BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 708
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          Date of Hearing:  April 5, 2011
          Consultant:           Stefani Salt


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                 AB 708 (Knight) - As Introduced:  February 17, 2011
           

          SUMMARY  :   Adds crimes involving hidden recordings to the list 
          of offenses for which the statute of limitations does not begin 
          to run until discovery of the offense.  Specifically,  this bill  
          provides that a criminal complaint may be filed within one year 
          of the date of discovery of a hidden recording related to a 
          violation of provisions prohibiting the use of concealed 
          camcorders, motion picture cameras, or photographic cameras, to 
          secretly videotape another, as specified.  

           EXISTING LAW  :

          1)Declares that it is a misdemeanor for a person to use a 
            concealed camcorder, motion picture camera or photographic 
            camera to secretly record, as specified, another identifiable 
            person under or through the clothing being worn by that other 
            person, for the purpose of viewing the body of or 
            undergarments worn by that other person, without the consent 
            or knowledge of that other person, with the intent to arouse, 
            appeal to or gratify lust, passions or sexual desires of that 
            person, and invade the privacy of that other person, under 
            circumstances in which the other person has a reasonable 
            expectation of privacy.  İPenal Code Section 647(j)(2).]

          2)Provides that it is a misdemeanor for a person to use a 
            concealed camcorder, motion picture camera or photographic 
            camera to secretly record, as specified, another identifiable 
            person who may be in a state of full or partial undress, for 
            the purpose of viewing the body of or undergarments worn by 
            that other person, without the consent or knowledge of that 
            other person, in the interior of an area in which that other 
            person has a reasonable expectation of privacy, with the 
            intent to invade the privacy of that other person.  İPenal 
            Code Section 647(j)(3).]

          3)Directs that, except in cases where a different punishment is 








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            prescribed by California law, every offense declared to be a 
            misdemeanor is punishable by imprisonment in the county jail 
            not exceeding six months, or by fine not exceeding $1,000, or 
            by both.  (Penal Code Section 19.)

          4)States that, unless specified, prosecution for an offense not 
            punishable by death or imprisonment in state prison shall be 
            commenced within one year after commission of the offense.  
            (Penal Code Section 802.)

          5)Declares that unless provided, as specified, a limitation of 
            time is not tolled or extended for any reason.  İPenal Code 
            Section 803(a).]

          6)Clarifies that if more than one time period, as specified, 
            applies, the time for commencing an action shall be governed 
            by the period that expires later in time.  İPenal Code Section 
            803.6(a).]

          7)Directs that the statute of limitations for a number of 
            specified crimes, including offenses under the Water Code, the 
            Health and Safety Code or the Business and Professions Code, 
            does not commence to run until the offense has been, or could 
            reasonably have been, discovered.  The crimes include 
            hazardous waste violations, water quality offenses, pharmacy 
            law violations and illegal immigration consultation.  İPenal 
            Code Section 803(e).]

          8)Provides that prosecution for specified offenses punishable by 
            imprisonment in state prison relating to fraud, breach of 
            fiduciary duty, theft or embezzlement upon an elder or 
            dependent adult or official misconduct must be commenced 
            within four years after discovery of the commission of the 
            offense or within four years after the completion of the 
            offense, whichever is later.  İPenal Code Sections 801.5 and 
            803(c).]

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "Hidden cameras 
            are appropriate in incidences where you are protecting the 
            safety of yourself, your children, your home, or other 
            specific security precautions.  When it comes to video 








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            surveillance of other people, it is illegal to have a 
            concealed camcorder, motion picture camera, or photographic 
            camera of any type, to secretly videotape individuals where 
            they would normally expect complete privacy.  Examples of 
            expected privacy areas would be bedrooms, bathrooms, locker 
            rooms, dressing rooms or hotel rooms.

            "There is discrepancy in current law dealing with specific 
            statute of limitations for illegal hidden cameras.  Recently 
            an investigation took place in Sacramento County where a man 
            was accused of secretly videotaping individuals in his home 
            where they would normally expect complete privacy.  Some of 
            the evidence dates back more than three years of the official 
            investigation, falling outside of the statute of limitations 
            for prosecution.

            "In order to protect public's safety and ensure individuals 
            are given their right to full privacy, existing law must be 
            amended.  İThis bill] will address this issue regarding the 
            statute of limitation by providing that a criminal complaint 
            may be filed within one year of the date on which a hidden 
            recording is discovered relating to the provision of illegal 
            hidden camera devices.  This bill is a minor amendment to the 
            penal code that will have a profound impact upon improving and 
            protecting the privacy of individuals."

           2)Operation of the Statute of Limitations  :  Statutes of 
            limitation require that prosecution commence within a certain 
            period of time after commission of a crime.  Prosecution 
            commences upon filing an indictment or information, filing a 
            complaint, certifying a case to superior court, or issuing an 
            arrest or bench warrant.  (Penal Code Section 804.)  If a 
            prosecution is not commenced within the applicable time 
            limitation, it provides a complete defense to the charge.  The 
            statute of limitations is jurisdictional and may be raised as 
            a defense at any time before or after judgment.  İPeople v. 
            Morris (1988) 46 Cal.3d 1, 13, fn. 4; People v. Chadd (1981) 
            28 Cal.3d 739, 756-757.]  This defense may only be waived 
            under limited circumstances.  İSee Cowan v. Superior Court 
            (1996) 14 Cal.4th 367.]

           3)Statutes of Limitation under Current Law  :  The amount of time 
            within which a prosecuting agency may charge an alleged 
            perpetrator varies based on the crime.  A misdemeanor offense 
            must be charged within one year of the crime.  (Penal Code 








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            Section 802.)  Felonies generally require prosecution within 
            three years, although there are exceptions.  (Penal Code 
            Section 801.)  Offenses that may be sentenced to more than 
            eight years in prison must be charged within six years.  
            (Penal Code Section 800.)  There is no statute of limitations 
            for offenses punishable by death or life imprisonment and 
            embezzlement of public money; these crimes may be prosecuted 
            at any time.  (Penal Code Section 799.)  Unless otherwise 
            specified, the statute of limitations begins to run at the 
            time the crime is committed.  İSee Penal Code Section 803(a).]

           4)Public Policy Reasoning Behind Statutes of Limitation  :  
            Criminal statutes of limitation are laws that limit the time 
            during which a prosecution can be commenced.  These statutes 
            have been in operation for over 350 years and are deeply 
            rooted in the American legal system.  

          There are several rationales underlying statutes of limitation.  
            First, they ensure that prosecutions are based upon reasonably 
            fresh evidence - the idea being that over time memories fade; 
            witnesses die or leave the area; and physical evidence becomes 
            more difficult to obtain, identify or preserve.  İSee United 
            States v. Ewell (1966) 383 U.S. 116, 122 (stating that the 
            statute of limitations "is usually considered the primary 
            guarantee against bringing overly stale criminal charges."); 
            Stogner v. California (2003) 539 U.S. 607, 615.]  In short, 
            the possibility of erroneous conviction is minimized when 
            prosecution is prompt.  Second, statutes of limitation 
            encourage law enforcement officials to investigate suspected 
            criminal activity in a timely fashion, which hopefully 
            provides a stronger deterrent effect.  İPeople v. Zamora 
            (1976) 18 Cal.3d 538, 547.]  Statutes of limitation may also 
            reduce the possibility of blackmail from threats to disclose 
            information to prosecutors or law enforcement officials.  
            (Id.)  Another rationale reasons that as time goes by the 
            likelihood that an offender has reformed increases, making 
            punishment less necessary.  (Id.)  Correspondingly, society's 
            retributive impulse may lessen over time, making punishment 
            less desirable.  (Id.)  Finally, there is the thought that 
            statutes of limitation provide an overall sense of security 
            and stability to human affairs.  (Lauren Kerns, Incorporating 
            Tolling Provisions into Sex Crimes Statute of Limitations, 13 
            Temple Policy and Civil Rights Law Review, 325, 327.)

          Statutes of limitation reflect legislative assessments of the 








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            relative interests of the State and the defendant in 
            administering and receiving justice.  There is a measure of 
            predictability provided by specifying a limit beyond which 
            there is an irrebuttable presumption that a defendant's right 
            to a fair trial would be prejudiced.  (See Stogner v. 
            California, supra, 539 U.S. 607, 615.)  Additionally, the 
            adoption of statutes of limitation represents legislative 
            recognition that for all but the most serious offenses, a 
            never-ending threat of prosecution is more detrimental to the 
            functioning of a civilized society than it is beneficial.  
            (People v. Zamora, supra, 18 Cal. 3d 538, 547.)

          The United States Supreme Court illustrated these public policy 
            rationales in Stogner v. California, supra, 539 U.S. 607.  In 
            Stogner, the court ruled that application of a new state law 
            permitting resurrection of otherwise time-barred criminal 
            prosecutions violated the ex post facto clause of the United 
            States Constitution.  The court held that an otherwise lapsed 
            statute of limitation may not be revived for offenses that may 
            have been committed years before.  The State may not 
            retrospectively prosecute cases where the statute of 
            limitations has expired.  Rather, the State may only apply new 
            rules related to tolling statutes of limitation to conduct 
            committed after the law is passed.  The court reiterated its 
            prior statements regarding the underlying purpose of statutes 
            of limitation:  "A statute of limitations reflects a 
            legislative judgment that, after a certain time, no quantum of 
            evidence is sufficient to convict.  And that judgment 
            typically rests, in large part, upon evidentiary concerns--for 
            example, concern that the passage of time has eroded memories 
            or made witnesses or other evidence unavailable."  (Id. at 
            615.)  The court stated that a law reviving tolled statutes of 
            limitation deprives the defendant of the "fair warning" that 
            might have led him or her to preserve exculpatory evidence, 
            and warned that "a Constitution that permits such an 
            extension, by allowing legislatures to pick and choose when to 
            act retroactively, risks 'both arbitrary and potentially 
            vindictive legislation.'"  (Id. at 611.)  As the court pointed 
            out, without knowing of the possibility that he or she may be 
            prosecuted, a potential defendant may discard exculpatory 
            evidence which he or she certainly would have maintained had 
            he or she known a criminal prosecution was looming in the 
            distant future.  

           5)Delayed Discovery and the Statute of Limitations  :  As stated, 








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            existing law establishes alternate statutes of limitation for 
            various crimes so that the applicable time period in which to 
            prosecute these crimes does not begin until the offense is 
            discovered.  (Penal Code Section 803.)  The statute of 
            limitations for a number of specified crimes, including 
            hazardous waste violations, water quality offenses, pharmacy 
            law violations and illegal immigration consultation, "does not 
            commence to run until the offense has been discovered, or 
            could reasonably have been discovered . . . . "  İPenal Code 
            Section 803(e).]  Existing law also delays the operation of 
            the statute of limitations so that it does not begin to run 
            until discovery of the crime for those offenses "punishable by 
            imprisonment in the state prison, a material element of which 
            is fraud or breach of a fiduciary obligation, the commission 
            of the crimes of theft or embezzlement upon an elder or 
            dependent adult, or the basis of which is misconduct in office 
            by a public officer, employee, or appointee."  İPenal Code 
            Section 803(c).]  Prosecution for specified crimes must be 
            commenced within four years after discovery or completion of 
            the offense, whichever is later.  (Penal Code Section 801.5.) 

          Courts have interpreted Penal Code Section 803(c) to require a 
            showing of reasonable diligence in discovering the facts of a 
            theft.  In other words, "discovery" is not synonymous with 
            actual knowledge: "The statute commences to run . . . after 
            one has knowledge of facts sufficient to make a reasonably 
            prudent person suspicious of fraud, thus putting him on 
            inquiry . . . . "  (People v. Zamora, supra, 18 Cal.3d 538, 
            561.)  This definition of "discovery" likely applies to the 
            adjusted statute of limitations for hidden recordings provided 
            in this bill.

          Existing law makes it a misdemeanor to secretly videotape, 
            without consent, any individual that is in a place where they 
            expect reasonable privacy.  İPenal Code Section 647(j)(2) and 
            (3).]  This bill includes crimes involving hidden recordings 
            with the list of crimes for which the statute of limitations 
            does not begin until the offense is discovered.  Although 
            there does not appear to be a discrepancy in current law 
            surrounding this issue, adjusting the statute of limitations 
            in this fashion seems reasonable given the nature of the 
            crime.  Hidden recordings are generally kept secret and, thus, 
            the victims of these crimes are unaware that their privacy has 
            been violated.  If the statute of limitations begins to toll 
            on the date the crime is committed, as it does under current 








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            law, this means that a perpetrator will not be punished for 
            that crime if he or she successfully keeps the recording 
            secret for one year.  (See Penal Code Section 802; Penal Code 
            Section 647.)

           6)Arguments in Support  :  According to the  California State 
            Sheriffs' Association  , "Current law establishes the statute of 
            limitations for a criminal complaint to be filed up to a year 
            from the date of the crime (not the date of discovery).  A 
            İr]ecent investigation took place in Sacramento County 
            involving a man who was accused of secretly videotaping 
            individuals in his home where the recordings dated back more 
            than three years, which according to current law is outside 
            the statute of limitations allowed for such crimes to be 
            prosecuted.  

          "İThis bill] would ensure that this issue is addressed by 
            providing that a criminal complaint may be filed within one 
            year of the date from which a hidden recording is discovered, 
            not just from when it occurs."

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California Districts Attorneys Association
          California Police Chiefs Association
          California State Sheriffs' Association

           Opposition 
           
          None
           

          Analysis Prepared by  :    Stefani Salt / PUB. S. / (916) 319-3744