AB 1310, as introduced, Gatto. Disorderly conduct: unlawful distribution of image.
Existing law makes it a misdemeanor to look through a hole or opening, into, or to view, by means of any instrumentality, the interior of an area in which an occupant has a reasonable expectation of privacy with the intent to invade the privacy of that person. Existing law makes it a misdemeanor to record another person under or through the clothing worn by that person, without the consent or knowledge of the person, under circumstances in which the person has a reasonable expectation of privacy. Existing law makes it a misdemeanor to secretly record another person in a state of full or partial undress without the consent or knowledge of that person, in an area in which that person has a reasonable expectation of privacy. Existing law makes it a misdemeanor to intentionally distribute an image of the intimate body part or parts of another 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.
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 jurisdictional and search warrant provisions to the misdemeanors described above.
Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 786 of the Penal Code is amended to
2read:
(a) When property taken in one jurisdictional territory
4by burglary, carjacking, robbery, theft, or embezzlement has been
5brought into another, or when property is received in one
6jurisdictional territory with the knowledge that it has been stolen
7or embezzled and the property was stolen or embezzled in another
8jurisdictional territory, the jurisdiction of the offense is in any
9competent court within either jurisdictional territory, or any
10contiguous jurisdictional territory if the arrest is made within the
11contiguous territory, the prosecution secures on the record the
12defendant’s knowing, voluntary, and intelligent waiver of the right
13of vicinage, and the defendant is charged with one or more property
14crimes in the arresting territory.
15(b) (1) The jurisdiction of a criminal action for unauthorized
16use, retention, or transfer of personal identifying information, as
17defined in subdivision (b) of Section 530.55, shall also include the
18county where the theft of the personal identifying information
19occurred, the county in which the victim resided at the time the
20offense was committed, or the county where the information was
21used for an illegal purpose. If multiple offenses of unauthorized
22use of personal identifying information, either all involving the
23same defendant or defendants and the same personal identifying
24information belonging to the one person, or all involving the same
25defendant or defendants and the same scheme or substantially
26similar activity, occur in multiple jurisdictions, then any of those
P3 1jurisdictions is a proper jurisdiction for all of the offenses.
2Jurisdiction also extends to all associated offenses connected
3together in their commission to the underlying identity theft offense
4or identity theft offenses.
5(2) When charges alleging multiple offenses of unauthorized
6use of personal identifying information occurring in multiple
7territorial jurisdictions are filed in one county pursuant to this
8section, the court shall hold a hearing to consider whether the
9matter should proceed in the county of filing, or whether one or
10more counts should be severed. The district attorney filing the
11complaint shall present evidence to the court that the district
12attorney in each county where any of the charges could have been
13filed has agreed that the matter should proceed in the county of
14filing. In determining whether all counts in the complaint should
15be joined in one county for prosecution, the court shall consider
16the location and complexity of the likely evidence, where the
17majority of the offenses occurred, whether or not the offenses
18involved substantially similar activity or the same scheme, the
19rights of the defendant and the people, and the convenience of,
or
20hardship to, the victim and witnesses.
21(3) When an action for unauthorized use, retention, or transfer
22of personal identifying information is filed in the county in which
23the victim resided at the time the offense was committed, and no
24other basis for the jurisdiction applies, the court, upon its own
25motion or the motion of the defendant, shall hold a hearing to
26determine whether the county of the victim’s residence is the proper
27venue for trial of the case. In ruling on the matter, the court shall
28consider the rights of the parties, the access of the parties to
29evidence, the convenience to witnesses, and the interests of justice.
30(c) (1) The jurisdiction of a criminal action for conduct
31specified in subdivision (j) of Section 647 shall also include the
32county in which the
offense occurred, the county in which the victim
33resided at the time the offense was committed, or the county in
34which the intimate image was used for an illegal purpose. If
35multiple offenses of unauthorized distribution of an intimate image,
36either all involving the same defendant or defendants and the same
37intimate image belonging to the one person, or all involving the
38same defendant or defendants and the same scheme or substantially
39similar activity, occur in multiple jurisdictions, then any of those
40jurisdictions is a proper jurisdiction for all of the offenses.
P4 1Jurisdiction also extends to all associated offenses connected
2together in their commission to the underlying unauthorized
3distribution of an intimate image.
4(2) When charges alleging multiple offenses of unauthorized
5distribution of an intimate image occurring in multiple territorial
6jurisdictions are filed in one county pursuant to this section, the
7court shall hold a hearing to
consider whether the matter should
8proceed in the county of filing, or whether one or more counts
9should be severed. The district attorney filing the complaint shall
10present evidence to the court that the district attorney in each
11county where any of the charges could have been filed has agreed
12that the matter should proceed in the county of filing. In
13determining whether all counts in the complaint should be joined
14in one county for prosecution, the court shall consider the location
15and complexity of the likely evidence, where the majority of the
16offenses occurred, whether the offenses involved substantially
17similar activity or the same scheme, the rights of the defendant
18and the people, and the convenience of, or hardship to, the victim
19and witnesses.
20(3) When an action for unauthorized distribution of an intimate
21image is filed in the
county in which the victim resided at the time
22the offense was committed, and no other basis for the jurisdiction
23applies, the court, upon its own motion or the motion of the
24defendant, shall hold a hearing to determine whether the county
25of the victim's residence is the proper venue for trial of the case.
26In ruling on the matter, the court shall consider the rights of the
27parties, the access of the parties to evidence, the convenience to
28witnesses, and the interests of justice.
29(c)
end delete
30begin insert(d)end insert This sectionbegin delete shall not be interpreted toend deletebegin insert
does notend insert alter victims’
31rights under Section 530.6.
Section 1524 of the Penal Code is amended to read:
(a) A search warrant may be issued upon any of the
34following grounds:
35(1) When the property was stolen or embezzled.
36(2) When the property or things were used as the means of
37committing a felony.
38(3) When the property or things are in the possession of any
39person with the intent to use them as a means of committing a
40public offense, or in the possession of another to whom he or she
P5 1may have delivered them for the purpose of concealing them or
2preventing them from being discovered.
3(4) When the property or things to be seized consist of any item
4or constitute any evidence that
tends to show a felony has been
5committed, or tends to show that a particular person has committed
6a felony.
7(5) When the property or things to be seized consist of evidence
8that tends to show that sexual exploitation of a child, in violation
9of Section 311.3, or possession of matter depicting sexual conduct
10of a person under 18 years of age, in violation of Section 311.11,
11begin insert or conduct in violation of subdivision (j) of Section 647,end insert has
12occurred or is occurring.
13(6) When there is a warrant to arrest a person.
14(7) When a provider of electronic communication service or
15remote computing service has records or evidence, as specified in
16Section 1524.3, showing that property was stolen or embezzled
17constituting a
misdemeanor, or that property or things are in the
18possession of any person with the intent to use them as a means
19of committing a misdemeanor public offense, or in the possession
20of another to whom he or she may have delivered them for the
21purpose of concealing them or preventing their discovery.
22(8) When the property or things to be seized include an item or
23any evidence that tends to show a violation of Section 3700.5 of
24the Labor Code, or tends to show that a particular person has
25violated Section 3700.5 of the Labor Code.
26(9) When the property or things to be seized include a firearm
27or any other deadly weapon at the scene of, or at the premises
28occupied or under the control of the person arrested in connection
29with, a domestic violence incident involving a threat to human life
30or a physical assault as provided in Section 18250. This section
31does not affect warrantless
seizures otherwise authorized by Section
3218250.
33(10) When the property or things to be seized include a firearm
34or any other deadly weapon that is owned by, or in the possession
35of, or in the custody or control of, a person described in subdivision
36(a) of Section 8102 of the Welfare and Institutions Code.
37(11) When the property or things to be seized include a firearm
38that is owned by, or in the possession of, or in the custody or
39control of, a person who is subject to the prohibitions regarding
40firearms pursuant to Section 6389 of the Family Code, if a
P6 1prohibited firearm is possessed, owned, in the custody of, or
2controlled by a person against whom a protective order has been
3issued pursuant to Section 6218 of the Family Code, the person
4has been lawfully served with that order, and the person has failed
5to relinquish the firearm as required by law.
6(12) When the information to be received from the use of a
7tracking device constitutes evidence that tends to show that either
8a felony, a misdemeanor violation of the Fish and Game Code, or
9a misdemeanor violation of the Public Resources Code has been
10committed or is being committed, tends to show that a particular
11person has committed a felony, a misdemeanor violation of the
12Fish and Game Code, or a misdemeanor violation of the Public
13Resources Code, or is committing a felony, a misdemeanor
14violation of the Fish and Game Code, or a misdemeanor violation
15of the Public Resources Code, or will assist in locating an
16individual who has committed or is committing a felony, a
17misdemeanor violation of the Fish and Game Code, or a
18misdemeanor violation of the Public Resources Code. A tracking
19device search warrant issued pursuant to this paragraph shall be
20executed in a manner meeting the requirements specified in
21subdivision (b) of Section 1534.
22(13) When a sample of the blood of a person constitutes
23evidence that tends to show a violation of Section 23140, 23152,
24or 23153 of the Vehicle Code and the person from whom the
25sample is being sought has refused an officer’s request to submit
26to, or has failed to complete, a blood test as required by Section
2723612 of the Vehicle Code, and the sample will be drawn from
28the person in a reasonable, medically approved manner. This
29paragraph is not intended to abrogate a court’s mandate to
30determine the propriety of the issuance of a search warrant on a
31case-by-case basis.
32(14) Beginning January 1, 2016, the property or things to be
33seized are firearms or ammunition or both that are owned by, in
34the possession of, or in the custody or control of a person who is
35the subject of a gun violence restraining order that has been issued
36pursuant to Division 3.2 (commencing with Section 18100)
of
37Title 2 of Part 6, if a prohibited firearm or ammunition or both is
38possessed, owned, in the custody of, or controlled by a person
39against whom a gun violence restraining order has been issued,
P7 1the person has been lawfully served with that order, and the person
2has failed to relinquish the firearm as required by law.
3(b) The property, things, person, or persons described in
4subdivision (a) may be taken on the warrant from any place, or
5from any person in whose possession the property or things may
6be.
7(c) Notwithstanding subdivision (a) or (b),begin delete no search warrant begin insert a search warrant shall notend insert issue for any documentary
8shallend delete
9evidence in the possession or under the control of any person who
10is a
lawyer as defined in Section 950 of the Evidence Code, a
11physician as defined in Section 990 of the Evidence Code, a
12psychotherapist as defined in Section 1010 of the Evidence Code,
13or a member of the clergy as defined in Section 1030 of the
14Evidence Code, and who is not reasonably suspected of engaging
15or having engaged in criminal activity related to the documentary
16evidence for which a warrant is requested unless the following
17procedure has been complied with:
18(1) At the time of the issuance of the warrant, the court shall
19appoint a special master in accordance with subdivision (d) to
20accompany the person who will serve the warrant. Upon service
21of the warrant, the special master shall inform the party served of
22the specific items being sought and that the party shall have the
23opportunity to provide the items requested. If the party, in the
24judgment of the special master, fails to provide the items requested,
25the special master shall conduct
a search for the items in the areas
26indicated in the search warrant.
27(2) (A) If the party who has been served states that an item or
28items should not be disclosed, they shall be sealed by the special
29master and taken to court for a hearing.
30(B) At the hearing, the party searched shall be entitled to raise
31any issues that may be raised pursuant to Section 1538.5 as well
32as a claim that the item or items are privileged, as provided by
33law. The hearing shall be held in the superior court. The court shall
34provide sufficient time for the parties to obtain counsel and make
35any motions or present any evidence. The hearing shall be held
36within three days of the service of the warrant unless the court
37makes a finding that the expedited hearing is impracticable. In that
38case the matter shall be heard at the earliest possible time.
39(C) If an item or items are taken to court for a hearing, any
40limitations of time prescribed in Chapter 2 (commencing with
P8 1Section 799) of Title 3 of Part 2 shall be tolled from the time of
2the seizure until the final conclusion of the hearing, including any
3associated writ or appellate proceedings.
4(3) The warrant shall, whenever practicable, be served during
5normal business hours. In addition, the warrant shall be served
6upon a party who appears to have possession or control of the
7items sought. If, after reasonable efforts, the party serving the
8warrant is unable to locate the person, the special master shall seal
9and return to the court, for determination by the court, any item
10that appears to be privileged as provided by law.
11(d) (1) As used in this section, a “special master” is an attorney
12
who is a member in good standing of the California State Bar and
13who has been selected from a list of qualified attorneys that is
14maintained by the State Bar particularly for the purposes of
15conducting the searches described in this section. These attorneys
16shall serve without compensation. A special master shall be
17considered a public employee, and the governmental entity that
18caused the search warrant to be issued shall be considered the
19employer of the special master and the applicable public entity,
20for purposes of Division 3.6 (commencing with Section 810) of
21Title 1 of the Government Code, relating to claims and actions
22against public entities and public employees. In selecting the
23special master, the court shall make every reasonable effort to
24ensure that the person selected has no relationship with any of the
25parties involved in the pending matter. Any information obtained
26by the special master shall be confidential and may not be divulged
27except in direct response to inquiry by the court.
28(2) In any case in which the magistrate determines that, after
29reasonable efforts have been made to obtain a special master, a
30special master is not available and would not be available within
31a reasonable period of time, the magistrate may direct the party
32seeking the order to conduct the search in the manner described
33in this section in lieu of the special master.
34(e) Any search conducted pursuant to this section by a special
35master may be conducted in a manner that permits the party serving
36the warrant or his or her designee to accompany the special master
37as he or she conducts his or her search. However, that party or his
38or her designee may not participate in the search nor shall he or
39she examine any of the items being searched by the special master
P9 1except upon agreement of the party upon whom the warrant has
2been served.
3(f) As used in this section, “documentary evidence” includes,
4but is not limited to, writings, documents, blueprints, drawings,
5photographs, computer printouts, microfilms, X-rays, files,
6diagrams, ledgers, books, tapes, audio and video recordings, films,
7and papers of any type or description.
8(g) begin deleteNo warrant shall end deletebegin insertA warrant shall not end insertissue for any item or
9items described in Section 1070 of the Evidence Code.
10(h) Notwithstanding any other law,begin delete noend deletebegin insert aend insert
claim of attorney work
11product as described in Chapter 4 (commencing with Section
122018.010) of Title 4 of Part 4 of the Code of Civil Procedure shall
13begin insert notend insert be sustainedbegin delete whereend deletebegin insert ifend insert there is probable cause to believe that
14the lawyer is engaging or has engaged in criminal activity related
15to the documentary evidence for which a warrant is requested
16unless it is established at the hearing with respect to the
17documentary evidence seized under the warrant that the services
18of the lawyer were not sought or obtained to enable or aid anyone
19to commit or plan to commit a crime or a fraud.
20(i) begin deleteNothing in this section is end deletebegin insertThis
section is not end insertintended to limit
21an attorney’s ability to request an in camera hearing pursuant to
22the holding of the Supreme Court of California in People v.
23Superior Court (Laff) (2001) 25 Cal.4th 703.
24(j) In addition to any other circumstance permitting a magistrate
25to issue a warrant for a person or property in another county, when
26the property or things to be seized consist of any item or constitute
27any evidence that tends to show a violation of Section 530.5, the
28magistrate may issue a warrant to search a person or property
29located in another county if the person whose identifying
30information was taken or used resides in the same county as the
31issuing court.
32(k) This sectionbegin delete shall not be construed toend deletebegin insert
does notend insert create a cause
33of action against any foreign or California corporation, its officers,
34employees, agents, or other specified persons for providing location
35information.
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