Amended in Assembly April 13, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 1772

Introduced by Assembly Member begin delete Beth Gaines end delete begin insert Beth Gaines end insert

February 3, 2016

An act to amend Sections 647 and 803 of, and to repeal and add Section 647.7 of, the Penal Code, relating to disorderly conduct.

LEGISLATIVE COUNSEL’S DIGEST

AB 1772, as amended, Beth Gaines. Disorderly conduct.

Existing law establishes the offense of disorderly conduct to include, among other acts, specified invasions of privacy and the act of, while loitering, prowling, or wandering upon the private property of another, at any time, peeking in the door or window of any inhabited building or structure, without visible or lawful business with the owner or occupant. Except as specified, existing law makes those offenses punishable by imprisonment in a county jail not exceeding 6 months, by a fine not exceeding $1,000, or by both that fine and imprisonment.

This bill would instead provide that, except as specified below, those offenses are punishable by imprisonment in a county jail for not more than 6 months, by a fine of $1,000, or by both that fine and imprisonment, or punishable by imprisonment in a county jail for 16 months, or 2 or 3 years, by a fine of $2,000, or by both that fine and imprisonment.

Existing law makes a second or subsequent violation of the invasion of privacy provisions described above punishable by imprisonment in a county jail not exceeding one year, by a fine not exceeding begin delete two thousand dollars ($2,000), end delete begin insert $2,000, end insert or by both that fine and imprisonment. Existing law authorizes the same punishments if the victim of one of those invasions of privacy was a minor at the time of the offense.

This bill would instead provide that, except as specified below, a second or subsequent violation of the invasion of privacy provisions described above is punishable by imprisonment in a county jail not exceeding one year, by a fine not exceeding $2,000, or by both that fine and imprisonment, or punishable by imprisonment in a county jail for begin delete 3, 5, or 7 end delete begin insert 16 months, or 2 or 3 end insert years, by a fine not exceeding $5,000, or by both that fine and imprisonment. The bill would authorize the same punishments if the victim of one of those invasions of privacy was a minor at the time of the offense.

Existing law provides that, except as specified, every person who, having been convicted of violating the peeking or invasion of privacy provisions described above, commits a second or subsequent violation of those provisions, shall be punished by imprisonment in a county jail not exceeding one year, by a fine not exceeding $1,000, or by both that fine and imprisonment.

This bill would provide that, except as specified below, those violations are punishable by imprisonment in a county jail not exceeding one year, by a fine not exceeding $2,000, or by both that fine and imprisonment, or punishable by imprisonment in a county jail for begin delete for 3, 5, or 7 end delete begin insert 16 months, or 2 or 3 end insert years, by a fine not exceeding $5,000, or by both that fine and imprisonment.

Existing law provides that every person who, having been convicted of violating the peeking or invasion of privacy provisions described above, 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, regardless of whether it is a first, second, or subsequent violation of that specific invasion of privacy provision, shall be punished by imprisonment in a county jail not exceeding one year, by a fine not exceeding $5,000, or by both that fine and imprisonment.

This bill would provide that those violations are punishable by imprisonment in a county jail not exceeding one year, by a fine not exceeding $5,000, or by both that fine and imprisonment, or punishable by imprisonment begin delete n end delete begin insert in end insert a county jail for begin delete 3, 5, or 7 end delete begin insert 16 months, or 2 or 3 end insert years, by a fine not exceeding $10,000, or by both that fine and imprisonment.

The bill would also make conforming changes.

By increasing the penalties for existing crimes, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

Section 647 of the Penal Code is amended to
read:

647.  

Every person who commits any of the following acts is
guilty of disorderly conduct, a misdemeanor:

(a) Who solicits anyone to engage in or who engages in lewd
or dissolute conduct in any public place or in any place open to
the public or exposed to public view.

(b) Who solicits or who agrees to engage in or who engages in
any act of prostitution. A person agrees to engage in an act of
prostitution when, with specific intent to so engage, he or she
manifests an acceptance of an offer or solicitation to so engage,
regardless of whether the offer or solicitation was made by a person
who also possessed the specific intent to engage in prostitution.
No agreement to engage in an act of prostitution shall constitute
a violation of this subdivision unless some act, in addition to the
agreement, is done within this state in furtherance of the
commission of an act of prostitution by the person agreeing to
engage in that act. As used in this subdivision, “prostitution”
includes any lewd act between persons for money or other
consideration.

(c) Who accosts other persons in any public place or in any
place open to the public for the purpose of begging or soliciting
alms.

(d) Who loiters in or about any toilet open to the public for the
purpose of engaging in or soliciting any lewd or lascivious or any
unlawful act.

(e) Who lodges in any building, structure, vehicle, or place,
whether public or private, without the permission of the owner or
person entitled to the possession or in control of it.

(f) Who is found in any public place under the influence of
intoxicating liquor, any drug, controlled substance, toluene, or any
combination of any intoxicating liquor, drug, controlled substance,
or toluene, in a condition that he or she is unable to exercise care
for his or her own safety or the safety of others, or by reason of
his or her being under the influence of intoxicating liquor, any
drug, controlled substance, toluene, or any combination of any
intoxicating liquor, drug, or toluene, interferes with or obstructs
or prevents the free use of any street, sidewalk, or other public
way.

(g) When a person has violated subdivision (f), a peace officer,
if he or she is reasonably able to do so, shall place the person, or
cause him or her to be placed, in civil protective custody. The
person shall be taken to a facility, designated pursuant to Section
5170 of the Welfare and Institutions Code, for the 72-hour
treatment and evaluation of inebriates. A peace officer may place
a person in civil protective custody with that kind and degree of
force which would be lawful were he or she effecting an arrest for
a misdemeanor without a warrant. A person who has been placed
in civil protective custody shall not thereafter be subject to any
criminal prosecution or juvenile court proceeding based on the
facts giving rise to this placement. This subdivision shall not apply
to the following persons:

(1) Any person who is under the influence of any drug, or under
the combined influence of intoxicating liquor and any drug.

(2) Any person who a peace officer has probable cause to believe
has committed any felony, or who has committed any misdemeanor
in addition to subdivision (f).

(3) Any person who a peace officer in good faith believes will
attempt escape or will be unreasonably difficult for medical
personnel to control.

(h) Who loiters, prowls, or wanders upon the private property
of another, at any time, without visible or lawful business with the
owner or occupant. As used in this subdivision, “loiter” means to
delay or linger without a lawful purpose for being on the property
and for the purpose of committing a crime as opportunity may be
discovered.

(i) (1) In any accusatory pleading charging a violation of
subdivision (b), if the defendant has been once previously convicted
of a violation of that subdivision, the previous conviction shall be
charged in the accusatory pleading. If the previous conviction is
found to be true by the jury, upon a jury trial, or by the court, upon
a court trial, or is admitted by the defendant, the defendant shall
be imprisoned in a county jail for a period of not less than 45 days
and shall not be eligible for release upon completion of sentence,
on probation, on parole, on work furlough or work release, or on
any other basis until he or she has served a period of not less than
45 days in a county jail. In all cases in which probation is granted,
the court shall require as a condition thereof that the person be
confined in a county jail for at least 45 days. In no event does the
court have the power to absolve a person who violates this
subdivision from the obligation of spending at least 45 days in
confinement in a county jail.

(2) In any accusatory pleading charging a violation of
subdivision (b), if the defendant has been previously convicted
two or more times of a violation of that subdivision, each of these
previous convictions shall be charged in the accusatory pleading.
If two or more of these previous convictions are found to be true
by the jury, upon a jury trial, or by the court, upon a court trial, or
are admitted by the defendant, the defendant shall be imprisoned
in a county jail for a period of not less than 90 days and shall not
be eligible for release upon completion of sentence, on probation,
on parole, on work furlough or work release, or on any other basis
until he or she has served a period of not less than 90 days in a
county jail. In all cases in which probation is granted, the court
shall require as a condition thereof that the person be confined in
a county jail for at least 90 days. In no event does the court have
the power to absolve a person who violates this subdivision from
the obligation of spending at least 90 days in confinement in a
county jail.

(3) In addition to any punishment prescribed by this section, a
court may suspend, for not more than 30 days, the privilege of the
person to operate a motor vehicle pursuant to Section 13201.5 of
the Vehicle Code for any violation of subdivision (b) that was
committed within 1,000 feet of a private residence and with the
use of a vehicle. In lieu of the suspension, the court may order a
person’s privilege to operate a motor vehicle restricted, for not
more than six months, to necessary travel to and from the person’s
place of employment or education. If driving a motor vehicle is
necessary to perform the duties of the person’s employment, the
court may also allow the person to drive in that person’s scope of
employment.

(j) (1) If a crime is committed in violation of subdivision (b)
and the person who was solicited was a minor at the time of the
offense, and if the defendant knew or should have known that the
person who was solicited was a minor at the time of the offense,
the violation is punishable by imprisonment in a county jail for
not less than two days and not more than one year, or by a fine not
exceeding ten thousand dollars ($10,000), or by both that fine and
imprisonment.

(2) The court may, in unusual cases, when the interests of justice
are best served, reduce or eliminate the mandatory two days of
imprisonment in a county jail required by this subdivision. If the
court reduces or eliminates the mandatory two days’ imprisonment,
the court shall specify the reason on the record.

SEC. 2.  

Section 647.7 of the Penal Code is repealed.

SEC. 3.  

Section 647.7 is added to the Penal Code, to read:

647.7.  

(a) A person who does either of the following is guilty
of disorderly conduct, punishable pursuant to subdivision (b):

(1) While loitering, prowling, or wandering upon the private
property of another, at any time, peeks in the door or window of
any inhabited building or structure, without visible or lawful
business with the owner or occupant.

(2) (A) 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 telephone, 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. This paragraph does not
apply to those areas of a private business used to count currency
or other negotiable instruments.

(B) 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.

(C) (i) 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.

(ii) Neither of the following is a defense to the crime specified
in this subparagraph:

(I) The defendant was a cohabitant, landlord, tenant, cotenant,
employer, employee, or business partner or associate of the victim,
or an agent of any of these.

(II) The victim was not in a state of full or partial undress.

(D) (i) 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.

(ii) A person intentionally distributes an image described in
clause (i) when he or she personally distributes the image, or
arranges, specifically requests, or intentionally causes another
person to distribute that image.

(iii) As used in this subparagraph, “intimate body part” means
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.

(iv) It is not a violation of this subparagraph to distribute an
image described in clause (i) if any of the following applies:

(I) The distribution is made in the course of reporting an
unlawful activity.

(II) The distribution is made in compliance with a subpoena or
other court order for use in a legal proceeding.

(III) The distribution is made in the course of a lawful public
proceeding.

(E) This paragraph does not preclude punishment under any
section of law providing for greater punishment.

(b) (1) Except as otherwise specified in this subdivision, a
violation of subdivision (a) is punishable by imprisonment in a
county jail for not more than six months, by a fine of one thousand
dollars ($1,000), or by both that fine and imprisonment, or
punishable by imprisonment pursuant to subdivision (h) of Section
1170, by a fine of two thousand dollars ($2,000), or by both that
fine and imprisonment.

(2) If the victim of a violation of paragraph (2) of subdivision
(a) was a minor at the time of the offense, the violation is
punishable by imprisonment in a county jail not exceeding one
year, by a fine not exceeding two thousand dollars ($2,000), or by
both that fine and imprisonment, or punishable by imprisonment
pursuant to subdivision (h) of Section 1170 for begin delete three, five, or seven end delete
begin insert 16 months, or two or three end insert years, by a fine not exceeding five
thousand dollars ($5,000), or by both that fine and imprisonment.

(3) Except as otherwise provided in paragraph (4), a second or
subsequent violation of subdivision (a) is punishable by
imprisonment in a county jail not exceeding one year, by a fine
not exceeding two thousand dollars ($2,000), or by both that fine
and imprisonment, or punishable by imprisonment pursuant to
subdivision (h) of Section 1170 for begin delete three, five, or seven end delete begin insert 16 months,
or two or three end insert years, by a fine not exceeding five thousand dollars
($5,000), or by both that fine and imprisonment.

(4) Every person who, having been previously convicted of
violating subdivision (a), commits a violation of subparagraph (C)
of paragraph (2) of subdivision (a) regardless of whether it is a
first, second, or subsequent violation of that subparagraph, shall
be punished by imprisonment in a county jail not exceeding one
year, by a fine not exceeding five thousand dollars ($5,000), or by
both that fine and imprisonment, or punished by imprisonment
pursuant to subdivision (h) of Section 1170 for begin delete three, five, or seven end delete
begin insert 16 months, or two or three end insert years, by a fine not exceeding ten
thousand dollars ($10,000), or by both that fine and imprisonment.

(c) If a person is convicted of violating subdivision (a), the court
may require counseling as a condition of probation. Any defendant
so ordered to be placed in a counseling program shall be
responsible for paying the expense of his or her participation in
the counseling program as determined by the court. The court shall
take into consideration the ability of the defendant to pay, and no
defendant shall be denied probation because of his or her inability
to pay.

SEC. 4.  

Section 803 of the Penal Code is amended to read:

803.  

(a) Except as provided in this section, a limitation of time
prescribed in this chapter is not tolled or extended for any reason.

(b) No time during which prosecution of the same person for
the same conduct is pending in a court of this state is a part of a
limitation of time prescribed in this chapter.

(c) A limitation of time prescribed in this chapter does not
commence to run until the discovery of an offense described in
this subdivision. This subdivision applies to an offense punishable
by imprisonment in the state prison or imprisonment pursuant to
subdivision (h) of Section 1170, a material element of which is
fraud or breach of a fiduciary obligation, the commission of the
crimes of theft or embezzlement upon an elder or dependent adult,
or the basis of which is misconduct in office by a public officer,
employee, or appointee, including, but not limited to, the following
offenses:

(1) Grand theft of any type, forgery, falsification of public
records, or acceptance of, or asking, receiving, or agreeing to
receive, a bribe, by a public official or a public employee,
including, but not limited to, a violation of Section 68, 86, or 93.

(2) A violation of Section 72, 118, 118a, 132, 134, or 186.10.

(3) A violation of Section 25540, of any type, or Section 25541
of the Corporations Code.

(4) A violation of Section 1090 or 27443 of the Government
Code.

(5) Felony welfare fraud or Medi-Cal fraud in violation of
Section 11483 or 14107 of the Welfare and Institutions Code.

(6) Felony insurance fraud in violation of Section 548 or 550
of this code or former Section 1871.1, or Section 1871.4, of the
Insurance Code.

(7) A violation of Section 580, 581, 582, 583, or 584 of the
Business and Professions Code.

(8) A violation of Section 22430 of the Business and Professions
Code.

(9) A violation of Section 103800 of the Health and Safety
Code.

(10) A violation of Section 529a.

(11) A violation of subdivision (d) or (e) of Section 368.

(d) If the defendant is out of the state when or after the offense
is committed, the prosecution may be commenced as provided in
Section 804 within the limitations of time prescribed by this
chapter, and no time up to a maximum of three years during which
the defendant is not within the state shall be a part of those
limitations.

(e) A limitation of time prescribed in this chapter does not
commence to run until the offense has been discovered, or could
have reasonably been discovered, with regard to offenses under
Division 7 (commencing with Section 13000) of the Water Code,
under Chapter 6.5 (commencing with Section 25100) of, Chapter
6.7 (commencing with Section 25280) of, or Chapter 6.8
(commencing with Section 25300) of, Division 20 of, or Part 4
(commencing with Section 41500) of Division 26 of, the Health
and Safety Code, or under Section 386, or offenses under Chapter
5 (commencing with Section 2000) of Division 2 of, Chapter 9
(commencing with Section 4000) of Division 2 of, Section 6126
of, Chapter 10 (commencing with Section 7301) of Division 3 of,
or Chapter 19.5 (commencing with Section 22440) of Division 8
of, the Business and Professions Code.

(f) (1) Notwithstanding any other limitation of time described
in this chapter, a criminal complaint may be filed within one year
of the date of a report to a California law enforcement agency by
a person of any age alleging that he or she, while under 18 years
of age, was the victim of a crime described in Section 261, 286,
288, 288a, 288.5, or 289, or Section 289.5, as enacted by Chapter
293 of the Statutes of 1991 relating to penetration by an unknown
object.

(2) This subdivision applies only if all of the following occur:

(A) The limitation period specified in Section 800, 801, or 801.1,
whichever is later, has expired.

(B) The crime involved substantial sexual conduct, as described
in subdivision (b) of Section 1203.066, excluding masturbation
that is not mutual.

(C) There is independent evidence that corroborates the victim’s
allegation. If the victim was 21 years of age or older at the time
of the report, the independent evidence shall clearly and
convincingly corroborate the victim’s allegation.

(3) No evidence may be used to corroborate the victim’s
allegation that otherwise would be inadmissible during trial.
Independent evidence does not include the opinions of mental
health professionals.

(4) (A) In a criminal investigation involving any of the crimes
listed in paragraph (1) committed against a child, when the
applicable limitations period has not expired, that period shall be
tolled from the time a party initiates litigation challenging a grand
jury subpoena until the end of the litigation, including any
associated writ or appellate proceeding, or until the final disclosure
of evidence to the investigating or prosecuting agency, if that
disclosure is ordered pursuant to the subpoena after the litigation.

(B) Nothing in this subdivision affects the definition or
applicability of any evidentiary privilege.

(C) This subdivision shall not apply if a court finds that the
grand jury subpoena was issued or caused to be issued in bad faith.

(g) (1) Notwithstanding any other limitation of time described
in this chapter, a criminal complaint may be filed within one year
of the date on which the identity of the suspect is conclusively
established by DNA testing, if both of the following conditions
are met:

(A) The crime is one that is described in subdivision (c) of
Section 290.

(B) The offense was committed prior to January 1, 2001, and
biological evidence collected in connection with the offense is
analyzed for DNA type no later than January 1, 2004, or the offense
was committed on or after January 1, 2001, and biological evidence
collected in connection with the offense is analyzed for DNA type
no later than two years from the date of the offense.

(2) For purposes of this section, “DNA” means deoxyribonucleic
acid.

(h) For any crime, the proof of which depends substantially
upon evidence that was seized under a warrant, but which is
unavailable to the prosecuting authority under the procedures
described in People v. Superior Court (Laff) (2001) 25 Cal.4th
703, People v. Superior Court (Bauman & Rose) (1995) 37
Cal.App.4th 1757, or subdivision (c) of Section 1524, relating to
claims of evidentiary privilege or attorney work product, the
limitation of time prescribed in this chapter shall be tolled from
the time of the seizure until final disclosure of the evidence to the
prosecuting authority. Nothing in this section otherwise affects
the definition or applicability of any evidentiary privilege or
attorney work product.

(i) Notwithstanding any other limitation of time described in
this chapter, a criminal complaint may be filed within one year of
the date on which a hidden recording is discovered related to a
violation of subparagraph (B) or (C) of paragraph (2) of subdivision
(a) of Section 647.7.

(j) Notwithstanding any other limitation of time described in
this chapter, if a person flees the scene of an accident that caused
death or permanent, serious injury, as defined in subdivision (d)
of Section 20001 of the Vehicle Code, a criminal complaint brought
pursuant to paragraph (2) of subdivision (b) of Section 20001 of
the Vehicle Code may be filed within the applicable time period
described in Section 801 or 802 or one year after the person is
initially identified by law enforcement as a suspect in the
commission of the offense, whichever is later, but in no case later
than six years after the commission of the offense.

(k) Notwithstanding any other limitation of time described in
this chapter, if a person flees the scene of an accident, a criminal
complaint brought pursuant to paragraph (1) or (2) of subdivision
(c) of Section 192 may be filed within the applicable time period
described in Section 801 or 802, or one year after the person is
initially identified by law enforcement as a suspect in the
commission of that offense, whichever is later, but in no case later
than six years after the commission of the offense.

(l) A limitation of time prescribed in this chapter does not
commence to run until the discovery of an offense involving the
offering or giving of a bribe to a public official or public employee,
including, but not limited to, a violation of Section 67, 67.5, 85,
92, or 165, or Section 35230 or 72530 of the Education Code.

SEC. 5.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.