Amended in Assembly June 26, 2014

Amended in Senate May 6, 2014

Senate Bill No. 1255

Introduced by Senator Cannella

(Coauthor: Senator Huff)

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

February 20, 2014

An act to amend begin delete Sections 312.3, 502.01, 647, 786, and 1524 end delete begin insert Section 647 end insert 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 distributes an image, as described, of the intimate body part or parts, as defined, of another identifiable person, 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, 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.

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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.

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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.

end delete begin delete

This bill would apply those provisions to the disorderly conduct described above.

end delete

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:

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SECTION 1.  

Section 312.3 of the Penal Code is amended to
read:

312.3.  

(a) Matter that depicts (1) a person under 18 years of
age personally engaging in or personally simulating sexual conduct
as defined in Section 311.4, or (2) an image used in the commission
of a crime described in subparagraph (A) of paragraph (4) of
subdivision (j) of Section 647, and that is in the possession of any
city, county, city and county, or state official or agency is subject
to forfeiture pursuant to this section.

(b) An action to forfeit matter described in subdivision (a) may
be brought by the Attorney General, the district attorney, county
counsel, or the city attorney. Proceedings shall be initiated by a
petition of forfeiture filed in the superior court of the county in
which the matter is located.

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

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

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

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

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

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

(h) As used in this section, “matter” means any book, magazine,
newspaper, or other printed or written material or any picture,
drawing, photograph, motion picture, or other pictorial
representation, or any statue or other figure, or any recording,
transcription or mechanical, chemical or electrical reproduction,
or any other articles, equipment, machines, or materials. “Matter”
also means any representation of information, data, or image,
including, but not limited to, any film, filmstrip, photograph,
negative, slide, photocopy, videotape, video laser disc, computer
hardware, computer software, computer floppy disc, data storage
media, CD-ROM, or computer-generated equipment or any other
computer-generated image that contains or incorporates in any
manner any film or filmstrip.

(i) This section does not apply to a depiction of a legally
emancipated minor or to lawful conduct between spouses if one
or both are under 18 years of age.

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

SEC. 2.  

Section 502.01 of the Penal Code is amended to read:

502.01.  

(a) As used in this section:

(1) “Property subject to forfeiture” means any property of the
defendant that is illegal telecommunications equipment as defined
in subdivision (g) of Section 502.8, or a computer, computer
system, or computer network, and any software or data residing
thereon, if the telecommunications device, computer, computer
system, or computer network was used in committing a violation
of, or conspiracy to commit a violation of, subdivision (b) of
Section 272, Section 288, 288.2, 311.1, 311.2, 311.3, 311.4, 311.5,
311.10, 311.11, 422, 470, 470a, 472, 475, 476, 480, 483.5, 484g,
or subdivision (a), (b), or (d) of Section 484e, subdivision (a) of
Section 484f, subdivision (b) or (c) of Section 484i, subdivision
(c) of Section 502, or Section 502.7, 502.8, 529, 529a, or 530.5,
537e, 593d, 593e, 646.9, or subparagraph (A) of paragraph (4) of
subdivision (j) of Section 647, or was used as a repository for the
storage of software or data obtained in violation of those
provisions. Forfeiture shall not be available for any property used
solely in the commission of an infraction. If the defendant is a
minor, it also includes property of the parent or guardian of the
defendant.

(2) “Sentencing court” means the court sentencing a person
found guilty of violating or conspiring to commit a violation of
subdivision (b) of Section 272, Section 288, 288.2, 311.1, 311.2,
311.3, 311.4, 311.5, 311.10, 311.11, 422, 470, 470a, 472, 475,
476, 480, 483.5, 484g, or subdivision (a), (b), or (d) of Section
484e, subdivision (d) of Section 484e, subdivision (a) of Section
484f, subdivision (b) or (c) of Section 484i, subdivision (c) of
Section 502, or Section 502.7, 502.8, 529, 529a, 530.5, 537e, 593d,
593e, or 646.9, or, in the case of a minor, found to be a person
described in Section 602 of the Welfare and Institutions Code
because of a violation of those provisions, the juvenile court.

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

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

(5) “Value” has the following meanings:

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

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

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

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

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

If a motion to redeem an interest has been filed, the sentencing
court shall hold a hearing to identify all persons who possess valid
interests in the property. No person shall hold a valid interest in
the property if, by a preponderance of the evidence, the prosecuting
agency shows that the person knew or should have known that the
property was being used in violation of, or conspiracy to commit
a violation of, subdivision (b) of Section 272, Section 288, 288.2,
311.1, 311.2, 311.3, 311.4, 311.5, 311.10, 311.11, 470, 470a, 472,
475, 476, 480, 483.5, 484g, or subdivision (a), (b), or (d) of Section
484e, subdivision (a) of Section 484f, subdivision (b) or (c) of
Section 484i, subdivision (c) of Section 502, or Section 502.7,
502.8, 529, 529a, 530.5, 537e, 593d, 593e, or 646.9, and that the
person did not take reasonable steps to prevent that use, or if the
interest is a security interest, the person knew or should have
known at the time that the security interest was created that the
property would be used for a violation.

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

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

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

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

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

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

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

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

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

(3) If the minor is convicted of a violation of Section 288, 288.2,
311.1, 311.2, 311.3, 311.4, 311.5, 311.10, 311.11, 470, 470a, 472,
476, 480, or subdivision (b) of Section 484e, subdivision (d) of
Section 484e, subdivision (a) of Section 484f, subdivision (b) of
Section 484i, subdivision (c) of Section 502, or Section 502.7,
502.8, 529, 529a, or 530.5, within two years after the date on which
the minor is sentenced, and the violation involves a computer or
telecommunications device owned by the parent or guardian, the
original property subject to forfeiture, and the property involved
in the new offense, shall be subject to forfeiture notwithstanding
paragraph (2).

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

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

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

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

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

(A) The prosecuting agency.

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

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

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

(E) Nonprofit charitable organizations.

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

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

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

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begin delete SEC. 3. end delete
begin insert SECTION 1. end insert   

Section 647 of the Penal Code is amended to read:

647.  

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

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

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

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

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

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

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

(g) When a person has violated subdivision (f), a peace officer,
if he or she is reasonably able to do so, shall place the person, or
cause him or her to be placed, in civil protective custody. The
person shall be taken to a facility, designated pursuant to Section
5170 of the Welfare and Institutions Code, for the 72-hour
treatment and evaluation of inebriates. A peace officer may place
a person in civil protective custody with that kind and degree of
force which would be lawful were he or she effecting an arrest for
a misdemeanor without a warrant. A person who has been placed
in civil protective custody shall not thereafter be subject to any
criminal prosecution or juvenile court proceeding based on the
facts giving rise to this placement. This subdivision shall not apply
to the following persons:

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

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

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

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

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

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

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

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

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

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

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

(4) (A) Any person who intentionally distributes the image of
the intimate body part or parts of another identifiable person, or
an image of the person depicted engaged in an act of sexual
intercourse, sodomy, oral copulation, sexual penetration, or an
image of masturbation by the person depicted or in which the
person depicted participates, under circumstances in which the
persons agree or understand that the image shall 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.

(B) A person intentionally distributes an image described in
subparagraph (A) when he or she personally distributes the image,
or arranges, specifically requests, or intentionally causes another
person to distribute that image.

(C) As used in this paragraph, “intimate body part” means any
portion of the genitals, the anus, and in the case of a female, also
includes any portion of the breasts below the top of the areola, that
is either uncovered or clearly visible through clothing.

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

end delete begin delete

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

end delete begin delete

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

end delete begin delete

(G)

end delete

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

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

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

(iii) The distribution is made in the course of a lawful public
proceeding.

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

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

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

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

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

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

begin delete

SEC. 4.  

Section 786 of the Penal Code is amended to read:

786.  

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

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

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

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

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

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

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

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

SEC. 5.  

Section 1524 of the Penal Code is amended to read:

1524.  

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

(1) When the property was stolen or embezzled.

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

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

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

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

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

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

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

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

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

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

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

(13) When a sample of the blood of a person constitutes
evidence that tends to show a violation of Section 23140, 23152,
or 23153 of the Vehicle Code and the person from whom the
sample is being sought has refused an officer’s request to submit
to, or has failed to complete, a blood test as required by Section
23612 of the Vehicle Code, and the sample will be drawn from
the person in a reasonable, medically approved manner. This
paragraph is not intended to abrogate a court’s mandate to
determine the propriety of the issuance of a search warrant on a
case-by-case basis.

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

(c) Notwithstanding subdivision (a) or (b), no search warrant
shall issue for any documentary evidence in the possession or
under the control of any person who is a lawyer as defined in
Section 950 of the Evidence Code, a physician as defined in Section
990 of the Evidence Code, a psychotherapist as defined in Section
1010 of the Evidence Code, or a member of the clergy as defined
in Section 1030 of the Evidence Code, and who is not reasonably
suspected of engaging or having engaged in criminal activity
related to the documentary evidence for which a warrant is
requested unless the following procedure has been complied with:

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

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

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

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

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

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

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

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

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

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

(h) Notwithstanding any other law, no claim of attorney work
product as described in Chapter 4 (commencing with Section
2018.010) of Title 4 of Part 4 of the Code of Civil Procedure shall
be sustained where there is probable cause to believe that the
lawyer is engaging or has engaged in criminal activity related to
the documentary evidence for which a warrant is requested unless
it is established at the hearing with respect to the documentary
evidence seized under the warrant that the services of the lawyer
were not sought or obtained to enable or aid anyone to commit or
plan to commit a crime or a fraud.

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

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

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

end delete

begin delete SEC. 6. end delete
begin insert SEC. 2. end insert   

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