) Kidnapping in violation of Section 207.
(D) Any robbery wherein it was charged and proved that the
defendant personally used a deadly or dangerous weapon, as provided
in subdivision (b) of Section 12022, in the commission of that
robbery.
(E) Carjacking, as defined in subdivision (a) of Section 215, if
it is charged and proved that the defendant personally used a deadly
or dangerous weapon, as provided in subdivision (b) of Section 12022,
in the commission of the carjacking.
(F) Rape, as defined in paragraph (2) or (6) of subdivision (a) of
Section 261 or paragraph (1) or (4) of subdivision (a) of Section
262.
(G) Sodomy by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person.
(H) Oral copulation by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another
person.
(I) Lewd acts on a child under the age of 14 years in violation of
Section 288.
(J) Continuous sexual abuse in violation of Section 288.5.
(K) The offense described in subdivision (a) of Section 289 where
the act was accomplished against the victim's will by force,
violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person.
(L) Arson in violation of subdivision (a) of Section 451, or arson
in violation of any other provision of Section 451 or in violation
of Section 455 where the act posed a substantial danger of physical
harm to others.
(M) Any felony in which the defendant used a firearm which use was
charged and proved as provided in Section 12022.5, 12022.53, or
12022.55.
(N) A violation of Section 18745.
(O) Attempted murder.
(P) A crime not enumerated in subparagraphs (A) to (O), inclusive,
in which the prisoner used force or violence, or caused serious
bodily injury as defined in paragraph (4) of subdivision (f) of
Section 243.
(Q) A crime in which the perpetrator expressly or impliedly
threatened another with the use of force or violence likely to
produce substantial physical harm in such a manner that a reasonable
person would believe and expect that the force or violence would be
used. For purposes of this subparagraph, substantial physical harm
shall not require proof that the threatened act was likely to cause
great or serious bodily injury.
(f) As used in this chapter, "substantial danger of physical harm"
does not require proof of a recent overt act.
SEC. 83. Section 3057 of the Penal Code is amended to read:
3057. (a) Confinement pursuant to a revocation of parole in the
absence of a new conviction and commitment to prison under other
provisions of law, shall not exceed 12 months, except as provided in
subdivision (c).
(b) Upon completion of confinement pursuant to parole revocation
without a new commitment to prison, the inmate shall be released on
parole for a period which shall not extend beyond that portion of the
maximum statutory period of parole specified by Section 3000 which
was unexpired at the time of each revocation.
(c) Notwithstanding the limitations in subdivision (a) and in
Section 3060.5 upon confinement pursuant to a parole revocation, the
parole authority may extend the confinement pursuant to parole
revocation for a maximum of an additional 12 months for subsequent
acts of misconduct committed by the parolee while confined pursuant
to that parole revocation. Upon a finding of good cause to believe
that a parolee has committed a subsequent act of misconduct and
utilizing procedures governing parole revocation proceedings, the
parole authority may extend the period of confinement pursuant to
parole revocation as follows: (1) not more than 180 days for an act
punishable as a felony, whether or not prosecution is undertaken, (2)
not more than 90 days for an act punishable as a misdemeanor,
whether or not prosecution is undertaken, and (3) not more than 30
days for an act defined as a serious disciplinary offense pursuant to
subdivision (a) of Section 2932.
(d) (1) Except for parolees specified in paragraph (2), any
revocation period imposed under subdivision (a) may be reduced in the
same manner and to the same extent as a term of imprisonment may be
reduced by worktime credits under Section 2933. Worktime credit must
be earned and may be forfeited pursuant to the provisions of Section
2932.
Worktime credit forfeited shall not be restored.
(2) The following parolees shall not be eligible for credit under
this subdivision:
(A) Parolees who are sentenced under Section 1168 with a maximum
term of life imprisonment.
(B) Parolees who violated a condition of parole relating to
association with specified persons, entering prohibited areas,
attendance at parole outpatient clinics, or psychiatric attention.
(C) Parolees who were revoked for conduct described in, or that
could be prosecuted under any of the following sections, whether or
not prosecution is undertaken: Section 189, Section 191.5,
subdivision (a) of Section 192, subdivision (a) of Section 192.5,
Section 203, 207, 211, 215, 217.1, or 220, subdivision (b) of Section
241, Section 244, paragraph (1) or (2) of subdivision (a) of Section
245, paragraph (2) or (6) of subdivision (a) of Section 261,
paragraph (1) or (4) of subdivision (a) of Section 262, Section
264.1, subdivision (c) or (d) of Section 286, Section 288,
subdivision (c) or (d) of Section 288a, subdivision (a) of Section
289, 347, or 404, subdivision (a) of Section 451, Section 12022,
12022.5, 12022.53, 12022.7, 12022.8, or 25400, Chapter 2 (commencing
with Section 29800) of Division 9 of Title 4 of Part 6, any provision
listed in Section 16590, or Section 664 for any attempt to engage in
conduct described in or that could be prosecuted under any of the
above-mentioned sections.
(D) Parolees who were revoked for any reason if they had been
granted parole after conviction of any of the offenses specified in
subparagraph (C).
(E) Parolees who the parole authority finds at a revocation
hearing to be unsuitable for reduction of the period of confinement
because of the circumstances and gravity of the parole violation, or
because of prior criminal history.
SEC. 84. Section 4852.03 of the Penal Code is amended to read:
4852.03. (a) The period of rehabilitation shall begin to run upon
the discharge of the petitioner from custody due to his or her
completion of the term to which he or she was sentenced or upon his
or her release on parole or probation, whichever is sooner. For
purposes of this chapter, the period of rehabilitation shall
constitute five years' residence in this state, plus a period of time
determined by the following rules:
(1) To the five years there shall be added four years in the case
of any person convicted of violating Section 187, 209, 219, 4500 or
18755 of this code, or subdivision (a) of Section 1672 of the
Military and Veterans Code, or of committing any other offense which
carries a life sentence.
(2) To the five years there shall be added five years in the case
of any person convicted of committing any offense or attempted
offense for which sex offender registration is required pursuant to
Section 290, except for convictions for violations of subdivision
(b), (c), or (d) of Section 311.2, or of Section 311.3, 311.10, or
314. For those convictions, two years shall be added to the five
years imposed by this section.
(3) To the five years there shall be added two years in the case
of any person convicted of committing any offense that is not listed
in paragraph (1) or paragraph (2) and that does not carry a life
sentence.
(4) The trial court hearing the application for the certificate of
rehabilitation may, if the defendant was ordered to serve
consecutive sentences, order that his or her statutory period of
rehabilitation be extended for an additional period of time which
when combined with the time already served will not exceed the period
prescribed by statute for the sum of the maximum penalties for all
the crimes.
(5) Any person who was discharged after completion of his or her
term or was released on parole before May 13, 1943, is not subject to
the periods of rehabilitation set forth in these rules.
(b) Unless and until the period of rehabilitation, as stipulated
in this section, has passed, the petitioner shall be ineligible to
file his or her petition for a certificate of rehabilitation with the
court. Any certificate of rehabilitation that is issued and under
which the petitioner has not fulfilled the requirements of this
chapter shall be void.
(c) A change of residence within this state does not interrupt the
period of rehabilitation prescribed by this section.
SEC. 85. Section 4852.17 of the Penal Code is amended to read:
4852.17. Whenever a person is issued a certificate of
rehabilitation or granted a pardon from the Governor under this
chapter, the fact shall be immediately reported to the Department of
Justice by the court, Governor, officer, or governmental agency by
whose official action the certificate is issued or the pardon
granted. The Department of Justice shall immediately record the facts
so reported on the former criminal record of the person, and
transmit those facts to the Federal Bureau of Investigation at
Washington, D.C. When the criminal record is thereafter reported by
the department, it shall also report the fact that the person has
received a certificate of rehabilitation, or pardon, or both.
Whenever a person is granted a full and unconditional pardon by
the Governor, based upon a certificate of rehabilitation, the pardon
shall entitle the person to exercise thereafter all civil and
political rights of citizenship, including but not limited to: (1)
the right to vote; (2) the right to own, possess, and keep any type
of firearm that may lawfully be owned and possessed by other
citizens; except that this right shall not be restored, and Sections
17800 and 23510 and Chapter 2 (commencing with Section 29800) of
Division 9 of Title 4 of Part 6 shall apply, if the person was ever
convicted of a felony involving the use of a dangerous weapon.
SEC. 86. Section 4854 of the Penal Code is amended to read:
4854. In the granting of a pardon to a person, the Governor may
provide that the person is entitled to exercise the right to own,
possess and keep any type of firearm that may lawfully be owned and
possessed by other citizens; except that this right shall not be
restored, and Sections 17800 and 23510 and Chapter 2 (commencing with
Section 29800) of Division 9 of Title 4 of Part 6 shall apply, if
the person was ever convicted of a felony involving the use of a
dangerous weapon.
SEC. 87. Section 11105 of the Penal Code is amended to read:
11105. (a) (1) The Department of Justice shall maintain state
summary criminal history information.
(2) As used in this section:
(A) "State summary criminal history information" means the master
record of information compiled by the Attorney General pertaining to
the identification and criminal history of any person, such as name,
date of birth, physical description, fingerprints, photographs, date
of arrests, arresting agencies and booking numbers, charges,
dispositions, and similar data about the person.
(B) "State summary criminal history information" does not refer to
records and data compiled by criminal justice agencies other than
the Attorney General, nor does it refer to records of complaints to
or investigations conducted by, or records of intelligence
information or security procedures of, the office of the Attorney
General and the Department of Justice.
(b) The Attorney General shall furnish state summary criminal
history information to any of the following, if needed in the course
of their duties, provided that when information is furnished to
assist an agency, officer, or official of state or local government,
a public utility, or any other entity, in fulfilling employment,
certification, or licensing duties, Chapter 1321 of the Statutes of
1974 and Section 432.7 of the Labor Code shall apply:
(1) The courts of the state.
(2) Peace officers of the state, as defined in Section 830.1,
subdivisions (a) and (e) of Section 830.2, subdivision (a) of Section
830.3, subdivisions (a) and (b) of Section 830.5, and subdivision
(a) of Section 830.31.
(3) District attorneys of the state.
(4) Prosecuting city attorneys of any city within the state.
(5) City attorneys pursuing civil gang injunctions pursuant to
Section 186.22a, or drug abatement actions pursuant to Section 3479
or 3480 of the Civil Code, or Section 11571 of the Health and Safety
Code.
(6) Probation officers of the state.
(7) Parole officers of the state.
(8) A public defender or attorney of record when representing a
person in proceedings upon a petition for a certificate of
rehabilitation and pardon pursuant to Section 4852.08.
(9) A public defender or attorney of record when representing a
person in a criminal case, or parole revocation or revocation
extension proceeding, and if authorized access by statutory or
decisional law.
(10) Any agency, officer, or official of the state if the criminal
history information is required to implement a statute or regulation
that expressly refers to specific criminal conduct applicable to the
subject person of the state summary criminal history information,
and contains requirements or exclusions, or both, expressly based
upon that specified criminal conduct. The agency, officer, or
official of the state authorized by this paragraph to receive state
summary criminal history information may also transmit fingerprint
images and related information to the Department of Justice to be
transmitted to the Federal Bureau of Investigation.
(11) Any city or county, city and county, district, or any officer
or official thereof if access is needed in order to assist that
agency, officer, or official in fulfilling employment, certification,
or licensing duties, and if the access is specifically authorized by
the city council, board of supervisors, or governing board of the
city, county, or district if the criminal history information is
required to implement a statute, ordinance, or regulation that
expressly refers to specific criminal conduct applicable to the
subject person of the state summary criminal history information, and
contains requirements or exclusions, or both, expressly based upon
that specified criminal conduct. The city or county, city and county,
district, or the officer or official thereof authorized by this
paragraph may also transmit fingerprint images and related
information to the Department of Justice to be transmitted to the
Federal Bureau of Investigation.
(12) The subject of the state summary criminal history information
under procedures established under Article 5 (commencing with
Section 11120).
(13) Any person or entity when access is expressly authorized by
statute if the criminal history information is required to implement
a statute or regulation that expressly refers to specific criminal
conduct applicable to the subject person of the state summary
criminal history information, and contains requirements or
exclusions, or both, expressly based upon that specified criminal
conduct.
(14) Health officers of a city, county, city and county, or
district when in the performance of their official duties enforcing
Section 120175 of the Health and Safety Code.
(15) Any managing or supervising correctional officer of a county
jail or other county correctional facility.
(16) Any humane society, or society for the prevention of cruelty
to animals, for the specific purpose of complying with Section 14502
of the Corporations Code for the appointment of level 1 humane
officers.
(17) Local child support agencies established by Section 17304 of
the Family Code. When a local child support agency closes a support
enforcement case containing summary criminal history information, the
agency shall delete or purge from the file and destroy any documents
or information concerning or arising from offenses for or of which
the parent has been arrested, charged, or convicted, other than for
offenses related to the parent's having failed to provide support for
minor children, consistent with the requirements of Section 17531 of
the Family Code.
(18) County child welfare agency personnel who have been delegated
the authority of county probation officers to access state summary
criminal history information pursuant to Section 272 of the Welfare
and Institutions Code for the purposes specified in Section 16504.5
of the Welfare and Institutions Code. Information from criminal
history records provided pursuant to this subdivision shall not be
used for any purposes other than those specified in this section and
Section 16504.5 of the Welfare and Institutions Code. When an agency
obtains records obtained both on the basis of name checks and
fingerprint checks, final placement decisions shall be based only on
the records obtained pursuant to the fingerprint check.
(19) The court of a tribe, or court of a consortium of tribes,
that has entered into an agreement with the state pursuant to Section
10553.1 of the Welfare and Institutions Code. This information may
be used only for the purposes specified in Section 16504.5 of the
Welfare and Institutions Code and for tribal approval or tribal
licensing of foster care or adoptive homes. Article 6 (commencing
with Section 11140) shall apply to officers, members, and employees
of a tribal court receiving criminal record offender information
pursuant to this section.
(20) Child welfare agency personnel of a tribe or consortium of
tribes that has entered into an agreement with the state pursuant to
Section 10553.1 of the Welfare and Institutions Code and to whom the
state has delegated duties under paragraph (2) of subdivision (a) of
Section 272 of the Welfare and Institutions Code. The purposes for
use of the information shall be for the purposes specified in Section
16504.5 of the Welfare and Institutions Code and for tribal approval
or tribal licensing of foster care or adoptive homes. When an agency
obtains records on the basis of name checks and fingerprint checks,
final placement decisions shall be based only on the records obtained
pursuant to the fingerprint check. Article 6 (commencing with
Section 11140) shall apply to child welfare agency personnel
receiving criminal record offender information pursuant to this
section.
(21) An officer providing conservatorship investigations pursuant
to Sections 5351, 5354, and 5356 of the Welfare and Institutions
Code.
(22) A court investigator providing investigations or reviews in
conservatorships pursuant to Section 1826, 1850, 1851, or 2250.6 of
the Probate Code.
(23) A person authorized to conduct a guardianship investigation
pursuant to Section 1513 of the Probate Code.
(c) The Attorney General may furnish state summary criminal
history information and, when specifically authorized by this
subdivision, federal level criminal history information upon a
showing of a compelling need to any of the following, provided that
when information is furnished to assist an agency, officer, or
official of state or local government, a public utility, or any other
entity in fulfilling employment, certification, or licensing duties,
Chapter 1321 of the Statutes of 1974 and Section 432.7 of the Labor
Code shall apply:
(1) Any public utility, as defined in Section 216 of the Public
Utilities Code, that operates a nuclear energy facility when access
is needed in order to assist in employing persons to work at the
facility, provided that, if the Attorney General supplies the data,
he or she shall furnish a copy of the data to the person to whom the
data relates.
(2) To a peace officer of the state other than those included in
subdivision (b).
(3) To an illegal dumping enforcement officer as defined in
subdivision (j) of Section 830.7.
(4) To a peace officer of another country.
(5) To public officers, other than peace officers, of the United
States, other states, or possessions or territories of the United
States, provided that access to records similar to state summary
criminal history information is expressly authorized by a statute of
the United States, other states, or possessions or territories of the
United States if the information is needed for the performance of
their official duties.
(6) To any person when disclosure is requested by a probation,
parole, or peace officer with the consent of the subject of the state
summary criminal history information and for purposes of furthering
the rehabilitation of the subject.
(7) The courts of the United States, other states, or territories
or possessions of the United States.
(8) Peace officers of the United States, other states, or
territories or possessions of the United States.
(9) To any individual who is the subject of the record requested
if needed in conjunction with an application to enter the United
States or any foreign nation.
(10) (A) Any public utility, as defined in Section 216 of the
Public Utilities Code, or any cable corporation as defined in
subparagraph (B), if receipt of criminal history information is
needed in order to assist in employing current or prospective
employees, contract employees, or subcontract employees who, in the
course of their employment may be seeking entrance to private
residences or adjacent grounds. The information provided shall be
limited to the record of convictions and any arrest for which the
person is released on bail or on his or her own recognizance pending
trial.
If the Attorney General supplies the data pursuant to this
paragraph, the Attorney General shall furnish a copy of the data to
the current or prospective employee to whom the data relates.
Any information obtained from the state summary criminal history
is confidential and the receiving public utility or cable corporation
shall not disclose its contents, other than for the purpose for
which it was acquired. The state summary criminal history information
in the possession of the public utility or cable corporation and all
copies made from it shall be destroyed not more than 30 days after
employment or promotion or transfer is denied or granted, except for
those cases where a current or prospective employee is out on bail or
on his or her own recognizance pending trial, in which case the
state summary criminal history information and all copies shall be
destroyed not more than 30 days after the case is resolved.
A violation of this paragraph is a misdemeanor, and shall give the
current or prospective employee who is injured by the violation a
cause of action against the public utility or cable corporation to
recover damages proximately caused by the violations. Any public
utility's or cable corporation's request for state summary criminal
history information for purposes of employing current or prospective
employees who may be seeking entrance to private residences or
adjacent grounds in the course of their employment shall be deemed a
"compelling need" as required to be shown in this subdivision.
Nothing in this section shall be construed as imposing any duty
upon public utilities or cable corporations to request state summary
criminal history information on any current or prospective employees.
(B) For purposes of this paragraph, "cable corporation" means any
corporation or firm that transmits or provides television, computer,
or telephone services by cable, digital, fiber optic, satellite, or
comparable technology to subscribers for a fee.
(C) Requests for federal level criminal history information
received by the Department of Justice from entities authorized
pursuant to subparagraph (A) shall be forwarded to the Federal Bureau
of Investigation by the Department of Justice. Federal level
criminal history information received or compiled by the Department
of Justice may then be disseminated to the entities referenced in
subparagraph (A), as authorized by law.
(D) (i) Authority for a cable corporation to request state or
federal level criminal history information under this paragraph shall
commence July 1, 2005.
(ii) Authority for a public utility to request federal level
criminal history information under this paragraph shall commence July
1, 2005.
(11) To any campus of the California State University or the
University of California, or any four year college or university
accredited by a regional accreditation organization approved by the
United States Department of Education, if needed in conjunction with
an application for admission by a convicted felon to any special
education program for convicted felons, including, but not limited
to, university alternatives and halfway houses. Only conviction
information shall be furnished. The college or university may require
the convicted felon to be fingerprinted, and any inquiry to the
department under this section shall include the convicted felon's
fingerprints and any other information specified by the department.
(12) To any foreign government, if requested by the
individual who is the subject of the record requested, if needed in
conjunction with the individual's application to adopt a minor child
who is a citizen of that foreign nation. Requests for information
pursuant to this paragraph shall be in accordance with the process
described in Sections 11122 to 11124, inclusive. The response shall
be provided to the foreign government or its designee and to the
individual who requested the information.
(d) Whenever an authorized request for state summary criminal
history information pertains to a person whose fingerprints are on
file with the Department of Justice and the department has no
criminal history of that person, and the information is to be used
for employment, licensing, or certification purposes, the fingerprint
card accompanying the request for information, if any, may be
stamped "no criminal record" and returned to the person or entity
making the request.
(e) Whenever state summary criminal history information is
furnished as the result of an application and is to be used for
employment, licensing, or certification purposes, the Department of
Justice may charge the person or entity making the request a fee that
it determines to be sufficient to reimburse the department for the
cost of furnishing the information. In addition, the Department of
Justice may add a surcharge to the fee to fund maintenance and
improvements to the systems from which the information is obtained.
Notwithstanding any other law, any person or entity required to pay a
fee to the department for information received under this section
may charge the applicant a fee sufficient to reimburse the person or
entity for this expense. All moneys received by the department
pursuant to this section, Sections 11105.3 and 26190 of the Penal
Code, and Section 13588 of the Education Code shall be deposited in a
special account in the General Fund to be available for expenditure
by the department to offset costs incurred pursuant to those sections
and for maintenance and improvements to the systems from which the
information is obtained upon appropriation by the Legislature.
(f) Whenever there is a conflict, the processing of criminal
fingerprints and fingerprints of applicants for security guard or
alarm agent registrations or firearms qualification permits submitted
pursuant to Section 7583.9, 7583.23, 7596.3, or 7598.4 of the
Business and Professions Code shall take priority over the processing
of other applicant fingerprints.
(g) It is not a violation of this section to disseminate
statistical or research information obtained from a record, provided
that the identity of the subject of the record is not disclosed.
(h) It is not a violation of this section to include information
obtained from a record in (1) a transcript or record of a judicial or
administrative proceeding or (2) any other public record if the
inclusion of the information in the public record is authorized by a
court, statute, or decisional law.
(i) Notwithstanding any other law, the Department of Justice or
any state or local law enforcement agency may require the submission
of fingerprints for the purpose of conducting summary criminal
history information checks that are authorized by law.
(j) The state summary criminal history information shall include
any finding of mental incompetence pursuant to Chapter 6 (commencing
with Section 1367) of Title 10 of Part 2 arising out of a complaint
charging a felony offense specified in Section 290.
(k) (1) This subdivision shall apply whenever state or federal
summary criminal history information is furnished by the Department
of Justice as the result of an application by an authorized agency or
organization and the information is to be used for peace officer
employment or certification purposes. As used in this subdivision, a
peace officer is defined in Chapter 4.5 (commencing with Section 830)
of Title 3 of Part 2.
(2) Notwithstanding any other provision of law, whenever state
summary criminal history information is furnished pursuant to
paragraph (1), the Department of Justice shall disseminate the
following information:
(A) Every conviction rendered against the applicant.
(B) Every arrest for an offense for which the applicant is
presently awaiting trial, whether the applicant is incarcerated or
has been released on bail or on his or her own recognizance pending
trial.
(C) Every arrest or detention, except for an arrest or detention
resulting in an exoneration, provided however that where the records
of the Department of Justice do not contain a disposition for the
arrest, the Department of Justice first makes a genuine effort to
determine the disposition of the arrest.
(D) Every successful diversion.
(E) Every date and agency name associated with all retained peace
officer or nonsworn law enforcement agency employee preemployment
criminal offender record information search requests.
(l) (1) This subdivision shall apply whenever state or federal
summary criminal history information is furnished by the Department
of Justice as the result of an application by a criminal justice
agency or organization as defined in Section 13101 of the Penal Code,
and the information is to be used for criminal justice employment,
licensing, or certification purposes.
(2) Notwithstanding any other provision of law, whenever state
summary criminal history information is furnished pursuant to
paragraph (1), the Department of Justice shall disseminate the
following information:
(A) Every conviction rendered against the applicant.
(B) Every arrest for an offense for which the applicant is
presently awaiting trial, whether the applicant is incarcerated or
has been released on bail or on his or her own recognizance pending
trial.
(C) Every arrest for an offense for which the records of the
Department of Justice do not contain a disposition or did not result
in a conviction, provided that the Department of Justice first makes
a genuine effort to determine the disposition of the arrest. However,
information concerning an arrest shall not be disclosed if the
records of the Department of Justice indicate or if the genuine
effort reveals that the subject was exonerated, successfully
completed a diversion or deferred entry of judgment program, or the
arrest was deemed a detention.
(D) Every date and agency name associated with all retained peace
officer or nonsworn law enforcement agency employee preemployment
criminal offender record information search requests.
(m) (1) This subdivision shall apply whenever state or federal
summary criminal history information is furnished by the Department
of Justice as the result of an application by an authorized agency or
organization pursuant to Section 1522, 1568.09, 1569.17, or 1596.871
of the Health and Safety Code, or any statute that incorporates the
criteria of any of those sections or this subdivision by reference,
and the information is to be used for employment, licensing, or
certification purposes.
(2) Notwithstanding any other provision of law, whenever state
summary criminal history information is furnished pursuant to
paragraph (1), the Department of Justice shall disseminate the
following information:
(A) Every conviction of an offense rendered against the applicant.
(B) Every arrest for an offense for which the applicant is
presently awaiting trial, whether the applicant is incarcerated or
has been released on bail or on his or her own recognizance pending
trial.
(C) Every arrest for an offense for which the Department of Social
Services is required by paragraph (1) of subdivision (a) of Section
1522 of the Health and Safety Code to determine if an applicant has
been arrested. However, if the records of the Department of Justice
do not contain a disposition for an arrest, the Department of Justice
shall first make a genuine effort to determine the disposition of
the arrest.
(3) Notwithstanding the requirements of the sections referenced in
paragraph (1) of this subdivision, the Department of Justice shall
not disseminate information about an arrest subsequently deemed a
detention or an arrest that resulted in either the successful
completion of a diversion program or exoneration.
(n) (1) This subdivision shall apply whenever state or federal
summary criminal history information, to be used for employment,
licensing, or certification purposes, is furnished by the Department
of Justice as the result of an application by an authorized agency,
organization, or individual pursuant to any of the following:
(A) Paragraph (9) of subdivision (c), when the information is to
be used by a cable corporation.
(B) Section 11105.3 or 11105.4.
(C) Section 15660 of the Welfare and Institutions Code.
(D) Any statute that incorporates the criteria of any of the
statutory provisions listed in subparagraph (A), (B), or (C), or of
this subdivision, by reference.
(2) With the exception of applications submitted by transportation
companies authorized pursuant to Section 11105.3, and
notwithstanding any other provision of law, whenever state summary
criminal history information is furnished pursuant to paragraph (1),
the Department of Justice shall disseminate the following
information:
(A) Every conviction rendered against the applicant for a
violation or attempted violation of any offense specified in
subdivision (a) of Section 15660 of the Welfare and Institutions
Code. However, with the exception of those offenses for which
registration is required pursuant to Section 290, the Department of
Justice shall not disseminate information pursuant to this
subdivision unless the conviction occurred within 10 years of the
date of the agency's request for information or the conviction is
over 10 years old but the subject of the request was incarcerated
within 10 years of the agency's request for information.
(B) Every arrest for a violation or attempted violation of an
offense specified in subdivision (a) of Section 15660 of the Welfare
and Institutions Code for which the applicant is presently awaiting
trial, whether the applicant is incarcerated or has been released on
bail or on his or her own recognizance pending trial.
(o) (1) This subdivision shall apply whenever state or federal
summary criminal history information is furnished by the Department
of Justice as the result of an application by an authorized agency or
organization pursuant to Section 261 or 550 of the Financial Code,
or any statute that incorporates the criteria of either of those
sections or this subdivision by reference, and the information is to
be used for employment, licensing, or certification purposes.
(2) Notwithstanding any other provision of law, whenever state
summary criminal history information is furnished pursuant to
paragraph (1), the Department of Justice shall disseminate the
following information:
(A) Every conviction rendered against the applicant for a
violation or attempted violation of any offense specified in Section
550 of the Financial Code.
(B) Every arrest for a violation or attempted violation of an
offense specified in Section 550 of the Financial Code for which the
applicant is presently awaiting trial, whether the applicant is
incarcerated or has been released on bail or on his or her own
recognizance pending trial.
(p) (1) This subdivision shall apply whenever state or federal
criminal history information is furnished by the Department of
Justice as the result of an application by an agency, organization,
or individual not defined in subdivision (k), (l), (m), (n), or (o),
or by a transportation company authorized pursuant to Section
11105.3, or any statute that incorporates the criteria of that
section or this subdivision by reference, and the information is to
be used for employment, licensing, or certification purposes.
(2) Notwithstanding any other provisions of law, whenever state
summary criminal history information is furnished pursuant to
paragraph (1), the Department of Justice shall disseminate the
following information:
(A) Every conviction rendered against the applicant.
(B) Every arrest for an offense for which the applicant is
presently awaiting trial, whether the applicant is incarcerated or
has been released on bail or on his or her own recognizance pending
trial.
(q) All agencies, organizations, or individuals defined in
subdivisions (k), (l), (m), (n), (o), and (p) may contract with the
Department of Justice for subsequent arrest notification pursuant to
Section 11105.2. This subdivision shall not supersede sections that
mandate an agency, organization, or individual to contract with the
Department of Justice for subsequent arrest notification pursuant to
Section 11105.2.
(r) Nothing in this section shall be construed to mean that the
Department of Justice shall cease compliance with any other statutory
notification requirements.
(s) The provisions of Section 50.12 of Title 28 of the Code of
Federal Regulations are to be followed in processing federal criminal
history information.
SEC. 88. Section 11105.03 of the Penal Code is amended to read:
11105.03. (a) Subject to the requirements and conditions set
forth in this section and Section 11105, local law enforcement
agencies are hereby authorized to provide state criminal summary
history information obtained through CLETS for the purpose of
screening prospective participants and prospective and current staff
of a regional, county, city, or other local public housing authority,
at the request of the chief executive officer of the authority or
his or her designee, upon a showing by that authority that the
authority manages a Section 8 housing program pursuant to federal law
(U.S. Housing Act of 1937), or operates housing at which children
under the age of 18 years reside or operates housing for persons
categorized as aged, blind, or disabled.
(b) The following requirements shall apply to information released
by local law enforcement agencies pursuant to subdivision (a):
(1) Local law enforcement agencies shall not release any
information unless it relates to a conviction for a serious felony,
as defined in subdivision (c) of Section 1192.7, a conviction for any
offense punishable under Section 273.5, 422.6, 422.7, 422.75, 422.9,
1170.75, or under Chapter 2 (commencing with Section 29800) or
Chapter 3 (commencing with Section 29900) of Division 9 of Title 4 of
Part 6, or under any provision listed in Section 16590, a conviction
under Section 273.6 that involves a violation of a protective order,
as defined in Section 6218 of the Family Code, or a conviction for
any felony offense that involves controlled substances or alcoholic
beverages, or any felony offense that involves any activity related
to controlled substances or alcoholic beverages, or a conviction for
any offense that involves domestic violence, as defined in Section
13700.
(2) Local law enforcement agencies shall not release any
information concerning any arrest for an offense that did not result
in a conviction.
(3) Local law enforcement agencies shall not release any
information concerning any offense committed by a person who was
under 18 years of age at the time he or she committed the offense.
(4) Local law enforcement agencies shall release any information
concerning any conviction or release from custody that occurred
within 10 years of the date on which the request for information is
submitted to the Attorney General, unless the conviction was based
upon a felony offense that involved controlled substances or
alcoholic beverages or a felony offense that involved any activity
related to controlled substances or alcoholic beverages. Where a
conviction was based on any of these felony offenses, local law
enforcement agencies shall release any information concerning this
conviction if the conviction occurred within five years of the date
on which a request for the information was submitted.
(5) Notwithstanding paragraph (4), if information that meets the
requirements of paragraphs (2) to (4), inclusive, is located and the
information reveals a conviction of an offense specified in paragraph
(1), local law enforcement agencies shall release all summary
criminal history information concerning the person whether or not the
information meets the requirements of paragraph (4), provided,
however, that the information meets the requirements of paragraphs
(1) to (3), inclusive.
(6) Information released to the local public housing authority
pursuant to this section shall also be released to parole or
probation officers at the same time.
(c) State summary criminal history information shall be used by
the chief executive officer of the housing authority or a designee
only for purposes of identifying prospective participants in
subsidized programs and prospective and current staff who have access
to residences, whose criminal history is likely to pose a risk to
children under the age of 18 years or persons categorized as aged,
blind, or disabled living in the housing operated by the authority.
(d) If a housing authority obtains summary criminal history
information for the purpose of screening a prospective participant
pursuant to this section, it shall review and evaluate that
information in the context of other available information and shall
not evaluate the person's suitability as a prospective participant
based solely on his or her past criminal history.
(e) If a housing authority determines that a prospective
participant is not eligible as a resident, it shall promptly notify
him or her of the basis for its determination and, upon request,
shall provide him or her within a reasonable time after the
determination is made with an opportunity for an informal hearing on
the determination in accordance with Section 960.207 of Title 24 of
the Code of Federal Regulations.
(f) Any information obtained from state summary criminal history
information pursuant to this section is confidential and the
recipient public housing authority shall not disclose or use the
information for any purpose other than that authorized by this
section. The state summary criminal history information in the
possession of the authority and all copies made from it shall be
destroyed not more than 30 days after the authority's final decision
whether to act on the housing status of the individual to whom the
information relates.
(g) The local public housing authority receiving state summary
criminal history information pursuant to this section shall adopt
regulations governing the receipt, maintenance, and use of the
information. The regulations shall include provisions that require
notice that the authority has access to criminal records of
participants and employees who have access to programs.
(h) Use of this information is to be consistent with Title 24 of
the Code of Federal Regulations and the current regulations adopted
by the housing authority using the information.
(i) Nothing in this section shall be construed to require a
housing authority to request and review an applicant's criminal
history.
(j) The California Housing Authorities Association, after
compiling data from all public housing authorities that receive
summary criminal information pursuant to this chapter, shall report
its findings based upon this data to the Legislature prior to January
1, 2000.
SEC. 89. Section 11106 of the Penal Code is amended to read:
11106. (a) In order to assist in the investigation of crime, the
prosecution of civil actions by city attorneys pursuant to paragraph
(3) of subdivision (c), the arrest and prosecution of criminals, and
the recovery of lost, stolen, or found property, the Attorney General
shall keep and properly file a complete record of all copies of
fingerprints, copies of licenses to carry firearms issued pursuant to
Section 26150, 26155, 26170, or 26215, information reported to the
Department of Justice pursuant to Section 26225, dealers' records of
sales of firearms, reports provided pursuant to Article 1 (commencing
with Section 27500) of Chapter 4 of Division 6 of Title 4 of Part 6,
or pursuant to any provision listed in subdivision (a) of Section
16585, forms provided pursuant to Section 12084, as that section read
prior to being repealed by the act that amended this section,
reports provided pursuant to Sections 26700 to 26915, inclusive, that
are not dealers' records of sales of firearms, and reports of
stolen, lost, found, pledged, or pawned property in any city or
county of this state, and shall, upon proper application therefor,
furnish this information to the officers referred to in Section
11105.
(b) (1) Except as provided in subdivision (d), the Attorney
General shall not retain or compile any information from reports
filed pursuant to any provision listed in subdivision (c) of Section
16585 for firearms that are not handguns, from forms submitted
pursuant to Section 12084, as that section read prior to being
repealed by the act that amended this section, for firearms that are
not handguns, or from dealers' records of sales for firearms that are
not handguns. All copies of the forms submitted, or any information
received in electronic form, pursuant to Section 12084, as that
section read prior to being repealed by the act that amended this
section, for firearms that are not handguns, or of the dealers'
records of sales for firearms that are not handguns shall be
destroyed within five days of the clearance by the Attorney General,
unless the purchaser or transferor is ineligible to take possession
of the firearm. All copies of the reports filed, or any information
received in electronic form, pursuant to any provision listed in
subdivision (c) of Section 16585 for firearms that are not handguns
shall be destroyed within five days of the receipt by the Attorney
General, unless retention is necessary for use in a criminal
prosecution.
(2) A peace officer, the Attorney General, a Department of Justice
employee designated by the Attorney General, or any authorized local
law enforcement employee shall not retain or compile any information
from a firearm transaction record, as defined in Section 16550, for
firearms that are not handguns unless retention or compilation is
necessary for use in a criminal prosecution or in a proceeding to
revoke a license issued pursuant to Sections 26700 to 26915,
inclusive.
(3) A violation of this subdivision is a misdemeanor.
(c) (1) The Attorney General shall permanently keep and properly
file and maintain all information reported to the Department of
Justice pursuant to the following provisions as to handguns and
maintain a registry thereof:
(A) Sections 26700 to 26915, inclusive.
(B) Article 1 (commencing with Section 27500) of Chapter 4 of
Division 6 of Title 4 of Part 6.
(C) Chapter 5 (commencing with Section 28050) of Division 6 of
Title 4 of Part 6.
(D) Any provision listed in subdivision (a) of Section 16585.
(E) Former Section 12084.
(F) Any other law.
(2) The registry shall consist of all of the following:
(A) The name, address, identification of, place of birth (state or
country), complete telephone number, occupation, sex, description,
and all legal names and aliases ever used by the owner or person
being loaned the particular handgun as listed on the information
provided to the department on the Dealers' Record of Sale, the Law
Enforcement Firearms Transfer (LEFT), as defined in former Section
12084, or reports made to the department pursuant to any provision
listed in subdivision (a) of Section 16585 or any other law.
(B) The name and address of, and other information about, any
person (whether a dealer or a private party) from whom the owner
acquired or the person being loaned the particular handgun and when
the firearm was acquired or loaned as listed on the information
provided to the department on the Dealers' Record of Sale, the LEFT,
or reports made to the department pursuant to any provision listed in
subdivision (a) of Section 16585 or any other law.
(C) Any waiting period exemption applicable to the transaction
which resulted in the owner of or the person being loaned the
particular handgun acquiring or being loaned that firearm.
(D) The manufacturer's name if stamped on the firearm, model name
or number if stamped on the firearm, and, if applicable, the serial
number, other number (if more than one serial number is stamped on
the firearm), caliber, type of firearm, if the firearm is new or
used, barrel length, and color of the firearm.
(3) Information in the registry referred to in this subdivision
shall, upon proper application therefor, be furnished to the officers
referred to in Section 11105, to a city attorney prosecuting a civil
action, solely for use in prosecuting that civil action and not for
any other purpose, or to the person listed in the registry as the
owner or person who is listed as being loaned the particular handgun.
(4) If any person is listed in the registry as the owner of a
firearm through a Dealers' Record of Sale prior to 1979, and the
person listed in the registry requests by letter that the Attorney
General store and keep the record electronically, as well as in the
record's existing photographic, photostatic, or nonerasable optically
stored form, the Attorney General shall do so within three working
days of receipt of the request. The Attorney General shall, in
writing, and as soon as practicable, notify the person requesting
electronic storage of the record that the request has been honored as
required by this paragraph.
(d) (1) Any officer referred to in paragraphs (1) to (6),
inclusive, of subdivision (b) of Section 11105 may disseminate the
name of the subject of the record, the number of the firearms listed
in the record, and the description of any firearm, including the
make, model, and caliber, from the record relating to any firearm's
sale, transfer, registration, or license record, or any information
reported to the Department of Justice pursuant to Section 26225,
Sections 26700 to 26915, inclusive, (A) Article 1 (commencing with
Section 27500) of Chapter 4 of Division 6 of Title 4 of Part 6, (B)
Chapter 5 (commencing with Section 28050) of Division 6 of Title 4 of
Part 6, (C) Article 2 (commencing with Section 28150) of Chapter 6
of Division 6 of Title 4 of Part 6, (D) Article 5 (commencing with
Section 30900) of Chapter 2 of Division 10 of Title 4 of Part 6, (E)
Chapter 2 (commencing with Section 33850) of Division 11 of Title 4
of Part 6, or (F) any provision listed in subdivision (a) of Section
16585, if the following conditions are met:
(A) The subject of the record has been arraigned for a crime in
which the victim is a person described in subdivisions (a) to (f),
inclusive, of Section 6211
of the Family Code and is being prosecuted or is serving a sentence
for the crime, or the subject of the record is the subject of an
emergency protective order, a temporary restraining order, or an
order after hearing, which is in effect and has been issued by a
family court under the Domestic Violence Protection Act set forth in
Division 10 (commencing with Section 6200) of the Family Code.
(B) The information is disseminated only to the victim of the
crime or to the person who has obtained the emergency protective
order, the temporary restraining order, or the order after hearing
issued by the family court.
(C) Whenever a law enforcement officer disseminates the
information authorized by this subdivision, that officer or another
officer assigned to the case shall immediately provide the victim of
the crime with a "Victims of Domestic Violence" card, as specified in
subparagraph (H) of paragraph (9) of subdivision (c) of Section
13701.
(2) The victim or person to whom information is disseminated
pursuant to this subdivision may disclose it as he or she deems
necessary to protect himself or herself or another person from bodily
harm by the person who is the subject of the record.
SEC. 90. Section 11108 of the Penal Code is amended to read:
11108. (a) Each sheriff or police chief executive shall submit
descriptions of serialized property, or nonserialized property that
has been uniquely inscribed, which has been reported stolen, lost,
found, recovered, held for safekeeping, or under observation,
directly into the appropriate Department of Justice automated
property system for firearms, stolen bicycles, stolen vehicles, or
other property, as the case may be.
(b) Information about a firearm entered into the automated system
for firearms shall remain in the system until the reported firearm
has been found, recovered, is no longer under observation, or the
record is determined to have been entered in error.
(c) Any costs incurred by the Department of Justice to implement
subdivision (b) shall be reimbursed from funds other than fees
charged and collected pursuant to Sections 28225 and 28230.
SEC. 91. Section 11413 of the Penal Code is amended to read:
11413. (a) Any person who explodes, ignites, or attempts to
explode or ignite any destructive device or any explosive, or who
commits arson, in or about any of the places listed in subdivision
(b), for the purpose of terrorizing another or in reckless disregard
of terrorizing another is guilty of a felony, and shall be punished
by imprisonment in the state prison for three, five, or seven years,
and a fine not exceeding ten thousand dollars ($10,000).
(b) Subdivision (a) applies to the following places:
(1) Any health facility licensed under Chapter 2 (commencing with
Section 1250) of Division 2 of the Health and Safety Code, or any
place where medical care is provided by a licensed health care
professional.
(2) Any church, temple, synagogue, mosque, or other place of
worship.
(3) The buildings, offices, and meeting sites of organizations
that counsel for or against abortion or among whose major activities
are lobbying, publicizing, or organizing with respect to public or
private issues relating to abortion.
(4) Any place at which a lecture, film-showing, or other private
meeting or presentation that educates or propagates with respect to
abortion practices or policies, whether on private property or at a
meeting site authorized for specific use by a private group on public
property, is taking place.
(5) Any bookstore or public or private library.
(6) Any building or facility designated as a courthouse.
(7) The home or office of a judicial officer.
(8) Any building or facility regularly occupied by county
probation department personnel in which the employees perform
official duties of the probation department.
(9) Any private property, if the property was targeted in whole or
in part because of any of the actual or perceived characteristics of
the owner or occupant of the property listed in subdivision (a) of
Section 422.55.
(10) Any public or private school providing instruction in
kindergarten or grades 1 to 12, inclusive.
(c) As used in this section, "judicial officer" means a
magistrate, judge, justice, commissioner, referee, or any person
appointed by a court to serve in one of these capacities, of any
state or federal court located in this state.
(d) As used in this section, "terrorizing" means to cause a person
of ordinary emotions and sensibilities to fear for personal safety.
(e) Nothing in this section shall be construed to prohibit the
prosecution of any person pursuant to Section 18740 or any other
provision of law in lieu of prosecution pursuant to this section.
SEC. 92. Section 11418 of the Penal Code is amended to read:
11418. (a) (1) Any person, without lawful authority, who
possesses, develops, manufactures, produces, transfers, acquires, or
retains any weapon of mass destruction, shall be punished by
imprisonment in the state prison for 4, 8, or 12 years.
(2) Any person who commits a violation of paragraph (1) and who
has been previously convicted of Section 11411, 11412, 11413, 11418,
11418.1, 11418.5, 11419, 11460, 18715, 18725, or 18740 shall be
punished by imprisonment in the state prison for 5, 10, or 15 years.
(b) (1) Any person who uses or directly employs against another
person a weapon of mass destruction in a form that may cause
widespread, disabling illness or injury in human beings shall be
punished by imprisonment in the state prison for life.
(2) Any person who uses or directly employs against another person
a weapon of mass destruction in a form that may cause widespread
great bodily injury or death and causes the death of any human being
shall be punished by imprisonment in the state prison for life
without the possibility of parole. Nothing in this paragraph shall
prevent punishment instead under Section 190.2.
(3) Any person who uses a weapon of mass destruction in a form
that may cause widespread damage to or disruption of the food supply
or "source of drinking water" as defined in subdivision (d) of
Section 25249.11 of the Health and Safety Code shall be punished by
imprisonment in the state prison for 5, 8, or 12 years and by a fine
of not more than one hundred thousand dollars ($100,000).
(4) Any person who maliciously uses against animals, crops, or
seed and seed stock, a weapon of mass destruction in a form that may
cause widespread damage to or substantial diminution in the value of
stock animals or crops, including seeds used for crops or product of
the crops, shall be punished by imprisonment in the state prison for
4, 8, or 12 years and by a fine of not more than one hundred thousand
dollars ($100,000).
(c) Any person who uses a weapon of mass destruction in a form
that may cause widespread and significant damage to public natural
resources, including coastal waterways and beaches, public parkland,
surface waters, ground water, and wildlife, shall be punished by
imprisonment in the state prison for 3, 4, or 6 years.
(d) (1) Any person who uses recombinant technology or any other
biological advance to create new pathogens or more virulent forms of
existing pathogens for use in any crime described in subdivision (b)
shall be punished by imprisonment in the state prison for 4, 8, or 12
years and by a fine of not more than two hundred fifty thousand
dollars ($250,000).
(2) Any person who uses recombinant technology or any other
biological advance to create new pathogens or more virulent forms of
existing pathogens for use in any crime described in subdivision (c)
shall be punished by imprisonment in the state prison for three, six,
or nine years and by a fine of not more than two hundred fifty
thousand dollars ($250,000).
(e) Nothing in this section shall be construed to prevent
punishment instead pursuant to any other provision of law that
imposes a greater or more severe punishment.
SEC. 93. Section 11460 of the Penal Code is amended to read:
11460. (a) Any two or more persons who assemble as a paramilitary
organization for the purpose of practicing with weapons shall be
punished by imprisonment in a county jail for not more than one year
or by a fine of not more than one thousand dollars ($1,000), or by
both that fine and imprisonment.
As used in this subdivision, "paramilitary organization" means an
organization which is not an agency of the United States government
or of the State of California, or which is not a private school
meeting the requirements set forth in Section 48222 of the Education
Code, but which engages in instruction or training in guerrilla
warfare or sabotage, or which, as an organization, engages in rioting
or the violent disruption of, or the violent interference with,
school activities.
(b) (1) Any person who teaches or demonstrates to any other person
the use, application, or making of any firearm, explosive, or
destructive device, or technique capable of causing injury or death
to persons, knowing or having reason to know or intending that these
objects or techniques will be unlawfully employed for use in, or in
the furtherance of a civil disorder, or any person who assembles with
one or more other persons for the purpose of training with,
practicing with, or being instructed in the use of any firearm,
explosive, or destructive device, or technique capable of causing
injury or death to persons, with the intent to cause or further a
civil disorder, shall be punished by imprisonment in the county jail
for not more than one year or by a fine of not more than one thousand
dollars ($1,000), or by both that fine and imprisonment.
Nothing in this subdivision shall make unlawful any act of any
peace officer or a member of the military forces of this state or of
the United States, performed in the lawful course of his or her
official duties.
(2) As used in this section:
(A) "Civil disorder" means any disturbance involving acts of
violence which cause an immediate danger of or results in damage or
injury to the property or person of any other individual.
(B) "Destructive device" has the same meaning as in Section 16460.
(C) "Explosive" has the same meaning as in Section 12000 of the
Health and Safety Code.
(D) "Firearm" means any device designed to be used as a weapon, or
which may readily be converted to a weapon, from which is expelled a
projectile by the force of any explosion or other form of
combustion, or the frame or receiver of this weapon.
(E) "Peace officer" means any peace officer or other officer
having the powers of arrest of a peace officer, specified in Chapter
4.5 (commencing with Section 830) of Title 3 of Part 2.
SEC. 94. Section 13730 of the Penal Code is amended to read:
13730. (a) Each law enforcement agency shall develop a system, by
January 1, 1986, for recording all domestic violence-related calls
for assistance made to the department including whether weapons are
involved. All domestic violence-related calls for assistance shall be
supported with a written incident report, as described in
subdivision (c), identifying the domestic violence incident. Monthly,
the total number of domestic violence calls received and the numbers
of those cases involving weapons shall be compiled by each law
enforcement agency and submitted to the Attorney General.
(b) The Attorney General shall report annually to the Governor,
the Legislature, and the public the total number of domestic
violence-related calls received by California law enforcement
agencies, the number of cases involving weapons, and a breakdown of
calls received by agency, city, and county.
(c) Each law enforcement agency shall develop an incident report
form that includes a domestic violence identification code by January
1, 1986. In all incidents of domestic violence, a report shall be
written and shall be identified on the face of the report as a
domestic violence incident. The report shall include at least all of
the following:
(1) A notation of whether the officer or officers who responded to
the domestic violence call observed any signs that the alleged
abuser was under the influence of alcohol or a controlled substance.
(2) A notation of whether the officer or officers who responded to
the domestic violence call determined if any law enforcement agency
had previously responded to a domestic violence call at the same
address involving the same alleged abuser or victim.
(3) A notation of whether the officer or officers who responded to
the domestic violence call found it necessary, for the protection of
the peace officer or other persons present, to inquire of the
victim, the alleged abuser, or both, whether a firearm or other
deadly weapon was present at the location, and, if there is an
inquiry, whether that inquiry disclosed the presence of a firearm or
other deadly weapon. Any firearm or other deadly weapon discovered by
an officer at the scene of a domestic violence incident shall be
subject to confiscation pursuant to Division 4 (commencing with
Section 18250) of Title 2 of Part 6.
SEC. 95. Section 10334 of the Public Contract Code is amended to
read:
10334. (a) No state employee shall acquire any goods from the
state, unless the goods are offered to the general public in the
regular course of the state's business on the same terms and
conditions as those applicable to the employee. "State employee," as
used in this section, means any employee of the state included within
Section 82009 of the Government Code, and all officers and employees
included within Section 4 of Article VII of the California
Constitution, except those persons excluded from the definition of
"designated employee" under the last paragraph of Section 82019 of
the Government Code.
(b) Notwithstanding subdivision (a), any peace officer as defined
in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of
the Penal Code, employed by the State of California for a period of
more than 120 months who has been duly retired through a service
retirement or a peace officer retiring from a job-incurred disability
not related to a mental or emotional disorder and who has been
granted the legal right to carry a concealed firearm pursuant to
Article 2 (commencing with Section 25450) of Chapter 2 of Division 5
of Title 4 of Part 6 of the Penal Code may be authorized by the
person's department head to purchase his or her state-issued handgun.
Disability retired peace officers need not meet the 120-month
employment requirement. The cost of the handgun shall be the fair
market value as listed in the annual Blue Book of Gun Values or
replacement cost, whichever is less, of the handgun issued as
determined by the appointing power, plus a charge for the cost of
handling. The retiring officer shall request to purchase his or her
handgun in writing to the department within 30 calendar days of his
or her retirement date.
(c) Notwithstanding subdivision (a), any peace officer described
in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of
the Penal Code employed by the State of California who is authorized
to carry firearms may purchase his or her state-issued service
firearm if the person's department head directs the department to
change its state-issued service weapon system. The cost of the
service firearm shall be the fair market value as listed in the
annual Blue Book of Gun Values or replacement cost, whichever is
less, of the firearm issued as determined by the department head,
plus a charge for the cost of handling. The requesting officer shall
request to purchase his or her firearm in writing to the department
within 10 calendar days of receiving the new state-issued weapon.
SEC. 96. Section 676 of the Welfare and Institutions Code is
amended to read:
676. (a) Unless requested by the minor concerning whom the
petition has been filed and any parent or guardian present, the
public shall not be admitted to a juvenile court hearing. Nothing in
this section shall preclude the attendance of up to two family
members of a prosecuting witness for the support of that witness, as
authorized by Section 868.5 of the Penal Code. The judge or referee
may nevertheless admit those persons he or she deems to have a direct
and legitimate interest in the particular case or the work of the
court. However, except as provided in subdivision (b), members of the
public shall be admitted, on the same basis as they may be admitted
to trials in a court of criminal jurisdiction, to hearings concerning
petitions filed pursuant to Section 602 alleging that a minor is a
person described in Section 602 by reason of the violation of any one
of the following offenses:
(1) Murder.
(2) Arson of an inhabited building.
(3) Robbery while armed with a dangerous or deadly weapon.
(4) Rape with force or violence or threat of great bodily harm.
(5) Sodomy by force, violence, duress, menace, or threat of great
bodily harm.
(6) Oral copulation by force, violence, duress, menace, or threat
of great bodily harm.
(7) Any offense specified in subdivision (a) of Section 289 of the
Penal Code.
(8) Kidnapping for ransom.
(9) Kidnapping for purpose of robbery.
(10) Kidnapping with bodily harm.
(11) Assault with intent to murder or attempted murder.
(12) Assault with a firearm or destructive device.
(13) Assault by any means of force likely to produce great bodily
injury.
(14) Discharge of a firearm into an inhabited dwelling or occupied
building.
(15) Any offense described in Section 1203.09 of the Penal Code.
(16) Any offense described in Section 12022.5 or 12022.53 of the
Penal Code.
(17) Any felony offense in which a minor personally used a weapon
described in any provision listed in Section 16590 of the Penal Code.
(18) Burglary of an inhabited dwelling house or trailer coach, as
defined in Section 635 of the Vehicle Code, or the inhabited portion
of any other building, if the minor previously has been adjudged a
ward of the court by reason of the commission of any offense listed
in this section, including an offense listed in this paragraph.
(19) Any felony offense described in Section 136.1 or 137 of the
Penal Code.
(20) Any offense as specified in Sections 11351, 11351.5, 11352,
11378, 11378.5, 11379, and 11379.5 of the Health and Safety Code.
(21) Criminal street gang activity which constitutes a felony
pursuant to Section 186.22 of the Penal Code.
(22) Manslaughter as specified in Section 192 of the Penal Code.
(23) Driveby shooting or discharge of a weapon from or at a motor
vehicle as specified in Sections 246, 247, and 26100 of the Penal
Code.
(24) Any crime committed with an assault weapon, as defined in
Section 30510 of the Penal Code, including possession of an assault
weapon as specified in Section 30605 of the Penal Code.
(25) Carjacking, while armed with a dangerous or deadly weapon.
(26) Kidnapping, in violation of Section 209.5 of the Penal Code.
(27) Torture, as described in Sections 206 and 206.1 of the Penal
Code.
(28) Aggravated mayhem, in violation of Section 205 of the Penal
Code.
(b) Where the petition filed alleges that the minor is a person
described in Section 602 by reason of the commission of rape with
force or violence or great bodily harm; sodomy by force, violence,
duress, menace, or threat of great bodily harm; oral copulation by
force, violence, duress, menace, or threat of great bodily harm; or
any offense specified in Section 289 of the Penal Code, members of
the public shall not be admitted to the hearing in either of the
following instances:
(1) Upon a motion for a closed hearing by the district attorney,
who shall make the motion if so requested by the victim.
(2) During the victim's testimony, if, at the time of the offense
the victim was under 16 years of age.
(c) The name of a minor found to have committed one of the
offenses listed in subdivision (a) shall not be confidential, unless
the court, for good cause, so orders. As used in this subdivision,
"good cause" shall be limited to protecting the personal safety of
the minor, a victim, or a member of the public. The court shall make
a written finding, on the record, explaining why good cause exists to
make the name of the minor confidential.
(d) Notwithstanding Sections 827 and 828 and subject to
subdivisions (e) and (f), when a petition is sustained for any
offense listed in subdivision (a), the charging petition, the minutes
of the proceeding, and the orders of adjudication and disposition of
the court that are contained in the court file shall be available
for public inspection. Nothing in this subdivision shall be construed
to authorize public access to any other documents in the court file.
(e) The probation officer or any party may petition the juvenile
court to prohibit disclosure to the public of any file or record. The
juvenile court shall prohibit the disclosure if it appears that the
harm to the minor, victims, witnesses, or public from the public
disclosure outweighs the benefit of public knowledge. However, the
court shall not prohibit disclosure for the benefit of the minor
unless the court makes a written finding that the reason for the
prohibition is to protect the safety of the minor.
(f) Nothing in this section shall be applied to limit the
disclosure of information as otherwise provided for by law.
(g) The juvenile court shall for each day that the court is in
session, post in a conspicuous place which is accessible to the
general public, a written list of hearings that are open to the
general public pursuant to this section, the location of those
hearings, and the time when the hearings will be held.
SEC. 97. Section 707 of the Welfare and Institutions Code is
amended to read:
707. (a) (1) In any case in which a minor is alleged to be a
person described in subdivision (a) of Section 602 by reason of the
violation, when he or she was 16 years of age or older, of any
criminal statute or ordinance except those listed in subdivision (b),
upon motion of the petitioner made prior to the attachment of
jeopardy the court shall cause the probation officer to investigate
and submit a report on the behavioral patterns and social history of
the minor being considered for a determination of unfitness.
Following submission and consideration of the report, and of any
other relevant evidence that the petitioner or the minor may wish to
submit, the juvenile court may find that the minor is not a fit and
proper subject to be dealt with under the juvenile court law if it
concludes that the minor would not be amenable to the care,
treatment, and training program available through the facilities of
the juvenile court, based upon an evaluation of the following
criteria:
(A) The degree of criminal sophistication exhibited by the minor.
(B) Whether the minor can be rehabilitated prior to the expiration
of the juvenile court's jurisdiction.
(C) The minor's previous delinquent history.
(D) Success of previous attempts by the juvenile court to
rehabilitate the minor.
(E) The circumstances and gravity of the offense alleged in the
petition to have been committed by the minor.
A determination that the minor is not a fit and proper subject to
be dealt with under the juvenile court law may be based on any one or
a combination of the factors set forth above, which shall be recited
in the order of unfitness. In any case in which a hearing has been
noticed pursuant to this section, the court shall postpone the taking
of a plea to the petition until the conclusion of the fitness
hearing, and no plea that may have been entered already shall
constitute evidence at the hearing.
(2) (A) This paragraph shall apply to a minor alleged to be a
person described in Section 602 by reason of the violation, when he
or she has attained 16 years of age, of any felony offense when the
minor has been declared to be a ward of the court pursuant to Section
602 on one or more prior occasions if both of the following apply:
(i) The minor has previously been found to have committed two or
more felony offenses.
(ii) The offenses upon which the prior petition or petitions were
based were committed when the minor had attained 14 years of age.
(B) Upon motion of the petitioner made prior to the attachment of
jeopardy the court shall cause the probation officer to investigate
and submit a report on the behavioral patterns and social history of
the minor being considered for a determination of unfitness.
Following submission and consideration of the report, and of any
other relevant evidence that the petitioner or the minor may wish to
submit, the minor shall be presumed to be not a fit and proper
subject to be dealt with under the juvenile court law unless the
juvenile court concludes, based upon evidence, which evidence may be
of extenuating or mitigating circumstances, that the minor would be
amenable to the care, treatment, and training program available
through the facilities of the juvenile court based upon an evaluation
of the following criteria:
(i) The degree of criminal sophistication exhibited by the minor.
(ii) Whether the minor can be rehabilitated prior to the
expiration of the juvenile court's jurisdiction.
(iii) The minor's previous delinquent history.
(iv) Success of previous attempts by the juvenile court to
rehabilitate the minor.
(v) The circumstances and gravity of the offense alleged in the
petition to have been committed by the minor.
A determination that the minor is a fit and proper subject to be
dealt with under the juvenile court law shall be based on a finding
of amenability after consideration of the criteria set forth above,
and findings therefore recited in the order as to each of the above
criteria that the minor is fit and proper under each and every one of
the above criteria. In making a finding of fitness, the court may
consider extenuating and mitigating circumstances in evaluating each
of the above criteria. In any case in which the hearing has been
noticed pursuant to this section, the court shall postpone the taking
of a plea to the petition until the conclusion of the fitness
hearing and no plea which may have been entered already shall
constitute evidence at the hearing. If the minor is found to be a fit
and proper subject to be dealt with under the juvenile court law
pursuant to this subdivision, the minor shall be committed to
placement in a juvenile hall, ranch camp, forestry camp, boot camp,
or secure juvenile home pursuant to Section 730, or in any
institution operated by the Department of Corrections and
Rehabilitation, Division of Juvenile Facilities.
(3) If, pursuant to this subdivision, the minor is found to be
not a fit and proper subject for juvenile court treatment and is
tried in a court of criminal jurisdiction and found guilty by the
trier of fact, the judge may commit the minor to the Department of
Corrections and Rehabilitation, Division of Juvenile Facilities, in
lieu of sentencing the minor to the state prison, unless the
limitations specified in Section 1732.6 apply.
(b) Subdivision (c) shall be applicable in any case in which a
minor is alleged to be a person described in Section 602 by reason of
the violation of one of the following offenses:
(1) Murder.
(2) Arson, as provided in subdivision (a) or (b) of Section 451 of
the Penal Code.
(3) Robbery.
(4) Rape with force, violence, or threat of great bodily harm.
(5) Sodomy by force, violence, duress, menace, or threat of great
bodily harm.
(6) A lewd or lascivious act as provided in subdivision (b) of
Section 288 of the Penal Code.
(7) Oral copulation by force, violence, duress, menace, or threat
of great bodily harm.
(8) An offense specified in subdivision (a) of Section 289 of the
Penal Code.
(9) Kidnapping for ransom.
(10) Kidnapping for purposes of robbery.
(11) Kidnapping with bodily harm.
(12) Attempted murder.
(13) Assault with a firearm or destructive device.
(14) Assault by any means of force likely to produce great bodily
injury.
(15) Discharge of a firearm into an inhabited or occupied
building.
(16) An offense described in Section 1203.09 of the Penal Code.
(17) An offense described in Section 12022.5 or 12022.53 of the
Penal Code.
(18) A felony offense in which the minor personally used a weapon
described in any provision listed in Section 16590 of the Penal Code.
(19) A felony offense described in Section 136.1 or 137 of the
Penal Code.
(20) Manufacturing, compounding, or selling one-half ounce or more
of a salt or solution of a controlled substance specified in
subdivision (e) of Section 11055 of the Health and Safety Code.
(21) A violent felony, as defined in subdivision (c) of Section
667.5 of the Penal Code, which also would constitute a felony
violation of subdivision (b) of Section 186.22 of the Penal Code.
(22) Escape, by the use of force or violence, from a county
juvenile hall, home, ranch, camp, or forestry camp in violation of
subdivision (b) of Section 871 if great bodily injury is
intentionally inflicted upon an employee of the juvenile facility
during the commission of the escape.
(23) Torture as described in Sections 206 and 206.1 of the Penal
Code.
(24) Aggravated mayhem, as described in Section 205 of the Penal
Code.
(25) Carjacking, as described in Section 215 of the Penal Code,
while armed with a dangerous or deadly weapon.
(26) Kidnapping for purposes of sexual assault, as punishable in
subdivision (b) of Section 209 of the Penal Code.
(27) Kidnapping as punishable in Section 209.5 of the Penal Code.
(28) The offense described in subdivision (c) of Section 26100 of
the Penal Code.
(29) The offense described in Section 18745 of the Penal Code.
(30) Voluntary manslaughter, as described in subdivision (a) of
Section 192 of the Penal Code.
(c) With regard to a minor alleged to be a person described in
Section 602 by reason of the violation, when he or she was 14 years
of age or older, of any of the offenses listed in subdivision (b),
upon motion of the petitioner made prior to the attachment of
jeopardy the court shall cause the probation officer to investigate
and submit a report on the behavioral patterns and social history of
the minor being considered for a determination of unfitness.
Following submission and consideration of the report, and of any
other relevant evidence that the petitioner or the minor may wish to
submit, the minor shall be presumed to be not a fit and proper
subject to be dealt with under the juvenile court law unless the
juvenile court concludes, based upon evidence, which evidence may be
of extenuating or mitigating circumstances, that the minor would be
amenable to the care, treatment, and training program available
through the facilities of the juvenile court based upon an evaluation
of each of the following criteria:
(1) The degree of criminal sophistication exhibited by the minor.
(2) Whether the minor can be rehabilitated prior to the expiration
of the juvenile court's jurisdiction.
(3) The minor's previous delinquent history.
(4) Success of previous attempts by the juvenile court to
rehabilitate the minor.
(5) The circumstances and gravity of the offenses alleged in the
petition to have been committed by the minor.
A determination that the minor is a fit and proper subject to be
dealt with under the juvenile court law shall be based on a finding
of amenability after consideration of the criteria set forth above,
and findings therefore recited in the order as to each of the above
criteria that the minor is fit and proper under each and every one of
the above criteria. In making a finding of fitness, the court may
consider extenuating or mitigating circumstances in evaluating each
of the above criteria. In any case in which a hearing has been
noticed pursuant to this section, the court shall postpone the taking
of a plea to the petition until the conclusion of the fitness
hearing and no plea which may have been entered already shall
constitute evidence at the hearing. If, pursuant to this subdivision,
the minor is found to be not a fit and proper subject for juvenile
court treatment and is tried in a court of criminal jurisdiction and
found guilty by the trier of fact, the judge may commit the minor to
the Department of Corrections and Rehabilitation, Division of
Juvenile Facilities, in lieu of sentencing the minor to the state
prison, unless the limitations specified in Section 1732.6 apply.
(d) (1) Except as provided in subdivision (b) of Section 602, the
district attorney or other appropriate prosecuting officer may file
an accusatory pleading in a court of criminal jurisdiction against
any minor 16 years of age or older who is accused of committing an
offense enumerated in subdivision (b).
(2) Except as provided in subdivision (b) of Section 602, the
district attorney or other appropriate prosecuting officer may file
an accusatory pleading against a minor 14 years of age or older in a
court of criminal jurisdiction in any case in which any one or more
of the following circumstances apply:
(A) The minor is alleged to have committed an offense that if
committed by an adult would be punishable by death or imprisonment in
the state prison for life.
(B) The minor is alleged to have personally used a firearm during
the commission or attempted commission of a felony, as described in
Section 12022.5 or 12022.53 of the Penal Code.
(C) The minor is alleged to have committed an offense listed in
subdivision (b) in which any one or more of the following
circumstances apply:
(i) The minor has previously been found to be a person described
in Section 602 by reason of the commission of an offense listed in
subdivision (b).
(ii) The offense was committed for the benefit of, at the
direction of, or in association with any criminal street gang, as
defined in subdivision (f) of Section 186.22 of the Penal Code, with
the specific intent to promote, further, or assist in criminal
conduct by gang members.
(iii) The offense was committed for the purpose of intimidating or
interfering with any other person's free exercise or enjoyment of a
right secured to him or her by the Constitution or laws of this state
or by the Constitution or laws of the United States and because of
the other person's race, color, religion, ancestry, national origin,
disability, gender, or sexual orientation, or because the minor
perceives that the other person has one or more of those
characteristics, as described in Title 11.6 (commencing with Section
422.55) of Part 1 of the Penal Code.
(iv) The victim of the offense was 65 years of age or older, or
blind, deaf, quadriplegic, paraplegic, developmentally disabled, or
confined to a wheelchair, and that disability was known or reasonably
should have been known to the minor at the time of the commission of
the offense.
(3) Except as provided in subdivision (b) of Section 602, the
district attorney or other appropriate prosecuting officer may file
an accusatory pleading in a court of criminal jurisdiction against
any minor 16 years of age or older who is accused of committing one
or more of the following offenses, if the minor has previously been
found to be a person described in Section 602 by reason of the
violation of a felony offense, when he or she was 14 years of age or
older:
(A) A felony offense in which it is alleged that the victim of the
offense was 65 years of age or older, or blind, deaf, quadriplegic,
paraplegic, developmentally disabled, or confined to a wheelchair,
and that disability was known or reasonably should have been known to
the minor at the time of the commission of the offense.
(B) A felony offense committed for the purposes of intimidating or
interfering with any other person's free exercise or enjoyment of a
right secured to him or her by the Constitution or laws of this state
or by the Constitution or laws of the United States and because of
the other person's race, color, religion, ancestry, national origin,
disability, gender, or sexual orientation, or because the minor
perceived that the other person had one or more of those
characteristics, as described in Title 11.6 (commencing with Section
422.55) of Part 1 of the Penal Code.
(C) The offense was committed for the benefit of, at the direction
of, or in association with any criminal street gang as prohibited by
Section 186.22 of the Penal Code.
(4) In any case in which the district attorney or other
appropriate prosecuting officer has filed an accusatory pleading
against a minor in a court of criminal jurisdiction pursuant to this
subdivision, the case shall then proceed according to the laws
applicable to a criminal case. In conjunction with the preliminary
hearing as provided in Section 738 of the Penal Code, the magistrate
shall make a finding that reasonable cause exists to believe that the
minor comes within this subdivision. If reasonable cause is not
established, the criminal court shall transfer the case to the
juvenile court having jurisdiction over the matter.
(5) For an offense for which the prosecutor may file the
accusatory pleading in a court of criminal jurisdiction pursuant to
this subdivision, but elects instead to file a petition in the
juvenile court, if the minor is subsequently found to be a person
described in subdivision (a) of Section 602, the minor shall be
committed to placement in a juvenile hall, ranch camp, forestry camp,
boot camp, or secure juvenile home pursuant to Section 730, or in
any institution operated by the Department of Corrections and
Rehabilitation, Division of Juvenile Facilities.
(6) If, pursuant to this subdivision, the minor is found to be not
a fit and proper subject for juvenile court treatment and is tried
in a court of criminal jurisdiction and found guilty by the trier of
fact, the judge may commit the minor to the Department of Corrections
and Rehabilitation, Division of Juvenile Facilities, in lieu of
sentencing the minor to the state prison, unless the limitations
specified in Section 1732.6 apply.
(e) A report submitted by a probation officer pursuant to this
section regarding the behavioral patterns and social history of the
minor being considered for a determination of unfitness shall include
any written or oral statement offered by the victim, the victim's
parent or guardian if the victim is a minor, or if the victim has
died, the victim's next of kin, as authorized by subdivision (b) of
Section 656.2. Victims' statements shall be considered by the court
to the extent they are relevant to the court's determination of
unfitness.
SEC. 98. Section 727 of the Welfare and Institutions Code is
amended to read:
727. (a) When a minor is adjudged a ward of the court on the
ground that he or she is a person described by Section 601 or 602,
the court may make any and all reasonable orders for the care,
supervision, custody, conduct, maintenance, and support of the minor,
including medical treatment, subject to further order of the court.
To facilitate coordination and cooperation among governmental
agencies, the court may, after giving notice and an opportunity to be
heard, join in the juvenile court proceedings any agency that the
court determines has failed to meet a legal obligation to provide
services to the minor. However, no governmental agency shall be
joined as a party in a juvenile court proceeding in which a minor has
been ordered committed to the Department of the Youth Authority. In
any proceeding in which an agency is joined, the court shall not
impose duties upon the agency beyond those mandated by law. Nothing
in this section shall prohibit agencies which have received notice of
the hearing on joinder from meeting prior to the hearing to
coordinate services for the minor.
The court has no authority to order services unless it has been
determined through the administrative process of an agency that has
been joined as a party, that the minor is eligible for those
services. With respect to mental health assessment, treatment, and
case management services pursuant to Chapter 26.5 (commencing with
Section 7570) of Division 7 of Title 1 of the Government Code, the
court's determination shall be limited to whether the agency has
complied with that chapter.
In the discretion of the court, a ward may be ordered to be on
probation without supervision of the probation officer. The court, in
so ordering, may impose on the ward any and all reasonable
conditions of behavior as may be appropriate under this disposition.
A minor who has been adjudged a ward of the court on the basis of the
commission of any of the offenses described in subdivision (b) or
paragraph (2) of subdivision (d) of Section 707, Section 459 of the
Penal Code, or subdivision (a) of Section 11350 of the Health and
Safety Code, shall not be eligible for probation without supervision
of the probation officer. A minor who has been adjudged a ward of the
court on the basis of the commission of any offense involving the
sale or possession for sale of a controlled substance, except
misdemeanor offenses involving marijuana, as specified in Chapter 2
(commencing with Section 11053) of Division 10 of the Health and
Safety Code, or of an offense in violation of Section 32625 of the
Penal Code, shall be eligible for probation without supervision of
the probation officer only when the court determines that the
interests of justice would best be served and states reasons on the
record for that determination.
In all other cases, the court shall order the care, custody, and
control of the minor to be under the supervision of the probation
officer who may place the minor in any of the following:
(1) The approved home of a relative, or the approved home of a
nonrelative, extended family member as defined in Section 362.7. When
a decision has been made to place the minor in the home of a
relative, the court may authorize the relative to give legal consent
for the minor's medical, surgical, and dental care and education as
if the relative caretaker were the custodial parent of the minor.
(2) A suitable licensed community care facility.
(3) With a foster family agency to be placed in a suitable
licensed foster family home or certified family home which has been
certified by the agency as meeting licensing standards.
(4) (A) Every child adjudged a ward of the juvenile court who is
residing in a placement as defined in paragraphs (1) to (3),
inclusive, shall be entitled to participate in age-appropriate
extracurricular, enrichment, and social activities. No state or local
regulation or policy may prevent, or create barriers to,
participation in those activities. Each state and local entity shall
ensure that private agencies that provide foster care services to
wards have policies consistent with this section and that those
agencies promote and protect the ability of wards to participate in
age-appropriate extracurricular, enrichment, and social activities. A
group home administrator, a facility manager, or his or her
responsible designee, and a caregiver, as defined in paragraph (1) of
subdivision (a) of Section 362.04, shall use a reasonable and
prudent parent standard, as defined in paragraph (2) of subdivision
(a) of Section 362.04, in determining whether to give permission for
a child residing in foster care to participate in extracurricular,
enrichment, and social activities. A group home administrator, a
facility manager, or his or her responsible designee, and a caregiver
shall take reasonable steps to determine the appropriateness of the
activity taking into consideration the child's age, maturity, and
developmental level.
(B) A group home administrator or a facility manager, or his or
her responsible designee, is encouraged to consult with social work
or treatment staff members who are most familiar with the child at
the group home in applying and using the reasonable and prudent
parent standard.
(b) When a minor has been adjudged a ward of the court on the
ground that he or she is a person described in Section 601 or 602 and
the court finds that notice has been given in accordance with
Section 661, and when the court orders that a parent or guardian
shall retain custody of that minor either subject to or without the
supervision of the probation officer, the parent or guardian may be
required to participate with that minor in a counseling or education
program including, but not limited to, parent education and parenting
programs operated by community colleges, school districts, or other
appropriate agencies designated by the court.
(c) The juvenile court may direct any and all reasonable orders to
the parents and guardians of the minor who is the subject of any
proceedings under this chapter as the court deems necessary and
proper to carry out subdivisions (a) and (b), including orders to
appear before a county financial evaluation officer and orders
directing the parents or guardians to ensure the minor's regular
school attendance and to make reasonable efforts to obtain
appropriate educational services necessary to meet the needs of the
minor.
When counseling or other treatment services are ordered for the
minor, the parent, guardian, or foster parent shall be ordered to
participate in those services, unless participation by the parent,
guardian, or foster parent is deemed by the court to be inappropriate
or potentially detrimental to the child.
SEC. 99. Section 1772 of the Welfare and Institutions Code is
amended to read:
1772. (a) Subject to subdivision (b), every person honorably
discharged from control by the Youth Authority Board who has not,
during the period of control by the authority, been placed by the
authority in a state prison shall thereafter be released from all
penalties and disabilities resulting from the offense or crime for
which he or she was committed, and every person discharged may
petition the court which committed him or her, and the court may upon
that petition set aside the verdict of guilty and dismiss the
accusation or information against the petitioner who shall thereafter
be released from all penalties and disabilities resulting from the
offense or crime for which he or she was committed, including, but
not limited to, any disqualification for any employment or
occupational license, or both, created by any other provision of law.
(b) Notwithstanding subdivision (a):
(1) A person described by subdivision (a) shall not be eligible
for appointment as a peace officer employed by any public agency if
his or her appointment would otherwise be prohibited by Section 1029
of the Government Code. However, that person may be appointed and
employed as a peace officer by the Department of the Youth Authority
if (A) at least five years have passed since his or her honorable
discharge, and the person has had no misdemeanor or felony
convictions except for traffic misdemeanors since he or she was
honorably discharged by the Youth Authority Board, or (B) the person
was employed as a peace officer by the Department of the Youth
Authority on or before January 1, 1983. No person who is under the
jurisdiction of the Department of the Youth Authority shall be
admitted to an examination for a peace officer position with the
department unless and until the person has been honorably discharged
from the jurisdiction of the Youth Authority Board.
(2) A person described by subdivision (a) is subject to Chapter 2
(commencing with Section 29800) and Chapter 3 (commencing with
Section 29900) of Division 9 of Title 4 of Part 6 of the Penal Code.
(3) The conviction of a person described by subdivision (a) for an
offense listed in subdivision (b) of Section 707 is admissible in a
subsequent criminal, juvenile, or civil proceeding if otherwise
admissible, if all the following are true:
(A) The person was 16 years of age or older at the time he or she
committed the offense.
(B) The person was found unfit to be dealt with under the juvenile
court law pursuant to Section 707 because he or she was alleged to
have committed an offense listed in subdivision (b) of Section 707.
(C) The person was tried as an adult and convicted of an offense
listed in subdivision (b) of Section 707.
(D) The person was committed to the Department of the Youth
Authority for the offense referred to in subparagraph (C).
(4) The conviction of a person described by subdivision (a) may be
used to enhance the punishment for a subsequent offense.
(5) The conviction of a person who is 18 years of age or older at
the time he or she committed the offense is admissible in a
subsequent civil, criminal, or juvenile proceeding, if otherwise
admissible pursuant to law.
(c) Every person discharged from control by the Youth Authority
Board shall be informed of the provisions of this section in writing
at the time of discharge.
(d) "Honorably discharged" as used in this section means and
includes every person whose discharge is based upon a good record on
parole.
SEC. 100. Section 4514 of the Welfare and Institutions Code is
amended to read:
4514. All information and records obtained in the course of
providing intake, assessment, and services under Division 4.1
(commencing with Section 4400), Division 4.5 (commencing with Section
4500), Division 6 (commencing with Section 6000), or Division 7
(commencing with Section 7100) to persons with developmental
disabilities shall be confidential. Information and records obtained
in the course of providing similar services to either voluntary or
involuntary recipients prior to 1969 shall also be confidential.
Information and records shall be disclosed only in any of the
following cases:
(a) In communications between qualified professional persons,
whether employed by a regional center or state developmental center,
or not, in the provision of intake, assessment, and services or
appropriate referrals. The consent of the person with a developmental
disability, or his or her guardian or conservator, shall be obtained
before information or records may be disclosed by regional center or
state developmental center personnel to a professional not employed
by the regional center or state developmental center, or a program
not vendored by a regional center or state developmental center.
(b) When the person with a developmental disability, who has the
capacity to give informed consent, designates individuals to whom
information or records may be released, except that nothing in this
chapter shall be construed to compel a physician, psychologist,
social worker, marriage and family therapist, nurse, attorney, or
other professional to reveal information that has been given to him
or her in confidence by a family member of the person unless a valid
release has been executed by that family member.
(c) To the extent necessary for a claim, or for a claim or
application to be made on behalf of a person with a developmental
disability for aid, insurance, government benefit, or medical
assistance to which he or she may be entitled.
(d) If the person with a developmental disability is a minor,
ward, or conservatee, and his or her parent, guardian, conservator,
or limited conservator with access to confidential records,
designates, in writing, persons to whom records or information may be
disclosed, except that nothing in this chapter shall be construed to
compel a physician, psychologist, social worker, marriage and family
therapist, nurse, attorney, or other professional to reveal
information that has been given to him or her in confidence by a
family member of the person unless a valid release has been executed
by that family member.
(e) For research, provided that the Director of Developmental
Services designates by regulation rules for the conduct of research
and requires the research to be first reviewed by the appropriate
institutional review board or boards. These rules shall include, but
need not be limited to, the requirement that all researchers shall
sign an oath of confidentiality as follows:
"" ____________________________
Date
As a condition of doing research concerning persons with
developmental disabilities who have received services from ____ (fill
in the facility, agency or person), I, ____, agree to obtain the
prior informed consent of persons who have received services to the
maximum degree possible as determined by the appropriate
institutional review board or boards for protection of human subjects
reviewing my research, or the person's parent, guardian, or
conservator, and I further agree not to divulge any information
obtained in the course of the research to unauthorized persons, and
not to publish or otherwise make public any information regarding
persons who have received services so those persons who received
services are identifiable.
I recognize that the unauthorized release of confidential
information may make me subject to a civil action under provisions of
the Welfare and Institutions Code.
________________________''
Signed
(f) To the courts, as necessary to the administration of justice.
(g) To governmental law enforcement agencies as needed for the
protection of federal and state elective constitutional officers and
their families.
(h) To the Senate
Committee on Rules or the Assembly Committee on Rules for the
purposes of legislative investigation authorized by the committee.
(i) To the courts and designated parties as part of a regional
center report or assessment in compliance with a statutory or
regulatory requirement, including, but not limited to, Section 1827.5
of the Probate Code, Sections 1001.22 and 1370.1 of the Penal Code,
Section 6502 of the Welfare and Institutions Code, and Section 56557
of Title 17 of the California Code of Regulations.
(j) To the attorney for the person with a developmental disability
in any and all proceedings upon presentation of a release of
information signed by the person, except that when the person lacks
the capacity to give informed consent, the regional center or state
developmental center director or designee, upon satisfying himself or
herself of the identity of the attorney, and of the fact that the
attorney represents the person, shall release all information and
records relating to the person except that nothing in this article
shall be construed to compel a physician, psychologist, social
worker, marriage and family therapist, nurse, attorney, or other
professional to reveal information that has been given to him or her
in confidence by a family member of the person unless a valid release
has been executed by that family member.
(k) Upon written consent by a person with a developmental
disability previously or presently receiving services from a regional
center or state developmental center, the director of the regional
center or state developmental center, or his or her designee, may
release any information, except information that has been given in
confidence by members of the family of the person with developmental
disabilities, requested by a probation officer charged with the
evaluation of the person after his or her conviction of a crime if
the regional center or state developmental center director or
designee determines that the information is relevant to the
evaluation. The consent shall only be operative until sentence is
passed on the crime of which the person was convicted. The
confidential information released pursuant to this subdivision shall
be transmitted to the court separately from the probation report and
shall not be placed in the probation report. The confidential
information shall remain confidential except for purposes of
sentencing. After sentencing, the confidential information shall be
sealed.
( l ) Between persons who are trained and qualified to
serve on "multidisciplinary personnel" teams pursuant to subdivision
(d) of Section 18951. The information and records sought to be
disclosed shall be relevant to the prevention, identification,
management, or treatment of an abused child and his or her parents
pursuant to Chapter 11 (commencing with Section 18950) of Part 6 of
Division 9.
(m) When a person with a developmental disability dies from any
cause, natural or otherwise, while hospitalized in a state
developmental center, the State Department of Developmental Services,
the physician in charge of the client, or the professional in charge
of the facility or his or her designee, shall release information
and records to the coroner. The State Department of Developmental
Services, the physician in charge of the client, or the professional
in charge of the facility or his or her designee, shall not release
any notes, summaries, transcripts, tapes, or records of conversations
between the resident and health professional personnel of the
hospital relating to the personal life of the resident that is not
related to the diagnosis and treatment of the resident's physical
condition. Any information released to the coroner pursuant to this
section shall remain confidential and shall be sealed and shall not
be made part of the public record.
(n) To authorized licensing personnel who are employed by, or who
are authorized representatives of, the State Department of Health
Services, and who are licensed or registered health professionals,
and to authorized legal staff or special investigators who are peace
officers who are employed by, or who are authorized representatives
of, the State Department of Social Services, as necessary to the
performance of their duties to inspect, license, and investigate
health facilities and community care facilities, and to ensure that
the standards of care and services provided in these facilities are
adequate and appropriate and to ascertain compliance with the rules
and regulations to which the facility is subject. The confidential
information shall remain confidential except for purposes of
inspection, licensing, or investigation pursuant to Chapter 2
(commencing with Section 1250) and Chapter 3 (commencing with Section
1500) of Division 2 of the Health and Safety Code, or a criminal,
civil, or administrative proceeding in relation thereto. The
confidential information may be used by the State Department of
Health Services or the State Department of Social Services in a
criminal, civil, or administrative proceeding. The confidential
information shall be available only to the judge or hearing officer
and to the parties to the case. Names which are confidential shall be
listed in attachments separate to the general pleadings. The
confidential information shall be sealed after the conclusion of the
criminal, civil, or administrative hearings, and shall not
subsequently be released except in accordance with this subdivision.
If the confidential information does not result in a criminal, civil,
or administrative proceeding, it shall be sealed after the State
Department of Health Services or the State Department of Social
Services decides that no further action will be taken in the matter
of suspected licensing violations. Except as otherwise provided in
this subdivision, confidential information in the possession of the
State Department of Health Services or the State Department of Social
Services shall not contain the name of the person with a
developmental disability.
(o) To any board which licenses and certifies professionals in the
fields of mental health and developmental disabilities pursuant to
state law, when the Director of Developmental Services has reasonable
cause to believe that there has occurred a violation of any
provision of law subject to the jurisdiction of a board and the
records are relevant to the violation. The information shall be
sealed after a decision is reached in the matter of the suspected
violation, and shall not subsequently be released except in
accordance with this subdivision. Confidential information in the
possession of the board shall not contain the name of the person with
a developmental disability.
(p) To governmental law enforcement agencies by the director of a
regional center or state developmental center, or his or her
designee, when (1) the person with a developmental disability has
been reported lost or missing or (2) there is probable cause to
believe that a person with a developmental disability has committed,
or has been the victim of, murder, manslaughter, mayhem, aggravated
mayhem, kidnapping, robbery, carjacking, assault with the intent to
commit a felony, arson, extortion, rape, forcible sodomy, forcible
oral copulation, assault or battery, or unlawful possession of a
weapon, as provided in any provision listed in Section 16590 of the
Penal Code.
This subdivision shall be limited solely to information directly
relating to the factual circumstances of the commission of the
enumerated offenses and shall not include any information relating to
the mental state of the patient or the circumstances of his or her
treatment unless relevant to the crime involved.
This subdivision shall not be construed as an exception to, or in
any other way affecting, the provisions of Article 7 (commencing with
Section 1010) of Chapter 4 of Division 8 of the Evidence Code, or
Chapter 11 (commencing with Section 15600) and Chapter 13 (commencing
with Section 15750) of Part 3 of Division 9.
(q) To the Youth Authority and Adult Correctional Agency or any
component thereof, as necessary to the administration of justice.
(r) To an agency mandated to investigate a report of abuse filed
pursuant to either Section 11164 of the Penal Code or Section 15630
of the Welfare and Institutions Code for the purposes of either a
mandated or voluntary report or when those agencies request
information in the course of conducting their investigation.
(s) When a person with developmental disabilities, or the parent,
guardian, or conservator of a person with developmental disabilities
who lacks capacity to consent, fails to grant or deny a request by a
regional center or state developmental center to release information
or records relating to the person with developmental disabilities
within a reasonable period of time, the director of the regional or
developmental center, or his or her designee, may release information
or records on behalf of that person provided both of the following
conditions are met:
(1) Release of the information or records is deemed necessary to
protect the person's health, safety, or welfare.
(2) The person, or the person's parent, guardian, or conservator,
has been advised annually in writing of the policy of the regional
center or state developmental center for release of confidential
client information or records when the person with developmental
disabilities, or the person's parent, guardian, or conservator, fails
to respond to a request for release of the information or records
within a reasonable period of time. A statement of policy contained
in the client's individual program plan shall be deemed to comply
with the notice requirement of this paragraph.
(t) (1) When an employee is served with a notice of adverse
action, as defined in Section 19570 of the Government Code, the
following information and records may be released:
(A) All information and records that the appointing authority
relied upon in issuing the notice of adverse action.
(B) All other information and records that are relevant to the
adverse action, or that would constitute relevant evidence as defined
in Section 210 of the Evidence Code.
(C) The information described in subparagraphs (A) and (B) may be
released only if both of the following conditions are met:
(i) The appointing authority has provided written notice to the
consumer and the consumer's legal representative or, if the consumer
has no legal representative or if the legal representative is a state
agency, to the clients' rights advocate, and the consumer, the
consumer's legal representative, or the clients' rights advocate has
not objected in writing to the appointing authority within five
business days of receipt of the notice, or the appointing authority,
upon review of the objection has determined that the circumstances on
which the adverse action is based are egregious or threaten the
health, safety, or life of the consumer or other consumers and
without the information the adverse action could not be taken.
(ii) The appointing authority, the person against whom the adverse
action has been taken, and the person's representative, if any, have
entered into a stipulation that does all of the following:
(I) Prohibits the parties from disclosing or using the information
or records for any purpose other than the proceedings for which the
information or records were requested or provided.
(II) Requires the employee and the employee's legal representative
to return to the appointing authority all records provided to them
under this subdivision, including, but not limited to, all records
and documents or copies thereof that are no longer in the possession
of the employee or the employee's legal representative because they
were from any source containing confidential information protected by
this section, and all copies of those records and documents, within
10 days of the date that the adverse action becomes final except for
the actual records and documents submitted to the administrative
tribunal as a component of an appeal from the adverse action.
(III) Requires the parties to submit the stipulation to the
administrative tribunal with jurisdiction over the adverse action at
the earliest possible opportunity.
(2) For the purposes of this subdivision, the State Personnel
Board may, prior to any appeal from adverse action being filed with
it, issue a protective order, upon application by the appointing
authority, for the limited purpose of prohibiting the parties from
disclosing or using information or records for any purpose other than
the proceeding for which the information or records were requested
or provided, and to require the employee or the employee's legal
representative to return to the appointing authority all records
provided to them under this subdivision, including, but not limited
to, all records and documents from any source containing confidential
information protected by this section, and all copies of those
records and documents, within 10 days of the date that the adverse
action becomes final, except for the actual records and documents
that are no longer in the possession of the employee or the employee'
s legal representatives because they were submitted to the
administrative tribunal as a component of an appeal from the adverse
action.
(3) Individual identifiers, including, but not limited to, names,
social security numbers, and hospital numbers, that are not necessary
for the prosecution or defense of the adverse action, shall not be
disclosed.
(4) All records, documents, or other materials containing
confidential information protected by this section that have been
submitted or otherwise disclosed to the administrative agency or
other person as a component of an appeal from an adverse action
shall, upon proper motion by the appointing authority to the
administrative tribunal, be placed under administrative seal and
shall not, thereafter, be subject to disclosure to any person or
entity except upon the issuance of an order of a court of competent
jurisdiction.
(5) For purposes of this subdivision, an adverse action becomes
final when the employee fails to answer within the time specified in
Section 19575 of the Government Code, or, after filing an answer,
withdraws the appeal, or, upon exhaustion of the administrative
appeal or of the judicial review remedies as otherwise provided by
law.
SEC. 101. Section 5328.4 of the Welfare and Institutions Code is
amended to read:
5328.4. The physician in charge of the patient, or the
professional person in charge of the facility or his or her designee,
when he or she has probable cause to believe that a patient while
hospitalized has committed, or has been the victim of, murder,
manslaughter, mayhem, aggravated mayhem, kidnapping, carjacking,
robbery, assault with intent to commit a felony, arson, extortion,
rape, forcible sodomy, forcible oral copulation, unlawful possession
of a weapon as provided in any provision listed in Section 16590 of
the Penal Code, or escape from a hospital by a mentally disordered
sex offender as provided in Section 6330 of the Welfare and
Institutions Code, shall release information about the patient to
governmental law enforcement agencies.
The physician in charge of the patient, or the professional person
in charge of the facility or his or her designee, when he or she has
probable cause to believe that a patient, while hospitalized has
committed, or has been the victim of assault or battery may release
information about the patient to governmental law enforcement
agencies.
This section shall be limited solely to information directly
relating to the factual circumstances of the commission of the
enumerated offenses and shall not include any information relating to
the mental state of the patient or the circumstances of his or her
voluntary or involuntary admission, commitment, or treatment.
This section shall not be construed as an exception to or in any
other way affecting the provisions of Article 7 (commencing with
Section 1010) of Chapter 4 of Division 8 of the Evidence Code.
SEC. 102. Section 6500 of the Welfare and Institutions Code is
amended to read:
6500. On and after July 1, 1971, no mentally retarded person may
be committed to the State Department of Developmental Services
pursuant to this article, unless he or she is a danger to himself or
herself, or others. For the purposes of this article, dangerousness
to self or others shall be considered to include, but not be limited
to, a finding of incompetence to stand trial pursuant to the
provisions of Chapter 6 (commencing with Section 1367) of Title 10 of
Part 2 of the Penal Code when the defendant has been charged with
murder, mayhem, aggravated mayhem, a violation of Section 207, 209,
or 209.5 of the Penal Code in which the victim suffers intentionally
inflicted great bodily injury, robbery perpetrated by torture or by a
person armed with a dangerous or deadly weapon or in which the
victim suffers great bodily injury, carjacking perpetrated by torture
or by a person armed with a dangerous or deadly weapon or in which
the victim suffers great bodily injury, a violation of subdivision
(b) of Section 451 of the Penal Code, a violation of paragraph (1) or
(2) of subdivision (a) of Section 262 or paragraph (2) or (3) of
subdivision (a) of Section 261 of the Penal Code, a violation of
Section 288 of the Penal Code, any of the following acts when
committed by force, violence, duress, menace, fear of immediate and
unlawful bodily injury on the victim or another person: a violation
of paragraph (1) or (2) of subdivision (a) of Section 262 of the
Penal Code, a violation of Section 264.1, 286, or 288a of the Penal
Code, or a violation of subdivision (a) of Section 289 of the Penal
Code; a violation of Section 459 of the Penal Code in the first
degree, assault with intent to commit murder, a violation of Section
220 of the Penal Code in which the victim suffers great bodily
injury, a violation of Section 18725, 18740, 18745, 18750, or 18755
of the Penal Code, or if the defendant has been charged with a felony
involving death, great bodily injury, or an act which poses a
serious threat of bodily harm to another person.
If the mentally retarded person is in the care or treatment of a
state hospital, developmental center, or other facility at the time a
petition for commitment is filed pursuant to this article, proof of
a recent overt act while in the care and treatment of a state
hospital, developmental center, or other facility is not required in
order to find that the person is a danger to self or others.
Any order of commitment made pursuant to this article shall expire
automatically one year after the order of commitment is made. This
section shall not be construed to prohibit any party enumerated in
Section 6502 from filing subsequent petitions for additional periods
of commitment. In the event subsequent petitions are filed, the
procedures followed shall be the same as with an initial petition for
commitment.
In any proceedings conducted under the authority of this article,
the alleged mentally retarded person shall be informed of his or her
right to counsel by the court, and if the person does not have an
attorney for the proceedings, the court shall immediately appoint the
public defender or other attorney to represent him or her. The
person shall pay the cost for the legal services if he or she is able
to do so. At any judicial proceeding under the provisions of this
article, allegations that a person is mentally retarded and a danger
to himself or herself or to others shall be presented by the district
attorney for the county unless the board of supervisors, by
ordinance or resolution, delegates this authority to the county
counsel.
SEC. 103. Section 8100 of the Welfare and Institutions Code is
amended to read:
8100. (a) A person shall not have in his or her possession or
under his or her custody or control, or purchase or receive, or
attempt to purchase or receive, any firearms whatsoever or any other
deadly weapon, if on or after January 1, 1992, he or she has been
admitted to a facility and is receiving inpatient treatment and, in
the opinion of the attending health professional who is primarily
responsible for the patient's treatment of a mental disorder, is a
danger to self or others, as specified by Section 5150, 5250, or
5300, even though the patient has consented to that treatment. A
person is not subject to this subdivision once he or she is
discharged from the facility.
(b) (1) A person shall not have in his or her possession or under
his or her custody or control, or purchase or receive, or attempt to
purchase or receive, any firearms whatsoever or any other deadly
weapon for a period of six months whenever, on or after January 1,
1992, he or she communicates to a licensed psychotherapist, as
defined in subdivisions (a) to (e), inclusive, of Section 1010 of the
Evidence Code, a serious threat of physical violence against a
reasonably identifiable victim or victims. The six-month period shall
commence from the date that the licensed psychotherapist reports to
the local law enforcement agency the identity of the person making
the communication. The prohibition provided for in this subdivision
shall not apply unless the licensed psychotherapist notifies a local
law enforcement agency of the threat by that person. The person,
however, may own, possess, have custody or control over, or receive
or purchase any firearm if a superior court, pursuant to paragraph
(3) and upon petition of the person, has found, by a preponderance of
the evidence, that the person is likely to use firearms or other
deadly weapons in a safe and lawful manner.
(2) Upon receipt of the report from the local law enforcement
agency pursuant to subdivision (c) of Section 8105, the Department of
Justice shall notify by certified mail, return receipt requested, a
person subject to this subdivision of the following:
(A) That he or she is prohibited from possessing, having custody
or control over, receiving, or purchasing any firearm or other deadly
weapon for a period of six months commencing from the date that the
licensed psychotherapist reports to the local law enforcement agency
the identity of the person making the communication. The notice shall
state the date when the prohibition commences and ends.
(B) That he or she may petition a court, as provided in this
subdivision, for an order permitting the person to own, possess,
control, receive, or purchase a firearm.
(3) Any person who is subject to paragraph (1) may petition the
superior court of his or her county of residence for an order that he
or she may own, possess, have custody or control over, receive, or
purchase firearms. At the time the petition is filed, the clerk of
the court shall set a hearing date and notify the person, the
Department of Justice, and the district attorney. The people of the
State of California shall be the respondent in the proceeding and
shall be represented by the district attorney. Upon motion of the
district attorney, or upon its own motion, the superior court may
transfer the petition to the county in which the person resided at
the time of the statements, or the county in which the person made
the statements. Within seven days after receiving notice of the
petition, the Department of Justice shall file copies of the reports
described in Section 8105 with the superior court. The reports shall
be disclosed upon request to the person and to the district attorney.
The district attorney shall be entitled to a continuance of the
hearing to a date of not less than 14 days after the district
attorney is notified of the hearing date by the clerk of the court.
The court, upon motion of the petitioner establishing that
confidential information is likely to be discussed during the hearing
that would cause harm to the person, shall conduct the hearing in
camera with only the relevant parties present, unless the court finds
that the public interest would be better served by conducting the
hearing in public. Notwithstanding any other provision of law,
declarations, police reports, including criminal history information,
and any other material and relevant evidence that is not excluded
under Section 352 of the Evidence Code, shall be admissible at the
hearing under this paragraph. If the court finds by a preponderance
of the evidence that the person would be likely to use firearms in a
safe and lawful manner, the court shall order that the person may
have custody or control over, receive, possess, or purchase firearms.
A copy of the order shall be submitted to the Department of Justice.
Upon receipt of the order, the department shall delete any reference
to the prohibition against firearms from the person's state summary
criminal history information.
(c) "Discharge," for the purposes of this section, does not
include a leave of absence from a facility.
(d) "Attending health care professional," as used in this section,
means the licensed health care professional primarily responsible
for the person's treatment who is qualified to make the decision that
the person has a mental disorder and has probable cause to believe
that the person is a danger to self or others.
(e) "Deadly weapon," as used in this section and in Sections 8101,
8102, and 8103, means any weapon, the possession or concealed
carrying of which is prohibited by any provision listed in Section
16590 of the Penal Code.
(f) "Danger to self," as used in subdivision (a), means a
voluntary person who has made a serious threat of, or attempted,
suicide with the use of a firearm or other deadly weapon.
(g) A violation of subdivision (a) of, or paragraph (1) of
subdivision (b) of, this section shall be a public offense,
punishable by imprisonment in the state prison, or in a county jail
for not more than one year, by a fine not exceeding one thousand
dollars ($1,000), or by both that imprisonment and fine.
(h) The prohibitions set forth in this section shall be in
addition to those set forth in Section 8103.
(i) Any person admitted and receiving treatment prior to January
1, 1992, shall be governed by this section, as amended by Chapter
1090 of the Statutes of 1990, until discharged from the facility.
SEC. 104. Section 8103 of the Welfare and Institutions Code is
amended to read:
8103. (a) (1) No person who after October 1, 1955, has been
adjudicated by a court of any state to be a danger to others as a
result of a mental disorder or mental illness, or who has been
adjudicated to be a mentally disordered sex offender, shall purchase
or receive, or attempt to purchase or receive, or have in his or her
possession, custody, or control any firearm or any other deadly
weapon unless there has
been issued to the person a certificate by the court of adjudication
upon release from treatment or at a later date stating that the
person may possess a firearm or any other deadly weapon without
endangering others, and the person has not, subsequent to the
issuance of the certificate, again been adjudicated by a court to be
a danger to others as a result of a mental disorder or mental
illness.
(2) The court shall immediately notify the Department of Justice
of the court order finding the individual to be a person described in
paragraph (1). The court shall also notify the Department of Justice
of any certificate issued as described in paragraph (1).
(b) (1) No person who has been found, pursuant to Section 1026 of
the Penal Code or the law of any other state or the United States,
not guilty by reason of insanity of murder, mayhem, a violation of
Section 207, 209, or 209.5 of the Penal Code in which the victim
suffers intentionally inflicted great bodily injury, carjacking or
robbery in which the victim suffers great bodily injury, a violation
of Section 451 or 452 of the Penal Code involving a trailer coach, as
defined in Section 635 of the Vehicle Code, or any dwelling house, a
violation of paragraph (1) or (2) of subdivision (a) of Section 262
or paragraph (2) or (3) of subdivision (a) of Section 261 of the
Penal Code, a violation of Section 459 of the Penal Code in the first
degree, assault with intent to commit murder, a violation of Section
220 of the Penal Code in which the victim suffers great bodily
injury, a violation of Section 18715, 18725, 18740, 18745, 18750, or
18755 of the Penal Code, or of a felony involving death, great bodily
injury, or an act which poses a serious threat of bodily harm to
another person, or a violation of the law of any other state or the
United States that includes all the elements of any of the above
felonies as defined under California law, shall purchase or receive,
or attempt to purchase or receive, or have in his or her possession
or under his or her custody or control any firearm or any other
deadly weapon.
(2) The court shall immediately notify the Department of Justice
of the court order finding the person to be a person described in
paragraph (1).
(c) (1) No person who has been found, pursuant to Section 1026 of
the Penal Code or the law of any other state or the United States,
not guilty by reason of insanity of any crime other than those
described in subdivision (b) shall purchase or receive, or attempt to
purchase or receive, or shall have in his or her possession,
custody, or control any firearm or any other deadly weapon unless the
court of commitment has found the person to have recovered sanity,
pursuant to Section 1026.2 of the Penal Code or the law of any other
state or the United States.
(2) The court shall immediately notify the Department of Justice
of the court order finding the person to be a person described in
paragraph (1). The court shall also notify the Department of Justice
when it finds that the person has recovered his or her sanity.
(d) (1) No person found by a court to be mentally incompetent to
stand trial, pursuant to Section 1370 or 1370.1 of the Penal Code or
the law of any other state or the United States, shall purchase or
receive, or attempt to purchase or receive, or shall have in his or
her possession, custody, or control any firearm or any other deadly
weapon, unless there has been a finding with respect to the person of
restoration to competence to stand trial by the committing court,
pursuant to Section 1372 of the Penal Code or the law of any other
state or the United States.
(2) The court shall immediately notify the Department of Justice
of the court order finding the person to be mentally incompetent as
described in paragraph (1). The court shall also notify the
Department of Justice when it finds that the person has recovered his
or her competence.
(e) (1) No person who has been placed under conservatorship by a
court, pursuant to Section 5350 or the law of any other state or the
United States, because the person is gravely disabled as a result of
a mental disorder or impairment by chronic alcoholism shall purchase
or receive, or attempt to purchase or receive, or shall have in his
or her possession, custody, or control any firearm or any other
deadly weapon while under the conservatorship if, at the time the
conservatorship was ordered or thereafter, the court which imposed
the conservatorship found that possession of a firearm or any other
deadly weapon by the person would present a danger to the safety of
the person or to others. Upon placing any person under
conservatorship, and prohibiting firearm or any other deadly weapon
possession by the person, the court shall notify the person of this
prohibition.
(2) The court shall immediately notify the Department of Justice
of the court order placing the person under conservatorship and
prohibiting firearm or any other deadly weapon possession by the
person as described in paragraph (1). The notice shall include the
date the conservatorship was imposed and the date the conservatorship
is to be terminated. If the conservatorship is subsequently
terminated before the date listed in the notice to the Department of
Justice or the court subsequently finds that possession of a firearm
or any other deadly weapon by the person would no longer present a
danger to the safety of the person or others, the court shall
immediately notify the Department of Justice.
(3) All information provided to the Department of Justice pursuant
to paragraph (2) shall be kept confidential, separate, and apart
from all other records maintained by the Department of Justice, and
shall be used only to determine eligibility to purchase or possess
firearms or other deadly weapons. Any person who knowingly furnishes
that information for any other purpose is guilty of a misdemeanor.
All the information concerning any person shall be destroyed upon
receipt by the Department of Justice of notice of the termination of
conservatorship as to that person pursuant to paragraph (2).
(f) (1) No person who has been (A) taken into custody as provided
in Section 5150 because that person is a danger to himself, herself,
or to others, (B) assessed within the meaning of Section 5151, and
(C) admitted to a designated facility within the meaning of Sections
5151 and 5152 because that person is a danger to himself, herself, or
others, shall own, possess, control, receive, or purchase, or
attempt to own, possess, control, receive, or purchase any firearm
for a period of five years after the person is released from the
facility. A person described in the preceding sentence, however, may
own, possess, control, receive, or purchase, or attempt to own,
possess, control, receive, or purchase any firearm if the superior
court has, pursuant to paragraph (5), found that the People of the
State of California have not met their burden pursuant to paragraph
(6).
(2) For each person subject to this subdivision, the facility
shall immediately, on the date of admission, submit a report to the
Department of Justice, on a form prescribed by the Department of
Justice, containing information that includes, but is not limited to,
the identity of the person and the legal grounds upon which the
person was admitted to the facility.
Any report prescribed by this subdivision shall be confidential,
except for purposes of the court proceedings described in this
subdivision and for determining the eligibility of the person to own,
possess, control, receive, or purchase a firearm.
(3) Prior to, or concurrent with, the discharge, the facility
shall inform a person subject to this subdivision that he or she is
prohibited from owning, possessing, controlling, receiving, or
purchasing any firearm for a period of five years. Simultaneously,
the facility shall inform the person that he or she may request a
hearing from a court, as provided in this subdivision, for an order
permitting the person to own, possess, control, receive, or purchase
a firearm. The facility shall provide the person with a form for a
request for a hearing. The Department of Justice shall prescribe the
form. Where the person requests a hearing at the time of discharge,
the facility shall forward the form to the superior court unless the
person states that he or she will submit the form to the superior
court.
(4) The Department of Justice shall provide the form upon request
to any person described in paragraph (1). The Department of Justice
shall also provide the form to the superior court in each county. A
person described in paragraph (1) may make a single request for a
hearing at any time during the five-year period. The request for
hearing shall be made on the form prescribed by the department or in
a document that includes equivalent language.
(5) Any person who is subject to paragraph (1) who has requested a
hearing from the superior court of his or her county of residence
for an order that he or she may own, possess, control, receive, or
purchase firearms shall be given a hearing. The clerk of the court
shall set a hearing date and notify the person, the Department of
Justice, and the district attorney. The People of the State of
California shall be the plaintiff in the proceeding and shall be
represented by the district attorney. Upon motion of the district
attorney, or on its own motion, the superior court may transfer the
hearing to the county in which the person resided at the time of his
or her detention, the county in which the person was detained, or the
county in which the person was evaluated or treated. Within seven
days after the request for a hearing, the Department of Justice shall
file copies of the reports described in this section with the
superior court. The reports shall be disclosed upon request to the
person and to the district attorney. The court shall set the hearing
within 30 days of receipt of the request for a hearing. Upon showing
good cause, the district attorney shall be entitled to a continuance
not to exceed 14 days after the district attorney was notified of the
hearing date by the clerk of the court. If additional continuances
are granted, the total length of time for continuances shall not
exceed 60 days. The district attorney may notify the county mental
health director of the hearing who shall provide information about
the detention of the person that may be relevant to the court and
shall file that information with the superior court. That information
shall be disclosed to the person and to the district attorney. The
court, upon motion of the person subject to paragraph (1)
establishing that confidential information is likely to be discussed
during the hearing that would cause harm to the person, shall conduct
the hearing in camera with only the relevant parties present, unless
the court finds that the public interest would be better served by
conducting the hearing in public. Notwithstanding any other law,
declarations, police reports, including criminal history information,
and any other material and relevant evidence that is not excluded
under Section 352 of the Evidence Code, shall be admissible at the
hearing under this section.
(6) The people shall bear the burden of showing by a preponderance
of the evidence that the person would not be likely to use firearms
in a safe and lawful manner.
(7) If the court finds at the hearing set forth in paragraph (5)
that the people have not met their burden as set forth in paragraph
(6), the court shall order that the person shall not be subject to
the five-year prohibition in this section on the ownership, control,
receipt, possession or purchase of firearms. A copy of the order
shall be submitted to the Department of Justice. Upon receipt of the
order, the Department of Justice shall delete any reference to the
prohibition against firearms from the person's state mental health
firearms prohibition system information.
(8) Where the district attorney declines or fails to go forward in
the hearing, the court shall order that the person shall not be
subject to the five-year prohibition required by this subdivision on
the ownership, control, receipt, possession, or purchase of firearms.
A copy of the order shall be submitted to the Department of Justice.
Upon receipt of the order, the Department of Justice shall, within
15 days, delete any reference to the prohibition against firearms
from the person's state mental health firearms prohibition system
information.
(9) Nothing in this subdivision shall prohibit the use of reports
filed pursuant to this section to determine the eligibility of
persons to own, possess, control, receive, or purchase a firearm if
the person is the subject of a criminal investigation, a part of
which involves the ownership, possession, control, receipt, or
purchase of a firearm.
(g) (1) No person who has been certified for intensive treatment
under Section 5250, 5260, or 5270.15 shall own, possess, control,
receive, or purchase, or attempt to own, possess, control, receive,
or purchase any firearm for a period of five years.
Any person who meets the criteria contained in subdivision (e) or
(f) who is released from intensive treatment shall nevertheless, if
applicable, remain subject to the prohibition contained in
subdivision (e) or (f).
(2) For each person certified for intensive treatment under
paragraph (1), the facility shall immediately submit a report to the
Department of Justice, on a form prescribed by the department,
containing information regarding the person, including, but not
limited to, the legal identity of the person and the legal grounds
upon which the person was certified. Any report submitted pursuant to
this paragraph shall only be used for the purposes specified in
paragraph (2) of subdivision (f).
(3) Prior to, or concurrent with, the discharge of each person
certified for intensive treatment under paragraph (1), the facility
shall inform the person of that information specified in paragraph
(3) of subdivision (f).
(4) Any person who is subject to paragraph (1) may petition the
superior court of his or her county of residence for an order that he
or she may own, possess, control, receive, or purchase firearms. At
the time the petition is filed, the clerk of the court shall set a
hearing date and notify the person, the Department of Justice, and
the district attorney. The People of the State of California shall be
the respondent in the proceeding and shall be represented by the
district attorney. Upon motion of the district attorney, or on its
own motion, the superior court may transfer the petition to the
county in which the person resided at the time of his or her
detention, the county in which the person was detained, or the county
in which the person was evaluated or treated. Within seven days
after receiving notice of the petition, the Department of Justice
shall file copies of the reports described in this section with the
superior court. The reports shall be disclosed upon request to the
person and to the district attorney. The district attorney shall be
entitled to a continuance of the hearing to a date of not less than
14 days after the district attorney was notified of the hearing date
by the clerk of the court. The district attorney may notify the
county mental health director of the petition, and the county mental
health director shall provide information about the detention of the
person that may be relevant to the court and shall file that
information with the superior court. That information shall be
disclosed to the person and to the district attorney. The court, upon
motion of the person subject to paragraph (1) establishing that
confidential information is likely to be discussed during the hearing
that would cause harm to the person, shall conduct the hearing in
camera with only the relevant parties present, unless the court finds
that the public interest would be better served by conducting the
hearing in public. Notwithstanding any other provision of law, any
declaration, police reports, including criminal history information,
and any other material and relevant evidence that is not excluded
under Section 352 of the Evidence Code, shall be admissible at the
hearing under this section. If the court finds by a preponderance of
the evidence that the person would be likely to use firearms in a
safe and lawful manner, the court may order that the person may own,
control, receive, possess, or purchase firearms. A copy of the order
shall be submitted to the Department of Justice. Upon receipt of the
order, the Department of Justice shall delete any reference to the
prohibition against firearms from the person's state mental health
firearms prohibition system information.
(h) For all persons identified in subdivisions (f) and (g),
facilities shall report to the Department of Justice as specified in
those subdivisions, except facilities shall not report persons under
subdivision (g) if the same persons previously have been reported
under subdivision (f).
Additionally, all facilities shall report to the Department of
Justice upon the discharge of persons from whom reports have been
submitted pursuant to subdivision (f) or (g). However, a report shall
not be filed for persons who are discharged within 31 days after the
date of admission.
(i) Every person who owns or possesses or has under his or her
custody or control, or purchases or receives, or attempts to purchase
or receive, any firearm or any other deadly weapon in violation of
this section shall be punished by imprisonment in the state prison or
in a county jail for not more than one year.
(j) "Deadly weapon," as used in this section, has the meaning
prescribed by Section 8100.
SEC. 105. Section 8104 of the Welfare and Institutions Code is
amended to read:
8104. The State Department of Mental Health shall maintain in a
convenient central location and shall make available to the
Department of Justice those records that the State Department of
Mental Health has in its possession that are necessary to identify
persons who come within Section 8100 or 8103. These records shall be
made available to the Department of Justice upon request. The
Department of Justice shall make these requests only with respect to
its duties with regard to applications for permits for, or to carry,
or the possession, purchase, or transfer of, explosives as defined in
Section 12000 of the Health and Safety Code, devices defined in
Section 16250, 16530, or 16640 of the Penal Code, in subdivisions (a)
to (d), inclusive, of Section 16520 of the Penal Code, or in
subdivision (a) of Section 16840 of the Penal Code, machineguns as
defined in Section 16880 of the Penal Code, short-barreled shotguns
or short-barreled rifles as defined in Sections 17170 and 17180 of
the Penal Code, assault weapons as defined in Section 30510 of the
Penal Code, and destructive devices as defined in Section 16460 of
the Penal Code, or to determine the eligibility of a person to
acquire, carry, or possess a firearm, explosive, or destructive
device by a person who is subject to a criminal investigation, a part
of which involves the acquisition, carrying, or possession of a
firearm by that person. These records shall not be furnished or made
available to any person unless the department determines that
disclosure of any information in the records is necessary to carry
out its duties with respect to applications for permits for, or to
carry, or the possession, purchase, or transfer of, explosives,
destructive devices, devices as defined in Section 16250, 16530, or
16640 of the Penal Code, in subdivisions (a) to (d), inclusive, of
Section 16520 of the Penal Code, or in subdivision (a) of Section
16840 of the Penal Code, short-barreled shotguns, short-barreled
rifles, assault weapons, and machineguns, or to determine the
eligibility of a person to acquire, carry, or possess a firearm,
explosive, or destructive device by a person who is subject to a
criminal investigation, a part of which involves the acquisition,
carrying, or possession of a firearm by that person.
SEC. 106. Section 15657.03 of the Welfare and Institutions Code,
as added by Section 2 of Chapter 480 of the Statutes of 2008, is
amended to read:
15657.03. (a) An elder or dependent adult who has suffered abuse
as defined in Section 15610.07 may seek protective orders as provided
in this section.
(b) For the purposes of this section, "protective order" means an
order that includes any of the following restraining orders, whether
issued ex parte, after notice and hearing, or in a judgment:
(1) An order enjoining a party from abusing, intimidating,
molesting, attacking, striking, stalking, threatening, sexually
assaulting, battering, harassing, telephoning, including, but not
limited to, annoying telephone calls as described in Section 653m of
the Penal Code, destroying personal property, contacting, either
directly or indirectly, by mail or otherwise, or coming within a
specified distance of, or disturbing the peace of the petitioner,
and, in the discretion of the court, on a showing of good cause, of
other named family or household members or a conservator, if any, of
the petitioner.
(2) An order excluding a party from the petitioner's residence or
dwelling, except that this order shall not be issued if legal or
equitable title to, or lease of, the residence or dwelling is in the
sole name of the party to be excluded, or is in the name of the party
to be excluded and any other party besides the petitioner.
(3) An order enjoining a party from specified behavior that the
court determines is necessary to effectuate orders described in
paragraph (1) or (2).
(c) An order may be issued under this section, with or without
notice, to restrain any person for the purpose of preventing a
recurrence of abuse, if an affidavit shows, to the satisfaction of
the court, reasonable proof of a past act or acts of abuse of the
petitioning elder or dependent adult.
(d) (1) Upon filing a petition for protective orders under this
section, the petitioner may obtain a temporary restraining order in
accordance with Section 527 of the Code of Civil Procedure, except to
the extent this section provides a rule that is inconsistent. The
temporary restraining order may include any of the protective orders
described in subdivision (b). However, the court may issue an ex
parte order excluding a party from the petitioner's residence or
dwelling only on a showing of all of the following:
(A) Facts sufficient for the court to ascertain that the party who
will stay in the dwelling has a right under color of law to
possession of the premises.
(B) That the party to be excluded has assaulted or threatens to
assault the petitioner, other named family or household member of the
petitioner, or conservator of the petitioner.
(C) That physical or emotional harm would otherwise result to the
petitioner, other named family or household member of the petitioner,
or conservator of the petitioner.
(2) If a temporary restraining order is granted without notice,
the matter shall be made returnable on an order requiring cause to be
shown why a permanent order should not be granted, on the earliest
day that the business of the court will permit, but not later than 20
days or, if good cause appears to the court, 25 days from the date
the temporary restraining order is granted, unless the order is
otherwise modified or terminated by the court.
(e) The court may issue, upon notice and a hearing, any of the
orders set forth in subdivision (b). The court may issue, after
notice and hearing, an order excluding a person from a residence or
dwelling if the court finds that physical or emotional harm would
otherwise result to the petitioner, other named family or household
member of the petitioner, or conservator of the petitioner.
(f) In the discretion of the court, an order issued after notice
and a hearing under this section may have a duration of not more than
three years, subject to termination or modification by further order
of the court either on written stipulation filed with the court or
on the motion of a party. These orders may be renewed upon the
request of a party, either for three years or permanently, without a
showing of any further abuse since the issuance of the original
order, subject to termination or modification by further order of the
court either on written stipulation filed with the court or on the
motion of a party. The failure to state the expiration date on the
face of the form creates an order with a duration of three years from
the date of issuance.
(g) Upon the filing of a petition for protective orders under this
section, the respondent shall be personally served with a copy of
the petition, notice of the hearing or order to show cause, temporary
restraining order, if any, and any affidavits in support of the
petition. Service shall be made at least five days before the
hearing. The court may, on motion of the petitioner or on its own
motion, shorten the time for service on the respondent.
(h) The court may, upon the filing of an affidavit by the
applicant that the respondent could not be served within the time
required by statute, reissue an order previously issued and dissolved
by the court for failure to serve the respondent. The reissued order
shall be made returnable on the earliest day that the business of
the court will permit, but not later than 20 days or, if good cause
appears to the court, 25 days from the date of reissuance. The
reissued order shall state on its face the date of expiration of the
order.
(i) (1) If a person named in an order issued under this section,
after a hearing, has not been served personally with the order but
has received actual notice of the existence and substance of the
order through personal appearance in court to hear the terms of the
order from the court, no additional proof of service is required for
enforcement of the order.
(2) If the person named in a temporary restraining order is
personally served with the order and notice of hearing with respect
to a restraining order or protective order based thereon, but the
person does not appear at the hearing, either personally or by
counsel, and the terms and conditions of the restraining order or
protective order are identical to the temporary restraining order,
except for the duration of the order, then the restraining order or
protective order may be served on the person by first-class mail sent
to that person at the most current address for the person available
to the court.
(3) The judicial form for orders issued pursuant to this
subdivision shall contain a statement in substantially the following
form:
"NO ADDITIONAL PROOF OF
SERVICE IS REQUIRED IF THE FACE OF THIS FORM INDICATES THAT BOTH
PARTIES WERE PERSONALLY PRESENT AT THE HEARING WHERE THE ORDER WAS
ISSUED. IF YOU HAVE BEEN PERSONALLY SERVED WITH A TEMPORARY
RESTRAINING ORDER OR EMERGENCY PROTECTIVE ORDER AND NOTICE OF
HEARING, BUT YOU DO NOT APPEAR AT THE HEARING EITHER IN PERSON OR BY
COUNSEL, AND A RESTRAINING ORDER OR PROTECTIVE ORDER IS ISSUED AT THE
HEARING THAT DOES NOT DIFFER FROM THE PRIOR TEMPORARY RESTRAINING
ORDER OR EMERGENCY PROTECTIVE ORDER, A COPY OF THE ORDER WILL BE
SERVED UPON YOU BY MAIL AT THE FOLLOWING ADDRESS ____. IF THAT
ADDRESS IS NOT CORRECT OR YOU WISH TO VERIFY THAT THE TEMPORARY OR
EMERGENCY ORDER WAS MADE PERMANENT WITHOUT SUBSTANTIVE CHANGE, CALL
THE CLERK OF THE COURT AT ____."
(j) (1) The court shall order the petitioner or the attorney for
the petitioner to deliver, or the clerk of the court to mail, a copy
of an order issued under this section, or a reissuance, extension,
modification, or termination of the order, and any subsequent proof
of service, by the close of the business day on which the order,
reissuance, extension, modification, or termination was made, to each
local law enforcement agency designated by the petitioner or the
attorney for the petitioner having jurisdiction over the residence of
the petitioner, and to any additional law enforcement agencies
within the court's discretion as are requested by the petitioner.
Each appropriate law enforcement agency shall make available
information as to the existence and current status of these orders to
law enforcement officers responding to the scene of reported abuse.
(2) An order issued under this section shall, on request of the
petitioner, be served on the respondent, whether or not the
respondent has been taken into custody, by any law enforcement
officer who is present at the scene of reported abuse involving the
parties to the proceeding. The petitioner shall provide the officer
with an endorsed copy of the order and a proof of service, which the
officer shall complete and send to the issuing court.
(3) Upon receiving information at the scene of an incident of
abuse that a protective order has been issued under this section, or
that a person who has been taken into custody is the respondent to
that order, if the protected person cannot produce an endorsed copy
of the order, a law enforcement officer shall immediately attempt to
verify the existence of the order.
(4) If the law enforcement officer determines that a protective
order has been issued, but not served, the officer shall immediately
notify the respondent of the terms of the order and where a written
copy of the order can be obtained, and the officer shall at that time
also enforce the order. The law enforcement officer's verbal notice
of the terms of the order shall constitute service of the order and
is sufficient notice for the purposes of this section and for the
purposes of Section 273.6 of the Penal Code.
(k) Nothing in this section shall preclude either party from
representation by private counsel or from appearing on the party's
own behalf.
(l) There is no filing fee for a petition, response, or paper
seeking the reissuance, modification, or enforcement of a protective
order filed in a proceeding brought pursuant to this section.
(m) Pursuant to paragraph (4) of subdivision (b) of Section 6103.2
of the Government Code, a petitioner shall not be required to pay a
fee for law enforcement to serve an order issued under this chapter.
(n) The prevailing party in any action brought under this section
may be awarded court costs and attorney's fees, if any.
(o) (1) An order issued pursuant to this section shall prohibit
the person subject to it from owning, possessing, purchasing,
receiving, or attempting to purchase or receive, a firearm.
(2) Paragraph (1) shall not apply to a case consisting solely of
financial abuse unaccompanied by force, threat, harassment,
intimidation, or any other form of abuse.
(3) The court shall order a person subject to a protective order
issued under this section to relinquish any firearms he or she owns
or possesses pursuant to Section 527.9 of the Code of Civil
Procedure.
(4) Every person who owns, possesses, purchases, or receives, or
attempts to purchase or receive a firearm while the protective order
is in effect is punishable pursuant to Section 29825 of the Penal
Code.
(p) Any willful disobedience of any temporary restraining order or
restraining order after hearing granted under this section is
punishable pursuant to Section 273.6 of the Penal Code.
(q) This section does not apply to any action or proceeding
covered by Title 1.6C (commencing with Section 1788) of Part 4 of
Division 3 of the Civil Code, by Chapter 3 (commencing with Section
525) of Title 7 of Part 2 of the Code of Civil Procedure, or by
Division 10 (commencing with Section 6200) of the Family Code.
Nothing in this section shall preclude a petitioner's right to use
other existing civil remedies.
(r) The Judicial Council shall promulgate forms and instructions
therefor, rules for service of process, scheduling of hearings, and
any other matters required by this section. The petition and response
forms shall be simple and concise.
(s) This section shall become operative on January 1, 2010.
SEC. 107. This act shall only become operative if Senate Bill 1080
is enacted and becomes operative on January 1, 2012, and that bill
would reorganize and make other nonsubstantive changes to the deadly
weapons provisions in the Penal Code, in which case this act shall
also become operative on January 1, 2012.
SEC. 108. Any section of any act enacted by the Legislature during
the 2010 calendar year, other than a section of the annual
maintenance of the codes bill or another bill with a subordination
clause, that takes effect on or before January 1, 2012, and that
amends, amends and renumbers, amends and repeals, adds, repeals and
adds, or repeals a section that is amended, amended and renumbered,
amended and repealed, added, repealed and added, or repealed by this
act, shall prevail over this act, whether that act is chaptered
before or after this act.