Amended in Senate June 1, 2015

Senate BillNo. 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 amended, 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:

P2    1

SECTION 1.  

Section 384a of the Penal Code is amended to
2read:

3

384a.  

(a) (1) A person shall not willfully or negligently cut,
4destroy, mutilate, or remove plant material that is growing upon
5state or county highway rights-of-way.

6(2) A person shall not willfully or negligently cut, destroy,
7mutilate, or remove plant material that is growing upon public land
8or upon land that is not his or hers without a written permit from
9the owner of the land, signed by the owner of the land or the
10owner’s authorized agent, as provided in subdivision (c).

11(3) A person shall not knowingly sell, offer or expose for sale,
12or transport for sale plant material that is cut or removed in
13violation of this subdivision.

14(b) For purposes of this section, “plant material” means a tree,
15shrub, fern, herb, bulb, cactus, flower, huckleberry, or redwood
16green, or a portion of any of those, or the leaf mold on those plants.
17“Plant material” does not include a tree, shrub, fern, herb, bulb,
18cactus, flower, or greens declared by law to be a public nuisance.

19(c) (1) The written permit required by paragraph (2) of
20subdivision (a) shall be signed by the landowner, or the
21landowner’s authorized agent, and acknowledged before a notary
22public, or other person authorized by law to take acknowledgments.
P3    1The permit shall contain the number and species of trees and
2amount of plant material, and shall contain the legal description
3of the real property as usually found in deeds and conveyances of
4the land on which cutting or removal shall take place. One copy
5of the permit shall be filed in the office of the sheriff of the county
6in which the land described in the permit is located. The permit
7shall be filed prior to the commencement of cutting or removal of
8plant material authorized by the permit.

9(2) The permit required by this section need not be notarized
10or filed with the sheriff when five or less pounds of shrubs or
11boughs are to be cut or removed.

12(d) A county or state fire warden; personnel of the Department
13of Forestry and Fire Protection, as designated by the Director of
14Forestry and Fire Protection; personnel of the United States Forest
15Service, as designated by the Regional Forester, Region 5, of the
16United States Forest Service; or a peace officer of the State of
17California, may enforce the provisions of this section and may
18confiscate any and all plant material unlawfully cut or removed
19or knowingly sold, offered, or exposed or transported for sale as
20provided in this section.

21(e) This section does not apply to any of the following:

22(1) An employee of the state or of a political subdivision of the
23state who is engaged in work upon a state, county, or public road
24or highway while performing work under the supervision of the
25state or a political subdivision of the state.

26(2) A person engaged in the necessary cutting or trimming of
27 plant material for the purpose of protecting or maintaining an
28electric powerline, telephone line, or other property of a public
29utility.

30(3) A person engaged in logging operations or fire suppression.

31(f) A violation of this section shall be a misdemeanor, punishable
32by a fine of not more than one thousand dollars ($1,000), by
33imprisonment in a county jail for not more than six months, or by
34both that fine and imprisonment.

35

SEC. 2.  

Section 849 of the Penal Code is amended to read:

36

849.  

(a) When an arrest is made without a warrant by a peace
37officer or private person, the person arrested, if not otherwisebegin delete andend delete
38begin insert released, shall,end insert without unnecessary delay,begin delete shallend delete be taken before
39the nearest or most accessible magistrate in the county in which
P4    1the offense is triable, and a complaint stating the charge against
2the arrested person shall be laid before the magistrate.

3(b) A peace officer may release from custody, instead of taking
4the person before a magistrate, a person arrested without a warrant
5in the following circumstances:

6(1) The officer is satisfied that there are insufficient grounds
7for making a criminal complaint against the person arrested.

8(2) The person arrested was arrested for intoxication only, and
9no further proceedings are desirable.

10(3) The person was arrested only for being under the influence
11of a controlled substance or drug and the person is delivered to a
12facility or hospital for treatment and no further proceedings are
13desirable.

14(4) The person was arrested for driving under the influence of
15alcohol or drugs and the person is delivered to a hospital for
16medical treatment that prohibits immediate delivery before a
17magistrate.

18(c) The record of arrest of a person released pursuant to
19paragraphs (1) and (3) of subdivision (b) shall include a record of
20release. Thereafter, the arrest shall not be deemed an arrest, but a
21detention only.

22

SEC. 3.  

Section 4030 of the Penal Code is amended to read:

23

4030.  

(a) (1) The Legislature finds and declares that law
24enforcement policies and practices for conducting strip or body
25cavity searches of detained persons vary widely throughout
26California. Consequently, some people have been arbitrarily
27subjected to unnecessary strip and body cavity searches after arrests
28for minor misdemeanor and infraction offenses. Some present
29search practices violate state and federal constitutional rights to
30privacy and freedom from unreasonable searches and seizures.

31(2) It is the intent of the Legislature in enacting this section to
32protect the state and federal constitutional rights of the people of
33California by establishing a statewide policy strictly limiting strip
34and body cavity searches.

35(b) The provisions of this section shall apply only to
36begin delete prearrangementend deletebegin insert prearraignmentend insert detainees arrested for infraction
37or misdemeanor offenses and to any minor detained prior to a
38detention hearing on the grounds that he or she is a person
39described in Section 300, 601, or 602 of the Welfare and
40Institutions Code alleged to have committed a misdemeanor or
P5    1 infraction offense. The provisions of this section shall not apply
2to a person in the custody of the Secretary of the Department of
3Corrections and Rehabilitation or the Director of the Division of
4Juvenile Justice in the Department of Corrections and
5Rehabilitation.

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

7(1) “Body cavity” only means the stomach or rectal cavity of a
8person, and vagina of a female person.

9(2) “Physical body cavity search” means physical intrusion into
10a body cavity for the purpose of discovering any object concealed
11in the body cavity.

12(3) “Strip search” means a search that requires a person to
13remove or arrange some or all of his or her clothing so as to permit
14a visual inspection of the underclothing, breasts, buttocks, or
15genitalia of that person.

16(4) “Visual body cavity search” means visual inspection of a
17body cavity.

18(d) Notwithstanding any other law, including Section 40304.5
19of the Vehicle Code, when a person is arrested and taken into
20custody, that person may be subjected to patdown searches, metal
21detector searches, body scanners, and thorough clothing searches
22in order to discover and retrieve concealed weapons and contraband
23substances prior to being placed in a booking cell.

24(e) A person arrested and held in custody on a misdemeanor or
25infraction offense, except those involving weapons, controlled
26substances, or violence, or a minor detained prior to a detention
27hearing on the grounds that he or she is a person described in
28Section 300, 601 or 602 of the Welfare and Institutions Code,
29except for those minors alleged to have committed felonies or
30offenses involving weapons, controlled substances, or violence,
31shall not be subjected to a strip search or visual body cavity search
32prior to placement in the general jail population, unless a peace
33officer has determined there is reasonable suspicion, based on
34specific and articulable facts, to believe that person is concealing
35a weapon or contraband and a strip search will result in the
36discovery of the weapon or contraband. A strip search or visual
37body cavity search, or both, shall not be conducted without the
38prior written authorization of the supervising officer on duty. The
39authorization shall include the specific and articulable facts and
P6    1circumstances upon which the reasonable suspicion determination
2was made by the supervisor.

3(f) (1) Except pursuant to the provisions of paragraph (2), a
4person arrested and held in custody on a misdemeanor or infraction
5offense not involving weapons, controlled substances, or violence,
6shall not be confined in the general jail population unless all of
7the following are true:

8(i) The person is not cited and released.

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

12(iii) The person is not able to post bail within a reasonable time,
13not less than three hours.

14(2) A person shall not be housed in the general jail population
15prior to release pursuant to the provisions of paragraph (1) unless
16a documented emergency exists and there is no reasonable
17alternative to that placement. The person shall be placed in the
18general population only upon prior written authorization
19documenting the specific facts and circumstances of the emergency.
20The written authorization shall be signed by the uniformed
21supervisor of the facility or by a uniformed watch commander. A
22person confined in the general jail population pursuant to paragraph
23(1) shall retain all rights to release on citation, his or her own
24recognizance, or bail that were preempted as a consequence of the
25emergency.

26(g) A person arrested on a misdemeanor or infraction offense,
27or a minor described in subdivision (b), shall not be subjected to
28a physical body cavity search except under the authority of a search
29warrant issued by a magistrate specifically authorizing the physical
30body cavity search.

31(h) A copy of the prior written authorization required by
32subdivisions (e) and (f) and the search warrant required by
33subdivision (g) shall be placed in the agency’s records and made
34available, on request, to the person searched or his or her authorized
35representative. With regard to a strip, visual, or body search, the
36time, date, and place of the search, the name and sex of the person
37conducting the search, and a statement of the results of the search,
38including a list of items removed from the person searched, shall
39be recorded in the agency’s records and made available, upon
P7    1 request, to the person searched or his or her authorized
2representative.

3(i) Persons conducting a strip search or a visual body cavity
4search shall not touch the breasts, buttocks, or genitalia of the
5person being searched.

6(j) A physical body cavity search shall be conducted under
7sanitary conditions, and only by a physician, nurse practitioner,
8registered nurse, licensed vocational nurse, or emergency medical
9technician Level II licensed to practice in this state. A physician
10engaged in providing health care to detainees and inmates of the
11facility may conduct physical body cavity searches.

12(k) A person conducting or otherwise present during a strip
13search or visual or physical body cavity search shall be of the same
14sex as the person being searched, except for physicians or licensed
15medical personnel.

16(l) All strip, visual, and physical body cavity searches shall be
17conducted in an area of privacy so that the search cannot be
18observed by persons not participating in the search. Persons are
19considered to be participating in the search if their official duties
20relative to search procedure require them to be present at the time
21the search is conducted.

22(m) A person who knowingly and willfully authorizes or
23conducts a strip, visual, or physical body cavity search in violation
24of this section is guilty of a misdemeanor.

25(n) Nothing in this section shall be construed as limiting the
26common law or statutory rights of a person regarding an action
27for damages or injunctive relief, or as precluding the prosecution
28under another law of a peace officer or other person who has
29violated this section.

30(o) Any person who suffers damage or harm as a result of a
31violation of this section may bring a civil action to recover actual
32damages, or one thousand dollars ($1,000), whichever is greater.
33In addition, the court may, in its discretion, award punitive
34damages, equitable relief as it deems necessary and proper, and
35costs, including reasonable attorney’s fees.

36

SEC. 4.  

Section 4504 of the Penal Code is amended to read:

37

4504.  

For purposes of this chapter:

38(a) A person is deemed confined in a “state prison” if he or she
39is confined in any of the prisons and institutions specified in
40Section 5003 by order made pursuant to law, including, but not
P8    1limited to, commitments to the Department of Corrections and
2Rehabilitation or the Department of Corrections and Rehabilitation,
3Division of Juvenile Justice, regardless of the purpose of the
4confinement and regardless of the validity of the order directing
5the confinement, until a judgment of a competent court setting
6aside the order becomes final.

7(b) A person is deemed “confined in” a prison although, at the
8time of the offense, he or she is temporarily outside its walls or
9bounds for the purpose of serving on a work detail, for the purpose
10of confinement in a local correctional institution pending trial, or
11for any other purpose for which a prisoner may be allowed
12temporarily outside the walls or bounds of the prison. A prisoner
13who has been released on parole is not deemed “confined in” a
14prison for purposes of this chapter.

15

SEC. 5.  

Section 1403 of the Welfare and Institutions Code is
16repealed.



O

    98