Amended in Assembly March 15, 2016

California Legislature—2015–16 Regular Session

Assembly BillNo. 2333


Introduced by Assembly Member Achadjian

February 18, 2016


An act to amend Sectionbegin delete 4030end deletebegin insert 490.5end insert of the Penal Code, relating tobegin delete jails. end deletebegin insert theft.end insert

LEGISLATIVE COUNSEL’S DIGEST

AB 2333, as amended, Achadjian. begin deleteJails: searches. end deletebegin insertTheft of merchandise.end insert

begin insert

Existing law makes petty theft involving merchandise taken from a merchant’s premises punishable by a fine of not less than $50 and not more than $1,000, and imprisonment in the county jail not exceeding 6 months.

end insert
begin insert

This bill would provide that nothing in that section or any other law precludes a merchant from offering a person suspected of theft an opportunity to complete a precomplaint diversion program in lieu of arrest and criminal prosecution, or informing a person suspected of theft of the criminal civil remedies available to the merchant.

end insert
begin delete

Existing law generally prohibits strip searches and body cavity searches of prearraignment detainees arrested for infraction or misdemeanor offenses. Existing law allows a person who has been arrested and taken into custody to be subjected to patdown searches, metal detector searches, and thorough clothing searches in order to discover and retrieve concealed weapons and contraband substances prior to being placed in a booking cell.

end delete
begin delete

This bill would make technical, nonsubstantive changes to those provisions.

end delete

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

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

P2    1begin insert

begin insertSECTION 1.end insert  

end insert

begin insertSection 490.5 of the end insertbegin insertPenal Codeend insertbegin insert is amended to
2read:end insert

3

490.5.  

(a) Upon a first conviction for petty theft involving
4merchandise taken from a merchant’s premises or a book or other
5library materials taken from a library facility, a person shall be
6punished by a mandatory fine of not less than fifty dollars ($50)
7and not more than one thousand dollars ($1,000) for eachbegin delete suchend delete
8 violation; and may also be punished by imprisonment in the county
9jail, not exceeding six months, or bothbegin delete suchend deletebegin insert thatend insert fine and
10imprisonment.

11(b) begin deleteWhen end deletebegin insertIf end insertan unemancipated minor’s willful conduct would
12constitute petty theft involving merchandise taken from a
13merchant’s premises or a book or other library materials taken
14from a library facility,begin delete anyend deletebegin insert aend insert merchant or library facilitybegin delete whoend deletebegin insert thatend insert
15 has been injured by that conduct may bring a civil action against
16the parent or legal guardian having control and custody of the
17minor. For the purposes of those actions the misconduct of the
18unemancipated minor shall be imputed to the parent or legal
19guardian having control and custody of the minor. The parent or
20legal guardian having control or custody of an unemancipated
21minor whose conduct violates this subdivision shall be jointly and
22severally liable with the minor to a merchant or to a library facility
23for damages of not less than fifty dollars ($50) nor more than five
24hundred dollars ($500), plus costs. In addition to the foregoing
25damages, the parent or legal guardian shall be jointly and severally
26liable with the minor to the merchant for the retail value of the
27merchandise if it is not recovered in a merchantable condition, or
28to a library facility for the fair market value of its book or other
29library materials. Recovery of these damages may be had in
30addition to, and is not limited by, any other provision of law which
31limits the liability of a parent or legal guardian for the tortious
32conduct of a minor. An action for recovery of damages, pursuant
33to this subdivision, may be brought in small claims court if the
34total damages do not exceed the jurisdictional limit of that court,
35or in any other appropriate court; however, total damages, including
P3    1the value of the merchandise or book or other library materials,
2shall not exceed five hundred dollars ($500) for each action brought
3under this section.

4The provisions of this subdivision are in addition to other civil
5remedies and do not limit merchants or other persons to elect to
6pursue other civil remedies, except that the provisions of Section
71714.1 of the Civil Code shall not apply herein.

8(c) begin deleteWhen end deletebegin insertIf end insertan adult or emancipated minor has unlawfully taken
9merchandise from a merchant’s premises, or a book or other library
10materials from a library facility, the adult or emancipated minor
11shall be liable to the merchant or library facility for damages of
12not less than fifty dollars ($50) nor more than five hundred dollars
13($500), plus costs. In addition to the foregoing damages, the adult
14or emancipated minor shall be liable to the merchant for the retail
15value of the merchandise if it is not recovered in merchantable
16condition, or to a library facility for the fair market value of its
17book or other library materials. An action for recovery of damages,
18pursuant to this subdivision, may be brought in small claims court
19if the total damages do not exceed the jurisdictional limit of such
20court, or in any other appropriate court. The provisions of this
21subdivision are in addition to other civil remedies and do not limit
22merchants or other persons to elect to pursue other civil remedies.

23(d) In lieu of the fines prescribed by subdivision (a), any person
24may be required to perform public services designated by the court,
25provided that in no event shall anybegin delete suchend delete person be required to
26perform less than the number of hours ofbegin delete suchend delete public service
27necessary to satisfy the fine assessed by the court as provided by
28subdivision (a) at the minimum wage prevailing in the state at the
29time of sentencing.

30(e) All fines collected under this section shall be collected and
31distributed in accordance with Sections 1463 and 1463.1 of the
32Penal Code; provided, however, that a county may, by a majority
33vote of the members of its board of supervisors, allocate any
34amount up to, but not exceeding 50 percent of such fines to the
35county superintendent of schools for allocation to local school
36districts. The fines allocated shall be administered by the county
37superintendent of schools to finance public school programs, which
38provide counseling or other educational services designed to
39discourage shoplifting, theft, and burglary. Subject to rules and
40regulationsbegin delete as may beend delete adopted by the Superintendent of Public
P4    1Instruction, each county superintendent of schools shall allocate
2begin delete suchend delete funds to school districts within the countybegin delete whichend deletebegin insert thatend insert submit
3project applications designed to further the educational purposes
4of this section. The costs of administration of this section by each
5county superintendent of schools shall be paid from the funds
6allocated to the county superintendent of schools.

7(f) (1) A merchant may detain a person for a reasonable time
8for the purpose of conducting an investigation in a reasonable
9manner whenever the merchant has probable cause to believe the
10person to be detained is attempting to unlawfully take or has
11 unlawfully taken merchandise from the merchant’s premises.

12A theater owner may detain a person for a reasonable time for
13the purpose of conducting an investigation in a reasonable manner
14whenever the theater owner has probable cause to believe the
15person to be detained is attempting to operate a video recording
16device within the premises of a motion picture theater without the
17authority of the owner of the theater.

18A person employed by a library facility may detain a person for
19a reasonable time for the purpose of conducting an investigation
20in a reasonable manner whenever the person employed by a library
21facility has probable cause to believe the person to be detained is
22attempting to unlawfully remove or has unlawfully removed books
23or library materials from the premises of the library facility.

24(2) In making the detention a merchant, theater owner, or a
25 person employed by a library facility may use a reasonable amount
26of nondeadly force necessary to protect himself or herself and to
27prevent escape of the person detained or the loss of tangible or
28intangible property.

29(3) During the period of detention any itemsbegin delete whichend deletebegin insert thatend insert a
30merchant or theater owner, or any itemsbegin delete whichend deletebegin insert thatend insert a person
31employed by a library facility has probable cause to believe are
32unlawfully taken from the premises of the merchant or library
33facility, or recorded on theater premises, andbegin delete whichend deletebegin insert thatend insert are in
34plain view may be examined by the merchant, theater owner, or
35person employed by a library facility for the purposes of
36ascertaining the ownership thereof.

37(4) A merchant, theater owner, a person employed by a library
38facility, or an agent thereof, having probable cause to believe the
39person detained was attempting to unlawfully take or has taken
40any item from the premises, or was attempting to operate a video
P5    1recording device within the premises of a motion picture theater
2without the authority of the owner of the theater, may request the
3person detained to voluntarily surrender the item or recording.
4Should the person detained refuse to surrender the recording or
5item of which there is probable cause to believe has been recorded
6on or unlawfully taken from the premises, or attempted to be
7recorded or unlawfully taken from the premises, a limited and
8reasonable search may be conducted by those authorized to make
9the detention in order to recover the item. Only packages, shopping
10bags, handbags or other property in the immediate possession of
11the person detained, but not including any clothing worn by the
12person, may be searched pursuant to this subdivision. Upon
13surrender or discovery of the item, the person detained may also
14be requested, but may not be required, to provide adequate proof
15of his or her true identity.

16(5) If any person admitted to a theater in which a motion picture
17is to be or is being exhibited, refuses or fails to give or surrender
18possession or to cease operation of any video recording device
19that the person has brought into or attempts to bring into that
20theater, then a theater owner shall have the right to refuse admission
21to that person or request that the person leave the premises and
22shall thereupon offer to refund and, unless that offer is refused,
23refund to that person the price paid by that person for admission
24to that theater. If the person thereafter refuses to leave the theater
25or cease operation of the video recording device, then the person
26shall be deemed to be intentionally interfering with and obstructing
27those attempting to carry on a lawful business within the meaning
28of Section 602.1.

29(6) A peace officer who accepts custody of a person arrested
30for an offense contained in this section may, subsequent to the
31arrest, search the person arrested and his or her immediate
32possessions for any item or items alleged to have been taken.

33(7) In any civil action brought by any person resulting from a
34detention or arrest by a merchant, it shall be a defense tobegin delete suchend deletebegin insert theend insert
35 action that the merchant detaining or arrestingbegin delete suchend deletebegin insert theend insert person had
36probable cause to believe that the person had stolen or attempted
37to steal merchandise and that the merchant acted reasonably under
38all the circumstances.

39In any civil action brought by any person resulting from a
40detention or arrest by a theater owner or person employed by a
P6    1library facility, it shall be a defense to that action that the theater
2owner or person employed by a library facility detaining or
3arresting that person had probable cause to believe that the person
4was attempting to operate a video recording device within the
5premises of a motion picture theater without the authority of the
6owner of the theater or had stolen or attempted to steal books or
7library materials and that the person employed by a library facility
8acted reasonably under all the circumstances.

9(g) As used in this section:

10(1) “Merchandise” means any personal property, capable of
11manual delivery, displayed, held or offered for retail sale by a
12merchant.

13(2) “Merchant” means an owner or operator, and the agent,
14consignee, employee, lessee, or officer of an owner or operator,
15of any premises used for the retail purchase or sale of any personal
16property capable of manual delivery.

17(3) “Theater owner” means an owner or operator, and the agent,
18employee, consignee, lessee, or officer of an owner or operator,
19of any premises used for the exhibition or performance of motion
20pictures to the general public.

21(4) The terms “book or other library materials” include any
22book, plate, picture, photograph, engraving, painting, drawing,
23map, newspaper, magazine, pamphlet, broadside, manuscript,
24 document, letter, public record, microform, sound recording,
25audiovisual material in any format, magnetic or other tape,
26electronic data-processing record, artifact, or other documentary,
27written or printed material regardless of physical form or
28characteristics, or any part thereof, belonging to, on loan to, or
29otherwise in the custody of a library facility.

30(5) The term “library facility” includes any public library; any
31library of an educational, historical or eleemosynary institution,
32organization or society; any museum; any repository of public
33records.

34(h) Any library facility shall post at its entrance and exit a
35conspicuous sign to read as follows:

36“IN ORDER TO PREVENT THE THEFT OF BOOKS AND
37LIBRARY MATERIALS, STATE LAW AUTHORIZES THE
38DETENTION FOR A REASONABLE PERIOD OF ANY
39PERSON USING THESE FACILITIES SUSPECTED OF
P7    1 COMMITTING “LIBRARY THEFT” (PENAL CODE SECTION
2490.5).”

begin insert

3(i) Nothing in this section nor any other provision of law
4precludes a merchant from offering a person suspected of theft an
5opportunity to complete a precomplaint diversion program in lieu
6of arrest and criminal prosecution or precludes a merchant from
7informing a person suspected of theft of the criminal or civil
8remedies available to the merchant.

end insert
begin delete
9

SECTION 1.  

Section 4030 of the Penal Code is amended to
10read:

11

4030.  

(a) (1) The Legislature finds and declares that law
12enforcement policies and practices for conducting strip or body
13cavity searches of detained persons vary widely throughout
14California. Consequently, some people have been arbitrarily
15subjected to unnecessary strip and body cavity searches after arrests
16for minor misdemeanor and infraction offenses. Some present
17search practices violate state and federal constitutional rights to
18privacy and freedom from unreasonable searches and seizures.

19(2) It is the intent of the Legislature in enacting this section to
20protect the state and federal constitutional rights of the people of
21California by establishing a statewide policy strictly limiting strip
22and body cavity searches.

23(b) The provisions of this section shall apply only to
24prearraignment detainees arrested for infraction or misdemeanor
25offenses and to any minor detained prior to a detention hearing on
26the grounds that he or she is a person described in Section 300,
27601, or 602 of the Welfare and Institutions Code alleged to have
28committed a misdemeanor or infraction offense. The provisions
29of this section shall not apply to a person in the custody of the
30Secretary of the Department of Corrections and Rehabilitation or
31the Director of the Division of Juvenile Justice in the Department
32of Corrections and Rehabilitation.

33(c) As used in this section, the following definitions shall apply:

34(1) “Body cavity” only means the stomach or rectal cavity of a
35person, and vagina of a female person.

36(2) “Physical body cavity search” means physical intrusion into
37a body cavity for the purpose of discovering any object concealed
38in the body cavity.

39(3) “Strip search” means a search which requires a person to
40remove or arrange some or all of his or her clothing so as to permit
P8    1a visual inspection of the underclothing, breasts, buttocks, or
2genitalia of that person.

3(4) “Visual body cavity search” means visual inspection of a
4body cavity.

5(d) Notwithstanding any other law, including Section 40304.5
6of the Vehicle Code, if a person is arrested and taken into custody,
7that person may be subjected to patdown searches, metal detector
8searches, and thorough clothing searches in order to discover and
9retrieve concealed weapons and contraband substances prior to
10being placed in a booking cell.

11(e) A person who is arrested and held in custody on a
12misdemeanor or infraction offense, except those involving
13weapons, controlled substances, or violence, or a minor detained
14prior to a detention hearing on the grounds that he or she is a person
15described in Section 300, 601 or 602 of the Welfare and Institutions
16Code, except for those minors alleged to have committed felonies
17or offenses involving weapons, controlled substances, or violence,
18shall not be subjected to a strip search or visual body cavity search
19prior to placement in the general jail population, unless a peace
20officer has determined there is reasonable suspicion, based on
21specific and articulable facts, to believe that person is concealing
22a weapon or contraband, and a strip search will result in the
23discovery of the weapon or contraband. A strip search or visual
24body cavity search, or both, shall not be conducted without the
25prior written authorization of the supervising officer on duty. The
26authorization shall include the specific and articulable facts and
27circumstances upon which the reasonable suspicion determination
28was made by the supervisor.

29(f) (1) Except pursuant to the provisions of paragraph (2), a
30person arrested and held in custody on a misdemeanor or infraction
31offense not involving weapons, controlled substances, or violence,
32shall not be confined in the general jail population unless all of
33the following are true:

34(A) The person is not cited and released.

35(B) The person is not released on his or her own recognizance
36pursuant to Article 9 (commencing with Section 1318) of Chapter
371 of Title 10 of Part 2.

38(C) The person is not able to post bail within a reasonable time,
39not less than three hours.

P9    1(2) A person shall not be housed in the general jail population
2prior to release pursuant to the provisions of paragraph (1) unless
3a documented emergency exists and there is no reasonable
4alternative to that placement. The person shall be placed in the
5general population only upon prior written authorization
6documenting the specific facts and circumstances of the emergency.
7The written authorization shall be signed by the uniformed
8supervisor of the facility or by a uniformed watch commander. A
9person confined in the general jail population pursuant to paragraph
10(1) shall retain all rights to release on citation, his or her own
11recognizance, or bail that were preempted as a consequence of the
12emergency.

13(g) A person who is arrested on a misdemeanor or infraction
14offense, or a minor described in subdivision (b), shall not be
15subjected to a physical body cavity search except under the
16authority of a search warrant issued by a magistrate specifically
17authorizing the physical body cavity search.

18(h) A copy of the prior written authorization required by
19subdivisions (e) and (f) and the search warrant required by
20subdivision (g) shall be placed in the agency’s records and made
21available, on request, to the person searched or his or her authorized
22representative. With regard to a strip search or visual or physical
23body cavity search, the time, date, and place of the search, the
24name and sex of the person conducting the search, and a statement
25of the results of the search, including a list of items removed from
26the person searched, shall be recorded in the agency’s records and
27made available, upon request, to the person searched or his or her
28authorized representative.

29(i) Persons conducting a strip search or a visual body cavity
30search shall not touch the breasts, buttocks, or genitalia of the
31person being searched.

32(j) A physical body cavity search shall be conducted under
33sanitary conditions, and only by a physician, nurse practitioner,
34registered nurse, licensed vocational nurse, or emergency medical
35technician Level II licensed to practice in this state. A physician
36engaged in providing health care to detainees and inmates of the
37facility may conduct physical body cavity searches.

38(k) A person conducting or otherwise present or within sight of
39the inmate during a strip search or visual or physical body cavity
P10   1search shall be of the same sex as the person being searched, except
2for physicians or licensed medical personnel.

3(l) All strip, visual, and physical body cavity searches shall be
4conducted in an area of privacy so that the search cannot be
5observed by persons not participating in the search. Persons are
6considered to be participating in the search if their official duties
7relative to search procedure require them to be present at the time
8the search is conducted.

9(m) A person who knowingly and willfully authorizes or
10conducts a strip search or visual or physical body cavity search in
11violation of this section is guilty of a misdemeanor.

12(n) This section does not limit the common law or statutory
13rights of a person regarding an action for damages or injunctive
14relief, or preclude the prosecution under another law of a peace
15officer or other person who has violated this section.

16(o) Any person who suffers damage or harm as a result of a
17violation of this section may bring a civil action to recover actual
18damages, or one thousand dollars ($1,000), whichever is greater.
19In addition, the court may, in its discretion, award punitive
20damages, equitable relief as it deems necessary and proper, and
21costs, including reasonable attorney’s fees.

end delete


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