BILL NUMBER: AB 1310	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Gatto

                        FEBRUARY 27, 2015

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


	LEGISLATIVE COUNSEL'S DIGEST


   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 1.  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 conduct
specified in 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.  
   (c) 
    (d) This section  shall not be interpreted to
  does not  alter victims' rights under Section
530.6.
  SEC. 2.  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 conduct in violation 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.
   (14) Beginning January 1, 2016, the property or things to be
seized are firearms or ammunition or both that are owned by, in the
possession of, or in the custody or control of a person who is the
subject of a gun violence restraining order that has been issued
pursuant to Division 3.2 (commencing with Section 18100) of Title 2
of Part 6, if a prohibited firearm or ammunition or both is
possessed, owned, in the custody of, or controlled by a person
against whom a gun violence restraining order has been issued, the
person has been lawfully served with that order, and the person has
failed to relinquish the firearm as required by law.
   (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   a search warrant shall not  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   A warrant shall not
 issue for any item or items described in Section 1070 of the
Evidence Code.
   (h) Notwithstanding any other law,  no   a
 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  not  be sustained  where
  if  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   This 
 section is not  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  
does not  create a cause of action against any foreign or
California corporation, its officers, employees, agents, or other
specified persons for providing location information.