SB 1255, as introduced, Cannella. Disorderly conduct: unlawful distribution of image.
Existing law provides that any person who photographs or records by any means the image of the intimate body part or parts of another identifiable person, under circumstances where the parties agree or understand that the image shall remain private, and the person subsequently distributes the image taken, with the intent to cause serious emotional distress, and the depicted person suffers serious emotional distress, is guilty of disorderly conduct.
This bill would instead provide that a person who intentionally distributes by any means an image of the uncovered, or visible through less than fully opaque clothing, body part or parts of another identifiable person or an image of another identifiable person engaged in a sexual act, knowing that the depicted person does not consent to the distribution of the image, is guilty of disorderly conduct. The bill would also provide that it is not a violation of this provision to distribute the image under certain circumstances, including where the distribution is made in the course of reporting an unlawful activity. The bill makes other technical and clarifying changes.
Under existing law, matter that depicts a person under 18 years of age personally engaging in or personally simulating sexual conduct, as defined, and that is in the possession of any city, county, city and county, or state official or agency is subject to forfeiture pursuant to a petition for forfeiture brought in the county in which the matter is located. Existing law provides for forfeiture by a defendant of illegal telecommunications equipment, or a computer, computer system, or computer network, and any software or data that was used in committing specified crimes, including depiction of a person under 18 years of age personally engaging in or personally simulating sexual conduct.
Existing law establishes the proper jurisdictions of a criminal action for unauthorized use, retention, or transfer of personal identifying information to include the county where the theft occurred, the county in which the victim resided at the time of the offense, or the county where the information was used for an illegal purpose. Existing law authorizes issuance of a search warrant on various grounds, including when the property or things to be seized consist of evidence that tends to show possession of matter depicting sexual conduct of a person under 18 years of age.
This bill would apply those provisions to the disorderly conduct described above.
Because this bill would broaden the scope of a crime, it would impose a state-mandated local program.
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 312.3 of the Penal Code is amended to
(a) Matter that depicts a person under
begin delete the age of 18 personally engaging in or personally
5simulating sexual conduct as defined in Section 311.4 and that is in the possession of any
8city, county, city and county, or state official or agency is subject
9to forfeiture pursuant to this section.
10(b) An action to forfeit matter described in subdivision (a) may
11be brought by the Attorney General, the district attorney, county
P3 1counsel, or the city attorney. Proceedings shall be initiated by a
2petition of forfeiture filed in the superior court of the county in
3which the matter is located.
4(c) The prosecuting agency shall make service of process of a
5notice regarding that petition upon every individual who may have
6a property interest in the alleged proceeds. The notice shall state
7that any interested party may file a verified claim with the superior
8court stating the amount of their claimed interest and an affirmation
9or denial of the prosecuting agency’s allegation. If the notice cannot
10be given by registered mail or personal delivery, the notice shall
11be published for at least three successive weeks in a newspaper of
12general circulation in the county where the property is located. All
13notices shall set forth the time within which a claim of interest in
14the property seized is required to be filed.
15(d) (1) Any person claiming an interest in the property or
16proceeds may, at any time within 30 days from the date of the first
17publication of the notice of seizure, or within 30 days after receipt
18of actual notice, file with the superior court of the county in which
19the action is pending a verified claim stating his or her interest in
20the property or proceeds. A verified copy of the claim shall be
21given by the claimant to the Attorney General or district attorney,
22county counsel, or city attorney, as appropriate.
23(2) If, at the end of the time set forth in paragraph (1), an
24interested person has not filed a claim, the court, upon motion,
25shall declare that the person has defaulted upon his or her alleged
26 interest, and it shall be subject to forfeiture upon proof of
27compliance with subdivision (c).
28(e) The burden is on the petitioner to prove beyond a reasonable
29doubt that matter is subject to forfeiture pursuant to this section.
30(f) It is not necessary to seek or obtain a criminal conviction
31prior to the entry of an order for the destruction of matter pursuant
32to this section. Any matter described in subdivision (a) that is in
33the possession of any city, county, city and county, or state official
34or agency, including found property, or property obtained as the
35result of a case in which no trial was had or that has been disposed
36of by way of dismissal or otherwise than by way of conviction
37may be ordered destroyed.
38(g) A court order for destruction of matter described in
39subdivision (a) may be carried out by a police or sheriff’s
P4 1department or by the Department of Justice. The court order shall
2specify the agency responsible for the destruction.
3(h) As used in this section, “matter” means any book, magazine,
4newspaper, or other printed or written material or any picture,
5drawing, photograph, motion picture, or other pictorial
6representation, or any
begin delete statueend delete or other figure, or any
7recording, transcription or mechanical, chemical or electrical
8reproduction, or any other articles, equipment, machines, or
9materials. “Matter” also means any representation of information,
10data, or image, including, but not limited to, any film, filmstrip,
11photograph, negative, slide, photocopy, videotape, video laser disc,
12computer hardware, computer software, computer floppy disc,
13 data storage media, CD-ROM, or computer-generated equipment
14or any other computer-generated image that contains or
15incorporates in any manner any film or filmstrip.
16(i) This section does not apply to a depiction of a legally
17emancipated minor or to lawful conduct between spouses if one
18or both are under the age of 18.
19(j) It is a defense in any forfeiture proceeding that the matter
20seized was lawfully possessed in aid of legitimate scientific or
Section 502.01 of the Penal Code is amended to read:
(a) As used in this section:
24(1) “Property subject to forfeiture” means any property of the
25defendant that is illegal telecommunications equipment as defined
26in subdivision (g) of Section 502.8, or a computer, computer
27system, or computer network, and any software or data residing
28thereon, if the telecommunications device, computer, computer
29system, or computer network was used in committing a violation
30of, or conspiracy to commit a violation of, subdivision (b) of
31Section 272, Section 288, 288.2, 311.1, 311.2, 311.3, 311.4, 311.5,
32311.10, 311.11, 422, 470, 470a, 472, 475, 476, 480, 483.5, 484g,
33or subdivision (a), (b), or (d) of Section 484e, subdivision (a) of
34Section 484f, subdivision (b) or (c) of Section 484i, subdivision
35(c) of Section 502, or Section 502.7, 502.8, 529, 529a, or 530.5,
36537e, 593d, 593e,
begin delete orend delete 646.9, was used as a repository for
38the storage of software or data obtained in violation of those
39provisions. Forfeiture shall not be available for any property used
40solely in the commission of an infraction. If the defendant is a
P5 1minor, it also includes property of the parent or guardian of the
3(2) “Sentencing court” means the court sentencing a person
4found guilty of violating or conspiring to commit a violation of
5subdivision (b) of Section 272, Section 288, 288.2, 311.1, 311.2,
6311.3, 311.4, 311.5, 311.10, 311.11, 422, 470, 470a, 472, 475,
7476, 480, 483.5, 484g, or subdivision (a), (b), or (d) of Section
8484e, subdivision (d) of Section 484e, subdivision (a) of Section
9484f, subdivision (b) or (c) of Section 484i, subdivision (c) of
10Section 502, or Section 502.7, 502.8, 529, 529a, 530.5, 537e, 593d,
11593e, or 646.9, or, in the case of a minor, found to be a person
12described in Section 602 of the Welfare and Institutions Code
13because of a violation of those provisions, the juvenile court.
14(3) “Interest” means any property interest in the property subject
16(4) “Security interest” means an interest that is a lien, mortgage,
17security interest, or interest under a conditional sales contract.
18(5) “Value” has the following meanings:
19(A) When counterfeit items of computer software are
20manufactured or possessed for sale, the “value” of those items
21shall be equivalent to the retail price or fair market price of the
22true items that are counterfeited.
23(B) When counterfeited but unassembled components of
24computer software packages are recovered, including, but not
25limited to, counterfeited computer diskettes, instruction manuals,
26or licensing envelopes, the “value” of those components of
27computer software packages shall be equivalent to the retail price
28or fair market price of the number of completed computer software
29packages that could have been made from those components.
30(b) The sentencing court shall, upon petition by the prosecuting
31attorney, at any time following sentencing, or by agreement of all
32parties, at the time of sentencing, conduct a hearing to determine
33whether any property or property interest is subject to forfeiture
34under this section. At the forfeiture hearing, the prosecuting
35attorney shall have the burden of establishing, by a preponderance
36of the evidence, that the property or property interests are subject
37to forfeiture. The prosecuting attorney may retain seized property
38that may be subject to forfeiture until the sentencing hearing.
39(c) Prior to the commencement of a forfeiture proceeding, the
40law enforcement agency seizing the property subject to forfeiture
P6 1shall make an investigation as to any person other than the
2defendant who may have an interest in it. At least 30 days before
3the hearing to determine whether the property should be forfeited,
4the prosecuting agency shall send notice of the hearing to any
5person who may have an interest in the property that arose before
7A person claiming an interest in the property shall file a motion
8for the redemption of that interest at least 10 days before the
9hearing on forfeiture, and shall send a copy of the motion to the
10prosecuting agency and to the probation department.
11If a motion to redeem an interest has been filed, the sentencing
12court shall hold a hearing to identify all persons who possess valid
13interests in the property. No person shall hold a valid interest in
14the property if, by a preponderance of the evidence, the prosecuting
15agency shows that the person knew or should have known that the
16property was being used in violation of, or conspiracy to commit
17a violation of, subdivision (b) of Section 272, Section 288, 288.2,
18311.1, 311.2, 311.3, 311.4, 311.5, 311.10, 311.11, 470, 470a, 472,
19475, 476, 480, 483.5, 484g, or subdivision (a), (b), or (d) of Section
20484e, subdivision (a) of Section 484f, subdivision (b) or (c) of
21Section 484i, subdivision (c) of Section 502, or Section 502.7,
22502.8, 529, 529a, 530.5, 537e, 593d, 593e, or 646.9, and that the
23person did not take reasonable steps to prevent that use, or if the
24interest is a security interest, the person knew or should have
25known at the time that the security interest was created that the
26property would be used for a violation.
27(d) If the sentencing court finds that a person holds a valid
28interest in the property, the following provisions shall apply:
29(1) The court shall determine the value of the property.
30(2) The court shall determine the value of each valid interest in
32(3) If the value of the property is greater than the value of the
33interest, the holder of the interest shall be entitled to ownership of
34the property upon paying the court the difference between the
35value of the property and the value of the valid interest.
36If the holder of the interest declines to pay the amount
37under paragraph (2), the court may order the property sold and
38designate the prosecutor or any other agency to sell the property.
39The designated agency shall be entitled to seize the property and
40the holder of the interest shall forward any documentation
P7 1underlying the interest, including any ownership certificates for
2that property, to the designated agency. The designated agency
3shall sell the property and pay the owner of the interest the
4proceeds, up to the value of that interest.
5(4) If the value of the property is less than the value of the
6interest, the designated agency shall sell the property and pay the
7owner of the interest the proceeds, up to the value of that interest.
8(e) If the defendant was a minor at the time of the offense, this
9subdivision shall apply to property subject to forfeiture that is the
10property of the parent or guardian of the minor.
11(1) The prosecuting agency shall notify the parent or guardian
12of the forfeiture hearing at least 30 days before the date set for the
14(2) The computer or telecommunications device shall not be
15subject to forfeiture if the parent or guardian files a signed
16statement with the court at least 10 days before the date set for the
17hearing that the minor shall not have access to any computer or
18telecommunications device owned by the parent or guardian for
19two years after the date on which the minor is sentenced.
20(3) If the minor is convicted of a violation of Section 288, 288.2,
21311.1, 311.2, 311.3, 311.4, 311.5, 311.10, 311.11, 470, 470a, 472,
22476, 480, or subdivision (b) of Section 484e, subdivision (d) of
23Section 484e, subdivision (a) of Section 484f, subdivision (b) of
24Section 484i, subdivision (c) of Section 502, or Section 502.7,
25502.8, 529, 529a, or 530.5, within two years after the date on which
26the minor is sentenced, and the violation involves a computer or
27telecommunications device owned by the parent or guardian, the
28original property subject to forfeiture, and the property involved
29in the new offense, shall be subject to forfeiture notwithstanding
31(4) Notwithstanding paragraph (1), (2), or (3), or any other
32provision of this chapter, if a minor’s parent or guardian makes
33full restitution to the victim of a crime enumerated in this chapter
34in an amount or manner determined by the court, the forfeiture
35provisions of this chapter do not apply to the property of that parent
36or guardian if the property was located in the family’s primary
37residence during the commission of the crime.
38(f) Notwithstanding any other provision of this chapter, the court
39may exercise its discretion to deny forfeiture where the court finds
40that the convicted defendant, or minor adjudicated to come within
P8 1the jurisdiction of the juvenile court, is not likely to use the
2property otherwise subject to forfeiture for future illegal acts.
3(g) If the defendant is found to have the only valid interest in
4the property subject to forfeiture, it shall be distributed as follows:
5(1) First, to the victim, if the victim elects to take the property
6as full or partial restitution for injury, victim expenditures, or
7compensatory damages, as defined in paragraph (1) of subdivision
8(e) of Section 502. If the victim elects to receive the property under
9this paragraph, the value of the property shall be determined by
10the court and that amount shall be credited against the restitution
11owed by the defendant. The victim shall not be penalized for
12electing not to accept the forfeited property in lieu of full or partial
14(2) Second, at the discretion of the court, to one or more of the
15following agencies or entities:
16(A) The prosecuting agency.
17(B) The public entity of which the prosecuting agency is a part.
18(C) The public entity whose officers or employees conducted
19the investigation resulting in forfeiture.
20(D) Other state and local public entities, including school
22(E) Nonprofit charitable organizations.
23(h) If the property is to be sold, the court may designate the
24prosecuting agency or any other agency to sell the property at
25auction. The proceeds of the sale shall be distributed by the court
27(1) To the bona fide or innocent purchaser or encumbrancer,
28conditional sales vendor, or mortgagee of the property up to the
29amount of his or her interest in the property, if the court orders a
30distribution to that person.
31(2) The balance, if any, to be retained by the court, subject to
32the provisions for distribution under subdivision (g).
Section 647 of the Penal Code is amended to read:
Except as provided in subdivision (l), every person who
35commits any of the following acts is guilty of disorderly conduct,
37(a) Who solicits anyone to engage in or who engages in lewd
38or dissolute conduct in any public place or in any place open to
39the public or exposed to public view.
P9 1(b) Who solicits or who agrees to engage in or who engages in
2any act of prostitution. A person agrees to engage in an act of
3prostitution when, with specific intent to so engage, he or she
4manifests an acceptance of an offer or solicitation to so engage,
5regardless of whether the offer or solicitation was made by a person
6who also possessed the specific intent to engage in prostitution.
7No agreement to engage in an act of prostitution shall constitute
8a violation of this subdivision unless some act, in addition to the
9agreement, is done within this state in furtherance of the
10commission of an act of prostitution by the person agreeing to
11engage in that act. As used in this subdivision, “prostitution”
12includes any lewd act between persons for money or other
14(c) Who accosts other persons in any public place or in any
15place open to the public for the purpose of begging or soliciting
17(d) Who loiters in or about any toilet open to the public for the
18purpose of engaging in or soliciting any lewd or lascivious or any
20(e) Who lodges in any building, structure, vehicle, or place,
21whether public or private, without the permission of the owner or
22person entitled to the possession or in control of it.
23(f) Who is found in any public place under the influence of
24intoxicating liquor, any drug, controlled substance, toluene, or any
25combination of any intoxicating liquor, drug, controlled substance,
26or toluene, in a condition that he or she is unable to exercise care
27for his or her own safety or the safety of others, or by reason of
28his or her being under the influence of intoxicating liquor, any
29drug, controlled substance, toluene, or any combination of any
30intoxicating liquor, drug, or toluene, interferes with or obstructs
31or prevents the free use of any street, sidewalk, or other public
33(g) When a person has violated subdivision (f), a peace officer,
34if he or she is reasonably able to do so, shall place the person, or
35cause him or her to be placed, in civil protective custody. The
36person shall be taken to a facility, designated pursuant to Section
375170 of the Welfare and Institutions Code, for the 72-hour
38treatment and evaluation of inebriates. A peace officer may place
39a person in civil protective custody with that kind and degree of
40force which would be lawful were he or she effecting an arrest for
P10 1a misdemeanor without a warrant. A person who has been placed
2in civil protective custody shall not thereafter be subject to any
3criminal prosecution or juvenile court proceeding based on the
4facts giving rise to this placement. This subdivision shall not apply
5to the following persons:
6(1) Any person who is under the influence of any drug, or under
7the combined influence of intoxicating liquor and any drug.
8(2) Any person who a peace officer has probable cause to believe
9has committed any felony, or who has committed any misdemeanor
10in addition to subdivision (f).
11(3) Any person who a
peace officer in good faith believes will
12attempt escape or will be unreasonably difficult for medical
13personnel to control.
14(h) Who loiters, prowls, or wanders upon the private property
15of another, at any time, without visible or lawful business with the
16owner or occupant. As used in this subdivision, “loiter” means to
17delay or linger without a lawful purpose for being on the property
18and for the purpose of committing a crime as opportunity may be
20(i) Who, while loitering, prowling, or wandering upon the private
21property of another, at any time, peeks in the door or window of
22any inhabited building or structure, without visible or lawful
23business with the owner or occupant.
24(j) (1) Any person who looks through a hole or opening, into,
25or otherwise views, by means of any instrumentality, including,
26but not limited to, a periscope, telescope, binoculars, camera,
27motion picture camera, camcorder, or mobile phone, the interior
28of a bedroom, bathroom, changing room, fitting room, dressing
29room, or tanning booth, or the interior of any other area in which
30the occupant has a reasonable expectation of privacy, with the
31intent to invade the privacy of a person or persons inside. This
32subdivision shall not apply to those areas of a private business
33used to count currency or other negotiable instruments.
34(2) Any person who uses a concealed camcorder, motion picture
35camera, or photographic camera of any type, to secretly videotape,
36film, photograph, or record by electronic means, another,
37identifiable person under or through the clothing being worn by
38that other person, for the purpose of viewing the body of, or the
39undergarments worn by, that other person, without the consent or
40knowledge of that other person, with the intent to arouse, appeal
P11 1to, or gratify the lust, passions, or sexual desires of that person and
2invade the privacy of that other person, under circumstances in
3which the other person has a reasonable expectation of privacy.
4(3) (A) Any person who uses a concealed camcorder, motion
5picture camera, or photographic camera of any type, to secretly
6videotape, film, photograph, or record by electronic means, another,
7identifiable person who may be in a state of full or partial undress,
8for the purpose of viewing the body of, or the undergarments worn
9by, that other person, without the consent or knowledge of that
10other person, in the interior of a bedroom, bathroom, changing
11room, fitting room, dressing room, or tanning booth, or the interior
12of any other area in which that other person has a reasonable
13expectation of privacy, with the intent to invade the privacy of that
15(B) Neither of the following is a defense to the crime specified
16in this paragraph:
17(i) The defendant was a cohabitant, landlord, tenant, cotenant,
18employer, employee, or business partner or associate of the victim,
19or an agent of any of these.
20(ii) The victim was not in a state of full or partial undress.
21(4) (A) Any person who
begin delete photographs or recordsend delete by any means the image of begin delete the intimate body part or another identifiable
23parts ofend delete
begin delete person, under circumstances where
24the parties agree or understand that the image shall remain private,
25and the person subsequently distributes the image taken, with the
26intent to cause serious emotional distress, and the depicted person
27suffers serious emotional distress.end delete
begin deleteAs used in this paragraph, intimate end delete
begin delete partend delete means any portion of the genitals,
34and in the case of a female, also includes any portion of the breasts
35below the top of the
begin delete areola, that is either uncovered or visible
36through less than fully opaque clothing.end delete
15 Nothing in this subdivision precludes punishment under any
16section of law providing for greater punishment.
17(k) In any accusatory pleading charging a violation of
18subdivision (b), if the defendant has been once previously convicted
19of a violation of that subdivision, the previous conviction shall be
20charged in the accusatory pleading. If the previous conviction is
21found to be true by the jury, upon a jury trial, or by the court, upon
22a court trial, or is admitted by the defendant, the defendant shall
23be imprisoned in a county jail for a period of not less than 45 days
24and shall not be eligible for release upon completion of sentence,
25on probation, on parole, on work furlough or work release, or on
26any other basis until he or she has served a period of not less than
2745 days in a county jail. In all cases in which probation is granted,
28the court shall require as a condition thereof that the person be
29confined in a county jail for at least 45 days. In no event does the
30court have the power to absolve a person who violates this
31subdivision from the obligation of spending at least 45 days in
32confinement in a county jail.
33In any accusatory pleading charging a violation of subdivision
34(b), if the defendant has been previously convicted two or more
35times of a violation of that subdivision, each of these previous
36convictions shall be charged in the accusatory pleading. If two or
37more of these previous convictions are found to be true by the jury,
38upon a jury trial, or by the court, upon a court trial, or are admitted
39by the defendant, the defendant shall be imprisoned in a county
40jail for a period of not less than 90 days and shall not be eligible
P13 1for release upon completion of sentence, on probation, on parole,
2on work furlough or work release, or on any other basis until he
3or she has served a period of not less than 90 days in a county jail.
4In all cases in which probation is granted, the court shall require
5as a condition thereof that the person be confined in a county jail
6for at least 90 days. In no event does the court have the power to
7absolve a person who violates this subdivision from the obligation
8of spending at least 90 days in confinement in a county jail.
9In addition to any punishment prescribed by this section, a court
10may suspend, for not more than 30 days, the privilege of the person
11to operate a motor vehicle pursuant to Section 13201.5 of the
12Vehicle Code for any violation of subdivision (b) that was
13committed within 1,000 feet of a private residence and with the
14use of a vehicle. In lieu of the suspension, the court may order a
15person’s privilege to operate a motor vehicle restricted, for not
16more than six months, to necessary travel to and from the person’s
17place of employment or education. If driving a motor vehicle is
18necessary to perform the duties of the person’s employment, the
19court may also allow the person to drive in that person’s scope of
21(l) (1) A second or subsequent violation of subdivision (j) is
22punishable by imprisonment in a county jail not exceeding one
23year, or by a fine not exceeding two thousand dollars ($2,000), or
24by both that fine and imprisonment.
25(2) If the victim of a violation of subdivision (j) was a minor at
26the time of the offense, the violation is punishable by imprisonment
27in a county jail not exceeding one year, or by a fine not exceeding
28two thousand dollars ($2,000), or by both that fine and
Section 786 of the Penal Code is amended to read:
(a) When property taken in one jurisdictional territory
32by burglary, carjacking, robbery, theft, or embezzlement has been
33brought into another, or when property is received in one
34jurisdictional territory with the knowledge that it has been stolen
35or embezzled and the property was stolen or embezzled in another
36jurisdictional territory, the jurisdiction of the offense is in any
37competent court within either jurisdictional territory, or any
38contiguous jurisdictional territory if the arrest is made within the
39contiguous territory, the prosecution secures on the record the
40defendant’s knowing, voluntary, and intelligent waiver of the right
P14 1of vicinage, and the defendant is charged with one or more property
2crimes in the arresting territory.
3(b) (1) The jurisdiction of a criminal action for unauthorized
4use, retention, or transfer of personal identifying information, as
5defined in subdivision (b) of Section 530.55, shall also include the
6county where the theft of the personal identifying information
7occurred, the county in which the victim resided at the time the
8offense was committed, or the county where the information was
9used for an illegal purpose. If multiple offenses of unauthorized
10use of personal identifying information, either all involving the
11same defendant or defendants and the same personal identifying
12information belonging to the one person, or all involving the same
13defendant or defendants and the same scheme or substantially
14similar activity, occur in multiple jurisdictions, then any of those
15jurisdictions is a proper jurisdiction for all of the offenses.
16Jurisdiction also extends to all associated offenses connected
17together in their commission to the underlying identity theft offense
18or identity theft offenses.
19(2) When charges alleging multiple offenses of unauthorized
20use of personal identifying information occurring in multiple
21territorial jurisdictions are filed in one county pursuant to this
22section, the court shall hold a hearing to consider whether the
23matter should proceed in the county of filing, or whether one or
24more counts should be severed. The district attorney filing the
25complaint shall present evidence to the court that the district
26attorney in each county where any of the charges could have been
27filed has agreed that the matter should proceed in the county of
28filing. In determining whether all counts in the complaint should
29be joined in one county for prosecution, the court shall consider
30the location and complexity of the likely evidence, where the
31majority of the offenses occurred, whether or not the offenses
32involved substantially similar activity or the same scheme, the
33rights of the defendant and the people, and the convenience of, or
34hardship to, the victim and witnesses.
35(3) When an action for unauthorized use, retention, or transfer
36of personal identifying information is filed in the county in which
37the victim resided at the time the offense was committed, and no
38other basis for the jurisdiction applies, the court, upon its own
39motion or the motion of the defendant, shall hold a hearing to
40determine whether the county of the victim’s residence is the proper
P15 1venue for trial of the case. In ruling on the matter, the court shall
2consider the rights of the parties, the access of the parties to
3evidence, the convenience to witnesses, and the interests of justice.
5 This section shall not be interpreted to alter victims’ rights
6under Section 530.6.
Section 1524 of the Penal Code is amended to read:
(a) A search warrant may be issued upon any of the
10(1) When the property was stolen or embezzled.
11(2) When the property or things were used as the means of
12committing a felony.
13(3) When the property or things are in the possession of any
14person with the intent to use them as a means of committing a
15public offense, or in the possession of another to whom he or she
16may have delivered them for the purpose of concealing them or
17preventing them from being discovered.
18(4) When the property or things to be seized consist of any item
19or constitute any evidence that tends to show a felony has been
20committed, or tends to show that a particular person has committed
22(5) When the property or things to be seized consist of evidence
23that tends to show that sexual exploitation of a child, in violation
24of Section 311.3, or possession of matter depicting sexual conduct
25of a person under 18 years of age, in violation of Section 311.11,
26 has occurred or is occurring.
28(6) When there is a warrant to arrest a person.
29(7) When a provider of electronic communication
30remote computing service has records or evidence, as specified in
31Section 1524.3, showing that property was stolen or embezzled
32constituting a misdemeanor, or that property or things are in the
33possession of any person with the intent to use them as a means
34of committing a misdemeanor public offense, or in the possession
35of another to whom he or she may have delivered them for the
36purpose of concealing them or preventing their discovery.
37(8) When the property or things to be seized include an item or
38any evidence that tends to show a violation of Section 3700.5 of
39the Labor Code, or tends to show that a particular person has
40violated Section 3700.5 of the Labor Code.
P17 1(9) When the property or things to be seized include a firearm
2or any other deadly weapon at the scene of, or at the premises
3occupied or under the control of the person arrested in connection
4with, a domestic violence incident involving a threat to human life
5or a physical assault as provided in Section 18250. This section
6does not affect warrantless seizures otherwise authorized by Section
8(10) When the property or things to be seized include a firearm
9or any other deadly weapon that is owned by, or in the possession
10of, or in the custody or control of, a person described in subdivision
11(a) of Section 8102 of the Welfare and Institutions Code.
12(11) When the property or things to be seized include a firearm
13that is owned by, or in the possession of, or in the custody or
14control of, a person who is subject to the prohibitions regarding
15firearms pursuant to Section 6389 of the Family Code, if a
16prohibited firearm is possessed, owned, in the custody of, or
17controlled by a person against whom a protective order has been
18issued pursuant to Section 6218 of the Family Code, the person
19has been lawfully served with that order, and the person has failed
20to relinquish the firearm as required by law.
21(12) When the information to be received from the use of a
22tracking device constitutes evidence that tends to show that either
23a felony, a misdemeanor violation of the Fish and Game Code, or
24a misdemeanor violation of the Public Resources Code has been
25committed or is being committed, tends to show that a particular
26person has committed a felony, a misdemeanor violation of the
27Fish and Game Code, or a misdemeanor violation of the Public
28Resources Code, or is committing a felony, a misdemeanor
29violation of the Fish and Game Code, or a misdemeanor violation
30of the Public Resources Code, or will assist in locating an
31individual who has committed or is committing a felony, a
32misdemeanor violation of the Fish and Game Code, or a
33misdemeanor violation of the Public Resources Code. A tracking
34device search warrant issued pursuant to this paragraph shall be
35executed in a manner meeting the requirements specified in
36subdivision (b) of Section 1534.
37(13) When a sample of the blood of a person constitutes
38evidence that tends to show a violation of Section 23140, 23152,
39or 23153 of the Vehicle Code and the person from whom the
40sample is being sought has refused an officer’s request to submit
P18 1to, or has failed to complete, a blood test as required by Section
223612 of the Vehicle Code, and the sample will be drawn from
3the person in a reasonable, medically approved manner. This
4paragraph is not intended to abrogate a court’s mandate to
5determine the propriety of the issuance of a search warrant on a
7(b) The property, things, person, or persons described in
8subdivision (a) may be taken on the warrant from any place, or
9from any person in whose possession the property or things may
11(c) Notwithstanding subdivision (a) or (b), no search warrant
12shall issue for any documentary evidence in the possession or
13under the control of any person who is a lawyer as defined in
14Section 950 of the Evidence Code, a physician as defined in Section
15990 of the Evidence Code, a psychotherapist as defined in Section
161010 of the Evidence Code, or a member of the clergy as defined
17in Section 1030 of the Evidence Code, and who is not reasonably
18suspected of engaging or having engaged in criminal activity
19related to the documentary evidence for which a warrant is
20requested unless the following procedure has been complied with:
21(1) At the time of the issuance of the warrant, the court shall
22appoint a special master in accordance with subdivision (d) to
23accompany the person who will serve the warrant. Upon service
24of the warrant, the special master shall inform the party served of
25 the specific items being sought and that the party shall have the
26opportunity to provide the items requested. If the party, in the
27judgment of the special master, fails to provide the items requested,
28the special master shall conduct a search for the items in the areas
29indicated in the search warrant.
30(2) (A) If the party who has been served states that an item or
31items should not be disclosed, they shall be sealed by the special
32master and taken to court for a hearing.
33(B) At the hearing, the party searched shall be entitled to raise
34any issues that may be raised pursuant to Section 1538.5 as well
35as a claim that the item or items are privileged, as provided by
36law. The hearing shall be held in the superior court. The court shall
37provide sufficient time for the parties to obtain counsel and make
38any motions or present any evidence. The hearing shall be held
39 within three days of the service of the warrant unless the court
P19 1makes a finding that the expedited hearing is impracticable. In that
2case the matter shall be heard at the earliest possible time.
3(C) If an item or items are taken to court for a hearing, any
4limitations of time prescribed in Chapter 2 (commencing with
5Section 799) of Title 3 of Part 2 shall be tolled from the time of
6the seizure until the final conclusion of the hearing, including any
7associated writ or appellate proceedings.
8(3) The warrant shall, whenever practicable, be served during
9normal business hours. In addition, the warrant shall be served
10upon a party who appears to have possession or control of the
11items sought. If, after reasonable efforts, the party serving the
12warrant is unable to locate the person, the special master shall seal
13and return to the court, for determination by the court, any item
14that appears to be privileged as provided by law.
15(d) (1) As used in this section, a “special master” is an attorney
16who is a member in good standing of the California State Bar and
17who has been selected from a list of qualified attorneys that is
18maintained by the State Bar particularly for the purposes of
19conducting the searches described in this section. These attorneys
20shall serve without compensation. A special master shall be
21considered a public employee, and the governmental entity that
22caused the search warrant to be issued shall be considered the
23employer of the special master and the applicable public entity,
24for purposes of Division 3.6 (commencing with Section 810) of
25Title 1 of the Government Code, relating to claims and actions
26against public entities and public employees. In selecting the
27special master, the court shall make every reasonable effort to
28ensure that the person selected has no relationship with any of the
29parties involved in the pending matter. Any information obtained
30by the special master shall be confidential and may not be divulged
31except in direct response to inquiry by the court.
32(2) In any case in which the magistrate determines that, after
33reasonable efforts have been made to obtain a special master, a
34special master is not available and would not be available within
35a reasonable period of time, the magistrate may direct the party
36seeking the order to conduct the search in the manner described
37in this section in lieu of the special master.
38(e) Any search conducted pursuant to this section by a special
39master may be conducted in a manner that permits the party serving
40the warrant or his or her designee to accompany the special master
P20 1as he or she conducts his or her search. However, that party or his
2or her designee may not participate in the search nor shall he or
3she examine any of the items being searched by the special master
4except upon agreement of the party upon whom the warrant has
6(f) As used in this section, “documentary evidence” includes,
7but is not limited to, writings, documents, blueprints, drawings,
8photographs, computer printouts, microfilms, X-rays, files,
9diagrams, ledgers, books, tapes, audio and video recordings, films,
10and papers of any type or description.
11(g) No warrant shall issue for any item or items described in
12Section 1070 of the Evidence Code.
13(h) Notwithstanding any other law, no claim of attorney work
14product as described in Chapter 4 (commencing with Section
152018.010) of Title 4 of Part 4 of the Code of Civil Procedure shall
16be sustained where there is probable cause to believe that the
17lawyer is engaging or has engaged in criminal activity related to
18the documentary evidence for which a warrant is requested unless
19it is established at the hearing with respect to the documentary
20evidence seized under the warrant that the services of the lawyer
21were not sought or obtained to enable or aid anyone to commit or
22plan to commit a crime or a fraud.
23(i) Nothing in this section is intended to limit an attorney’s
24ability to request an in camera hearing pursuant to the holding of
25the Supreme Court of California in People v. Superior Court (Laff)
26(2001) 25 Cal.4th 703.
27(j) In addition to any other circumstance permitting a magistrate
28to issue a warrant for a person or property in another county, when
29the property or things to be seized consist of any item or constitute
30any evidence that tends to show a violation of Section 530.5, the
31magistrate may issue a warrant to search a person or property
32located in another county if the person whose identifying
33information was taken or used resides in the same county as the
35(k) This section shall not be construed to create a cause of action
36against any foreign or California corporation, its officers,
37employees, agents, or other specified persons for providing location
No reimbursement is required by this act pursuant to
40Section 6 of Article XIII B of the California Constitution because
P21 1the only costs that may be incurred by a local agency or school
2district will be incurred because this act creates a new crime or
3infraction, eliminates a crime or infraction, or changes the penalty
4for a crime or infraction, within the meaning of Section 17556 of
5the Government Code, or changes the definition of a crime within
6the meaning of Section 6 of Article XIII B of the California