Amended in Assembly March 14, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 885

Introduced by Assembly Member Ammiano

February 22, 2013

An act to begin delete amend end delete begin insert add end insert Section begin delete 646.9 of end delete begin insert 1127j to end insert the Penal Code, relating to begin delete stalking end delete begin insert criminal procedure end insert .

LEGISLATIVE COUNSEL’S DIGEST

AB 885, as amended, Ammiano. begin delete Stalking. end delete begin insert Discovery: prosecutorial duty to disclose information. end insert

Existing law begin delete provides that a person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat, as specified, is guilty of stalking, and may be punished by imprisonment in a county jail for not more than one year, or by a fine of not more than $1,000, or by both that fine and imprisonment, or by imprisonment in the state prison. Existing law further provides that a person who engages in the above-described behavior when there is a temporary restraining order, injunction, or other court order in effect prohibiting the specified behavior against the same party, may be punished by imprisonment in the state prison for 2, 3, or 4 years. end delete begin insert requires the prosecuting attorney to disclose to the defendant or his or her attorney certain materials and information, including statements of all defendants and any exculpatory evidence, as specified. end insert

This bill would begin delete make technical, nonsubstantive changes to those provisions. end delete begin insert require a court in any criminal trial or proceeding in which the court has determined that there has been an intentional failure to disclose certain materials and information, as specified, to instruct the jury that the failure to disclose has occurred and that the jury may consider the failure as circumstantial evidence to support the presence of reasonable doubt. end insert

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 1127j is added to the end insert begin insert Penal Code end insert begin insert , to read: end insert

begin insert

begin insert 1127j. end insert   

In any criminal trial or proceeding in which the court
determines that there has been an intentional failure to disclose
specified materials and information pursuant to Section 1054.1
or Brady v. Maryland (1963) 373 U.S. 83, the court shall instruct
the jury that the intentional failure to disclose the materials and
information occurred and that the jury may consider the failure
to disclose as circumstantial evidence to support the presence of
reasonable doubt.

end insert

begin delete

SECTION 1.  

Section 646.9 of the Penal Code is amended to
read:

646.9.  

(a) A person who willfully, maliciously, and repeatedly
follows or willfully and maliciously harasses another person and
who makes a credible threat with the intent to place that person in
reasonable fear for his or her safety, or the safety of his or her
immediate family is guilty of the crime of stalking, punishable 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, or by imprisonment in the state prison.

(b) A person who violates subdivision (a) when there is a
temporary restraining order, injunction, or other court order in
effect prohibiting the behavior described in subdivision (a) against
the same party, shall be punished by imprisonment in the state
prison for two, three, or four years.

(c) (1) A person who, after having been convicted of a felony
under Section 273.5, 273.6, or 422, commits a violation of
subdivision (a) 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,
or by imprisonment in the state prison for two, three, or five years.

(2) Every person who, after having been convicted of a felony
under subdivision (a), commits a violation of this section shall be
punished by imprisonment in the state prison for two, three, or
five years.

(d) In addition to the penalties provided in this section, the
sentencing court may order a person convicted of a felony under
this section to register as a sex offender pursuant to Section
290.006.

(e) For the purposes of this section, “harasses” means engages
in a knowing and willful course of conduct directed at a specific
person that seriously alarms, annoys, torments, or terrorizes the
person, and that serves no legitimate purpose.

(f) For the purposes of this section, “course of conduct” means
two or more acts occurring over a period of time, however short,
evidencing a continuity of purpose. Constitutionally protected
activity is not included within the meaning of “course of conduct.”

(g) For the purposes of this section, “credible threat” means a
verbal or written threat, including that performed through the use
of an electronic communication device, or a threat implied by a
pattern of conduct or a combination of verbal, written, or
electronically communicated statements and conduct, made with
the intent to place the person that is the target of the threat in
reasonable fear for his or her safety or the safety of his or her
family, and made with the apparent ability to carry out the threat
so as to cause the person who is the target of the threat to
reasonably fear for his or her safety or the safety of his or her
family. It is not necessary to prove that the defendant had the intent
to actually carry out the threat. The present incarceration of a
person making the threat shall not be a bar to prosecution under
this section. Constitutionally protected activity is not included
within the meaning of “credible threat.”

(h) For purposes of this section, the term “electronic
communication device” includes, but is not limited to, telephones,
cellular phones, computers, video recorders, fax machines, or
pagers. “Electronic communication” has the same meaning as the
term defined in Subsection 12 of Section 2510 of Title 18 of the
United States Code.

(i) This section shall not apply to conduct that occurs during
labor picketing.

(j) If probation is granted, or the execution or imposition of a
sentence is suspended, for a person convicted under this section,
it shall be a condition of probation that the person participate in
counseling, as designated by the court. However, the court, upon
a showing of good cause, may find that the counseling requirement
shall not be imposed.

(k) (1) The sentencing court shall also consider issuing an order
restraining the defendant from any contact with the victim, that
may be valid for up to 10 years, as determined by the court. It is
the intent of the Legislature that the length of a restraining order
be based upon the seriousness of the facts before the court, the
probability of future violations, and the safety of the victim and
his or her immediate family.

(2) This protective order may be issued by the court whether
the defendant is sentenced to state prison, county jail, or if
imposition of sentence is suspended and the defendant is placed
on probation.

(l) For purposes of this section, “immediate family” means a
spouse, parent, child, a person related by consanguinity or affinity
within the second degree, or another person who regularly resides
in the household, or who, within the prior six months, regularly
resided in the household.

(m) The court shall consider whether the defendant would
benefit from treatment pursuant to Section 2684. If it is determined
to be appropriate, the court shall recommend that the Department
of Corrections and Rehabilitation make a certification as provided
in Section 2684. Upon the certification, the defendant shall be
evaluated and transferred to the appropriate hospital for treatment
pursuant to Section 2684.

end delete