Amended in Senate April 25, 2013

Senate Bill No. 717

Introduced by begin delete Senator end delete begin insert Senators end insert DeSaulnier begin insert and Correa end insert

February 22, 2013

An act to amend Section begin delete 782 of the Evidence Code end delete begin insert 1524 of the Penal Code end insert , relating to begin delete evidence end delete begin insert search warrants, and declaring the urgency thereof, to take effect immediately end insert .

LEGISLATIVE COUNSEL’S DIGEST

SB 717, as amended, DeSaulnier. begin delete Credibility of witnesses: sexual conduct evidence. end delete begin insert Search warrants: driving under the influence. end insert

begin insert

Existing law provides that a search warrant may only be issued upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be searched. Existing law also states the grounds upon which a search warrant may be issued, including, among other grounds, 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, or when there is a warrant to arrest a person.

end insert begin insert

This bill would additionally authorize the issuance of a search warrant to authorize a blood draw from a person in a medically approved manner when there is probable cause to believe the person has violated specified provisions related to driving under the influence, and the person has refused an officer’s request to submit to, or has failed to complete, a chemical test or tests, as specified.

end insert begin insert

This bill would declare that it is to take effect immediately as an urgency statute.

end insert begin delete

Existing law sets forth the procedure required in any prosecution for rape or other specified offenses, with certain exceptions, if evidence of sexual conduct of the complaining witness, as defined, is offered to attack the credibility of the complaining witness.

end delete begin delete

This bill would expand the offenses included within the term “sexual conduct” to include commercial sexual conduct, as specified, and would make conforming changes to those provisions.

end delete

Vote:  begin delete majority end delete begin insert ²⁄₃ end insert . 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 1524 of the end insert begin insert Penal Code end insert begin insert is amended to
read: end insert

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 begin delete the age of end delete 18 years begin insert of age end insert , 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.

(12) When the information to be received from the use of a
tracking device constitutes evidence that tends to show that either
a felony, a misdemeanor violation of the Fish and Game Code, or
a misdemeanor violation of the Public Resources Code has been
committed or is being committed, tends to show that a particular
person has committed a felony, a misdemeanor violation of the
Fish and Game Code, or a misdemeanor violation of the Public
Resources Code, or is committing a felony, a misdemeanor
violation of the Fish and Game Code, or a misdemeanor violation
of the Public Resources Code, or will assist in locating an
individual who has committed or is committing a felony, a
misdemeanor violation of the Fish and Game Code, or a
misdemeanor violation of the Public Resources Code. A tracking
device search warrant issued pursuant to this paragraph shall be
executed in a manner meeting the requirements specified in
subdivision (b) of Section 1534.

begin insert

(13) When there is probable cause to believe a person has
violated Section 23140, 23152, or 23153 of the Vehicle Code and
the person has refused an officer’s request to submit to, or has
failed to complete, a chemical test or tests pursuant to Section
23612 of the Vehicle Code, to authorize a blood draw from the
person in a medically approved manner.

end insert

(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.

(k) This section shall not be construed to create a cause of action
against any foreign or California corporation, its officers,
employees, agents, or other specified persons for providing location
information.

begin insert

begin insert SEC. 2. end insert   

end insert begin insert

This act is an urgency statute necessary for the
immediate preservation of the public peace, health, or safety within
the meaning of Article IV of the Constitution and shall go into
immediate effect. The facts constituting the necessity are:

end insert begin insert

In order to ensure the public is protected from persons driving
under the influence at the earliest possible time, it is necessary
that this act take effect immediately.

end insert

begin delete

SECTION 1.  

Section 782 of the Evidence Code is amended to
read:

782.  

(a) In any of the circumstances described in subdivision
(c), if evidence of sexual conduct of the complaining witness is
offered to attack the credibility of the complaining witness under
Section 780, the following procedure shall be followed:

(1) A written motion shall be made by the party seeking to
introduce the evidence to the court, with notice to all parties, stating
that the party has an offer of proof of the relevancy of the evidence
proposed to be presented in attacking the credibility of the
complaining witness.

(2) The written motion shall be accompanied by an affidavit in
which the offer of proof shall be stated. The affidavit shall be filed
under seal and only unsealed by the court to determine if the offer
of proof is sufficient to order a hearing pursuant to paragraph (3).
After that determination, the affidavit shall be resealed by the
court.

(3) If the court finds that the offer of proof is sufficient, the
court shall order a hearing out of the presence of the jury, if any,
and at the hearing allow the questioning of the complaining witness
regarding the offer of proof.

(4) At the conclusion of the hearing, if the court finds that the
evidence proposed to be offered of sexual conduct of the
complaining witness is relevant pursuant to Section 780, and is
not inadmissible pursuant to Section 352, the court may make an
order stating what part of the evidence may be introduced by the
proffering party, and the nature of the questions to be permitted.
The proffering party may then offer evidence pursuant to the order
of the court.

(5) An affidavit resealed by the court pursuant to paragraph (2)
shall remain sealed, unless the proffering party raises an issue on
appeal or collateral review relating to the offer of proof contained
in the sealed document. If the proffering party raises that issue on
appeal, the court shall allow the Attorney General and appellate
counsel for the defendant access to the sealed affidavit. If the issue
is raised on collateral review, the court shall allow the district
attorney and defendant’s counsel access to the sealed affidavit.
The use of the information contained in the affidavit shall be
limited solely to the pending proceeding.

(b) As used in this section:

(1) “Complaining witness” means either of the following:

(A) The alleged victim of the crime charged, the prosecution
of which is subject to this section, pursuant to paragraph (1) of
subdivision (c).

(B) An alleged victim offering testimony pursuant to paragraph
(2) or (3) of subdivision (c).

(2) “Sexual conduct” includes commercial sexual conduct,
including, but not limited to, that described in subdivisions (b) and
(c) of Section 236.1, 266, 266h, 266i, 266j, 267, 311.1, 311.2,
311.3, 311.4, 311.5, 311.6, 518, or 647 of the Penal Code.

(c) The procedure provided by subdivision (a) shall apply in
any of the following circumstances:

(1) In a prosecution under Section 236.1, 261, 262, 264.1, 266,
266h, 266i, 266j, 267, 286, 288, 288a, 288.5, 289, 311.1, 311.2,
311.3, 311.4, 311.5, 311.6, 518, or 647 of the Penal Code, or for
assault with intent to commit, attempt to commit, or conspiracy
to commit any crime defined in any of those sections, except if
the crime is alleged to have occurred in a local detention facility,
as defined in Section 6031.4 of the Penal Code, or in the state
prison, as defined in Section 4504 of the Penal Code.

(2) When an alleged victim testifies pursuant to subdivision (b)
of Section 1101 as a victim of a crime listed in Section 236.1,
243.4, 261, 261.5, 266, 266h, 266i, 266j, 267, 269, 285, 286, 288,
288a, 288.5, 289, 311.1, 311.2, 311.3, 311.4, 311.5, 311.6, 314,
518, 647, or 647.6 of the Penal Code, except if the crime is alleged
to have occurred in a local detention facility, as defined in Section
6031.4 of the Penal Code, or in the state prison, as defined in
Section 4504 of the Penal Code.

(3) When an alleged victim of a sexual offense testifies pursuant
to Section 1108, except if the crime is alleged to have occurred in
a local detention facility, as defined in Section 6031.4 of the Penal
Code, or in the state prison, as defined in Section 4504 of the Penal
Code.

end delete