Amended in Assembly March 15, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 2820

Introduced by Assembly Member Chiu

February 19, 2016

An act to amend Section begin delete 1050 end delete begin insert 396 end insert of the Penal Code, relating to begin delete criminal procedure end delete begin insert crimes end insert .

LEGISLATIVE COUNSEL’S DIGEST

AB 2820, as amended, Chiu. begin delete Criminal procedure: continuances. end delete begin insert Crimes: price gouging: states of emergency. end insert

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Under existing law, upon the proclamation of a state of emergency resulting from an earthquake, flood, fire, riot, storm, or natural or manmade disaster declared by the President of the United States or the Governor, or upon the declaration of a local emergency resulting from an earthquake, flood, fire, riot, storm, or natural or manmade disaster by the executive officer of any county, city, or city and county, and for a period of 30 days following that declaration, it is a misdemeanor with specified penalties for a person, contractor, business, or other entity to sell or offer to sell certain goods and services for a price that exceeds by 10% the price charged by that person immediately prior to the proclamation of emergency, except as specified.

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This bill would revise the definitions of a state of emergency and a local emergency to mean a natural or manmade disaster or emergency caused by conditions such as, but not limited to, air pollution, earthquake, fire, flood, storm, epidemic, riot, drought, sudden and severe energy shortage, plant or animal infestation or disease, for which a state of emergency has been declared by the President of the United States or the Governor of California or for which a local emergency has been declared by an official, board, or governing body vested with authority to make such a declaration in any city, county, or city and county in California, respectively. The bill would include the transportation of persons and towing services in the provisions described above. The bill would also specify that housing means any rental housing with an initial lease term of no longer than one year for purposes of these provisions. The bill would make other clarifying and conforming changes and make certain additional findings by the Legislature. By expanding the scope of an existing crime, this bill would create a state-mandated local program.

end insert begin insert

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.

end insert begin insert

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

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Existing law establishes the requirements for a continuance to be granted in a criminal case, including a showing of good cause. Existing law defines “good cause” for this purpose as including, but not being limited to, cases involving specified crimes, including murder and hate crimes, and where the prosecuting attorney assigned to the case has another trial, preliminary hearing, or motion to suppress in progress in that court or another court.

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This bill would include among the crimes eligible to determine good cause, crimes against elders and dependent adults, as specified. The bill would also make technical, nonsubstantive changes to these provisions.

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Vote: majority. Appropriation: no. Fiscal committee:  begin delete no end delete begin insert yes end insert . State-mandated local program:  begin delete no end delete begin insert yes end insert .

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

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begin insert SECTION 1. end insert   

end insert

begin insert Section 396 of the end insert begin insert Penal Code end insert begin insert is amended to
read: end insert

396.  

(a) The Legislature hereby finds that during emergencies
and major disasters, including, but not limited to, begin insert air pollution, end insert
earthquakes, fires, floods, begin delete or end delete civil disturbances, begin insert storms, and other
natural and manmade disasters, end insert some merchants have taken unfair
advantage of consumers by greatly increasing prices for essential
consumer goods and services. While the pricing of consumer goods
and services is generally best left to the marketplace under ordinary
conditions, when a declared state of emergency results in abnormal
disruptions of the market, the public interest requires that excessive
and unjustified increases in the prices of essential consumer goods
and services be prohibited. It is the intent of the Legislature in
enacting this act to protect citizens from excessive and unjustified
increases in the prices charged during or shortly after a declared
state of emergency for goods and services that are vital and
necessary for the health, safety, and welfare of consumers. Further
it is the intent of the Legislature that this section be liberally
construed so that its beneficial purposes may be served.

(b) Upon the proclamation of a state of emergency begin delete resulting
from an earthquake, flood, fire, riot, storm, or natural or manmade
disaster end delete declared by the President of the United States or the
Governor, or upon the declaration of a local emergency begin delete resulting
from an earthquake, flood, fire, riot, storm, or natural or manmade
disaster by the executive officer of end delete begin insert by an official, board, or other
governing body vested with authority to make such a declaration
in end insert any county, city, or city and county, and for a period of 30 days
following that declaration, it is unlawful for a person, contractor,
business, or other entity to sell or offer to sell any consumer food
items or goods, goods or services used for emergency cleanup,
emergency supplies, medical supplies, home heating oil, building
materials, housing, transportation, freight, and storage services,
or gasoline or other motor fuels for a price of more than 10 percent
above the price charged by that person for those goods or services
immediately prior to the proclamation of emergency. However, a
greater price increase is not unlawful if that person can prove that
the increase in price was directly attributable to additional costs
imposed on it by the supplier of the goods, or directly attributable
to additional costs for labor or materials used to provide the
services, provided that in those situations where the increase in
price is attributable to additional costs imposed by the seller’s
supplier or additional costs of providing the good or service during
the state of emergency, the price represents no more than 10 percent
above the total of the cost to the seller plus the markup customarily
applied by the seller for that good or service in the usual course
of business immediately prior to the onset of the state of
emergency.

(c) Upon the proclamation of a state of emergency begin delete resulting
from an earthquake, flood, fire, riot, or storm end delete declared by the
President of the United States or the Governor, or upon the
declaration of a local emergency begin delete resulting from an earthquake,
flood, fire, riot, or storm by the executive officer of end delete begin insert by an official,
board, or other governing body vested with authority to make such
a declaration in end insert any county, city, or city and county, and for a
period of 180 days following that declaration, it is unlawful for a
contractor to sell or offer to sell any repair or reconstruction
services or any services used in emergency cleanup for a price of
more than 10 percent above the price charged by that person for
those services immediately prior to the proclamation of emergency.
However, a greater price increase is not unlawful if that person
can prove that the increase in price was directly attributable to
additional costs imposed on it by the supplier of the goods, or
directly attributable to additional costs for labor or materials used
to provide the services, provided that in those situations where the
increase in price is attributable to the additional costs imposed by
the contractor’s supplier or additional costs of providing the service
during the state of emergency, the price represents no more than
10 percent above the total of the cost to the contractor plus the
markup customarily applied by the contractor for that good or
service in the usual course of business immediately prior to the
onset of the state of emergency.

(d) Upon the proclamation of a state of emergency begin delete resulting
from an earthquake, flood, fire, riot, storm, or other natural disaster end delete
declared by the President of the United States or the Governor, or
upon the declaration of a local emergency begin delete resulting from an
earthquake, flood, fire, riot, storm, or other natural disaster by the
executive officer of end delete begin insert end insert begin insert by an official, board, or other governing body
vested with authority to make such a declaration in end insert any county,
city, or city and county, and for a period of 30 days following that
proclamation or declaration, it is unlawful for an owner or operator
of a hotel or motel to increase the hotel or motel’s regular rates,
as advertised immediately prior to the proclamation or declaration
of emergency, by more than 10 percent. However, a greater price
increase is not unlawful if the owner or operator can prove that
the increase in price is directly attributable to additional costs
imposed on it for goods or labor used in its business, to seasonal
adjustments in rates that are regularly scheduled, or to previously
contracted rates.

(e) The provisions of this section may be extended for additional
30-day begin delete periods end delete begin insert periods, as needed, end insert by a local legislative begin delete body end delete
begin insert body, local official, the Governor, end insert or the California Legislature,
if deemed necessary to protect the lives, property, or welfare of
the citizens.

(f) A violation of this section is a misdemeanor punishable by
imprisonment in a county jail for a period not exceeding one year,
or by a fine of not more than ten thousand dollars ($10,000), or
by both that fine and imprisonment.

(g) A violation of this section shall constitute an unlawful
business practice and an act of unfair competition within the
meaning of Section 17200 of the Business and Professions Code.
The remedies and penalties provided by this section are cumulative
to each other, the remedies under Section 17200 of the Business
and Professions Code, and the remedies or penalties available
under all other laws of this state.

(h) For the purposes of this section, the following terms have
the following meanings:

(1) “State of emergency” means a natural or manmade disaster
or emergency begin delete resulting from an earthquake, flood, fire, riot, or
storm end delete begin insert caused by conditions such as, but not limited to, air pollution,
earthquake, fire, flood, storm, epidemic, riot, drought, sudden and
severe energy shortage, plant or animal infestation or disease end insert for
which a state of emergency has been declared by the President of
the United States or the Governor of California.

(2) “Local emergency” means a natural or manmade disaster
or emergency begin delete resulting from an earthquake, flood, fire, riot, or
storm end delete begin insert caused by conditions such as, but not limited to, air pollution,
earthquake, fire, flood, storm, epidemic, riot, drought, sudden and
severe energy shortage, plant or animal infestation or disease end insert for
which a local emergency has been declared by begin delete the executive officer
or governing body of any city or county end delete begin insert an official, board, or other
governing body vested with authority to make such a declaration
in any county, city, or city and county end insert in California.

(3) “Consumer food item” means any article that is used or
intended for use for food, drink, confection, or condiment by a
person or animal.

(4) “Repair or reconstruction services” means services
performed by any person who is required to be licensed under the
Contractors’ State License Law (Chapter 9 (commencing with
Section 7000) of Division 3 of the Business and Professions Code),
for repairs to residential or commercial property of any type that
is damaged as a result of a disaster.

(5) “Emergency supplies” includes, but is not limited to, water,
flashlights, radios, batteries, candles, blankets, soaps, diapers,
temporary shelters, tape, toiletries, plywood, nails, and hammers.

(6) “Medical supplies” includes, but is not limited to,
prescription and nonprescription medications, bandages, gauze,
isopropyl alcohol, and antibacterial products.

(7) “Building materials” means lumber, construction tools,
windows, and anything else used in the building or rebuilding of
property.

(8) “Gasoline” means any fuel used to power any motor vehicle
or power tool.

(9) “Transportation, freight, and storage services” means any
service that is performed by any company that contracts to move,
store, or transport personal or business property or begin insert that end insert rents
equipment for those begin delete purposes end delete begin insert purposes, including towing services,
or any service that provides transportation to persons end insert .

(10) “Housing” means any rental housing begin delete leased on a
month-to-month term end delete begin insert with an initial lease term of no longer than
one year end insert .

(11) “Goods” has the same meaning as defined in subdivision
(c) of Section 1689.5 of the Civil Code.

(i) Nothing in this section shall preempt any local ordinance
prohibiting the same or similar conduct or imposing a more severe
penalty for the same conduct prohibited by this section.

(j) A business offering an item for sale at a reduced price
immediately prior to the proclamation of the emergency may use
the price at which it usually sells the item to calculate the price
pursuant to subdivision (b) or (c).

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begin insert SEC. 2. end insert   

end insert begin insert

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.

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SECTION 1.  

Section 1050 of the Penal Code is amended to
read:

1050.  

(a) The welfare of the people of the State of California
requires that all proceedings in criminal cases shall be set for trial
and heard and determined at the earliest possible time. To this end,
the Legislature finds that the criminal courts are becoming
increasingly congested, resulting in adverse consequences to the
welfare of the people and the defendant. Excessive continuances
contribute substantially to this congestion and cause substantial
hardship to victims and other witnesses. Continuances also lead
to longer periods of presentence confinement for those defendants
in custody and the concomitant overcrowding and increased
expenses of local jails. It is therefore recognized that the people,
the defendant, and the victims and other witnesses have the right
to an expeditious disposition, and to that end it shall be the duty
of all courts and judicial officers and of all counsel, both for the
prosecution and the defense, to expedite these proceedings to the
greatest degree that is consistent with the ends of justice. In
accordance with this policy, criminal cases shall be given
precedence over, and set for trial and heard without regard to the
pendency of, civil matters or proceedings. In further accordance
with this policy, death penalty cases in which both the prosecution
and the defense have informed the court that they are prepared to
proceed to trial shall be given precedence over, and set for trial
and heard without regard to the pendency of, other criminal cases
and civil matters or proceedings, unless the court finds in the
interest of justice that it is not appropriate.

(b) To continue a hearing in a criminal proceeding, including
the trial, (1) a written notice shall be filed and served on all parties
to the proceeding at least two court days before the hearing sought
to be continued, together with affidavits or declarations detailing
specific facts showing that a continuance is necessary and (2)
within two court days of learning that he or she has a conflict in
the scheduling of a court hearing, including a trial, an attorney
shall notify the calendar clerk of each court involved, in writing,
indicating which hearing was set first. A party shall not be deemed
to have been served within the meaning of this section until that
party actually has received a copy of the documents to be served,
unless the party, after receiving actual notice of the request for
continuance, waives the right to have the documents served in a
timely manner. Regardless of the proponent of the motion, the
prosecuting attorney shall notify the people’s witnesses and the
defense attorney shall notify the defense’s witnesses of the notice
of motion, the date of the hearing, and the witnesses’ right to be
heard by the court.

(c) Notwithstanding subdivision (b), a party may make a motion
for a continuance without complying with the requirements of that
subdivision. However, unless the moving party shows good cause
for the failure to comply with those requirements, the court may
impose sanctions as provided in Section 1050.5.

(d) When a party makes a motion for a continuance without
complying with the requirements of subdivision (b), the court shall
hold a hearing on whether there is good cause for the failure to
comply with those requirements. At the conclusion of the hearing,
the court shall make a finding whether good cause has been shown
and, if it finds that there is good cause, shall state on the record
the facts proved that justify its finding. A statement of the finding
and a statement of facts proved shall be entered in the minutes. If
the moving party is unable to show good cause for the failure to
give notice, the motion for continuance shall not be granted.

(e) Continuances shall be granted only upon a showing of good
cause. Neither the convenience of the parties nor a stipulation of
the parties is, in and of itself, good cause.

(f) At the conclusion of the motion for continuance, the court
shall make a finding whether good cause has been shown and, if
it finds that there is good cause, shall state on the record the facts
proved that justify its finding. A statement of facts proved shall
be entered in the minutes.

(g) (1) When deciding whether or not good cause for a
continuance has been shown, the court shall consider the general
convenience and prior commitments of all witnesses, including
peace officers. Both the general convenience and prior
commitments of each witness also shall be considered in selecting
a continuance date if the motion is granted. The facts as to
inconvenience or prior commitments may be offered by the witness
or by a party to the case.

(2) For purposes of this section, “good cause” includes, but is
not limited to, cases that meet both of the following criteria:

(A) The case involves one or more of the following:

(i) Murder, as defined in subdivision (a) of Section 187.

(ii) Allegations of stalking, as defined in Section 646.9.

(iii) Violation of one or more of the sections specified in
subdivision (a) of Section 11165.1 or Section 11165.6.

(iv) Domestic violence, as defined in Section 13700.

(v) A case being handled in the California Career Criminal
Prosecution Program pursuant to Sections 999b to 999h, inclusive.

(vi) A hate crime, as defined in Title 11.6 (commencing with
Section 422.6) of Part 1.

(vii) A crime against an elder or dependent adult as specified
in Section 368.

(B) The prosecuting attorney assigned to the case has another
trial, preliminary hearing, or motion to suppress in progress in that
court or another court.

A continuance under this paragraph shall be limited to a
maximum of 10 additional court days.

(3) Only one continuance per case may be granted to the people
under this subdivision for cases involving stalking, hate crimes,
or cases handled under the California Career Criminal Prosecution
Program. A continuance granted to the people in a case involving
stalking or handled under the California Career Criminal
Prosecution Program shall be for the shortest time possible, not to
exceed 10 court days.

(h) Upon a showing that the attorney of record at the time of
the defendant’s first appearance in the superior court on an
indictment or information is a Member of the Legislature of this
state and that the Legislature is in session or that a legislative
interim committee of which the attorney is a duly appointed
member is meeting or is to meet within the next seven days, the
defendant shall be entitled to a reasonable continuance not to
exceed 30 days.

(i) A continuance shall be granted only for that period of time
shown to be necessary by the evidence considered at the hearing
on the motion. Whenever a continuance is granted, the court shall
state on the record the facts proved that justify the length of the
continuance, and those facts shall be entered in the minutes.

(j) Whenever it appears that a court may be required, because
of the condition of its calendar, to dismiss an action pursuant to
Section 1382, the court must immediately notify the Chair of the
Judicial Council.

(k) This section does not apply when the preliminary
examination is set on a date less than 10 court days from the date
of the defendant’s arraignment on the complaint, and the
prosecution or the defendant moves to continue the preliminary
examination to a date not more than 10 court days from the date
of the defendant’s arraignment on the complaint.

(l) This section is directory only and does not mandate dismissal
of an action by its terms.

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