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