Senate Bill No. 795

Introduced by Committee on Public Safety (Senators Hancock (Chair), Anderson, Leno, Liu, McGuire, Monning, and Stone)

March 10, 2015

An act to amend Sections 384a, 849, 4030, and 4504 of the Penal Code, and to repeal Section 1403 of the Welfare and Institutions Code, relating to public safety.

LEGISLATIVE COUNSEL’S DIGEST

SB 795, as introduced, Committee on Public Safety. Public Safety Omnibus.

(1) Existing law, when a person is arrested without a warrant, requires the person, if not otherwise released and without unnecessary delay, to be taken before the nearest or most accessible magistrate in the county in which the offense is triable, unless certain exemptions apply, including that the person was arrested for intoxication only and no further proceedings are desirable.

This bill would exempt a person from the requirement of, without unnecessary delay, being taken before the nearest or most accessible magistrate in the county in which the offense is triable if the person is arrested for driving under the influence of alcohol or drugs and the person is delivered to a hospital for medical treatment that prohibits immediate delivery before a magistrate.

(2) Existing law establishes a statewide policy strictly limiting strip and body cavity searches of prearrangement detainees arrested for infraction or misdemeanor offenses and of minors detained prior to a detention hearing on the grounds that he or she is alleged to have committed a misdemeanor or infraction offense. Existing law provides that if a person is arrested and taken into custody, that person may 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.

This bill would provide that if a person is arrested and taken into custody that person may also be subjected to a body scanner search.

(3) Existing law, the Interstate Compact for Juveniles, adopted by this state and effective until January 1, 2016, establishes an interstate commission of the compacting states to, among other things, oversee, supervise, and coordinate the interstate movement of juveniles.

This bill would delete the repeal date of these provisions, and would thereby extend the operation of the provisions indefinitely.

(4) This bill would make other technical, nonsubstantive changes.

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

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

SECTION 1.  

Section 384a of the Penal Code is amended to
read:

384a.  

begin delete Every person who within the State of California end delete
begin insert (a) end insert begin insert   end insert begin insert (1) end insert begin insert   end insert begin insert A person shall not end insert willfully or negligently begin delete cuts, destroys,
mutilates, or removes any tree or shrub, or fern or herb or bulb or
cactus or flower, or huckleberry or redwood greens, or portion of
any tree or shrub, or fern or herb or bulb or cactus or flower, or
huckleberry or redwood greens, end delete begin insert cut, destroy, mutilate, or remove
plant material that is end insert growing upon state or county highway
begin delete rights-of-way, or who removes leaf mold thereon, except that the
provisions of this section shall not be construed to apply to any
employee of the state or of any political subdivision thereof
engaged in work upon any state, county, or public road or highway
while performing work under the supervision of the state or of any
political subdivision thereof, and every person who willfully or
negligently cuts, destroys, mutilates, or removes any tree or shrub,
or fern or herb or bulb or cactus or flower, or huckleberry or
redwood greens, or portions of any tree or shrub, or fern or herb
or bulb or cactus or flower, or huckleberry or redwood greens,
growing upon public land or upon land not his or her own, or leaf
mold on the surface of public land, or upon land not his or her
own, without a written permit from the owner of the land signed
by the owner or the owner’s authorized agent, and every person
who knowingly sells, offers, or exposes for sale, or transports for
sale, any tree or shrub, or fern or herb or bulb or cactus or flower,
or huckleberry or redwood greens, or portion of any tree or shrub,
or fern or herb or bulb or cactus or flower, or huckleberry or
redwood greens, or leaf mold, so cut or removed from state or
county highway rights-of-way, or removed from public land or
from land not owned by the person who cut or removed the same
without the written permit from the owner of the land, signed by
the owner or the owner’s authorized agent, is guilty of a
misdemeanor and upon conviction thereof shall be punished by a
fine of not more than one thousand dollars ($1,000), by
imprisonment in a county jail for not more than six months, or by
both fine and imprisonment. end delete begin insert rights-of-way. end insert

begin insert

(2) A person shall not willfully or negligently cut, destroy,
mutilate, or remove plant material that is growing upon public
land or upon land that is not his or hers without a written permit
from the owner of the land, signed by the owner of the land or the
owner’s authorized agent, as provided in subdivision (c).

end insert begin insert

(3) A person shall not knowingly sell, offer or expose for sale,
or transport for sale plant material that is cut or removed in
violation of this subdivision.

end insert begin insert

(b) For purposes of this section, “plant material” means a tree,
shrub, fern, herb, bulb, cactus, flower, huckleberry, or redwood
green, or a portion of any of those, or the leaf mold on those plants.
“Plant material” does not include a tree, shrub, fern, herb, bulb,
cactus, flower, or greens declared by law to be a public nuisance.

end insert begin delete

The

end delete

begin insert (c) end insert begin insert   end insert begin insert (1) end insert begin insert   end insert begin insert The end insert written permit required begin delete under this section end delete begin insert by
paragraph (2) of subdivision (a) end insert shall be signed by the landowner,
or the landowner’s authorized agent, and acknowledged before a
notary public, or other person authorized by law to take
acknowledgments. The permit shall contain the number and species
of trees and amount of begin delete shrubs or ferns or herbs or bulbs or cacti
or flowers, or huckleberry or redwood greens, or portions of any
tree or shrub, end delete begin insert plant material, end insert and shall contain the legal description
of the real property as usually found in deeds and conveyances of
the land on which cutting or begin delete removal, or both, end delete begin insert removal end insert shall take
place. One copy of the permit shall be filed in the office of the
sheriff of the county in which the land described in the permit is
located. The permit shall be filed prior to begin insert the end insert commencement of
cutting begin delete of the trees or shrub or fern or herb or bulb or cactus or
flower or huckleberry or redwood green or portions of any tree or
shrub end delete begin insert or removal of plant material end insert authorized by the permit. begin delete The end delete

begin insert (2) end insert begin insert   end insert begin insert The end insert permit required by this section need not be notarized or
filed with the begin delete office of the end delete sheriff begin delete of the county where trees are to
be removed when five or less trees or end delete begin insert when end insert five or less pounds of
shrubs or boughs are to be cut or removed.

begin delete

Any

end delete

begin insert (d) end insert begin insert   end insert begin insert A end insert county or state fire begin delete warden, or end delete begin insert warden; end insert personnel of the
Department of Forestry and Fire Protection begin insert , end insert as designated by the
Director of Forestry and Fire begin delete Protection, and end delete begin insert Protection; end insert personnel
of the United States Forest Service begin insert , end insert as designated by the Regional
Forester, Region 5, of the United States Forest begin delete Service, end delete begin insert Service; end insert
or begin delete any end delete begin insert a end insert peace officer of the State of California, may enforce the
provisions of this section and may confiscate any and all begin delete such
shrubs, trees, ferns or herbs or bulbs or cacti or flowers, or
huckleberry or redwood greens or leaf mold, or parts thereof end delete begin insert plant
material end insert unlawfully cut or removed or knowingly sold, offered,
or exposed or transported for sale as provided in this section.

begin delete

This section does not apply to any tree or shrub, or fern or herb
or bulb or cactus or flower, or greens declared by law to be a public
nuisance.

end delete begin delete

This

end delete

begin insert (e) end insert begin insert   end insert begin insert This end insert section does not apply to begin delete the end delete begin insert any of the following: end insert

begin insert

(1) An employee of the state or of a political subdivision of the
state who is engaged in work upon a state, county, or public road
or highway while performing work under the supervision of the
state or a political subdivision of the state.

end insert

begin insert (2) end insert begin insert   end insert begin insert A person engaged in the end insert necessary cutting or trimming of
begin delete any trees, shrubs, or ferns or herbs or bulbs or cacti or flowers, or
greens if done end delete begin insert plant material end insert for the purpose of protecting or
maintaining an electric powerline, telephone line, or other property
of a public utility.

begin delete

This section does not apply to persons

end delete

begin insert (3) end insert begin insert   end insert begin insert A person end insert engaged in logging begin delete operations, or in suppressing
fires. end delete begin insert operations or fire suppression. end insert

begin insert

(f) A violation of this section shall be a misdemeanor, punishable
by a fine of not more than one thousand dollars ($1,000), by
imprisonment in a county jail for not more than six months, or by
both that fine and imprisonment.

end insert

SEC. 2.  

Section 849 of the Penal Code is amended to read:

849.  

(a) When an arrest is made without a warrant by a peace
officer or private person, the person arrested, if not otherwise
begin delete released, shall, end delete begin insert and end insert without unnecessary delay, begin insert shall end insert be taken
before the nearest or most accessible magistrate in the county in
which the offense is triable, and a complaint stating the charge
against the arrested person shall be laid before begin delete such end delete begin insert the end insert magistrate.

(b)  begin delete Any end delete begin insert A end insert peace officer may release from custody, instead of
taking begin delete such end delete begin insert the end insert person before a magistrate, begin delete any end delete begin insert a end insert person arrested
without a warrant begin delete whenever end delete begin insert in the following circumstances end insert :

(1)  begin delete He or she end delete begin insert The officer end insert is satisfied that there are insufficient
grounds for making a criminal complaint against the person
arrested.

(2) The person arrested was arrested for intoxication only, and
no further proceedings are desirable.

(3) The person was arrested only for being under the influence
of a controlled substance or drug and begin delete such end delete begin insert the end insert person is delivered
to a facility or hospital for treatment and no further proceedings
are desirable.

begin insert

(4) The person was arrested for driving under the influence of
alcohol or drugs and the person is delivered to a hospital for
medical treatment that prohibits immediate delivery before a
magistrate.

end insert

(c)  begin delete Any end delete begin insert The end insert record of arrest of a person released pursuant to
paragraphs (1) and (3) of subdivision (b) shall include a record of
release. Thereafter, begin delete such end delete begin insert the end insert arrest shall not be deemed an arrest,
but a detention only.

SEC. 3.  

Section 4030 of the Penal Code is amended to read:

4030.  

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

begin delete

It

end delete

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

(b) The provisions of this section shall apply only to
begin delete prearraignment end delete begin insert prearrangement end insert detainees arrested for infraction
or misdemeanor offenses and to any minor detained prior to a
detention hearing on the grounds that he or she is a person
described in Section 300, 601, or 602 of the Welfare and
Institutions Code alleged to have committed a misdemeanor or
infraction offense. The provisions of this section shall not apply
to begin delete any end delete begin insert a end insert person in the custody of the begin delete Director end delete begin insert Secretary end insert of the
Department of Corrections begin insert and Rehabilitation end insert or the Director of
begin delete the Youth Authority. end delete begin insert the Division of Juvenile Justice in the
Department of Corrections and Rehabilitation. end insert

begin delete

(c) As used in this section, “strip search” means a search which
requires a person to remove or arrange some or all of his or her
clothing so as to permit a visual inspection of the underclothing,
breasts, buttocks, or genitalia of such person.

end delete begin delete

(d)

end delete

begin insert (c) end insert  As used in this section begin insert the following definitions shall apply end insert :

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

begin delete

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

end delete begin delete

(3)

end delete

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

begin insert

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

end insert begin insert

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

end insert begin delete

(e)

end delete

begin insert (d) end insert  Notwithstanding any other begin delete provision of end delete law, including
Section 40304.5 of the Vehicle Code, when a person is arrested
and taken into custody, that person may be subjected to patdown
searches, metal detector searches, begin insert body scanners, end insert and thorough
clothing searches in order to discover and retrieve concealed
weapons and contraband substances prior to being placed in a
booking cell.

begin delete

(f) No person

end delete

begin insert (e) end insert begin insert   end insert begin insert A person end insert arrested and held in custody on a misdemeanor or
infraction offense, except those involving weapons, controlled
begin delete substances or violence nor any end delete begin insert substances, or violence, or a end insert minor
detained prior to a detention hearing on the grounds that he or she
is a person described in Section 300, 601 or 602 of the Welfare
and Institutions Code, except for those minors alleged to have
committed felonies or offenses involving weapons, controlled
begin delete substances end delete begin insert substances, end insert or violence, shall begin insert not end insert be subjected to a strip
search or visual body cavity search prior to placement in the general
jail population, unless a peace officer has determined there is
reasonable begin delete suspicion end delete begin insert suspicion, end insert based on specific and articulable
begin delete facts end delete begin insert facts, end insert to believe begin delete such end delete begin insert that end insert person is concealing a weapon or
begin delete contraband, end delete begin insert contraband end insert and a strip search will result in the
discovery of the weapon or contraband. begin delete No end delete begin insert A end insert strip search or visual
body cavity begin delete search or both may end delete begin insert search, or both, shall not end insert be
conducted without the prior written authorization of the supervising
officer on duty. The authorization shall include the specific and
articulable facts and circumstances upon which the reasonable
suspicion determination was made by the supervisor.

begin delete

(g)

end delete

begin insert (f) end insert  (1) Except pursuant to the provisions of paragraph (2), begin delete no end delete
begin insert a end insert person arrested and held in custody on a misdemeanor or
infraction offense not involving weapons, controlled begin delete substances end delete
begin insert substances, end insert or violence, shall begin insert not end insert be confined in the general jail
population unless all of the following are true:

(i) The person is not cited and released.

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

(iii) The person is not able to post bail within a reasonable begin delete time end delete
begin insert time, end insert not less than three hours.

(2)  begin delete No end delete begin insert A end insert person begin delete may end delete begin insert shall not end insert be housed in the general jail
population prior to release pursuant to the provisions of paragraph
(1) unless a documented emergency exists and there is no
reasonable alternative to begin delete such end delete begin insert that end insert placement. begin delete Such end delete begin insert The end insert person
shall be placed in the general population only upon prior written
authorization documenting the specific facts and circumstances of
the emergency. The written authorization shall be signed by the
uniformed supervisor of the facility or by a uniformed watch
commander. begin delete Any end delete begin insert A end insert person confined in the general jail population
pursuant to paragraph (1) shall retain all rights to release on
citation, his or her own recognizance, or bail begin delete which end delete begin insert that end insert were
preempted as a consequence of the emergency.

begin delete

(h) No

end delete

begin insert (g) end insert begin insert   end insert begin insert A end insert person arrested on a misdemeanor or infraction offense,
begin delete nor any end delete begin insert or a end insert minor described in subdivision (b), shall begin insert not end insert be
subjected to a physical body cavity search except under the
authority of a search warrant issued by a magistrate specifically
authorizing the physical body cavity search.

begin delete

(i)

end delete

begin insert (h) end insert  A copy of the prior written authorization required by
subdivisions begin insert (e) and end insert (f) begin delete and (g) end delete and the search warrant required
by subdivision begin delete (h) end delete begin insert (g) end insert shall be placed in the agency’s records and
made available, on request, to the person searched or his or her
authorized representative. With regard to begin delete any end delete begin insert a end insert strip, begin delete visual end delete begin insert visual, end insert
or body search, the time, begin delete date end delete begin insert date, end insert and place of the search, the
name and sex of the person conducting the begin delete search end delete begin insert search, end insert and a
statement of the results of the search, including a list of begin delete any end delete items
removed from the person searched, shall be recorded in the
agency’s records and made available, upon request, to the person
searched or his or her authorized representative.

begin delete

(j)

end delete

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

begin delete

(k)

end delete

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

begin delete

(l) All persons

end delete

begin insert (k) end insert begin insert   end insert begin insert A person end insert conducting or otherwise present during a strip
search or visual or physical body cavity search shall be of the same
sex as the person being searched, except for physicians or licensed
medical personnel.

begin delete

(m)

end delete

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

begin delete

(n)

end delete

begin insert (m) end insert  A person who knowingly and willfully authorizes or
conducts a strip, begin delete visual end delete begin insert visual, end insert or physical body cavity search in
violation of this section is guilty of a misdemeanor.

begin delete

(o)

end delete

begin insert (n) end insert  Nothing in this section shall be construed as limiting begin delete any end delete
begin insert the end insert common law or statutory rights of begin delete any end delete begin insert a end insert person regarding begin delete any end delete
begin insert an end insert action for damages or injunctive relief, or as precluding the
prosecution under another begin delete provision of end delete law of begin delete any end delete begin insert a end insert peace officer
or other person who has violated this section.

begin delete

(p)

end delete

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

SEC. 4.  

Section 4504 of the Penal Code is amended to read:

4504.  

For purposes of this chapter:

(a) A person is deemed confined in a “state prison” if he begin insert or she end insert
is confined in any of the prisons and institutions specified in
Section 5003 by order made pursuant to law, including, but not
limited to, commitments to the Department of Corrections begin delete or the
Department of the Youth Authority, end delete begin insert and Rehabilitation or the
Department of Corrections and Rehabilitation, Division of Juvenile
Justice, end insert regardless of the purpose of begin delete such end delete begin insert the end insert confinement and
regardless of the validity of the order directing begin delete such end delete begin insert the end insert
confinement, until a judgment of a competent court setting aside
begin delete such end delete begin insert the end insert order becomes final.

(b) A person is deemed “confined in” a prison although, at the
time of the offense, he begin insert or she end insert is temporarily outside its walls or
bounds for the purpose of serving on a work begin delete detail or end delete begin insert detail, end insert for
the purpose of confinement in a local correctional institution
pending begin delete trial end delete begin insert trial, end insert or for any other purpose for which a prisoner
may be allowed temporarily outside the walls or bounds of the
begin delete prison, but a end delete begin insert prison. A end insert prisoner who has been released on parole
is not deemed “confined in” a prison for purposes of this chapter.

SEC. 5.  

Section 1403 of the Welfare and Institutions Code is
repealed.

begin delete

1403.  

This chapter shall remain in effect only until January 1,
2016, and as of that date is repealed, unless a later enacted statute,
that is enacted before January 1, 2016, deletes or extends that date.

end delete

---

CORRECTIONS:

Text--Pages 4 and 6.

---