BILL NUMBER: SB 795 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 1, 2015
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:
SECTION 1. Section 384a of the Penal Code is amended to read:
384a. (a) (1) A person shall not willfully or negligently cut,
destroy, mutilate, or remove plant material that is growing upon
state or county highway rights-of-way.
(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).
(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.
(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.
(c) (1) The written permit required by paragraph (2) of
subdivision (a) 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 plant material,
and shall contain the legal description of the real property as
usually found in deeds and conveyances of the land on which cutting
or removal 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 the
commencement of cutting or removal of plant material authorized by
the permit.
(2) The permit required by this section need not be notarized or
filed with the sheriff when five or less pounds of shrubs or boughs
are to be cut or removed.
(d) A county or state fire warden; personnel of the Department of
Forestry and Fire Protection, as designated by the Director of
Forestry and Fire Protection; personnel of the United States Forest
Service, as designated by the Regional Forester, Region 5, of the
United States Forest Service; or a peace officer of the State of
California, may enforce the provisions of this section and may
confiscate any and all plant material unlawfully cut or removed or
knowingly sold, offered, or exposed or transported for sale as
provided in this section.
(e) This section does not apply to any of the following:
(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.
(2) A person engaged in the necessary cutting or trimming of plant
material for the purpose of protecting or maintaining an electric
powerline, telephone line, or other property of a public utility.
(3) A person engaged in logging operations or fire suppression.
(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.
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
and released, shall, without
unnecessary delay, shall 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 the magistrate.
(b) A peace officer may release from custody, instead of taking
the person before a magistrate, a person arrested without a warrant
in the following circumstances:
(1) The officer 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 the person is delivered to a
facility or hospital for treatment and no further proceedings are
desirable.
(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.
(c) The record of arrest of a person released pursuant to
paragraphs (1) and (3) of subdivision (b) shall include a record of
release. Thereafter, the 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) (1) 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.
(2) It 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
prearrangement prearraignment 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
a person in the custody of the Secretary of the Department of
Corrections and Rehabilitation or the Director of the Division of
Juvenile Justice in the Department of Corrections and Rehabilitation.
(c) As used in this section the following definitions shall apply:
(1) "Body cavity" only means the stomach or rectal cavity of a
person, and vagina of a female person.
(2) "Physical body cavity search" means physical intrusion into a
body cavity for the purpose of discovering any object concealed in
the body cavity.
(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.
(4) "Visual body cavity search" means visual inspection of a body
cavity.
(d) Notwithstanding any other 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, body scanners, and thorough clothing searches in order to
discover and retrieve concealed weapons and contraband substances
prior to being placed in a booking cell.
(e) A person arrested and held in custody on a misdemeanor or
infraction offense, except those involving weapons, controlled
substances, or violence, or a 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 substances, or violence, shall not 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 suspicion, based on specific and
articulable facts, to believe that person is concealing a weapon or
contraband and a strip search will result in the discovery of the
weapon or contraband. A strip search or visual body cavity search, or
both, shall not 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.
(f) (1) Except pursuant to the provisions of paragraph (2), a
person arrested and held in custody on a misdemeanor or infraction
offense not involving weapons, controlled substances, or violence,
shall not 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
time, not less than three hours.
(2) A person shall not 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 that placement. The 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. A 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
that were preempted as a consequence of the emergency.
(g) A person arrested on a misdemeanor or infraction offense, or a
minor described in subdivision (b), shall not 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.
(h) A copy of the prior written authorization required by
subdivisions (e) and (f) and the search warrant required by
subdivision (g) 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 a strip, visual, or body
search, the time, date, and place of the search, the name and sex of
the person conducting the search, and a statement of the results of
the search, including a list of 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.
(i) Persons conducting a strip search or a visual body cavity
search shall not touch the breasts, buttocks, or genitalia of the
person being searched.
(j) A physical body cavity search shall be conducted under
sanitary conditions, and only by a physician, nurse practitioner,
registered nurse, licensed vocational nurse, or emergency medical
technician Level II licensed to practice in this state. A physician
engaged in providing health care to detainees and inmates of the
facility may conduct physical body cavity searches.
(k) A person 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.
( l ) All strip, visual, 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.
(m) A person who knowingly and willfully authorizes or conducts a
strip, visual, or physical body cavity search in violation of this
section is guilty of a misdemeanor.
(n) Nothing in this section shall be construed as limiting the
common law or statutory rights of a person regarding an action for
damages or injunctive relief, or as precluding the prosecution under
another law of a peace officer or other person who has violated this
section.
(o) 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 or she
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 and
Rehabilitation or the Department of Corrections and Rehabilitation,
Division of Juvenile Justice, regardless of the purpose of the
confinement and regardless of the validity of the order directing the
confinement, until a judgment of a competent court setting aside the
order becomes final.
(b) A person is deemed "confined in" a prison although, at the
time of the offense, he or she is temporarily outside its walls or
bounds for the purpose of serving on a work detail, for the purpose
of confinement in a local correctional institution pending trial, or
for any other purpose for which a prisoner may be allowed temporarily
outside the walls or bounds of the prison. A 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.