Amended in Assembly April 29, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 1310

Introduced by Assembly Member Gatto

February 27, 2015

An act to amend Sections 786 and begin delete 1524 end delete begin insert 1524.3 end insert of the Penal Code, relating to disorderly conduct.

LEGISLATIVE COUNSEL’S DIGEST

AB 1310, as amended, 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. begin delete 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

This bill would apply those jurisdictional begin delete and search warrant end delete provisions to the misdemeanors described above.

begin insert

Existing law details procedures for a governmental entity to gather specified records from a provider of electronic communication service or a remote computing service by search warrant. Existing law specifies that no notice is required to be given to a subscriber or customer by a governmental entity receiving records pursuant to these procedures.

end insert begin insert

This bill would additionally authorize a governmental entity to use those procedures to gather the contents of communications between the subscriber and the service provider. The bill would require a search warrant used under those procedures to be limited to only that information necessary to achieve the objective of the warrant, as specified. The bill would require information obtained through the execution of a search warrant pursuant that is unrelated to the objective of the warrant to be sealed and not be subject to further review without an order from the court. The bill would require the governmental entity to provide a specified notice to the customer or subscriber upon receipt of the requested records. The bill would authorize a delay of that notice in 90-day increments if there is reason to believe notification would may have an adverse effect, as defined.

end insert

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)  begin delete When end delete begin insert If end insert 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.

(d) This section does not alter victims’ rights under Section
530.6.

begin delete

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), 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) A warrant shall not issue for any item or items described in
Section 1070 of the Evidence Code.

(h) Notwithstanding any other law, 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 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) 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 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.

end delete

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 1524.3 of the end insert begin insert Penal Code end insert begin insert is amended to read: end insert

1524.3.  

(a) A provider of electronic communication service
or remote computing service, as used in Chapter 121 (commencing
with Section 2701) of Title 18 of the United States Code, shall
disclose to a governmental prosecuting or investigating agency
the name, address, local and long distance telephone toll billing
records, telephone number or other subscriber number or identity,
and length of service of a subscriber to or customer of that service,
begin delete and end delete the types of services the subscriber or customer utilized, begin insert and
the contents of communication originated by or addressed to end insert begin insert the
service provider end insert when the governmental entity is granted a search
warrant pursuant to paragraph (7) of subdivision (a) of Section
1524.

begin insert

(b) The search warrant shall be limited to only that information
necessary to achieve the objective of the warrant, including by
specifying the target individuals or accounts, the applications or
services, the types of information, and the time periods covered,
as appropriate.

end insert begin insert

(c) Information obtained through the execution of a search
warrant pursuant to this section that is unrelated to the objective
of the warrant shall be sealed and not be subject to further review
without an order from the court.

end insert begin delete

(b)

end delete

begin insert (d) end insert   begin insert (1 end insert begin insert ) end insert begin insert   end insert A governmental entity receiving subscriber records or
information under this section begin delete is not required to end delete begin insert shall end insert provide
notice to a subscriber or customer begin insert upon receipt of the requested
records. The notification may be delayed by the court, in
increments of 90 days, upon a showing that there is reason to
believe that notification of the existence of the search warrant may
have an adverse result end insert .

begin insert

(2) An “adverse result” for purposes of paragraph (1) means
any of the following:

end insert begin insert

(A) Endangering the life or physical safety of an individual.

end insert begin insert

(B) Flight from prosecution.

end insert begin insert

(C) Tampering or destruction of evidence.

end insert begin insert

(D) Intimidation of a potential witness.

end insert begin insert

(E) Otherwise seriously jeopardizing an investigation or unduly
delaying a trial.

end insert begin insert

(e) Upon the expiration of the period of delay for the
notification, the governmental entity shall, by regular mail or
email, provide a copy of the process or request and a notice, to
the subscriber or customer. The notice shall accomplish all of the
following:

end insert begin insert

(1) State the nature of the law enforcement inquiry with
reasonable specificity.

end insert begin insert

(2) Inform the subscriber or customer that information
maintained for the subscriber or customer by the service provider
named in the process or request was supplied to or requested by
the governmental entity, and the date upon which the information
was supplied, and the request was made.

end insert begin insert

(3) Inform the subscriber or customer that notification to the
subscriber or customer was delayed, and which court issued the
order pursuant to which the notification was delayed.

end insert begin insert

(4) Provide a copy of the written inventory of the property that
was taken that was provided to the court pursuant to Section 1537.

end insert begin delete

(c)

end delete

begin insert (f) end insert  A court issuing a search warrant pursuant to paragraph (7)
of subdivision (a) of Section 1524, on a motion made promptly by
the service provider, may quash or modify the warrant if the
information or records requested are unusually voluminous in
nature or compliance with the warrant otherwise would cause an
undue burden on the provider.

begin delete

(d)

end delete

begin insert (g) end insert  A provider of wire or electronic communication services or
a remote computing service, upon the request of a peace officer,
shall take all necessary steps to preserve records and other evidence
in its possession pending the issuance of a search warrant or a
request in writing and an affidavit declaring an intent to file a
warrant to the provider. Records shall be retained for a period of
90 days, which shall be extended for an additional 90-day period
upon a renewed request by the peace officer.

begin delete

(e)

end delete

begin insert (h) end insert  No cause of action shall be brought against any provider,
its officers, employees, or agents for providing information,
facilities, or assistance in good faith compliance with a search
warrant.