BILL ANALYSIS Ó
AB 1772
Page 1
Date of Hearing: April 19, 2016
Chief Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
1772 (Beth Gaines) - As Amended April 13, 2016
VOTE ONLY
SUMMARY: Increases the penalties for various forms of "peeping"
secret videotaping or secretly photographing a person in which
that person has a reasonable expectation of privacy from a
misdemeanor to an alternate felony/misdemeanor. Specifically,
this bill:
1)Provides that it is an alternate felony/misdemeanor
punishable, as a misdemeanor, by up to six months in a county
jail, by a fine not to exceed $1,000, or both, and punishable,
as a felony, by 16 months, two, or three years in a county
jail, by a fine not to exceed $2,000, or both, for any person
while loitering, wandering or prowling on the private property
of another, at any time, to peek in the door or window of any
inhabited dwelling or structure, without visible or lawful
business with the owner or occupant.
2)Makes it an alternate felony/misdemeanor punishable, as a
misdemeanor, by up to six months in a county jail, by a fine
not to exceed $1,000, or both, and punishable, as a felony, by
16 months, two, or three years in a county jail, by a fine not
to exceed $2,000, or both, for any person to look through a
hole, or otherwise use an instrumentality, such as binoculars,
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a camera, or camcorder, to view 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 the person or people inside.
3)Provides that it is an alternate felony/misdemeanor
punishable, as a misdemeanor, by up to six months in a county
jail, by a fine not to exceed $1,000, or both, and punishable,
as a felony, by 16 months, two, or three years in a county
jail, by a fine not to exceed $2,000, or both, for any person
to use a device to secretly videotape or record another person
under or through his or her clothing, for the purpose of
viewing that person's body or undergarments without consent
and under circumstances in which that person has a reasonable
expectation of privacy, if the perpetrator commits the act
with a prurient intent.
4)Makes it an alternate felony/misdemeanor punishable, as a
misdemeanor, by up to six months in a county jail, by a fine
not to exceed $1,000, or both, and punishable, as a felony, by
16 months, two, or three years in a county jail, by a fine not
to exceed $2,000, or both, for any person who uses a concealed
instrumentality to secretly videotape or record another person
who is in a state of full or partial undress, for the purpose
of viewing that person's body or undergarments without consent
while that person is in 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 individual.
5)Makes a second or subsequent offense of invasion of privacy
with the naked eye or with the use of an instrumentality
punishable as a misdemeanor by up to one year in a county
jail, by a fine not to exceed $2,000, or both, and as felony
by 16 months, two, or three years in a county jail, by a fine
not to exceed $5,000, or both.
6)Provides that if the victim of a "peeping" offense was a minor
at the time of the offense, then the crime is punishable as a
misdemeanor by up to one year in a county jail, by a fine not
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to exceed $2,000, or both, and as felony by 16 months, two, or
three years in a county jail, by a fine not to exceed $5,000,
or both.
7)States that any person convicted of secretly videotaping or
photographing a person in a state of full or partial undress
is punishable as a misdemeanor by one up to one year in jail,
a fine of up to $5,000, or both, and as felony by 16 months,
two, or three years in a county jail, by a fine not to exceed
$5,000, or both.
EXISTING LAW:
1)Provides that it is a misdemeanor punishable by up to six
months in a county jail, by a fine not to exceed $1,000 or
both, for any person while loitering, wandering or prowling on
the private property of another, at any time, to peek in the
door or window of any inhabited dwelling or structure, without
visible or lawful business with the owner or occupant. (Pen
Code, § 647, subd. (a).)
2)Makes it a misdemeanor punishable by up to six months in a
county jail, by a fine not to exceed $1,000 or both, for any
person to look through a hole, or otherwise use an
instrumentality, such as binoculars, a camera, or camcorder,
to view 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 the person or people inside. (Pen. Code, § 647, subd.
(j)(1).)
3)Makes it a misdemeanor punishable by up to six months in a
county jail, by a fine not to exceed $1,000 or both, for any
person to use a device to secretly videotape or record another
person under or through his or her clothing, for the purpose
of viewing that person's body or undergarments without consent
and under circumstances in which that person has a reasonable
expectation of privacy, if the perpetrator commits the act
with a prurient intent. (Pen. Code, § 647, subd. (j)(2).)
4)Makes it a misdemeanor punishable by up to six months in a
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county jail, by a fine not to exceed $1,000 or both, for any
person who uses a concealed instrumentality to secretly
videotape or record another person who is in a state of full
or partial undress, for the purpose of viewing that person's
body or undergarments without consent while that person is in
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
individual. (Pen. Code, § 647, subd. (j)(3).)
5)Makes a second or subsequent offense of invasion of privacy
with the naked eye or with the use of an instrumentality is
punishable by one up to one year in jail, a fine of up to
$2,000, or both. (Pen. Code, § 647, subd. (l)(1).)
6)Provides that if the victim of a "peeping" offense was a minor
at the time of the offense, then the crime is punishable by
one up to one year in jail, a fine of up to $2,000, or both.
(Pen. Code, § 647, subd. (l)(2).)
7)States that any person convicted of secretly videotaping or
photographing a person in a state of full or partial undress
is punishable by one up to one year in jail, a fine of up to
$5,000, or both. (Pen. Code, § 647.7, subd. (c).)
8)Provides that if a defendant is convicted of peeking in the
door or window of any inhabited dwelling or structure or of
looking into, viewing, or filming another person in a changing
room, bathroom or the interior of any area in which the
occupant has a reasonable expectation of privacy, the court
may require counseling as a condition of probation. (Pen.
Code, §647.7, subd. (a).)
9)Defines a felony as a "crime that is punishable with death, by
imprisonment in the state prison, or notwithstanding any other
provision of law, by imprisonment in a county jail under the
provisions of subdivision (h) of Section 1170." (Pen. Code,
§17, subd. (a).)
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10)States that the place of imprisonment for a felony offense is
state prison, unless it is county-jail eligible under Penal
Code section 1170, subdivision (h). (Pen. Code, §18, subd.
(a).)
11)Provides that, except in cases where a different punishment
is prescribed by law, every offense declared to be a
misdemeanor is punishable by imprisonment in the county jail
not exceeding six months, or by fine not exceeding $1,000, or
by both. (Pen. Code, §19.)
12)Prohibits a term of more than one year in the county jail
except for executed felony sentences under Penal Code section
1170, subdivision (h). (Pen. Code § 19.2.)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "Existing law
provides for persons, who are convicted of 'peeping tom'
offenses, to be punished as a misdemeanor offense. These
offenses include the video recording of a person in a state of
full or partial undress, loitering/looking through a window
that isn't theirs for purposes of invading someone's privacy,
and intentionally distributing images of intimate body parts.
"Because the punishment of a misdemeanor is currently limited
to a maximum of six months in jail and/or a $1,000 fine, these
offenders often escape proper and necessary punishment for
violating someone's right to privacy, as District Attorneys
are often pleading defendants down to lesser punishments in
order to not further clog the court system.
"AB 1772 will give a District Attorney the discretion of
seeking harsher penalties for peeping activities. The maximum
penalties would be doubled from existing law and also provide
for a felony option if the District Attorney feels it's
necessary to seek it."
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2)Argument in Support: None Submitted
3)Argument in Opposition: According to the California Public
Defenders Association, "AB 1772 would change what has always
been non-violent misdemeanor "disorderly conduct" into a
felony crime and impose severe penalties on non-violent
behavior. 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. AB1772 would instead provide that
those offenses could now be 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.
"Additionally, although 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 two thousand
dollars ($2,000), or by both that fine and imprisonment, AB
1772 would expand that punishment to include an additional
punishment of imprisonment in a county jail for 3, 5, or 7
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.
"Finally, existing law provides that every person who, having
been convicted of violating the peeking or invasion of privacy
provisions described above, who subsequently 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
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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 n a county jail
for 3, 5, or 7 years, by a fine not exceeding $10,000, or by
both that fine and imprisonment.
"Making disorderly conduct, which has always been a
misdemeanor, and in this case the specific act of peeking into
someone's private property, a felony and potentially tripling
the punishments for initial and subsequent violations would be
bad public policy, and provide a punishment that is far from
commensurate with the crime."
4)Prior Legislation:
a) AB 1512 (Donnelly), of the 2012 Legislative Session
would have made the crime of invasion of privacy with the
naked eye or with the use of an instrumentality, otherwise
known as "peeping," a felony punishable in the state
prison. AB 1512 failed passage in the Assembly Public
Safety Committee.
b) AB 2523 (Garcia), of the 2003-2004 Legislative Session,
would have increased the penalty from a misdemeanor to an
alternate misdemeanor/felony for a first offense of secret
videotaping or recording a person under the age of 18, and
would have made a second or subsequent conviction a felony.
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AB 2523 failed passage in the Assembly Public Safety
Committee.
c) AB 2640 (Cox), of the 2003-2004 Legislative Session,
would have created a new felony of loitering, prowling, or
wandering upon the private property of another at any time
without visible or lawful business with the owner or
occupant. AB 2640 failed passage in the Assembly Public
Safety Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
California District Attorneys Association
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Legal Services for Prisoners with Children
Analysis Prepared
by: Gregory Pagan / PUB. S. / (916) 319-3744