BILL ANALYSIS Ó
AB 1528
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Date of Hearing: March 27, 2012
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1528 (Donnelly) - As Introduced: January 23, 2012
SUMMARY : Makes the crime of invasion of privacy with the naked
eye or with the use of an instrumentality, otherwise known as
"peeping," a felony punishable in the state prison.
Specifically, this bill :
1)Increases the penalty from a misdemeanor to a felony for all
peeping offenses, regardless of the circumstances.
2)Prohibits a county-jail sentence now permissible under
criminal justice realignment.
EXISTING LAW :
1)Makes it a misdemeanor for any person to look through a hole,
or otherwise use an instrumentality, such as binoculars, a
camera, or camcorder, to view the interior of a bedroom,
bathroom, changing room, fitting room, dressing room, or
tanning booth, or the interior of any other area in which the
occupant has a reasonable expectation of privacy, with the
intent to invade the privacy of the person or people inside.
ĘPenal Code Section 647(j)(1).]
2)Makes it a misdemeanor for any person to use a device to
secretly videotape or record another person under or through
his or her clothing, for the purpose of viewing that person's
body or undergarments without consent and under circumstances
in which that person has a reasonable expectation of privacy,
if the perpetrator commits the act with a prurient intent.
ĘPenal Code Section 647(j)(2).]
3)Makes it a misdemeanor for any person who uses a concealed
instrumentality to secretly videotape or record another person
who is in a state of full or partial undress, for the purpose
of viewing that person's body or undergarments without consent
while that person is in a bedroom, bathroom, changing room,
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fitting room, dressing room, or tanning booth, or the interior
of any other area in which that other person has a reasonable
expectation of privacy, with the intent to invade the privacy
of that individual. ĘPenal Code Section 647(j)(3).]
4)Makes a second or subsequent offense of invasion of privacy
with the naked eye or with the use of an instrumentality
punishable by one up to one year in jail, a fine of up to
$2,000, or both. ĘPenal Code Section 647(l)(1).]
5)Provides that if the victim of a "peeping" offense was a minor
at the time of the offense, then the crime is punishable by
one up to one year in jail, a fine of up to $2,000, or both.
ĘPenal Code Section 647(l)(2).]
6)Defines a felony as a "crime that is punishable with death, by
imprisonment in the state prison, or notwithstanding any other
provision of law, by imprisonment in a county jail under the
provisions of subdivision (h) of Section 1170." ĘPenal Code
Section 17(a).]
7)States that the place of imprisonment for a felony offense is
state prison, unless it is county-jail eligible under Penal
Code section 1170, subdivision (h). ĘPenal Code Section
18(a).]
8)Provides that, except in cases where a different punishment is
prescribed by 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.
ĘPenal Code Section 19.]
9)Prohibits a term of more than one year in the county jail
except for executed felony sentences under Penal Code section
1170, subdivision (h). ĘPenal Code Section 19.2.]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 1528 would
ensure that all Californians are guaranteed a reasonable
expectation of privacy by making it a felony to videotape or
photograph a person with the intent to invade the privacy of
the victim. These locations include restrooms, bedrooms,
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changing rooms, tanning booths and the like. By making the
above actions a felony instead of a misdemeanor, it will deter
those who would violate a victim's privacy and give
Californians the peace of mind they deserve."
2)Effect on Criminal Justice Realignment Act : Criminal justice
realignment created two classifications of felonies: those
punishable in county jail and those punishable in state
prison. Realignment limited which felons can be sent to state
prison, thus requiring that more felons serve their sentences
in county jails. The new law applies to qualified defendants
who commit qualifying offenses and who were sentenced on or
after October 1, 2011. Specifically, sentences to state
prison are now mainly limited to registered sex offenders and
individuals with a current or prior serious or violent
offense. In addition to the serious, violent, registerable
offenses eligible for state prison incarceration, there are
approximately 70 felonies which have be specifically excluded
from eligibility for local custody (i.e., the sentence for
which must be served in state prison).
This bill specifies that, notwithstanding the realignment
provisions of Penal Code Section 1170(h), the sentence for
this offense must be served in state prison. Thus, this bill
creates a new exclusion for local custody eligibility. As
such, this bill conflicts with the policy change created by
realignment to shift the responsibility for low-level adult
offenders from the state to the counties.
3)On-going Concerns for Prison Overcrowding : In November 2006,
plaintiffs in two ongoing class action lawsuits-Plata v. Brown
(involving inmate medical care) and Coleman v. Brown
(involving inmate mental health care)-filed motions for the
courts to convene a three-judge panel pursuant to the U.S.
Prison Litigation Reform Act. The plaintiffs argue that
persistent overcrowding in the state's prison system was
preventing the California Department of Corrections and
Rehabilitation (CDCR) from delivering constitutionally
adequate health care to inmates. The three-judge panel
declared that overcrowding in the state's prison system was
the primary reason that CDCR was unable to provide inmates
with constitutionally adequate health care. In January 2010,
the three-judge panel issued its final ruling ordering the
State of California to reduce its prison population by
approximately 50,000 inmates in the next two years.
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ĘColeman/Plata vs. Schwarzenegger (2010) No. Civ S-90-0520 LKK
JFM P/NO. C01-1351 THE.]
The United State Supreme Court upheld the decision of the
three-judge panel, declaring that "without a reduction in
overcrowding, there will be no efficacious remedy for the
unconstitutional care of the sick and mentally ill" inmates in
California's prisons. ĘBrown v. Plata (2011) 131 S.Ct. 1910,
1939; 179 L.Ed.2d 969, 999.]
According to a recent report by the Legislative Analyst's
Office, "Based on CDCR's current population projections, it
appears that it will eventually reach the court-imposed
population limit, though not by the June 2013 deadline." ĘSee
Refocusing CDCR After the 2011 Realignment, Feb. 23, 2012,
pp.3
.
] "In particular, the projections show the state missing the
final population limit of no more than 110,000 inmates housed
in state prisons by June 2013. Specifically, the projections
show the state exceeding this limit by about 6,000 inmates.
However, the projections indicate that the state will meet the
court-imposed limit by the end of 2014." (Id. at p. 9.)
"While the state has undergone various changes to reduce
overcrowding prior to the passage of the realignment
legislation-including transferring inmates to out-of-state
contract facilities, construction of new facilities, and
various statutory changes to reduce the prison population-the
realignment of adult offenders is the most significant change
undertaken to reduce overcrowding." (Id. at p. 8.) Because
the provisions of this bill require a defendant convicted for
peeping to serve his or her sentence in state prison, it
appears to aggravate the on-going problem of prison
overcrowding.
4)Are Existing Penalties for Peeping Inadequate ? Last year, AB
665 (Torres), Chapter 658, Statutes of 2011, doubled the
misdemeanor penalties for peeping when the crime is committed
by a repeat offender or when the offense is committed against
a minor. This bill increases the penalty from a misdemeanor
to a straight felony, regardless of the circumstances of the
offense. However, since the implementation of AB 665, there
has been no showing of an overall, general need to increase
the current fines and penalties to effectively implement the
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law prohibiting the invasion of privacy.
5)Arguments in Support : According to the City of Glendora
Police Department , "Last year our Department arrested an
individual for placing a 'spycam' disguised as a coat hook in
the restroom of a Starbucks coffee shop. Women, in a very
vulnerable moment, were videotaped. Upon learning of this,
the women not only felt their privacy violated, but lost any
sense of safety in these public places. This individual
videotaped at least 45 victims that we know of . . . .
"AB 1528 would at least ensure that those arrested and convicted
of such a crime do not just get a slap on the wrist as current
law allows. We truly need to deter the criminal who considers
photographing or videotaping people in private places such as
restrooms, bedrooms, dressing rooms, and tanning booths. This
assault on human dignity has even been found to be a precursor
to more violent acts."
6)Arguments in Opposition : According to the California
Attorneys for Criminal Justice , "AB 1528 elevates a violation
of 647(j) from a misdemeanor to a felony without a
corresponding increase in criminal conduct or culpability.
Instead, it appears that AB 1528 simply imposes a harsher
sentence without any justification of this change."
"Current law punishes this behavior with the possibility of up
to one year in county jail. This crime does not involve any
physical contact of any kind, nor requires any type of injury.
It is purely a violation of one's privacy. While the behavior
may be unacceptable, AB 1528 applies penalties that are more
consistent with a crime involving physical violence."
"There are no studies indicating that there is a substantial
growth in these types of offenses, nor reports suggesting that
the penalties are insufficient."
7)Prior Legislation :
a) AB 665 (Torres), Chapter 658, Statutes of 2011, doubled
the misdemeanor penalties - to a maximum jail term of one
year and a maximum fine of $2,000 - for a second or
subsequent conviction of violating another person's
reasonable expectation of privacy, or the first conviction
where the victim is a minor.
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b) SB 1484 (Ackerman), Chapter 666, Statutes of 2004,
expanded the crime of disorderly conduct to include the use
of a concealed instrumentality to secretly videotape
another fully or partially undressed person for the purpose
of viewing that person's body or undergarments without the
consent while that person is inside a bedroom, bathroom,
changing room, fitting room, dressing room, or tanning
booth, or in any other area in which that other person has
a reasonable expectation of privacy, with the intent to
invade that person's privacy.
c) AB 2640 (Cox), of the 2003-04 Legislative Session, would
have increased the penalty for the crime of disorderly
conduct to a felony. AB 2640 failed passage in this
Committee.
d) AB 2553 (Garcia), of the 2003-04 Legislative Session,
would have increased the penalty from a six-month
misdemeanor to an alternate misdemeanor/felony for
secretly recording a person under 18 years of age, and
created a new felony for a second or subsequent violation
of secretly recording a person under 18 years of age. AB
2553 failed passage in this Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
City of Glendora Police Department
Opposition
American Civil Liberties Union of California
California Attorneys for Criminal Justice
California Public Defenders Association
Drug Policy Alliance
Friends Committee on Legislation of California
Legal Services for Prisoners with Children
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744
AB 1528
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