Amended in Senate May 5, 2015

Amended in Senate April 20, 2015

Senate Bill No. 676

Introduced by Senator Cannella

February 27, 2015

An act to amend Sections 312.3 begin delete , 502.01, and 647 end delete begin insert and 502.01 end insert of the Penal Code, relating to disorderly conduct.

LEGISLATIVE COUNSEL’S DIGEST

SB 676, as amended, Cannella. Disorderly conduct: invasion of privacy.

Existing law provides that a 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, a misdemeanor.

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This bill would recast those provisions to provide that a 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 person distributing the image knows or should know that the depicted person had a reasonable expectation that the image would 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. The bill would provide additional exceptions to the prohibition against that distribution.

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By expanding the definition of an existing crime, this bill would impose a state-mandated local program.

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Under existing law, matter that depicts a person under 18 years of age personally engaging in or personally simulating sexual conduct, as defined, and that is in the possession of any city, county, city and county, or state official or agency is subject to forfeiture pursuant to a petition for forfeiture brought in the county in which the matter is located. Existing law provides for forfeiture by a defendant of illegal telecommunications equipment, or a computer, computer system, or computer network, and any software or data that was used in committing specified crimes, including depiction of a person under 18 years of age personally engaging in or personally simulating sexual conduct.

This bill would apply those begin insert forfeiture end insert provisions to begin delete the new provisions of disorderly conduct described above, and to the existing provisions end delete begin insert violations end insert of disorderly conduct related to invasion of begin delete privacy, as provided. end delete begin insert privacy, as specified. end insert

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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.

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

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

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

SECTION 1.  

Section 312.3 of the Penal Code is amended to
read:

312.3.  

(a) Matter that depicts a person under the age of 18
years personally engaging in or personally simulating sexual
conduct as defined in Section 311.4, or that is obtained or
distributed in violation of subdivision (j) of Section 647 and that
is in the possession of any city, county, city and county, or state
official or agency is subject to forfeiture pursuant to this section.

(b) An action to forfeit matter described in subdivision (a) may
be brought by the Attorney General, the district attorney, county
counsel, or the city attorney. Proceedings shall be initiated by a
petition of forfeiture filed in the superior court of the county in
which the matter is located.

(c) The prosecuting agency shall make service of process of a
notice regarding that petition upon every individual who may have
a property interest in the alleged proceeds. The notice shall state
that any interested party may file a verified claim with the superior
court stating the amount of their claimed interest and an affirmation
or denial of the prosecuting agency’s allegation. If the notice cannot
be given by registered mail or personal delivery, the notice shall
be published for at least three successive weeks in a newspaper of
general circulation in the county where the property is located. All
notices shall set forth the time within which a claim of interest in
the property seized is required to be filed.

(d) (1) Any person claiming an interest in the property or
proceeds may, at any time within 30 days from the date of the first
publication of the notice of seizure, or within 30 days after receipt
of actual notice, file with the superior court of the county in which
the action is pending a verified claim stating his or her interest in
the property or proceeds. A verified copy of the claim shall be
given by the claimant to the Attorney General or district attorney,
county counsel, or city attorney, as appropriate.

(2) If, at the end of the time set forth in paragraph (1), an
interested person has not filed a claim, the court, upon motion,
shall declare that the person has defaulted upon his or her alleged
interest, and it shall be subject to forfeiture upon proof of
compliance with subdivision (c).

(e) The burden is on the petitioner to prove beyond a reasonable
doubt that matter is subject to forfeiture pursuant to this section.

(f) It is not necessary to seek or obtain a criminal conviction
prior to the entry of an order for the destruction of matter pursuant
to this section. Any matter described in subdivision (a) that is in
the possession of any city, county, city and county, or state official
or agency, including found property, or property obtained as the
result of a case in which no trial was had or that has been disposed
of by way of dismissal or otherwise than by way of conviction
may be ordered destroyed.

(g) A court order for destruction of matter described in
subdivision (a) may be carried out by a police or sheriff’s
department or by the Department of Justice. The court order shall
specify the agency responsible for the destruction.

(h) As used in this section, “matter” means any book, magazine,
newspaper, or other printed or written material or any picture,
drawing, photograph, motion picture, or other pictorial
representation, or any statue or other figure, or any recording,
transcription or mechanical, chemical or electrical reproduction,
or any other articles, equipment, machines, or materials. “Matter”
also means any representation of information, data, or image,
including, but not limited to, any film, filmstrip, photograph,
negative, slide, photocopy, videotape, video laser disc, computer
hardware, computer software, computer floppy disc, data storage
media, CD-ROM, or computer-generated equipment or any other
computer-generated image that contains or incorporates in any
manner any film or filmstrip.

(i) This section does not apply to a depiction of a legally
emancipated minor or to lawful conduct between spouses if one
or both are under the age of 18.

(j) It is a defense in any forfeiture proceeding that the matter
seized was lawfully possessed in aid of legitimate scientific or
educational purposes.

SEC. 2.  

Section 502.01 of the Penal Code is amended to read:

502.01.  

(a) As used in this section:

(1) “Property subject to forfeiture” means any property of the
defendant that is illegal telecommunications equipment as defined
in subdivision (g) of Section 502.8, or a computer, computer
system, or computer network, and any software or data residing
thereon, if the telecommunications device, computer, computer
system, or computer network was used in committing a violation
of, or conspiracy to commit a violation of, subdivision (b) of
Section 272, Section 288, 288.2, 311.1, 311.2, 311.3, 311.4, 311.5,
311.10, 311.11, 422, 470, 470a, 472, 475, 476, 480, 483.5, 484g,
or subdivision (a), (b), or (d) of Section 484e, subdivision (a) of
Section 484f, subdivision (b) or (c) of Section 484i, subdivision
(c) of Section 502, or Section 502.7, 502.8, 529, 529a, or 530.5,
537e, 593d, 593e, 646.9, or subdivision (j) of Section 647, or was
used as a repository for the storage of software or data obtained
in violation of those provisions. Forfeiture shall not be available
for any property used solely in the commission of an infraction.
If the defendant is a minor, it also includes property of the parent
or guardian of the defendant.

(2) “Sentencing court” means the court sentencing a person
found guilty of violating or conspiring to commit a violation of
subdivision (b) of Section 272, Section 288, 288.2, 311.1, 311.2,
311.3, 311.4, 311.5, 311.10, 311.11, 422, 470, 470a, 472, 475,
476, 480, 483.5, 484g, or subdivision (a), (b), or (d) of Section
484e, subdivision (d) of Section 484e, subdivision (a) of Section
484f, subdivision (b) or (c) of Section 484i, subdivision (c) of
Section 502, or Section 502.7, 502.8, 529, 529a, 530.5, 537e, 593d,
593e, 646.9, or subdivision (j) of Section 647, or, in the case of a
minor, found to be a person described in Section 602 of the Welfare
and Institutions Code because of a violation of those provisions,
the juvenile court.

(3) “Interest” means any property interest in the property subject
to forfeiture.

(4) “Security interest” means an interest that is a lien, mortgage,
security interest, or interest under a conditional sales contract.

(5) “Value” has the following meanings:

(A) When counterfeit items of computer software are
manufactured or possessed for sale, the “value” of those items
shall be equivalent to the retail price or fair market price of the
true items that are counterfeited.

(B) When counterfeited but unassembled components of
computer software packages are recovered, including, but not
limited to, counterfeited computer diskettes, instruction manuals,
or licensing envelopes, the “value” of those components of
computer software packages shall be equivalent to the retail price
or fair market price of the number of completed computer software
packages that could have been made from those components.

(b) The sentencing court shall, upon petition by the prosecuting
attorney, at any time following sentencing, or by agreement of all
parties, at the time of sentencing, conduct a hearing to determine
whether any property or property interest is subject to forfeiture
under this section. At the forfeiture hearing, the prosecuting
attorney shall have the burden of establishing, by a preponderance
of the evidence, that the property or property interests are subject
to forfeiture. The prosecuting attorney may retain seized property
that may be subject to forfeiture until the sentencing hearing.

(c) (1) Prior to the commencement of a forfeiture proceeding,
the law enforcement agency seizing the property subject to
forfeiture shall make an investigation as to any person other than
the defendant who may have an interest in it. At least 30 days
before the hearing to determine whether the property should be
forfeited, the prosecuting agency shall send notice of the hearing
to any person who may have an interest in the property that arose
before the seizure.

(2) A person claiming an interest in the property shall file a
motion for the redemption of that interest at least 10 days before
the hearing on forfeiture, and shall send a copy of the motion to
the prosecuting agency and to the probation department.

(3) If a motion to redeem an interest has been filed, the
sentencing court shall hold a hearing to identify all persons who
possess valid interests in the property. No person shall hold a valid
interest in the property if, by a preponderance of the evidence, the
prosecuting agency shows that the person knew or should have
known that the property was being used in violation of, or
conspiracy to commit a violation of, subdivision (b) of Section
272, Section 288, 288.2, 311.1, 311.2, 311.3, 311.4, 311.5, 311.10,
311.11, 470, 470a, 472, 475, 476, 480, 483.5, 484g, or subdivision
(a), (b), or (d) of Section 484e, subdivision (a) of Section 484f,
subdivision (b) or (c) of Section 484i, subdivision (c) of Section
502, or Section 502.7, 502.8, 529, 529a, 530.5, 537e, 593d, 593e,
646.9, or subdivision (j) of Section 647, and that the person did
not take reasonable steps to prevent that use, or if the interest is a
security interest, the person knew or should have known at the
time that the security interest was created that the property would
be used for a violation.

(d) If the sentencing court finds that a person holds a valid
interest in the property, the following provisions shall apply:

(1) The court shall determine the value of the property.

(2) The court shall determine the value of each valid interest in
the property.

(3) If the value of the property is greater than the value of the
interest, the holder of the interest shall be entitled to ownership of
the property upon paying the court the difference between the
value of the property and the value of the valid interest.

If the holder of the interest declines to pay the amount determined
under paragraph (2), the court may order the property sold and
designate the prosecutor or any other agency to sell the property.
The designated agency shall be entitled to seize the property and
the holder of the interest shall forward any documentation
underlying the interest, including any ownership certificates for
that property, to the designated agency. The designated agency
shall sell the property and pay the owner of the interest the
proceeds, up to the value of that interest.

(4) If the value of the property is less than the value of the
interest, the designated agency shall sell the property and pay the
owner of the interest the proceeds, up to the value of that interest.

(e) If the defendant was a minor at the time of the offense, this
subdivision shall apply to property subject to forfeiture that is the
property of the parent or guardian of the minor.

(1) The prosecuting agency shall notify the parent or guardian
of the forfeiture hearing at least 30 days before the date set for the
hearing.

(2) The computer or telecommunications device shall not be
subject to forfeiture if the parent or guardian files a signed
statement with the court at least 10 days before the date set for the
hearing that the minor shall not have access to any computer or
telecommunications device owned by the parent or guardian for
two years after the date on which the minor is sentenced.

(3) If the minor is convicted of a violation of Section 288, 288.2,
311.1, 311.2, 311.3, 311.4, 311.5, 311.10, 311.11, 470, 470a, 472,
476, 480, or subdivision (b) of Section 484e, subdivision (d) of
Section 484e, subdivision (a) of Section 484f, subdivision (b) of
Section 484i, subdivision (c) of Section 502, or Section 502.7,
502.8, 529, 529a, 530.5, or subdivision (j) of Section 647, within
two years after the date on which the minor is sentenced, and the
violation involves a computer or telecommunications device owned
by the parent or guardian, the original property subject to forfeiture,
and the property involved in the new offense, shall be subject to
forfeiture notwithstanding paragraph (2).

(4) Notwithstanding paragraph (1), (2), or (3), or any other
provision of this chapter, if a minor’s parent or guardian makes
full restitution to the victim of a crime enumerated in this chapter
in an amount or manner determined by the court, the forfeiture
provisions of this chapter do not apply to the property of that parent
or guardian if the property was located in the family’s primary
residence during the commission of the crime.

(f) Notwithstanding any other provision of this chapter, the court
may exercise its discretion to deny forfeiture where the court finds
that the convicted defendant, or minor adjudicated to come within
the jurisdiction of the juvenile court, is not likely to use the
property otherwise subject to forfeiture for future illegal acts.

(g) If the defendant is found to have the only valid interest in
the property subject to forfeiture, it shall be distributed as follows:

(1) First, to the victim, if the victim elects to take the property
as full or partial restitution for injury, victim expenditures, or
compensatory damages, as defined in paragraph (1) of subdivision
(e) of Section 502. If the victim elects to receive the property under
this paragraph, the value of the property shall be determined by
the court and that amount shall be credited against the restitution
owed by the defendant. The victim shall not be penalized for
electing not to accept the forfeited property in lieu of full or partial
restitution.

(2) Second, at the discretion of the court, to one or more of the
following agencies or entities:

(A) The prosecuting agency.

(B) The public entity of which the prosecuting agency is a part.

(C) The public entity whose officers or employees conducted
the investigation resulting in forfeiture.

(D) Other state and local public entities, including school
districts.

(E) Nonprofit charitable organizations.

(h) If the property is to be sold, the court may designate the
prosecuting agency or any other agency to sell the property at
auction. The proceeds of the sale shall be distributed by the court
as follows:

(1) To the bona fide or innocent purchaser or encumbrancer,
conditional sales vendor, or mortgagee of the property up to the
amount of his or her interest in the property, if the court orders a
distribution to that person.

(2) The balance, if any, to be retained by the court, subject to
the provisions for distribution under subdivision (g).

All matter omitted in this version of the bill appears in the bill as amended in the Senate April 20, 2015. (JR11)