BILL NUMBER: SB 428	INTRODUCED
	BILL TEXT


INTRODUCED BY   Senator Strickland

                        FEBRUARY 16, 2011

   An act to amend Section 15202.1 of the Government Code, and to
amend Sections 466, 633.8, 992, 1181, 1387, and 1466 of the Penal
Code, relating to public safety.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 428, as introduced, Strickland. Public safety omnibus bill.
   (1) Existing law provides that, in any homicide cases in which a
final judgment was entered prior to January 1, 1990, if the venue for
trial of a homicide case has been changed from the county which is
eligible for reimbursement, as specified, to a location more than 60
miles from the county seat of that county, and the district attorney
of that county has entered into a contract with an attorney to try
the case or an investigator to assist in the trial of the case, the
Controller shall reimburse the county for the actual costs of the
attorney or investigator, as specified.
   This bill would instead apply the provisions above to any homicide
cases in which a final judgment was not entered prior to January 1,
1990.
   (2) Existing law makes it a misdemeanor for any person to have
upon him or her in his or her possession a picklock, crow, keybit,
crowbar, or other specified items, with felonious intent, or for
other specified purposes.
   This bill would instead make it a misdemeanor for any person to
have upon him or her or in his or her possession those specified
items, with felonious intent, or for those other specified purposes.
By expanding the definition of a crime, this bill would create a
state-mandated local program.
   (3) Existing law authorizes peace officers to use or authorize the
use of an electronic amplifying or recording device to eavesdrop on
or record, or both, any oral communication under specified
conditions.
   This bill would make a technical, nonsubstantive change to those
provisions.
   (4) Existing law requires the court, in any case in which the
defendant is charged with a felony, to require the defendant to
provide a right thumbprint on a form developed for that purpose.
   This bill would require the court to obtain the thumbprint at the
arraignment on the information or indictment, or upon entry of a
guilty or no contest plea unless the court has obtained the
thumbprint at an earlier proceeding.
   (5) Existing law provides that when a verdict has been rendered or
a finding made against the defendant, the court may, upon the
defendant's application, grant a new trial, in limited specified
cases, including when the jury has been guilty of any misconduct by
which a fair and due consideration of the case has been prevented.
   This bill would make technical, nonsubstantive changes to those
provisions.
   (6) Existing law provides that an order terminating an action, as
specified, is a bar to any other prosecution for the same offense,
except as specified. Existing law provides that an order terminating
an action is not a bar to prosecution if a complaint is dismissed
before the commencement of a preliminary hearing in favor of an
indictment filed pursuant to specified grand jury proceedings and the
indictment is based upon the same subject matter as charged in the
dismissed complaint, information, or indictment.
   This bill would instead provide that an order terminating an
action is not a bar to prosecution if a complaint is dismissed before
the commencement of a preliminary hearing in favor of an indictment
filed pursuant to those grand jury proceedings or an indictment is
based upon the same subject matter as charged in a dismissed
complaint, information, or indictment.
   (7) Existing law permits, under specified conditions, an appeal to
be taken from a judgment or order, in an infraction or misdemeanor
case, to the appellate division of the superior court of the county
in which the court from which the appeal is taken is located.
   This bill would make technical, nonsubstantive changes to this
provision.
   (8) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that no reimbursement is required by this
act for a specified reason.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 15202.1 of the Government Code is amended to
read:
   15202.1.  (a) If the venue for trial of a homicide case has been
changed from the county which is eligible for reimbursement under
Section 15202 to a location more than 60 miles from the county seat
of that county, and the district attorney of that county has entered
into a contract with an attorney to try the case or an investigator
to assist in the trial of the case, the Controller shall reimburse
the county for the actual costs of the attorney or investigator under
this section, at an hourly rate not to exceed the hourly rate
charged state agencies by the Attorney General for similar attorney
services or investigators, without further showing of justification.
Nothing in this section shall permit the reimbursement of costs for
travel in excess of 1,000 miles on any single round trip, without the
prior approval of the Attorney General.
   (b) (1) This section shall apply to any homicide cases in which a
final judgment was entered  prior to  on or
after  January 1, 1990.
   (2) The limitation provided in this subdivision shall not apply to
Sierra County. Instead, the County of Sierra may apply to the
Controller for reimbursement pursuant to subdivision (a) for its
costs incident to the prosecution of the homicide trial of People v.
Corjasso.
  SEC. 2.  Section 466 of the Penal Code is amended to read:
   466.  Every person having upon him or her  or  in his or
her possession a picklock, crow, keybit, crowbar, screwdriver, vise
grip pliers, water-pump pliers, slidehammer, slim jim, tension bar,
lock pick gun, tubular lock pick, bump key, floor-safe door puller,
master key, ceramic or porcelain spark plug chips or pieces, or other
instrument or tool with intent feloniously to break or enter into
any building, railroad car, aircraft, or vessel, trailer coach, or
vehicle as defined in the Vehicle Code, or who shall knowingly make
or alter, or shall attempt to make or alter, any key or other
instrument named above so that the same will fit or open the lock of
a building, railroad car, aircraft, vessel, trailer coach, or vehicle
as defined in the Vehicle Code, without being requested to do so by
some person having the right to open the same, or who shall make,
alter, or repair any instrument or thing, knowing or having reason to
believe that it is intended to be used in committing a misdemeanor
or felony, is guilty of a misdemeanor. Any of the structures
mentioned in Section 459 shall be deemed to be a building within the
meaning of this section.
  SEC. 3.  Section 633.8 of the Penal Code is amended to read:
   633.8.  (a) It is the intent of the Legislature in enacting this
section to provide law enforcement with the ability to use electronic
amplifying or recording devices to eavesdrop on and record the
otherwise confidential oral communications of individuals within a
location when responding to an emergency situation that involves the
taking of a hostage or the barricading of a location. It is the
intent of the Legislature that eavesdropping on oral communications
pursuant to this section comply with paragraph (7) of Section 2518 of
Title 18 of the United States Code.
   (b) Notwithstanding the provisions of this chapter, and in
accordance with federal law, a designated peace officer described in
subdivision (c) may use, or authorize the use of, an electronic
amplifying or recording device to eavesdrop on or record, or both,
any oral communication within a particular location in response to an
emergency situation involving the taking of a hostage or hostages or
the barricading of a location if all of the following conditions are
satisfied:
   (1) The officer reasonably determines that an emergency situation
exists involving the immediate danger of death or serious physical
injury to any person, within the meaning of Section 2518(7)(a)(i) of
Title 18 of the United States Code.
   (2) The officer reasonably determines that the emergency situation
requires that the eavesdropping on oral communication occur
immediately.
   (3) There are grounds upon which an order could be obtained
pursuant to Section 2516(2) of Title 18 of the United States Code in
regard to the offenses enumerated therein.
   (c) Only a peace officer who has been designated by either a
district attorney in the county where the emergency exists, or by the
Attorney General to make the necessary determinations pursuant to
paragraphs (1), (2), and (3) of subdivision (b) may make those
determinations for purposes of this section.
   (d) If the determination is made by a designated peace officer
described in subdivision (c) that an emergency situation exists, a
peace officer shall not be required to knock and announce his or her
presence before entering, installing, and using any electronic
amplifying or recording devices.
   (e) If the determination is made by a designated peace officer
described in subdivision (c) that an emergency situation exists and
an eavesdropping device has been deployed, an application for an
order approving the eavesdropping shall be made within 48 hours of
the beginning of the eavesdropping and shall comply with the
requirements of Section 629.50. A court may grant an application
authorizing the use of electronic amplifying or recording devices to
eavesdrop on and record otherwise confidential oral communications in
barricade or hostage situations where there is probable cause to
believe that an individual is committing, has committed, or is about
to commit an offense listed in Section 2516(2) of Title 18 of the
United States Code.
   (f) The contents of any oral communications overheard pursuant to
this section shall be recorded on tape or other comparable device.
The recording of the contents shall be done so as to protect the
recording from editing or other alterations.
   (g) For purposes of this section, a "barricading" occurs when a
person refuses to come out from a covered or enclosed position.
Barricading also occurs when a person is held against his or her will
and the captor has not made a demand.
   (h) For purposes of this section, a "hostage situation" occurs
when a person is held against his or her will and the captor has made
a demand.
   (i) A judge shall not grant an application made pursuant to this
section in anticipation that an emergency situation will arise. A
judge shall grant an application authorizing the use of electronic
amplifying or recording devices to eavesdrop on and record otherwise
confidential oral communications in barricade or hostage situations
where there is probable cause to believe that an individual is
committing, has committed, or is about to commit an offense listed in
Section 2516(2) of Title 18 of the United States Code, and only if
the peace officer has fully complied with the requirements of this
section. If an application is granted pursuant to this section, an
inventory shall be served pursuant to Section 629.68.
   (j) This section does not require that a peace officer designated
pursuant to subdivision (c) undergo training pursuant to Section
629.94.
   (k) A peace officer who has been designated pursuant to
subdivision (c) to use an eavesdropping device shall cease use of the
device upon the termination of the barricade or hostage situation,
or upon the denial by a judge of an application for an order to
approve the eavesdropping, whichever is earlier.
   (l) Nothing in this section shall be deemed to affect the
admissibility or  inadmissability  
inadmissibility  of evidence.
  SEC. 4.  Section 992 of the Penal Code is amended to read:
   992.  (a)  (1)    In any case in which the
defendant is charged with a felony, the court  , immediately
following the arraignment in the superior court,  shall
require the defendant to provide a right thumbprint on a form
developed for this purpose.  This   Unless the
court has obtained the thumbprint at an earlier proceeding, it shall
do so at the arraignment on the information or indictment, or upon
entry of a guilty or no contest   plea under Section 859a.
The  fingerprint form shall include the name and superior court
case number of the defendant, the date, and the printed name,
position, and badge or serial number of the court bailiff who
imprints the defendant's thumbprint. In the event the defendant is
physically unable to provide a right thumbprint, the defendant shall
provide a left thumbprint. In the event the defendant is physically
unable to provide a left thumbprint, the court shall make a
determination as to how the defendant might otherwise provide a
suitable identifying characteristic to be imprinted on the judgment
of conviction. The clerk shall note on the fingerprint form which
digit, if any, of the defendant's was imprinted thereon. In the event
that the defendant is convicted, this fingerprint form shall be
attached to the minute order reflecting the defendant's sentence. The
fingerprint form shall be permanently maintained in the superior
court file. 
    This 
    (2)     This  thumbprint or
fingerprint shall not be used to create a database. The Judicial
Council shall develop a form to implement this section.
   (b) In the event that a county implements a countywide policy in
which every felony defendant's photograph and fingerprints are
permanently maintained in the superior court file, the presiding
judge of that county may elect, after consultation with the district
attorney, to continue compliance with this section.
  SEC. 5.  Section 1181 of the Penal Code is amended to read:
   1181.  When a verdict has been rendered or a finding made against
the defendant, the court may, upon his  or her  application,
grant a new trial, in the following cases only: 
    1. 
    (a)  When the trial has been had in  his
  the defendant's  absence except in cases where
the trial may lawfully proceed in  his absence; 
 the defendant's absence.  
    2. 
    (b)  When the jury has received any evidence out of
court, other than that resulting from a view of the premises, or of
personal  property;   property.  
    3. 
    (c)  When the jury has been separated without leave of
the court after retiring to deliberate upon their  verdict,
or   verdict. 
    (d)    When the jury has  been guilty
of any misconduct by which a fair and due consideration of the case
has been  prevented;   prevented.  

    4. 
   (e)  When the verdict has been decided by lot, or by any
means other than a fair expression of opinion on the part of all the
 jurors;   jurors.  
    5. 
    (f)  When the court has misdirected the jury in a matter
of law, or has erred in the decision of any question of law arising
during the course of the  trial, and when  
trial. 
    (g)     When  the district attorney or
other counsel prosecuting the case has been guilty of prejudicial
misconduct during the trial thereof before a  jury; 
 jury.  
    6. 
    (h)  When the verdict or finding is contrary to law or
evidence, but  if   : 
    (1)     If  the evidence shows the
defendant to be not guilty of the degree of the crime of which he
or   she  was convicted, but guilty of a lesser degree
thereof, or of a lesser crime included therein, the court may modify
the verdict, finding or judgment accordingly without granting or
ordering a new trial, and this power shall extend to any court to
which the cause may be  appealed;   appealed.
 
   7. When the verdict or finding is contrary to law or evidence, but
in 
    (2)     In  any case wherein authority
is vested by statute in the trial court or jury to recommend or
determine as a part of its verdict or finding the punishment to be
imposed, the court may modify such verdict or finding by imposing the
lesser punishment without granting or ordering a new trial, and this
power shall extend to any court to which the case may be 
appealed;   appealed.  
    8. 
    (i)  When new evidence is discovered material to the
defendant, and which he  or she  could not, with reasonable
diligence, have discovered and produced at the trial. When a motion
for a new trial is made upon the ground of newly discovered evidence,
the defendant must produce at the hearing, in support thereof, the
affidavits of the witnesses by whom such evidence is expected to be
given, and if time is required by the defendant to procure such
affidavits, the court may postpone the hearing of the motion for such
length of time as, under all circumstances of the case, may seem
reasonable. 
    9. 
    (j)  When the right to a phonographic report has not
been waived, and when it is not possible to have a phonographic
report of the trial transcribed by a stenographic reporter as
provided by law or by rule because of the death or disability of a
reporter who participated as a stenographic reporter at the trial or
because of the loss or destruction, in whole or in substantial part,
of the notes of such reporter, the trial court or a judge, thereof,
or the reviewing court shall have power to set aside and vacate the
judgment, order or decree from which an appeal has been taken or is
to be taken and to order a new trial of the action or proceeding.
  SEC. 6.  Section 1387 of the Penal Code is amended to read:
   1387.  (a) An order terminating an action pursuant to this
chapter, or Section 859b, 861, 871, or 995, is a bar to any other
prosecution for the same offense if it is a felony or if it is a
misdemeanor charged together with a felony and the action has been
previously terminated pursuant to this chapter, or Section 859b, 861,
871, or 995, or if it is a misdemeanor not charged together with a
felony, except in those felony cases, or those cases where a
misdemeanor is charged with a felony, where subsequent to the
dismissal of the felony or misdemeanor the judge or magistrate finds
any of the following:
   (1) That substantial new evidence has been discovered by the
prosecution which would not have been known through the exercise of
due diligence at, or prior to, the time of termination of the action.

   (2) That the termination of the action was the result of the
direct intimidation of a material witness, as shown by a
preponderance of the evidence.
   (3) That the termination of the action was the result of the
failure to appear by the complaining witness, who had been personally
subpoenaed in a prosecution arising under subdivision (e) of Section
243 or Section 262, 273.5, or 273.6. This paragraph shall apply only
within six months of the original dismissal of the action, and may
be invoked only once in each action. Nothing in this section shall
preclude a defendant from being eligible for diversion.
   (b) Notwithstanding subdivision (a), an order terminating an
action pursuant to this chapter is not a bar to another prosecution
for the same offense if it is a misdemeanor charging an offense based
on an act of domestic violence, as defined in subdivisions (a) and
(b) of Section 13700, and the termination of the action was the
result of the failure to appear by the complaining witness, who had
been personally subpoenaed. This subdivision shall apply only within
six months of the original dismissal of the action, and may be
invoked only once in each action. Nothing in this subdivision shall
preclude a defendant from being eligible for diversion.
   (c)  An order terminating an action is not a bar to prosecution if
a complaint is dismissed before the commencement of a preliminary
hearing in favor of an indictment filed pursuant to Section 944
 and the   or an  indictment is based upon
the same subject matter as charged in  the   a
 dismissed complaint, information, or indictment. 
   However, if the 
    (d)     If the  previous termination
was pursuant to Section 859b, 861, 871, or 995, the subsequent order
terminating an action is not a bar to prosecution if:
   (1) Good cause is shown why the preliminary examination was not
held within 60 days from the date of arraignment or plea.
   (2) The motion pursuant to Section 995 was granted because of any
of the following reasons:
   (A) Present insanity of the defendant.
   (B) A lack of counsel after the defendant elected to represent
himself or herself rather than being represented by appointed
counsel.
   (C) Ineffective assistance of counsel.
   (D) Conflict of interest of defense counsel.
   (E) Violation of time deadlines based upon unavailability of
defense counsel.
   (F) Defendant's motion to withdraw a waiver of the preliminary
examination.
   (3) The motion pursuant to Section 995 was granted after dismissal
by the magistrate of the action pursuant to Section 871 and was
recharged pursuant to Section 739.
  SEC. 7.  Section 1466 of the Penal Code is amended to read:
   1466.  An appeal may be taken from a judgment or order, in an
infraction or misdemeanor case, to the appellate division of the
superior court of the county in which the court from which the appeal
is taken is located, in the following cases: 
   (1) 
    (a)  By the people: 
   (A) 
    (1)  From an order recusing the district attorney or
city attorney pursuant to Section 1424. 
   (B) 
    (2)  From an order or judgment dismissing or otherwise
terminating all or any portion of the action, including such an order
or judgment, entered after a verdict or finding of guilty or a
verdict or judgment entered before the defendant has been placed in
jeopardy or where the defendant has waived jeopardy. 
   (C) 
    (3)  From sustaining a demurrer to any portion of the
complaint or pleading. 
   (D)
    (4)  From an order granting a new trial. 
   (E) 
    (5)  From an order arresting judgment. 
   (F) 
    (6)  From any order made after judgment affecting the
substantial rights of the people. 
   (G) 
    (7)  From the imposition of an unlawful sentence,
whether or not the court suspends the execution of sentence. As used
in this subparagraph, "unlawful sentence" means the imposition of a
sentence not authorized by law or the imposition of a sentence based
upon an unlawful order of the court that strikes or otherwise
modifies the effect of an enhancement or prior conviction. A
defendant shall have the right to counsel in the people's appeal of
an unlawful sentence under the same circumstances that he or she
would have a right to counsel under subdivision (a) of Section 1238.

   (H) 
    (8)  Nothing in this section shall be construed to
authorize an appeal from an order granting probation. Instead, the
people may seek appellate review of any grant of probation, whether
or not the court imposes sentence, by means of a petition for a writ
of mandate or prohibition that is filed within 60 days after
probation is granted. The review of any grant of probation shall
include review of any order underlying the grant of probation.

   (2) 
   (b)  By the defendant: 
   (A) 
    (1)  From a final judgment of conviction. A sentence, an
order granting probation, a conviction in a case in which before
final judgment the defendant is committed for insanity or is given an
indeterminate commitment as a mentally disordered sex offender, or
the conviction of a defendant committed for controlled substance
addiction shall be deemed to be a final judgment within the meaning
of this section. Upon appeal from a final judgment or an order
granting probation the court may review any order denying a motion
for a new trial. 
   (B) 
    (2)  From any order made after judgment affecting his or
her substantial rights.
  SEC. 8.  Any section of any act, other than ____, enacted by the
Legislature during the 2011 calendar year that takes effect on or
before January 1, 2012, and that amends, amends and renumbers, adds,
repeals and adds, or repeals any one or more of the sections affected
by this act shall prevail over this act, whether this act is enacted
prior to, or subsequent to, the enactment of that act. The repeal,
or repeal and addition, of any article, chapter, part, title, or
division of any code by this act shall not become operative if any
section of any other act, other than ____, that is enacted by the
Legislature during the 2011 calendar year and takes effect on or
before January 1, 2012, amends, amends and renumbers, adds, repeals
and adds, or repeals any section contained in that article, chapter,
part, title, or division.
  SEC. 9.  No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.