Amended in Senate July 7, 2015

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 1524.3 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.

This bill would apply those jurisdictional provisions to the misdemeanors described above.

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.

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.

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) If 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 begin insert paragraph (4) of end insert 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.

SEC. 2.  

Section 1524.3 of the Penal Code is amended to read:

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,
the types of services the subscriber or customer utilized, and the
contents of communication originated by or addressed to the
service provider when the governmental entity is granted a search
warrant pursuant to paragraph (7) of subdivision (a) of Section
1524.

(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.

(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.

(d) (1) A governmental entity receiving subscriber records or
information under this section shall provide notice to a subscriber
or customer 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.

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

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

(B) Flight from prosecution.

(C) Tampering or destruction of evidence.

(D) Intimidation of a potential witness.

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

(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:

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

(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.

(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.

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

(f) 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.

(g) 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.

(h) 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.