BILL ANALYSIS Ó
AB 1310
Page 1
Date of Hearing: April 28, 2015
Counsel: David Billingsley
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
1310 (Gatto) - As Introduced February 27, 2015
SUMMARY: Expands jurisdiction for crimes involving peeping by
use of camera, phone, or other instrumentality where intimate
images are captured and distributed. Expands the grounds for
issuance of a search warrant to cover property that consists of
evidence that tends to show conduct in violation of peeping
with use of instrumentality and distribution of intimate images
obtained from the peeping. Specifically, this bill:
1)Expands the jurisdiction of a criminal action for the conduct
specified in subdivision (j) of Section 647 to 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.
2)Allows prosecution in any of the jurisdictions when multiple
offenses of unauthorized distribution of an intimate image,
either all involving the same defendants or defendants and the
same intimate image belonging to the one person, or all
involving the same defendant or defendants and the same scheme
of substantially similar activity, occur in multiple
jurisdictions.
AB 1310
Page 2
3)Authorizes jurisdiction to extend to all associated offenses
connected together in their commission to the underlying
unauthorized distribution of an intimate image.
4)Requires the court to hold a hearing to consider whether the
matter should proceed in the county of filing, or whether one
or more counts should be severed, when charges alleging
multiple offenses of unauthorized distribution of an intimate
image occurring in multiple territorial jurisdictions are
filed in one county.
5)Requires the district attorney filing the complaint to 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.
6)Requires the court to 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 hard ship to, the
victim and witnesses.
7)Requires the court to hold a hearing on its own motion, or the
motion of the defendant, to determine whether the county of
the victim's residence is the proper venue for trial, 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. 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.
8)Expands the grounds for issuance of a search warrant to
include property or things to be seized which consist of
evidence that tends to show conduct in violation of
subdivision (j) of Section 647.
EXISTING LAW:
AB 1310
Page 3
1)States that 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 is guilty of
disorderly conduct, a misdemeanor. (Pen. Code, § 647, subd.
(j)(1).)
2)States that 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 inside is
guilty of disorderly conduct, a misdemeanor. (Pen. Code, §
647, subd. (j)(2).)
3)States that 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 inside is guilty of disorderly conduct, a misdemeanor.
(Pen. Code, § 647, subd. (j)(3)(A).)
AB 1310
Page 4
4)States that 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 is guilty of disorderly conduct, a
misdemeanor. (Pen. Code, § 647, subd. (j)(4)(A).)
a) Defines "distribution of an image" as when he or she
personally distributes the image, or arranges, specifically
requests, or intentionally causes another person to
distribute that image; (Pen. Code, § 647, subd. (j)(4)(B).)
b) Defines "intimate body part" as 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; and (Pen. Code, § 647, subd. (j)(4)(C).)
c) States that 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. (Pen. Code, § 647, subd.
(j)(4)(D)(i).)
ii) The distribution is made in compliance with a
subpoena or other court order for use in a legal
proceeding. (Pen. Code, § 647, subd. (j)(4)(D)(ii).)
AB 1310
Page 5
iii) The distribution is made in the course of a lawful
public proceeding. (Pen. Code, § 647, subd.
(j)(4)(D)(iii).)
5)Specifies that except as provided, when a public offense is
committed in part in one jurisdictional territory and in part
in another jurisdictional territory, or the acts or effects
thereof constituting or requisite to the consummation of the
offense occur in two or more jurisdictional territories, the
jurisdiction for the offense is in any competent court within
either jurisdictional territory. (Pen. Code, § 781.)
6)Allows jurisdiction of a criminal action for identity theft,
to 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.
. (Pen. Code, § 786, subd. (b)(1).)
7) Specifies that 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. . (Pen. Code, § 786,
subd. (b)(1).)
8)Allows jurisdiction to extend to all associated offenses
connected together in their commission to the underlying
AB 1310
Page 6
identity theft offense or identity theft offenses. (Pen. Code,
§ 786, subd. (b)(1).)
9)Specifies that 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. (Pen. Code, §
786, subd. (b)(1).)
10)Requires that 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. (Pen. Code, § 786, subd. (b)(1).)
11)Multiple charges of rape, child abuse, spousal abuse, sexual
acts with children, or stalking involving the same defendant
and victim, that occurred in multiple jurisdictions, can be
tried in any jurisdiction in which one of the acts occurred.
(Pen. Code, § 784.7.)
AB 1310
Page 7
12)The trial for child abduction may be held in the jurisdiction
from which the child was taken, in the jurisdiction where the
child was held, or in the jurisdiction where the child was
found. (Pen. Code, § 784.5.)
13)When property taken in one jurisdiction by burglary,
carjacking, robbery, theft, or embezzlement is brought or
received in another jurisdiction, the trial can be held in
either jurisdiction. The trial can also be tried in a
contiguous jurisdiction if the defendant is arrested in that
jurisdiction, 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. (Pen. Code,
§ 786.)
14)Two or more offenses connected together in their commission
or in the same class of crimes or offenses may be joined in
one accusatory pleading. (Pen. Code, § 954.)
15)Provides that a search warrant may be issued upon any of the
following grounds:
a) When the property was stolen or embezzled; (Pen. Code, §
1524, subd. (a)(1).)
b) When the property or things were used as the means of
committing a felony; (Pen. Code, § 1524, subd. (a)(2).)
AB 1310
Page 8
c) 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;
(Pen. Code, § 1524, subd. (a)(3).)
d) 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; (Pen. Code, § 1524, subd.
(a)(4).)
e) When the property or things to be seized consist of
evidence that tends to show that sexual exploitation of a
child, or possession of matter depicting sexual conduct of
a person under 18 years of age, has occurred or is
occurring; (Pen. Code, § 1524, subd. (a)(5).)
f) When there is a warrant to arrest a person; (Pen. Code,
§ 1524, subd. (a)(6).)
g) When a provider of electronic communication service or
remote computing service has records or evidence, as
specified, 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
AB 1310
Page 9
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; (Pen. Code, § 1524, subd.
(a)(7).)
h) When the property or things to be seized include an item
or any evidence that tends to show a violation of duty to
secure workers compensation; (Pen. Code, § 1524, subd.
(a)(8).)
i) 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
specified; (Pen. Code, § 1524, subd. (a)(9).)
j) 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
who has been detained for an examination of their mental
condition; (Pen. Code, § 1524, subd. (a)(10).)
aa) 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 as specified in the family
code, if a prohibited firearm is possessed, owned, in the
custody of, or controlled by a person against whom a
AB 1310
Page 10
protective order has been issued as specified in 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; (Pen. Code, § 1524, subd. (a)(11).)
bb) 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;
(Pen. Code, § 1524, subd. (a)(12).)
cc) When a sample of the blood of a person constitutes
evidence that tends to show a violation of driving under
the influence 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, 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;
and (Pen. Code, § 1524, subd. (a)(13).)
dd) 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, 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. (Pen. Code, § 1524, subd. (a)(14).)
AB 1310
Page 11
16)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. (Pen. Code, § 1524, subd. (b).)
17)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, a
psychotherapist, or a member of the clergy 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 specified procedures have been
complied with:
18)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
identity theft, 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. (Pen. Code, § 1524, subd.
(j).)
19)States that a provider of electronic communication service or
remote computing service, as specified, 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, and the types of services the subscriber or
AB 1310
Page 12
customer utilized, when the governmental entity is granted a
search warrant. (Pen. Code 1524.3, subd. (a).)
20)Specifies that a governmental entity receiving subscriber
records or information under this section is not required to
provide notice to a subscriber or customer. (Pen. Code 1524.3,
subd. (b).)
21)Allows a court issuing a search warrant, as specified, on a
motion made promptly by the service provider, to 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. (Pen.
Code 1524.3, subd. (c).)
22)States that 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. (Pen. Code 1524.3, subd.
(d).)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "It is essential
that we protect our communities from criminals who exploit and
violate their victims' privacy and then "hide in plain sight"
behind computer screens and jurisdictional technicalities.
AB 1310
Page 13
The justice system is intended to protect the public and bring
justice to victims. Criminals shouldn't be allowed to use
legal technicalities as a shield against prosecution. AB 1310
will give law enforcement the necessary tools to investigate
and prosecute cyber exploitation cases by allowing a case to
be prosecuted in the jurisdiction where the victim resides and
allowing search warrants to be issued for the timely
investigation of cyber exploitation crimes."
2)Jurisdiction: Jurisdiction is generally established by the
location where the crime occurred. Jurisdiction exists in the
county in which the crime occurred. When a crime is committed
in part in one jurisdictional territory and in part in another
jurisdictional territory, the jurisdiction for the offense is
in any competent court within either jurisdictional territory.
(Pen. Code, § 781.)
The Legislature has made provisions that in certain situations
where the criminal activity occurred in different geographic
jurisdictions in the state, sometimes with multiple victims,
it is appropriate to consolidate the prosecution in one
jurisdiction (county). Existing law provides for such
consolidation where the crime of identity theft is involved.
(Pen. Code, § 786.) The proposed legislation seeks to
incorporate the same jurisdictional language used in cases of
identity theft and extend it to cases that involve "revenge
porn" and other specified crimes of a similar nature.
In 2002, the Legislature enacted law which allowed trial in one
county of identity theft crimes that occurred in multiple
counties and involved a single victim. (SB 1773 (Wayne), Ch.
908, Stats. 2002.) At issue, was the fact that an identity
thief can relatively easily and quickly use a victim's
identifying information in many counties across the state.
The Legislature recognized that such cases can give rise to
overlapping prosecutions, leading to numerous problems,
including investigation and evidence collection problems,
claims that the first prosecutor to file charges should have
resolved all charges arising out of an incident and others.
To address such concerns, the applicable venue section was
amended to direct a court to consider whether all charges
should be tried in one county, or whether some charges should
AB 1310
Page 14
be severed and tried in a different county. The prosecutor in
such a case was directed to obtain the agreement of the
district attorneys in the other counties where venue would
also lie.
Consolidation of these types of cases can improve judicial
economy in other respects as well. Where a common scheme is
involved, evidence from each incident or crime is typically
admissible as to each offense. Requiring separate prosecution
in each county where related identity theft cases occurred
could result in presentation of the same evidence in each
county resulting in a waste of judicial, prosecution and
defense resources.
In 2009, the Legislature expanded the jurisdictional provisions
for identity theft to include situations multiple victims
involving the same defendant or defendants as part of the same
scheme or substantially similar activity. (SB 226 (Alquist),
Ch. 40, Stats. 2009.)
This legislation seeks to address similar jurisdictional issues
which can arise when prosecuting "revenge porn" cases. In
those cases, the distribution of images can potentially
involve multiple counties and victims.
3)Electronic Communications Privacy Act (ECPA): The ECPA is
federal law which protects communication based upon its form.
It protects wire and electronic communication content in
storage by the provider. The ECPA applies to all parties,
private and law enforcement alike. However, for law
enforcement, there are mechanisms for requiring disclosure to
the government by public Electronic Communication Service
(ECS) Providers of information regarding an electronic
communication. The most well-known example of an ECS would be
an Internet Service Provider (ISP), such as America On Line,
Hotmail, or Yahoo.
A public or private ECS is generally prohibited from voluntarily
disclosing the content of wire and electronic communication
intercepted during transmission. The four exceptions to this
rule are: (1) where the addressee / sender consents to the
disclosure; (2) where the communication provider is permitted
AB 1310
Page 15
to disclose customer communications in emergencies involving
an immediate risk of death or serious physical injury to a
person; (3) when the disclosure is necessary to protect the
rights or property of the communication service provider; and
(4) where the communication provider inadvertently obtains
information that pertains to the commission of a crime.
4)Search Warrants Seeking Electronic Information in
Investigations of Misdemeanor Conduct: Search warrants are
generally limited to cases where law enforcement is
investigating felony conduct. However, the law provides law
enforcement to seek and obtain search warrants under specific
circumstances involving misdemeanor conduct.
Law enforcement can seek a search warrant to investigate
misdemeanor criminal conduct when a provider of electronic
communication service or remote computing service has records
or evidence 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. (Pen. Code, § 1524, subd. (a)(7).) Under those
circumstances, the investigating agency can obtain a search
warrant for 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, and the types of
services the subscriber or customer used. (Pen. Code 1524.3,
subd. (a).)
5)Amendments Proposed by Committee: The Committee has suggested
amendments at the request of the chair which would to limit
any use of a search warrant for "revenge porn" and other
specified misdemeanors, to exclude the content of any
electronic communications.
AB 1310
Page 16
6)Argument in Support: According to The California Police
Chiefs Association, "AB 1310 would permit the seizure of cyber
exploitation, commonly referred to as 'revenge porn' images as
grounds for issuance of a search warrant, giving law
enforcement the ability to search electronic databases and
retrieve the victims' images. It would additionally allow the
prosecuting district attorney's office to bring an action
against an individual in the jurisdiction in which the
individual whose image was published resides. Since poster
and website operators commonly reside outside of the victims'
jurisdiction, this would relieve some of the burden placed on
the victim during prosecution. The justice system is intended
to protect the public and bring justice to victims. Criminals
shouldn't be allowed to use legal technicalities as a shield
against prosecution."
7)Argument in Opposition: According to California Attorneys for
Criminal Justice, "AB 1310 would expand the power of our
courts to issue search warrants in misdemeanor matters other
than those narrow exceptions that were recently engrafted into
the Penal Code(under the aegis of public safety in drunk
driving refusal matters). Those provisions allow merely a
blood draw (not a residential search), to occur for purposes
of proving an extremely harmful misdemeanor. AB 1310 would
unnecessarily allow the issuance of warrants to search private
residences day or night for evidence of what amounts to, at
worst, a ubiquitous and easily detected public nuisance.
"While the advent of requiring a warrant in circumstances not
familiar to law enforcement may have justified recent
amendments to 1524 that apply in certain DUI cases, CACJ is
concerned that AB 1310 shares none of the public safety
imperatives that occur when a suspected drunk driver refuses
to provide a blood or breath sample. There appears to be no
urgency, or exigence, that would justify the issuance of a
warrant to search private homes for evidence that conduct in
violation of subdivision (j) of Section 647 has occurred or is
occurring. AB 1310 is simply unnecessary. PPP Any valid
AB 1310
Page 17
search warrant requires the police to swear out an affidavit
that contains some evidence that what they are looking for
will be found at the place to be searched. However, if the
police already have that much evidence that a violation of
647(j) has or will occur, then it is the better practice to
prove this via subpoena or summons to ISP providers for ISP
address information and other means that are readily available
to law enforcement."
8)Related Legislation: SB 178 (Leno) prohibits a government
entity from compelling the production of or access to
electronic communication information or electronic device
information, as defined, without a search warrant or wiretap
order, except for emergency situations, as defined. SB 178 is
awaiting hearing in the Senate Appropriations Committee.
9)Prior Legislation:
a) SB 255 (Cannella), Chapter 466, Statutes of 2013,
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 and subject to that same
punishment.
b) SB 612 (Simitian), Chapter 47, Statutes of 2008,
expandes the jurisdictional provisions to include the
crimes of unauthorized retention and transfer of personal
identifying information when crimes involved identity
theft. Added the county in which the victim resided at
AB 1310
Page 18
the time the offense was committed to the jurisdictions in
which a criminal action may be brought for commission of
these crimes.
c) SB 226 (Alquist), Chapter 40, Statutes of 2009, provides
that when multiple offenses occur in multiple
jurisdictions and all of the offenses involve the same
defendant or defendants and either the same personal
identifying information of one person or the same scheme or
substantially similar activity, then jurisdiction for all
offenses, including associated offenses connected together
in their commission to an underlying identity theft
offense, is proper in any one of the counties where one of
the offenses occurred.
REGISTERED SUPPORT / OPPOSITION:
Support
Attorney General Kamala Harris
Association of Deputy District Attorneys
Association for Los Angeles Deputy Sheriffs
California District Attorneys Association
California Police Chiefs Association
California State Sheriffs' Association
Crime Victims United of California
Los Angeles Police Protective League
Peace Officers Research Association of California
Riverside Sheriffs Association
Opposition
California Public Defenders Association
California Attorneys for Criminal Justice
Analysis Prepared
by: David Billingsley / PUB. S. / (916) 319-3744
AB 1310
Page 19