Amended in Senate May 6, 2014

Senate BillNo. 1255


Introduced by Senator Cannella

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(Coauthor: Senator Huff)

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(Coauthors: Assembly Members Garcia, Gonzalez, Jones, and Wieckowski)

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February 20, 2014


An act to amend Sections 312.3, 502.01, 647, 786, and 1524 of the Penal Code, relating to disorderly conduct.

LEGISLATIVE COUNSEL’S DIGEST

SB 1255, as amended, 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 distributesbegin delete by any meansend delete an imagebegin insert, as described,end insert of thebegin delete uncovered, or visible through less than fully opaque clothing,end deletebegin insert intimateend insert body part or partsbegin insert, as defined,end insert of another identifiable personbegin delete 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 imageend delete,begin insert or an image of the person depicted engaging in specified sexual acts, under circumstances in which the persons agree or understand that the image remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress,end insert 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:

P3    1

SECTION 1.  

Section 312.3 of the Penal Code is amended to
2read:

3

312.3.  

(a) Matter that depicts (1) a person under 18 years of
4age personally engaging in or personally simulating sexual conduct
5as defined in Section 311.4, or (2) an imagebegin insert used in the commission
6of a crimeend insert
described in subparagraph (A) of paragraph (4) of
7subdivision (j) of Section 647, 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
12counsel, or the city attorney. Proceedings shall be initiated by a
13 petition of forfeiture filed in the superior court of the county in
14which the matter is located.

15(c) The prosecuting agency shall make service of process of a
16notice regarding that petition upon every individual who may have
17a property interest in the alleged proceeds. The notice shall state
18that any interested party may file a verified claim with the superior
19court stating the amount of their claimed interest and an affirmation
20or denial of the prosecuting agency’s allegation. If the notice cannot
21be given by registered mail or personal delivery, the notice shall
22be published for at least three successive weeks in a newspaper of
23general circulation in the county where the property is located. All
24notices shall set forth the time within which a claim of interest in
25the property seized is required to be filed.

26(d) (1) Any person claiming an interest in the property or
27proceeds may, at any time within 30 days from the date of the first
28publication of the notice of seizure, or within 30 days after receipt
29of actual notice, file with the superior court of the county in which
30the action is pending a verified claim stating his or her interest in
31the property or proceeds. A verified copy of the claim shall be
32given by the claimant to the Attorney General or district attorney,
33county counsel, or city attorney, as appropriate.

34(2) If, at the end of the time set forth in paragraph (1), an
35interested person has not filed a claim, the court, upon motion,
36shall declare that the person has defaulted upon his or her alleged
37interest, and it shall be subject to forfeiture upon proof of
38compliance with subdivision (c).

P4    1(e) The burden is on the petitioner to prove beyond a reasonable
2doubt that matter is subject to forfeiture pursuant to this section.

3(f) It is not necessary to seek or obtain a criminal conviction
4prior to the entry of an order for the destruction of matter pursuant
5to this section. Any matter described in subdivision (a) that is in
6the possession of any city, county, city and county, or state official
7or agency, including found property, or property obtained as the
8result of a case in which no trial was had or that has been disposed
9of by way of dismissal or otherwise than by way of conviction
10may be ordered destroyed.

11(g) A court order for destruction of matter described in
12subdivision (a) may be carried out by a police or sheriff’s
13department or by the Department of Justice. The court order shall
14specify the agency responsible for the destruction.

15(h) As used in this section, “matter” means any book, magazine,
16newspaper, or other printed or written material or any picture,
17drawing, photograph, motion picture, or other pictorial
18representation, or anybegin delete statuteend deletebegin insert statueend insert or other figure, or any
19recording, transcription or mechanical, chemical or electrical
20reproduction, or any other articles, equipment, machines, or
21materials. “Matter” also means any representation of information,
22data, or image, including, but not limited to, any film, filmstrip,
23photograph, negative, slide, photocopy, videotape, video laser disc,
24computer hardware, computer software, computer floppy disc,
25data storage media, CD-ROM, or computer-generated equipment
26or any other computer-generated image that contains or
27incorporates in any manner any film or filmstrip.

28(i) This section does not apply to a depiction of a legally
29emancipated minor or to lawful conduct between spouses if one
30or both are underbegin delete the age ofend delete 18begin insert years of ageend insert.

31(j) It is a defense in any forfeiture proceeding that the matter
32seized was lawfully possessed in aid of legitimate scientific or
33educational purposes.

34

SEC. 2.  

Section 502.01 of the Penal Code is amended to read:

35

502.01.  

(a) As used in this section:

36(1) “Property subject to forfeiture” means any property of the
37defendant that is illegal telecommunications equipment as defined
38in subdivision (g) of Section 502.8, or a computer, computer
39system, or computer network, and any software or data residing
40thereon, if the telecommunications device, computer, computer
P5    1system, or computer network was used in committing a violation
2of, or conspiracy to commit a violation of, subdivision (b) of
3Section 272, Section 288, 288.2, 311.1, 311.2, 311.3, 311.4, 311.5,
4311.10, 311.11, 422, 470, 470a, 472, 475, 476, 480, 483.5, 484g,
5or subdivision (a), (b), or (d) of Section 484e, subdivision (a) of
6Section 484f, subdivision (b) or (c) of Section 484i, subdivision
7(c) of Section 502, or Section 502.7, 502.8, 529, 529a, or 530.5,
8537e, 593d, 593e, 646.9, or subparagraph (A) of paragraph (4) of
9subdivision (j) of Section 647, or was used as a repository for the
10storage of software or data obtained in violation of those
11provisions. Forfeiture shall not be available for any property used
12solely in the commission of an infraction. If the defendant is a
13minor, it also includes property of the parent or guardian of the
14defendant.

15(2) “Sentencing court” means the court sentencing a person
16found guilty of violating or conspiring to commit a violation of
17subdivision (b) of Section 272, Section 288, 288.2, 311.1, 311.2,
18311.3, 311.4, 311.5, 311.10, 311.11, 422, 470, 470a, 472, 475,
19476, 480, 483.5, 484g, or subdivision (a), (b), or (d) of Section
20484e, subdivision (d) of Section 484e, subdivision (a) of Section
21484f, subdivision (b) or (c) of Section 484i, subdivision (c) of
22Section 502, or Section 502.7, 502.8, 529, 529a, 530.5, 537e, 593d,
23593e, or 646.9, or, in the case of a minor, found to be a person
24described in Section 602 of the Welfare and Institutions Code
25because of a violation of those provisions, the juvenile court.

26(3) “Interest” means any property interest in the property subject
27to forfeiture.

28(4) “Security interest” means an interest that is a lien, mortgage,
29security interest, or interest under a conditional sales contract.

30(5) “Value” has the following meanings:

31(A) When counterfeit items of computer software are
32manufactured or possessed for sale, the “value” of those items
33shall be equivalent to the retail price or fair market price of the
34true items that are counterfeited.

35(B) When counterfeited but unassembled components of
36computer software packages are recovered, including, but not
37limited to, counterfeited computer diskettes, instruction manuals,
38or licensing envelopes, the “value” of those components of
39computer software packages shall be equivalent to the retail price
P6    1or fair market price of the number of completed computer software
2packages that could have been made from those components.

3(b) The sentencing court shall, upon petition by the prosecuting
4attorney, at any time following sentencing, or by agreement of all
5parties, at the time of sentencing, conduct a hearing to determine
6whether any property or property interest is subject to forfeiture
7under this section. At the forfeiture hearing, the prosecuting
8attorney shall have the burden of establishing, by a preponderance
9of the evidence, that the property or property interests are subject
10to forfeiture. The prosecuting attorney may retain seized property
11that may be subject to forfeiture until the sentencing hearing.

12(c) Prior to the commencement of a forfeiture proceeding, the
13law enforcement agency seizing the property subject to forfeiture
14shall make an investigation as to any person other than the
15defendant who may have an interest in it. At least 30 days before
16the hearing to determine whether the property should be forfeited,
17the prosecuting agency shall send notice of the hearing to any
18person who may have an interest in the property that arose before
19the seizure.

20A person claiming an interest in the property shall file a motion
21for the redemption of that interest at least 10 days before the
22hearing on forfeiture, and shall send a copy of the motion to the
23prosecuting agency and to the probation department.

24If a motion to redeem an interest has been filed, the sentencing
25court shall hold a hearing to identify all persons who possess valid
26interests in the property. No person shall hold a valid interest in
27the property if, by a preponderance of the evidence, the prosecuting
28agency shows that the person knew or should have known that the
29property was being used in violation of, or conspiracy to commit
30a violation of, subdivision (b) of Section 272, Section 288, 288.2,
31311.1, 311.2, 311.3, 311.4, 311.5, 311.10, 311.11, 470, 470a, 472,
32475, 476, 480, 483.5, 484g, or subdivision (a), (b), or (d) of Section
33484e, subdivision (a) of Section 484f, subdivision (b) or (c) of
34Section 484i, subdivision (c) of Section 502, or Section 502.7,
35502.8, 529, 529a, 530.5, 537e, 593d, 593e, or 646.9, and that the
36person did not take reasonable steps to prevent that use, or if the
37interest is a security interest, the person knew or should have
38known at the time that the security interest was created that the
39property would be used for a violation.

P7    1(d) If the sentencing court finds that a person holds a valid
2interest in the property, the following provisions shall apply:

3(1) The court shall determine the value of the property.

4(2) The court shall determine the value of each valid interest in
5the property.

6(3) If the value of the property is greater than the value of the
7interest, the holder of the interest shall be entitled to ownership of
8the property upon paying the court the difference between the
9value of the property and the value of the valid interest.

10If the holder of the interest declines to pay the amount determined
11under paragraph (2), the court may order the property sold and
12designate the prosecutor or any other agency to sell the property.
13The designated agency shall be entitled to seize the property and
14the holder of the interest shall forward any documentation
15underlying the interest, including any ownership certificates for
16that property, to the designated agency. The designated agency
17shall sell the property and pay the owner of the interest the
18proceeds, up to the value of that interest.

19(4) If the value of the property is less than the value of the
20interest, the designated agency shall sell the property and pay the
21owner of the interest the proceeds, up to the value of that interest.

22(e) If the defendant was a minor at the time of the offense, this
23subdivision shall apply to property subject to forfeiture that is the
24property of the parent or guardian of the minor.

25(1) The prosecuting agency shall notify the parent or guardian
26of the forfeiture hearing at least 30 days before the date set for the
27 hearing.

28(2) The computer or telecommunications device shall not be
29subject to forfeiture if the parent or guardian files a signed
30statement with the court at least 10 days before the date set for the
31hearing that the minor shall not have access to any computer or
32telecommunications device owned by the parent or guardian for
33two years after the date on which the minor is sentenced.

34(3) If the minor is convicted of a violation of Section 288, 288.2,
35311.1, 311.2, 311.3, 311.4, 311.5, 311.10, 311.11, 470, 470a, 472,
36476, 480, or subdivision (b) of Section 484e, subdivision (d) of
37Section 484e, subdivision (a) of Section 484f, subdivision (b) of
38Section 484i, subdivision (c) of Section 502, or Section 502.7,
39502.8, 529, 529a, or 530.5, within two years after the date on which
40the minor is sentenced, and the violation involves a computer or
P8    1telecommunications device owned by the parent or guardian, the
2original property subject to forfeiture, and the property involved
3in the new offense, shall be subject to forfeiture notwithstanding
4paragraph (2).

5(4) Notwithstanding paragraph (1), (2), or (3), or any other
6provision of this chapter, if a minor’s parent or guardian makes
7full restitution to the victim of a crime enumerated in this chapter
8in an amount or manner determined by the court, the forfeiture
9provisions of this chapter do not apply to the property of that parent
10or guardian if the property was located in the family’s primary
11residence during the commission of the crime.

12(f) Notwithstanding any other provision of this chapter, the court
13may exercise its discretion to deny forfeiture where the court finds
14that the convicted defendant, or minor adjudicated to come within
15the jurisdiction of the juvenile court, is not likely to use the
16property otherwise subject to forfeiture for future illegal acts.

17(g) If the defendant is found to have the only valid interest in
18the property subject to forfeiture, it shall be distributed as follows:

19(1) First, to the victim, if the victim elects to take the property
20as full or partial restitution for injury, victim expenditures, or
21compensatory damages, as defined in paragraph (1) of subdivision
22(e) of Section 502. If the victim elects to receive the property under
23this paragraph, the value of the property shall be determined by
24the court and that amount shall be credited against the restitution
25owed by the defendant. The victim shall not be penalized for
26electing not to accept the forfeited property in lieu of full or partial
27restitution.

28(2) Second, at the discretion of the court, to one or more of the
29following agencies or entities:

30(A) The prosecuting agency.

31(B) The public entity of which the prosecuting agency is a part.

32(C) The public entity whose officers or employees conducted
33the investigation resulting in forfeiture.

34(D) Other state and local public entities, including school
35districts.

36(E) Nonprofit charitable organizations.

37(h) If the property is to be sold, the court may designate the
38prosecuting agency or any other agency to sell the property at
39auction. The proceeds of the sale shall be distributed by the court
40as follows:

P9    1(1) To the bona fide or innocent purchaser or encumbrancer,
2conditional sales vendor, or mortgagee of the property up to the
3amount of his or her interest in the property, if the court orders a
4distribution to that person.

5(2) The balance, if any, to be retained by the court, subject to
6the provisions for distribution under subdivision (g).

7

SEC. 3.  

Section 647 of the Penal Code is amended to read:

8

647.  

Except as provided in subdivision (l), every person who
9commits any of the following acts is guilty of disorderly conduct,
10a misdemeanor:

11(a) Who solicits anyone to engage in or who engages in lewd
12or dissolute conduct in any public place or in any place open to
13the public or exposed to public view.

14(b) Who solicits or who agrees to engage in or who engages in
15any act of prostitution. A person agrees to engage in an act of
16prostitution when, with specific intent to so engage, he or she
17manifests an acceptance of an offer or solicitation to so engage,
18regardless of whether the offer or solicitation was made by a person
19who also possessed the specific intent to engage in prostitution.
20No agreement to engage in an act of prostitution shall constitute
21a violation of this subdivision unless some act, in addition to the
22agreement, is done within this state in furtherance of the
23commission of an act of prostitution by the person agreeing to
24engage in that act. As used in this subdivision, “prostitution”
25includes any lewd act between persons for money or other
26consideration.

27(c) Who accosts other persons in any public place or in any
28place open to the public for the purpose of begging or soliciting
29alms.

30(d) Who loiters in or about any toilet open to the public for the
31purpose of engaging in or soliciting any lewd or lascivious or any
32unlawful act.

33(e) Who lodges in any building, structure, vehicle, or place,
34whether public or private, without the permission of the owner or
35person entitled to the possession or in control of it.

36(f) Who is found in any public place under the influence of
37intoxicating liquor, any drug, controlled substance, toluene, or any
38combination of any intoxicating liquor, drug, controlled substance,
39or toluene, in a condition that he or she is unable to exercise care
40for his or her own safety or the safety of others, or by reason of
P10   1his or her being under the influence of intoxicating liquor, any
2drug, controlled substance, toluene, or any combination of any
3intoxicating liquor, drug, or toluene, interferes with or obstructs
4or prevents the free use of any street, sidewalk, or other public
5way.

6(g) When a person has violated subdivision (f), a peace officer,
7if he or she is reasonably able to do so, shall place the person, or
8cause him or her to be placed, in civil protective custody. The
9person shall be taken to a facility, designated pursuant to Section
105170 of the Welfare and Institutions Code, for the 72-hour
11treatment and evaluation of inebriates. A peace officer may place
12a person in civil protective custody with that kind and degree of
13force which would be lawful were he or she effecting an arrest for
14a misdemeanor without a warrant. A person who has been placed
15in civil protective custody shall not thereafter be subject to any
16criminal prosecution or juvenile court proceeding based on the
17facts giving rise to this placement. This subdivision shall not apply
18to the following persons:

19(1) Any person who is under the influence of any drug, or under
20the combined influence of intoxicating liquor and any drug.

21(2) Any person who a peace officer has probable cause to believe
22has committed any felony, or who has committed any misdemeanor
23in addition to subdivision (f).

24(3) Any person who a peace officer in good faith believes will
25attempt escape or will be unreasonably difficult for medical
26personnel to control.

27(h) Who loiters, prowls, or wanders upon the private property
28of another, at any time, without visible or lawful business with the
29owner or occupant. As used in this subdivision, “loiter” means to
30delay or linger without a lawful purpose for being on the property
31and for the purpose of committing a crime as opportunity may be
32discovered.

33(i) Who, while loitering, prowling, or wandering upon the private
34property of another, at any time, peeks in the door or window of
35any inhabited building or structure, without visible or lawful
36business with the owner or occupant.

37(j) (1) Any person who looks through a hole or opening, into,
38or otherwise views, by means of any instrumentality, including,
39but not limited to, a periscope, telescope, binoculars, camera,
40motion picture camera, camcorder, or mobile phone, the interior
P11   1of a bedroom, bathroom, changing room, fitting room, dressing
2room, or tanning booth, or the interior of any other area in which
3the occupant has a reasonable expectation of privacy, with the
4intent to invade the privacy of a person or persons inside. This
5subdivision shall not apply to those areas of a private business
6used to count currency or other negotiable instruments.

7(2) Any person who uses a concealed camcorder, motion picture
8camera, or photographic camera of any type, to secretly videotape,
9film, photograph, or record by electronic means, another,
10identifiable person under or through the clothing being worn by
11that other person, for the purpose of viewing the body of, or the
12undergarments worn by, that other person, without the consent or
13knowledge of that other person, with the intent to arouse, appeal
14to, or gratify the lust, passions, or sexual desires of that person and
15invade the privacy of that other person, under circumstances in
16which the other person has a reasonable expectation of privacy.

17(3) (A) Any person who uses a concealed camcorder, motion
18picture camera, or photographic camera of any type, to secretly
19videotape, film, photograph, or record by electronic means, another,
20identifiable person who may be in a state of full or partial undress,
21for the purpose of viewing the body of, or the undergarments worn
22by, that other person, without the consent or knowledge of that
23other person, in the interior of a bedroom, bathroom, changing
24room, fitting room, dressing room, or tanning booth, or the interior
25of any other area in which that other person has a reasonable
26expectation of privacy, with the intent to invade the privacy of that
27other person.

28(B) Neither of the following is a defense to the crime specified
29in this paragraph:

30(i) The defendant was a cohabitant, landlord, tenant, cotenant,
31employer, employee, or business partner or associate of the victim,
32or an agent of any of these.

33(ii) The victim was not in a state of full or partial undress.

34(4) (A) Any person who intentionally distributesbegin delete by any meansend delete
35 the image ofbegin insert the intimate body part or partsend insertbegin insert of end insertanother identifiable
36personbegin delete whose intimate body part or parts are either uncovered or
37visible through less than fully opaque clothing or who is engaged
38in a sexual act, without the consent of the depictedend delete
begin insert, or an image
39of the person depicted engaged in an act of sexual intercourse,
40sodomy, oral copulation, sexual penetration, or an image of
P12   1masturbation by the person depicted or in which the person
2depicted participates, under circumstances in which the persons
3agree or understand that the image shall remain private, the person
4distributing the image knows or should know that distribution of
5the image will cause serious emotional distress, and the person
6depicted suffers that distressend insert
.

7(B) begin deleteFor purposes of this paragraph, the following definitions
8apply:end delete
begin insertA person intentionally distributes an image described in
9subparagraph (A) when he or she personally distributes the image,
10or arranges, specifically requests, or intentionally causes another
11person to distribute that image.end insert

begin delete

12(i)

end delete

13begin insert(C)end insertbegin delete“Intimate end deletebegin insertAs used in this paragraph, “intimateend insertbegin insert end insertbody part”
14means any portion of the genitals,begin insert the anus,end insert and in the case of a
15female, also includes any portion of the breasts below the top of
16the areolabegin insert, that is either uncovered or clearly visible through
17clothingend insert
.

begin delete

18(ii) “Sexual act” means sexual intercourse, including genital,
19anal, or oral sex, or physical contact with another person’s intimate
20body part or parts.

end delete
begin insert

21(D) Nothing in this subdivision precludes punishment under
22any law providing for greater punishment.

end insert
begin insert

23(E) When a person is granted probation for a conviction under
24this paragraph, it shall be a condition of probation that the person
25destroy any physical image and permanently delete any digital
26image involved in the offense or that could be the basis of a
27prosecution under this paragraph, if distributed.

end insert
begin insert

28(F) A court may impose any reasonable condition of probation
29limiting or restricting the person’s use of any device for the
30creation, storage, or distribution of digital images.

end insert
begin delete

31(C)

end delete

32begin insert(G)end insert It shall not be a violation of this paragraph to distribute an
33image described in subparagraph (A) if any of the following
34applies:

35(i) The distribution is made in the course of reporting an
36unlawful activity.

37(ii) The distribution is made in compliance with a subpoena or
38other court order for use in a legal proceeding.

begin delete

39(iii) The image was captured in a public or commercial setting
40and the person depicted in the image voluntarily exposed his or
P13   1her intimate body part or parts or voluntarily engaged in a sexual
2act.

end delete
begin delete

3(iv)

end delete

4begin insert(iii)end insert The distribution is made in the course of a lawful public
5proceeding.

6(5) Nothing in this subdivision precludes punishment under any
7section of law providing for greater punishment.

8(k) In any accusatory pleading charging a violation of
9subdivision (b), if the defendant has been once previously convicted
10of a violation of that subdivision, the previous conviction shall be
11charged in the accusatory pleading. If the previous conviction is
12found to be true by the jury, upon a jury trial, or by the court, upon
13a court trial, or is admitted by the defendant, the defendant shall
14be imprisoned in a county jail for a period of not less than 45 days
15and shall not be eligible for release upon completion of sentence,
16 on probation, on parole, on work furlough or work release, or on
17any other basis until he or she has served a period of not less than
1845 days in a county jail. In all cases in which probation is granted,
19the court shall require as a condition thereof that the person be
20confined in a county jail for at least 45 days. In no event does the
21court have the power to absolve a person who violates this
22subdivision from the obligation of spending at least 45 days in
23confinement in a county jail.

24In any accusatory pleading charging a violation of subdivision
25(b), if the defendant has been previously convicted two or more
26times of a violation of that subdivision, each of these previous
27convictions shall be charged in the accusatory pleading. If two or
28more of these previous convictions are found to be true by the jury,
29upon a jury trial, or by the court, upon a court trial, or are admitted
30by the defendant, the defendant shall be imprisoned in a county
31jail for a period of not less than 90 days and shall not be eligible
32for release upon completion of sentence, on probation, on parole,
33on work furlough or work release, or on any other basis until he
34or she has served a period of not less than 90 days in a county jail.
35In all cases in which probation is granted, the court shall require
36as a condition thereof that the person be confined in a county jail
37for at least 90 days. In no event does the court have the power to
38absolve a person who violates this subdivision from the obligation
39of spending at least 90 days in confinement in a county jail.

P14   1In addition to any punishment prescribed by this section, a court
2may suspend, for not more than 30 days, the privilege of the person
3to operate a motor vehicle pursuant to Section 13201.5 of the
4Vehicle Code for any violation of subdivision (b) that was
5committed within 1,000 feet of a private residence and with the
6use of a vehicle. In lieu of the suspension, the court may order a
7person’s privilege to operate a motor vehicle restricted, for not
8more than six months, to necessary travel to and from the person’s
9place of employment or education. If driving a motor vehicle is
10necessary to perform the duties of the person’s employment, the
11court may also allow the person to drive in that person’s scope of
12employment.

13(l) (1) A second or subsequent violation of subdivision (j) is
14punishable by imprisonment in a county jail not exceeding one
15year, or by a fine not exceeding two thousand dollars ($2,000), or
16by both that fine and imprisonment.

17(2) If the victim of a violation of subdivision (j) was a minor at
18the time of the offense, the violation is punishable by imprisonment
19in a county jail not exceeding one year, or by a fine not exceeding
20two thousand dollars ($2,000), or by both that fine and
21imprisonment.

22

SEC. 4.  

Section 786 of the Penal Code is amended to read:

23

786.  

(a) When property taken in one jurisdictional territory
24by burglary, carjacking, robbery, theft, or embezzlement has been
25brought into another, or when property is received in one
26jurisdictional territory with the knowledge that it has been stolen
27or embezzled and the property was stolen or embezzled in another
28jurisdictional territory, the jurisdiction of the offense is in any
29competent court within either jurisdictional territory, or any
30contiguous jurisdictional territory if the arrest is made within the
31contiguous territory, the prosecution secures on the record the
32defendant’s knowing, voluntary, and intelligent waiver of the right
33of vicinage, and the defendant is charged with one or more property
34crimes in the arresting territory.

35(b) (1) The jurisdiction of a criminal action for unauthorized
36use, retention, or transfer of personal identifying information, as
37defined in subdivision (b) of Section 530.55, shall also include the
38county where the theft of the personal identifying information
39occurred, the county in which the victim resided at the time the
40offense was committed, or the county where the information was
P15   1used for an illegal purpose. If multiple offenses of unauthorized
2use of personal identifying information, either all involving the
3same defendant or defendants and the same personal identifying
4information belonging to the one person, or all involving the same
5defendant or defendants and the same scheme or substantially
6similar activity, occur in multiple jurisdictions, then any of those
7jurisdictions is a proper jurisdiction for all of the offenses.
8Jurisdiction also extends to all associated offenses connected
9together in their commission to the underlying identity theft offense
10or identity theft offenses.

11(2) When charges alleging multiple offenses of unauthorized
12use of personal identifying information occurring in multiple
13territorial jurisdictions are filed in one county pursuant to this
14section, the court shall hold a hearing to consider whether the
15matter should proceed in the county of filing, or whether one or
16more counts should be severed. The district attorney filing the
17complaint shall present evidence to the court that the district
18attorney in each county where any of the charges could have been
19filed has agreed that the matter should proceed in the county of
20filing. In determining whether all counts in the complaint should
21be joined in one county for prosecution, the court shall consider
22the location and complexity of the likely evidence, where the
23majority of the offenses occurred, whether or not the offenses
24involved substantially similar activity or the same scheme, the
25rights of the defendant and the people, and the convenience of, or
26hardship to, the victim and witnesses.

27(3) When an action for unauthorized use, retention, or transfer
28of personal identifying information is filed in the county in which
29the victim resided at the time the offense was committed, and no
30other basis for the jurisdiction applies, the court, upon its own
31motion or the motion of the defendant, shall hold a hearing to
32determine whether the county of the victim’s residence is the proper
33venue for trial of the case. In ruling on the matter, the court shall
34consider the rights of the parties, the access of the parties to
35evidence, the convenience to witnesses, and the interests of justice.

36(c) (1) The jurisdiction of a criminal action for unauthorized
37distribution of an intimate image under paragraph (4) of subdivision
38(j) of Section 647 shall also include the county in which the offense
39occurred, the county in which the victim resided at the time the
40offense was committed, or the county in which the intimate image
P16   1was used for an illegal purpose. If multiple offenses of
2unauthorized distribution of an intimate image, either all involving
3the same defendant or defendants and the same intimate image
4belonging to the one person, or all involving the same defendant
5or defendants and the same scheme or substantially similar activity,
6occur in multiple jurisdictions, then any of those jurisdictions is a
7proper jurisdiction for all of the offenses. Jurisdiction also extends
8to all associated offenses connected together in their commission
9to the underlying unauthorized distribution of an intimate image.

10(2) When charges alleging multiple offenses of unauthorized
11distribution of an intimate image occurring in multiple territorial
12jurisdictions are filed in one county pursuant to this section, the
13court shall hold a hearing to consider whether the matter should
14proceed in the county of filing, or whether one or more counts
15should be severed. The district attorney filing the complaint shall
16present evidence to the court that the district attorney in each
17county where any of the charges could have been filed has agreed
18that the matter should proceed in the county of filing. In
19determining whether all counts in the complaint should be joined
20in one county for prosecution, the court shall consider the location
21and complexity of the likely evidence, where the majority of the
22offenses occurred, whether the offenses involved substantially
23similar activity or the same scheme, the rights of the defendant
24and the people, and the convenience of, or hardship to, the victim
25and witnesses.

26(3) When an action for unauthorized distribution of an intimate
27image is filed in the county in which the victim resided at the time
28the offense was committed, and no other basis for the jurisdiction
29applies, the court, upon its own motion or the motion of the
30defendant, shall hold a hearing to determine whether the county
31of the victim’s residence is the proper venue for trial of the case.
32In ruling on the matter, the court shall consider the rights of the
33parties, the access of the parties to evidence, the convenience to
34witnesses, and the interests of justice.

35(d) This section shall not be interpreted to alter victims’ rights
36under Section 530.6.

37

SEC. 5.  

Section 1524 of the Penal Code is amended to read:

38

1524.  

(a) A search warrant may be issued upon any of the
39following grounds:

40(1) When the property was stolen or embezzled.

P17   1(2) When the property or things were used as the means of
2committing a felony.

3(3) When the property or things are in the possession of any
4person with the intent to use them as a means of committing a
5public offense, or in the possession of another to whom he or she
6may have delivered them for the purpose of concealing them or
7preventing them from being discovered.

8(4) When the property or things to be seized consist of any item
9or constitute any evidence that tends to show a felony has been
10committed, or tends to show that a particular person has committed
11a felony.

12(5) When the property or things to be seized consist of evidence
13that tends to show that sexual exploitation of a child, in violation
14of Section 311.3, or possession of matter depicting sexual conduct
15of a person under 18 years of age, in violation of Section 311.11,
16or intentional distribution of an image, in violation of paragraph
17(4) of subdivision (j) of Section 647, has occurred or is occurring.

18(6) When there is a warrant to arrest a person.

19(7) When a provider of electronic communication service or
20remote computing service has records or evidence, as specified in
21Section 1524.3, showing that property was stolen or embezzled
22constituting a misdemeanor, or that property or things are in the
23possession of any person with the intent to use them as a means
24of committing a misdemeanor public offense, or in the possession
25of another to whom he or she may have delivered them for the
26purpose of concealing them or preventing their discovery.

27(8) When the property or things to be seized include an item or
28any evidence that tends to show a violation of Section 3700.5 of
29the Labor Code, or tends to show that a particular person has
30violated Section 3700.5 of the Labor Code.

31(9) When the property or things to be seized include a firearm
32or any other deadly weapon at the scene of, or at the premises
33occupied or under the control of the person arrested in connection
34with, a domestic violence incident involving a threat to human life
35or a physical assault as provided in Section 18250. This section
36does not affect warrantless seizures otherwise authorized by Section
3718250.

38(10) When the property or things to be seized include a firearm
39 or any other deadly weapon that is owned by, or in the possession
P18   1of, or in the custody or control of, a person described in subdivision
2(a) of Section 8102 of the Welfare and Institutions Code.

3(11) When the property or things to be seized include a firearm
4that is owned by, or in the possession of, or in the custody or
5control of, a person who is subject to the prohibitions regarding
6firearms pursuant to Section 6389 of the Family Code, if a
7prohibited firearm is possessed, owned, in the custody of, or
8controlled by a person against whom a protective order has been
9issued pursuant to Section 6218 of the Family Code, the person
10has been lawfully served with that order, and the person has failed
11to relinquish the firearm as required by law.

12(12) When the information to be received from the use of a
13tracking device constitutes evidence that tends to show that either
14a felony, a misdemeanor violation of the Fish and Game Code, or
15a misdemeanor violation of the Public Resources Code has been
16committed or is being committed, tends to show that a particular
17person has committed a felony, a misdemeanor violation of the
18Fish and Game Code, or a misdemeanor violation of the Public
19Resources Code, or is committing a felony, a misdemeanor
20violation of the Fish and Game Code, or a misdemeanor violation
21of the Public Resources Code, or will assist in locating an
22individual who has committed or is committing a felony, a
23misdemeanor violation of the Fish and Game Code, or a
24misdemeanor violation of the Public Resources Code. A tracking
25device search warrant issued pursuant to this paragraph shall be
26executed in a manner meeting the requirements specified in
27subdivision (b) of Section 1534.

28(13) When a sample of the blood of a person constitutes
29evidence that tends to show a violation of Section 23140, 23152,
30or 23153 of the Vehicle Code and the person from whom the
31sample is being sought has refused an officer’s request to submit
32to, or has failed to complete, a blood test as required by Section
3323612 of the Vehicle Code, and the sample will be drawn from
34the person in a reasonable, medically approved manner. This
35paragraph is not intended to abrogate a court’s mandate to
36determine the propriety of the issuance of a search warrant on a
37case-by-case basis.

38(b) The property, things, person, or persons described in
39subdivision (a) may be taken on the warrant from any place, or
P19   1from any person in whose possession the property or things may
2be.

3(c) Notwithstanding subdivision (a) or (b), no search warrant
4shall issue for any documentary evidence in the possession or
5under the control of any person who is a lawyer as defined in
6Section 950 of the Evidence Code, a physician as defined in Section
7990 of the Evidence Code, a psychotherapist as defined in Section
81010 of the Evidence Code, or a member of the clergy as defined
9in Section 1030 of the Evidence Code, and who is not reasonably
10suspected of engaging or having engaged in criminal activity
11related to the documentary evidence for which a warrant is
12requested unless the following procedure has been complied with:

13(1) At the time of the issuance of the warrant, the court shall
14appoint a special master in accordance with subdivision (d) to
15accompany the person who will serve the warrant. Upon service
16of the warrant, the special master shall inform the party served of
17the specific items being sought and that the party shall have the
18opportunity to provide the items requested. If the party, in the
19judgment of the special master, fails to provide the items requested,
20the special master shall conduct a search for the items in the areas
21indicated in the search warrant.

22(2) (A) If the party who has been served states that an item or
23items should not be disclosed, they shall be sealed by the special
24master and taken to court for a hearing.

25(B) At the hearing, the party searched shall be entitled to raise
26any issues that may be raised pursuant to Section 1538.5 as well
27as a claim that the item or items are privileged, as provided by
28law. The hearing shall be held in the superior court. The court shall
29provide sufficient time for the parties to obtain counsel and make
30any motions or present any evidence. The hearing shall be held
31within three days of the service of the warrant unless the court
32makes a finding that the expedited hearing is impracticable. In that
33case the matter shall be heard at the earliest possible time.

34(C) If an item or items are taken to court for a hearing, any
35limitations of time prescribed in Chapter 2 (commencing with
36Section 799) of Title 3 of Part 2 shall be tolled from the time of
37the seizure until the final conclusion of the hearing, including any
38associated writ or appellate proceedings.

39(3) The warrant shall, whenever practicable, be served during
40normal business hours. In addition, the warrant shall be served
P20   1upon a party who appears to have possession or control of the
2items sought. If, after reasonable efforts, the party serving the
3warrant is unable to locate the person, the special master shall seal
4and return to the court, for determination by the court, any item
5that appears to be privileged as provided by law.

6(d) (1) As used in this section, a “special master” is an attorney
7 who is a member in good standing of the California State Bar and
8who has been selected from a list of qualified attorneys that is
9maintained by the State Bar particularly for the purposes of
10conducting the searches described in this section. These attorneys
11shall serve without compensation. A special master shall be
12considered a public employee, and the governmental entity that
13caused the search warrant to be issued shall be considered the
14employer of the special master and the applicable public entity,
15 for purposes of Division 3.6 (commencing with Section 810) of
16Title 1 of the Government Code, relating to claims and actions
17against public entities and public employees. In selecting the
18special master, the court shall make every reasonable effort to
19ensure that the person selected has no relationship with any of the
20parties involved in the pending matter. Any information obtained
21by the special master shall be confidential and may not be divulged
22except in direct response to inquiry by the court.

23(2) In any case in which the magistrate determines that, after
24reasonable efforts have been made to obtain a special master, a
25special master is not available and would not be available within
26a reasonable period of time, the magistrate may direct the party
27seeking the order to conduct the search in the manner described
28in this section in lieu of the special master.

29(e) Any search conducted pursuant to this section by a special
30master may be conducted in a manner that permits the party serving
31the warrant or his or her designee to accompany the special master
32as he or she conducts his or her search. However, that party or his
33or her designee may not participate in the search nor shall he or
34she examine any of the items being searched by the special master
35except upon agreement of the party upon whom the warrant has
36been served.

37(f) As used in this section, “documentary evidence” includes,
38but is not limited to, writings, documents, blueprints, drawings,
39photographs, computer printouts, microfilms, X-rays, files,
P21   1diagrams, ledgers, books, tapes, audio and video recordings, films,
2and papers of any type or description.

3(g) No warrant shall issue for any item or items described in
4Section 1070 of the Evidence Code.

5(h) Notwithstanding any other law, no claim of attorney work
6product as described in Chapter 4 (commencing with Section
72018.010) of Title 4 of Part 4 of the Code of Civil Procedure shall
8be sustained where there is probable cause to believe that the
9lawyer is engaging or has engaged in criminal activity related to
10the documentary evidence for which a warrant is requested unless
11it is established at the hearing with respect to the documentary
12evidence seized under the warrant that the services of the lawyer
13were not sought or obtained to enable or aid anyone to commit or
14plan to commit a crime or a fraud.

15(i) Nothing in this section is intended to limit an attorney’s
16ability to request an in camera hearing pursuant to the holding of
17the Supreme Court of California in People v. Superior Court (Laff)
18(2001) 25 Cal.4th 703.

19(j) In addition to any other circumstance permitting a magistrate
20to issue a warrant for a person or property in another county, when
21the property or things to be seized consist of any item or constitute
22any evidence that tends to show a violation of Section 530.5, the
23magistrate may issue a warrant to search a person or property
24located in another county if the person whose identifying
25information was taken or used resides in the same county as the
26issuing court.

27(k) This section shall not be construed to create a cause of action
28against any foreign or California corporation, its officers,
29employees, agents, or other specified persons for providing location
30information.

31

SEC. 6.  

No reimbursement is required by this act pursuant to
32Section 6 of Article XIII B of the California Constitution because
33the only costs that may be incurred by a local agency or school
34district will be incurred because this act creates a new crime or
35infraction, eliminates a crime or infraction, or changes the penalty
36for a crime or infraction, within the meaning of Section 17556 of
37the Government Code, or changes the definition of a crime within
38the meaning of Section 6 of Article XIII B of the California
39Constitution.


CORRECTIONS:

Text--Page 12.




O

Corrected 5-8-14—See last page.     98