Amended in Assembly July 2, 2015

Amended in Senate May 5, 2015

Amended in Senate April 20, 2015

Senate BillNo. 676


Introduced by Senator Cannella

February 27, 2015


An act to amendbegin delete Sections 312.3 andend deletebegin insert Sectionend insert 502.01 ofbegin insert, and to add Section 647.8 to,end insert 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.

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 wouldbegin delete apply those forfeiture provisions to violations of disorderly conduct related to invasion of privacy, as specified.end deletebegin insert make the forfeiture provisions described above applicable to illegal telecommunications equipment, or a computer, computer system, or computer network, and any software or data, when used in committing a violation of disorderly conduct related to invasion of privacy, as specified. The bill would also establish forfeiture proceedings for matter obtained through disorderly conduct by invasion of privacy, as specified.end insert

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

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

begin delete
P2    1

SECTION 1.  

Section 312.3 of the Penal Code is amended to
2read:

3

312.3.  

(a) Matter that depicts a person under the age of 18
4years personally engaging in or personally simulating sexual
5conduct as defined in Section 311.4, or that is obtained or
6distributed in violation of subdivision (j) of Section 647 and that
7is in the possession of any city, county, city and county, or state
8official or agency is subject to forfeiture pursuant to this section.

9(b) An action to forfeit matter described in subdivision (a) may
10be brought by the Attorney General, the district attorney, county
11counsel, or the city attorney. Proceedings shall be initiated by a
12petition of forfeiture filed in the superior court of the county in
13which the matter is located.

14(c) The prosecuting agency shall make service of process of a
15 notice regarding that petition upon every individual who may have
16a property interest in the alleged proceeds. The notice shall state
17that any interested party may file a verified claim with the superior
18court stating the amount of their claimed interest and an affirmation
19or denial of the prosecuting agency’s allegation. If the notice cannot
20be given by registered mail or personal delivery, the notice shall
21be published for at least three successive weeks in a newspaper of
22general circulation in the county where the property is located. All
23notices shall set forth the time within which a claim of interest in
24the property seized is required to be filed.

P3    1(d) (1) Any person claiming an interest in the property or
2proceeds may, at any time within 30 days from the date of the first
3publication of the notice of seizure, or within 30 days after receipt
4of actual notice, file with the superior court of the county in which
5the action is pending a verified claim stating his or her interest in
6the property or proceeds. A verified copy of the claim shall be
7given by the claimant to the Attorney General or district attorney,
8county counsel, or city attorney, as appropriate.

9(2) If, at the end of the time set forth in paragraph (1), an
10interested person has not filed a claim, the court, upon motion,
11shall declare that the person has defaulted upon his or her alleged
12interest, and it shall be subject to forfeiture upon proof of
13compliance with subdivision (c).

14(e) The burden is on the petitioner to prove beyond a reasonable
15doubt that matter is subject to forfeiture pursuant to this section.

16(f) It is not necessary to seek or obtain a criminal conviction
17prior to the entry of an order for the destruction of matter pursuant
18to this section. Any matter described in subdivision (a) that is in
19the possession of any city, county, city and county, or state official
20or agency, including found property, or property obtained as the
21result of a case in which no trial was had or that has been disposed
22of by way of dismissal or otherwise than by way of conviction
23may be ordered destroyed.

24(g) A court order for destruction of matter described in
25subdivision (a) may be carried out by a police or sheriff’s
26department or by the Department of Justice. The court order shall
27specify the agency responsible for the destruction.

28(h) As used in this section, “matter” means any book, magazine,
29newspaper, or other printed or written material or any picture,
30drawing, photograph, motion picture, or other pictorial
31representation, or any statue or other figure, or any recording,
32 transcription or mechanical, chemical or electrical reproduction,
33or any other articles, equipment, machines, or materials. “Matter”
34also means any representation of information, data, or image,
35including, but not limited to, any film, filmstrip, photograph,
36negative, slide, photocopy, videotape, video laser disc, computer
37hardware, computer software, computer floppy disc, data storage
38media, CD-ROM, or computer-generated equipment or any other
39computer-generated image that contains or incorporates in any
40manner any film or filmstrip.

P4    1(i) This section does not apply to a depiction of a legally
2emancipated minor or to lawful conduct between spouses if one
3or both are under the age of 18.

4(j) It is a defense in any forfeiture proceeding that the matter
5seized was lawfully possessed in aid of legitimate scientific or
6educational purposes.

end delete
7

begin deleteSEC. 2.end delete
8begin insertSECTION 1.end insert  

Section 502.01 of the Penal Code is amended to
9read:

10

502.01.  

(a) As used in this section:

11(1) “Property subject to forfeiture” means any property of the
12defendant that is illegal telecommunications equipment as defined
13in subdivision (g) of Section 502.8, or a computer, computer
14system, or computer network, and any software or data residing
15thereon, if the telecommunications device, computer, computer
16system, or computer network was used in committing a violation
17of, or conspiracy to commit a violation of, subdivision (b) of
18Section 272, Section 288, 288.2, 311.1, 311.2, 311.3, 311.4, 311.5,
19311.10, 311.11, 422, 470, 470a, 472, 475, 476, 480, 483.5, 484g,
20or subdivision (a), (b), or (d) of Section 484e, subdivision (a) of
21Section 484f, subdivision (b) or (c) of Section 484i, subdivision
22(c) of Section 502, or Section 502.7, 502.8, 529, 529a, or 530.5,
23537e, 593d, 593e, 646.9, or subdivision (j) of Section 647, or was
24used as a repository for the storage of software or data obtained
25in violation of those provisions. Forfeiture shall not be available
26for any property used solely in the commission of an infraction.
27If the defendant is a minor, it also includes property of the parent
28or guardian of the defendant.

29(2) “Sentencing court” means the court sentencing a person
30found guilty of violating or conspiring to commit a violation of
31subdivision (b) of Section 272, Section 288, 288.2, 311.1, 311.2,
32311.3, 311.4, 311.5, 311.10, 311.11, 422, 470, 470a, 472, 475,
33476, 480, 483.5, 484g, or subdivision (a), (b), or (d) of Section
34484e, subdivision (d) of Section 484e, subdivision (a) of Section
35484f, subdivision (b) or (c) of Section 484i, subdivision (c) of
36Section 502, or Section 502.7, 502.8, 529, 529a, 530.5, 537e, 593d,
37593e, 646.9, or subdivision (j) of Section 647, or, in the case of a
38minor, found to be a person described in Section 602 of the Welfare
39and Institutions Code because of a violation of those provisions,
40the juvenile court.

P5    1(3) “Interest” means any property interest in the property subject
2to forfeiture.

3(4) “Security interest” means an interest that is a lien, mortgage,
4security interest, or interest under a conditional sales contract.

5(5) “Value” has the following meanings:

6(A) When counterfeit items of computer software are
7manufactured or possessed for sale, the “value” of those items
8shall be equivalent to the retail price or fair market price of the
9true items that are counterfeited.

10(B) When counterfeited but unassembled components of
11computer software packages are recovered, including, but not
12limited to, counterfeited computer diskettes, instruction manuals,
13or licensing envelopes, the “value” of those components of
14computer software packages shall be equivalent to the retail price
15or fair market price of the number of completed computer software
16packages that could have been made from those components.

17(b) The sentencing court shall, upon petition by the prosecuting
18attorney, at any time following sentencing, or by agreement of all
19parties, at the time of sentencing, conduct a hearing to determine
20whether any property or property interest is subject to forfeiture
21under this section. At the forfeiture hearing, the prosecuting
22attorney shall have the burden of establishing, by a preponderance
23of the evidence, that the property or property interests are subject
24to forfeiture. The prosecuting attorney may retain seized property
25that may be subject to forfeiture until the sentencing hearing.

26(c) (1) Prior to the commencement of a forfeiture proceeding,
27the law enforcement agency seizing the property subject to
28forfeiture shall make an investigation as to any person other than
29the defendant who may have an interest in it. At least 30 days
30before the hearing to determine whether the property should be
31forfeited, the prosecuting agency shall send notice of the hearing
32to any person who may have an interest in the property that arose
33before the seizure.

34(2) A person claiming an interest in the property shall file a
35motion for the redemption of that interest at least 10 days before
36the hearing on forfeiture, and shall send a copy of the motion to
37the prosecuting agency and to the probation department.

38(3) If a motion to redeem an interest has been filed, the
39sentencing court shall hold a hearing to identify all persons who
40possess valid interests in the property. No person shall hold a valid
P6    1interest in the property if, by a preponderance of the evidence, the
2prosecuting agency shows that the person knew or should have
3known that the property was being used in violation of, or
4conspiracy to commit a violation of, subdivision (b) of Section
5272, Section 288, 288.2, 311.1, 311.2, 311.3, 311.4, 311.5, 311.10,
6311.11, 470, 470a, 472, 475, 476, 480, 483.5, 484g, or subdivision
7(a), (b), or (d) of Section 484e, subdivision (a) of Section 484f,
8subdivision (b) or (c) of Section 484i, subdivision (c) of Section
9502, or Section 502.7, 502.8, 529, 529a, 530.5, 537e, 593d, 593e,
10646.9, or subdivision (j) of Section 647, and that the person did
11not take reasonable steps to prevent that use, or if the interest is a
12security interest, the person knew or should have known at the
13time that the security interest was created that the property would
14be used for a violation.

15(d) If the sentencing court finds that a person holds a valid
16interest in the property, the following provisions shall apply:

17(1) The court shall determine the value of the property.

18(2) The court shall determine the value of each valid interest in
19the property.

20(3) If the value of the property is greater than the value of the
21interest, the holder of the interest shall be entitled to ownership of
22the property upon paying the court the difference between the
23value of the property and the value of the valid interest.

24If the holder of the interest declines to pay the amount determined
25under paragraph (2), the court may order the property sold and
26designate the prosecutor or any other agency to sell the property.
27The designated agency shall be entitled to seize the property and
28the holder of the interest shall forward any documentation
29underlying the interest, including any ownership certificates for
30that property, to the designated agency. The designated agency
31shall sell the property and pay the owner of the interest the
32proceeds, up to the value of that interest.

33(4) If the value of the property is less than the value of the
34interest, the designated agency shall sell the property and pay the
35owner of the interest the proceeds, up to the value of that interest.

36(e) If the defendant was a minor at the time of the offense, this
37subdivision shall apply to property subject to forfeiture that is the
38property of the parent or guardian of the minor.

P7    1(1) The prosecuting agency shall notify the parent or guardian
2of the forfeiture hearing at least 30 days before the date set for the
3hearing.

4(2) The computer or telecommunications device shall not be
5subject to forfeiture if the parent or guardian files a signed
6statement with the court at least 10 days before the date set for the
7hearing that the minor shall not have access to any computer or
8telecommunications device owned by the parent or guardian for
9two years after the date on which the minor is sentenced.

10(3) If the minor is convicted of a violation of Section 288, 288.2,
11311.1, 311.2, 311.3, 311.4, 311.5, 311.10, 311.11, 470, 470a, 472,
12476, 480, or subdivision (b) of Section 484e, subdivision (d) of
13Section 484e, subdivision (a) of Section 484f, subdivision (b) of
14Section 484i, subdivision (c) of Section 502, or Section 502.7,
15502.8, 529, 529a, 530.5, or subdivision (j) of Section 647, within
16two years after the date on which the minor is sentenced, and the
17violation involves a computer or telecommunications device owned
18by the parent or guardian, the original property subject to forfeiture,
19and the property involved in the new offense, shall be subject to
20forfeiture notwithstanding paragraph (2).

21(4) Notwithstanding paragraph (1), (2), or (3), or any other
22provision of this chapter, if a minor’s parent or guardian makes
23full restitution to the victim of a crime enumerated in this chapter
24in an amount or manner determined by the court, the forfeiture
25provisions of this chapter do not apply to the property of that parent
26or guardian if the property was located in the family’s primary
27residence during the commission of the crime.

28(f) Notwithstanding any other provision of this chapter, the court
29may exercise its discretion to deny forfeiture where the court finds
30that the convicted defendant, or minor adjudicated to come within
31the jurisdiction of the juvenile court, is not likely to use the
32property otherwise subject to forfeiture for future illegal acts.

33(g) If the defendant is found to have the only valid interest in
34the property subject to forfeiture, it shall be distributed as follows:

35(1) First, to the victim, if the victim elects to take the property
36as full or partial restitution for injury, victim expenditures, or
37compensatory damages, as defined in paragraph (1) of subdivision
38(e) of Section 502. If the victim elects to receive the property under
39this paragraph, the value of the property shall be determined by
40the court and that amount shall be credited against the restitution
P8    1owed by the defendant. The victim shall not be penalized for
2electing not to accept the forfeited property in lieu of full or partial
3 restitution.

4(2) Second, at the discretion of the court, to one or more of the
5following agencies or entities:

6(A) The prosecuting agency.

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

8(C) The public entity whose officers or employees conducted
9the investigation resulting in forfeiture.

10(D) Other state and local public entities, including school
11districts.

12(E) Nonprofit charitable organizations.

13(h) If the property is to be sold, the court may designate the
14prosecuting agency or any other agency to sell the property at
15auction. The proceeds of the sale shall be distributed by the court
16as follows:

17(1) To the bona fide or innocent purchaser or encumbrancer,
18conditional sales vendor, or mortgagee of the property up to the
19amount of his or her interest in the property, if the court orders a
20distribution to that person.

21(2) The balance, if any, to be retained by the court, subject to
22the provisions for distribution under subdivision (g).

23begin insert

begin insertSEC. 2.end insert  

end insert

begin insertSection 647.8 is added to the end insertbegin insertPenal Codeend insertbegin insert, to read:end insert

begin insert
24

begin insert647.8.end insert  

(a) Matter that is obtained or distributed in violation
25of subdivision (j) of Section 647 and that is in the possession of
26any city, county, city and county, or state official or agency is
27subject to forfeiture pursuant to this section.

28(b) An action to forfeit matter described in subdivision (a) may
29be brought by the Attorney General, the district attorney, county
30counsel, or the city attorney. Proceedings shall be initiated by a
31petition of forfeiture filed in the superior court of the county in
32which the matter is located.

33(c) The prosecuting agency shall make service of process of a
34notice regarding that petition upon every individual who may have
35a property interest in the alleged proceeds. The notice shall state
36that any interested party may file a verified claim with the superior
37court stating the amount of his or her claimed interest and an
38affirmation or denial of the prosecuting agency’s allegation. If the
39notice cannot be given by registered mail or personal delivery,
40the notice shall be published for at least three successive weeks
P9    1in a newspaper of general circulation in the county where the
2property is located. All notices shall set forth the time within which
3a claim of interest in the property seized is required to be filed.

4(d) (1) Any person claiming an interest in the property or
5proceeds may, at any time within 30 days from the date of the first
6publication of the notice of seizure, or within 30 days after receipt
7of actual notice, file with the superior court of the county in which
8the action is pending a verified claim stating his or her interest in
9the property or proceeds. A verified copy of the claim shall be
10given by the claimant to the Attorney General or district attorney,
11county counsel, or city attorney, as appropriate.

12(2) If, at the end of the time set forth in paragraph (1), an
13interested person has not filed a claim, the court, upon motion,
14shall declare that the person has defaulted upon his or her alleged
15interest, and it shall be subject to forfeiture upon proof of
16compliance with subdivision (c).

17(e) The burden is on the petitioner to prove beyond a reasonable
18doubt that matter is subject to forfeiture pursuant to this section.

19(f) It is not necessary to seek or obtain a criminal conviction
20prior to the entry of an order for the destruction of matter pursuant
21to this section. Any matter described in subdivision (a) that is in
22the possession of any city, county, city and county, or state official
23or agency, including found property, or property obtained as the
24result of a case in which no trial was had or that has been disposed
25of by way of dismissal or otherwise than by way of conviction may
26be ordered destroyed.

27(g) A court order for destruction of matter described in
28subdivision (a) may be carried out by a police or sheriff’s
29department or by the Department of Justice. The court order shall
30specify the agency responsible for the destruction.

31(h) As used in this section, “matter” means any picture,
32photograph, image, motion picture, video tape, film, film strip,
33negative, slide, photocopy, or other pictorial representation,
34recording, or electrical reproduction. “Matter” also means any
35data storage media that contains the image at issue, but does not
36include the computer, camera, telecommunication or electronic
37device, unless the matter consists solely of electronic information
38stored on a device that cannot be altered or erased.

39(i) Prior for granting an order for destruction of matter pursuant
40to this section, the court may require the petitioner to demonstrate
P10   1that the petition covers no more property than necessary to remove
2possession of the offending matter.

3(j) It is a defense in any forfeiture proceeding that the matter
4seized was lawfully possessed in aid of legitimate scientific or
5educational purposes.

end insert


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