Senate Bill No. 1474

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

February 29, 2016

An act to amend Sections 830.3, 1328, 1424.5, and 13823.11, of the Penal Code, and to amend Section 40800 of the Vehicle Code, relating to public safety.

LEGISLATIVE COUNSEL’S DIGEST

SB 1474, as introduced, Committee on Public Safety. Public Safety Omnibus.

(1) Existing law provides that certain persons are peace officers whose authority extends to any place in the state for the purpose of performing their primary duty or when making an arrest, as specified, including, among others, the Chief of the Bureau of Fraudulent Claims of the Department of Insurance and those investigators designated by the chief.

This bill would delete the reference to the chief and those investigators designated by him or her and would instead specify that the Deputy Commissioner, Enforcement Branch of, or the Fraud Division Chief of, the Department of Insurance and those investigators designated by the deputy or the chief, are peace officers, as specified.

(2) Existing law authorizes, in those counties where the local agencies have consented with the marshal’s office or the sheriff’s office to participate, a criminal subpoena requiring a peace officer as a witness to be served by sending a copy by electronic means to the peace officer’s immediate superior or an agent designated by the immediate superior to receive the service. Existing law requires the peace officer’s immediate superior or the designated agent to acknowledge receipt of the subpoena by telephone or electronic means if service is made by electronic means.

This bill would also authorize a criminal subpoena to be served by electronic means in counties that have consented to participate with the district attorney’s office and would allow electronic service to be made by sending a copy to the peace officer personally. The bill would also permit the peace officer to acknowledge receipt of the subpoena if service is made by electronic means.

(3) Existing law authorizes a court, upon receiving information that a prosecuting attorney may have deliberately and intentionally withheld relevant or material exculpatory evidence or information in violation of law, to make a finding, supported by clear and convincing evidence that a violation occurred.

This bill would instead authorize a court to make that finding upon receiving information that a prosecuting attorney deliberately and intentionally withheld relevant, material exculpatory evidence or information in violation of law.

(4) Existing law requires that each victim of sexual assault who consents to an examination for the collection of evidence shall have collected, except where he or she specifically objects, among other things, swabs and slides from specified locations to determine the presence or absence of sperm and sperm motility, and for genetic marker typing. Existing law also requires that those victims of sexual assault, except when he or she specifically objects, have reference specimens collected, including, for example, pubic and head hair, blood, and saliva for genetic marker testing.

This bill would instead specify that the swabs and slides would be taken to determine the presence or absence of semen and that reference specimens include, for example, pubic and head hair, blood, and saliva for DNA comparison and analysis. The bill would also authorize reference specimens to be collected at a later time.

(5) Existing law requires a traffic officer on duty for the exclusive or main purpose of enforcing specified provisions of the Vehicle Code relating to accidents and accident reports and rules of the road to wear a full distinctive uniform, and if the officer uses a motor vehicle while on duty, requires the vehicle to be painted a distinctive color specified by the Commissioner of the California Highway Patrol.

This bill would delete the requirement that the motor vehicle be painted, but would continue to require the vehicle be a distinctive color.

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

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

SECTION 1.  

Section 830.3 of the Penal Code is amended to
read:

830.3.  

The following persons are peace officers whose authority
extends to any place in the state for the purpose of performing
their primary duty or when making an arrest pursuant to Section
836 as to any public offense with respect to which there is
immediate danger to person or property, or of the escape of the
perpetrator of that offense, or pursuant to Section 8597 or 8598 of
the Government Code. These peace officers may carry firearms
only if authorized and under those terms and conditions as specified
by their employing agencies:

(a) Persons employed by the Division of Investigation of the
Department of Consumer Affairs and investigators of the Board
of Dental Examiners, who are designated by the Director of
Consumer Affairs, provided that the primary duty of these peace
officers shall be the enforcement of the law as that duty is set forth
in Section 160 of the Business and Professions Code.

(b) Voluntary fire wardens designated by the Director of
Forestry and Fire Protection pursuant to Section 4156 of the Public
Resources Code, provided that the primary duty of these peace
officers shall be the enforcement of the law as that duty is set forth
in Section 4156 of that code.

(c) Employees of the Department of Motor Vehicles designated
in Section 1655 of the Vehicle Code, provided that the primary
duty of these peace officers shall be the enforcement of the law as
that duty is set forth in Section 1655 of that code.

(d) Investigators of the California Horse Racing Board
designated by the board, provided that the primary duty of these
peace officers shall be the enforcement of Chapter 4 (commencing
with Section 19400) of Division 8 of the Business and Professions
Code and Chapter 10 (commencing with Section 330) of Title 9
of Part 1.

(e) The State Fire Marshal and assistant or deputy state fire
marshals appointed pursuant to Section 13103 of the Health and
Safety Code, provided that the primary duty of these peace officers
shall be the enforcement of the law as that duty is set forth in
Section 13104 of that code.

(f) Inspectors of the food and drug section designated by the
chief pursuant to subdivision (a) of Section 106500 of the Health
and Safety Code, provided that the primary duty of these peace
officers shall be the enforcement of the law as that duty is set forth
in Section 106500 of that code.

(g) All investigators of the Division of Labor Standards
Enforcement designated by the Labor Commissioner, provided
that the primary duty of these peace officers shall be the
enforcement of the law as prescribed in Section 95 of the Labor
Code.

(h) All investigators of the State Departments of Health Care
Services, Public Health, and Social Services, the Department of
Toxic Substances Control, the Office of Statewide Health Planning
and Development, and the Public Employees’ Retirement System,
provided that the primary duty of these peace officers shall be the
enforcement of the law relating to the duties of his or her
department or office. Notwithstanding any other law, investigators
of the Public Employees’ Retirement System shall not carry
firearms.

(i)  begin delete The Chief of the Bureau of Fraudulent Claims of end delete begin insert Either the
Deputy Commissioner, Enforcement Branch of, or the Fraud
Division Chief of, end insert the Department of Insurance and those
investigators designated by the begin insert deputy or the end insert chief, provided that
the primary duty of those investigators shall be the enforcement
of Section 550.

(j) Employees of the Department of Housing and Community
Development designated under Section 18023 of the Health and
Safety Code, provided that the primary duty of these peace officers
shall be the enforcement of the law as that duty is set forth in
Section 18023 of that code.

(k) Investigators of the office of the Controller, provided that
the primary duty of these investigators shall be the enforcement
of the law relating to the duties of that office. Notwithstanding any
other law, except as authorized by the Controller, the peace officers
designated pursuant to this subdivision shall not carry firearms.

(l) Investigators of the Department of Business Oversight
designated by the Commissioner of Business Oversight, provided
that the primary duty of these investigators shall be the enforcement
of the provisions of law administered by the Department of
Business Oversight. Notwithstanding any other law, the peace
officers designated pursuant to this subdivision shall not carry
firearms.

(m) Persons employed by the Contractors’ State License Board
designated by the Director of Consumer Affairs pursuant to Section
7011.5 of the Business and Professions Code, provided that the
primary duty of these persons shall be the enforcement of the law
as that duty is set forth in Section 7011.5, and in Chapter 9
(commencing with Section 7000) of Division 3, of that code. The
Director of Consumer Affairs may designate as peace officers not
more than 12 persons who shall at the time of their designation be
assigned to the special investigations unit of the board.
Notwithstanding any other law, the persons designated pursuant
to this subdivision shall not carry firearms.

(n) The Chief and coordinators of the Law Enforcement Branch
of the Office of Emergency Services.

(o) Investigators of the office of the Secretary of State designated
by the Secretary of State, provided that the primary duty of these
peace officers shall be the enforcement of the law as prescribed
in Chapter 3 (commencing with Section 8200) of Division 1 of
Title 2 of, and Section 12172.5 of, the Government Code.
Notwithstanding any other law, the peace officers designated
pursuant to this subdivision shall not carry firearms.

(p) The Deputy Director for Security designated by Section
8880.38 of the Government Code, and all lottery security personnel
assigned to the California State Lottery and designated by the
director, provided that the primary duty of any of those peace
officers shall be the enforcement of the laws related to assuring
the integrity, honesty, and fairness of the operation and
administration of the California State Lottery.

(q) Investigators employed by the Investigation Division of the
Employment Development Department designated by the director
of the department, provided that the primary duty of those peace
officers shall be the enforcement of the law as that duty is set forth
in Section 317 of the Unemployment Insurance Code.
Notwithstanding any other law, the peace officers designated
pursuant to this subdivision shall not carry firearms.

(r) The chief and assistant chief of museum security and safety
of the California Science Center, as designated by the executive
director pursuant to Section 4108 of the Food and Agricultural
Code, provided that the primary duty of those peace officers shall
be the enforcement of the law as that duty is set forth in Section
4108 of the Food and Agricultural Code.

(s) Employees of the Franchise Tax Board designated by the
board, provided that the primary duty of these peace officers shall
be the enforcement of the law as set forth in Chapter 9
(commencing with Section 19701) of Part 10.2 of Division 2 of
the Revenue and Taxation Code.

(t) (1) Notwithstanding any other provision of this section, a
peace officer authorized by this section shall not be authorized to
carry firearms by his or her employing agency until that agency
has adopted a policy on the use of deadly force by those peace
officers, and until those peace officers have been instructed in the
employing agency’s policy on the use of deadly force.

(2) Every peace officer authorized pursuant to this section to
carry firearms by his or her employing agency shall qualify in the
use of the firearms at least every six months.

(u) Investigators of the Department of Managed Health Care
designated by the Director of the Department of Managed Health
Care, provided that the primary duty of these investigators shall
be the enforcement of the provisions of laws administered by the
Director of the Department of Managed Health Care.
Notwithstanding any other law, the peace officers designated
pursuant to this subdivision shall not carry firearms.

(v) The Chief, Deputy Chief, supervising investigators, and
investigators of the Office of Protective Services of the State
Department of Developmental Services, the Office of Protective
Services of the State Department of State Hospitals, and the Office
of Law Enforcement Support of the California Health and Human
Services Agency, provided that the primary duty of each of those
persons shall be the enforcement of the law relating to the duties
of his or her department or office.

(w) This section shall become operative July 1, 2014.

SEC. 2.  

Section 1328 of the Penal Code is amended to read:

1328.  

(a) A subpoena may be served by any person, except
that the defendant may not serve a subpoena in the criminal action
to which he or she is a party, but a peace officer shall serve in his
or her county any subpoena delivered to him or her for service,
either on the part of the people or of the defendant, and shall,
without delay, make a written return of the service, subscribed by
him or her, stating the time and place of service. The service is
made by delivering a copy of the subpoena to the witness
personally.

(b) (1) If service is to be made on a minor, service shall be
made on the minor’s parent, guardian, conservator, or similar
fiduciary, or if one of them cannot be located with reasonable
diligence, then service shall be made on any person having the
care or control of the minor or with whom the minor resides or by
whom the minor is employed, unless the parent, guardian,
conservator, or fiduciary or other specified person is the defendant,
and on the minor if the minor is 12 years of age or older. The
person served shall have the obligation of producing the minor at
the time and place designated in the subpoena. A willful failure to
produce the minor is punishable as a contempt pursuant to Section
1218 of the Code of Civil Procedure. The person served shall be
allowed the fees and expenses that are provided for subpoenaed
witnesses.

(2) If the minor is alleged to come within the description of
Section 300, 601, or 602 of the Welfare and Institutions Code, and
the minor is not residing with a parent or guardian, regardless of
the age of the minor, service shall also be made upon the designated
agent for service of process at the county child welfare department
or the probation department under whose jurisdiction the child has
been placed.

(3) The court having jurisdiction of the case shall have the power
to appoint a guardian ad litem to receive service of a subpoena of
the child and shall have the power to produce the child ordered to
court under this section.

(c) If any peace officer designated in Section 830 is required as
a witness before any court or magistrate in any action or proceeding
in connection with a matter regarding an event or transaction which
he or she has perceived or investigated in the course of his or her
duties, a criminal subpoena issued pursuant to this chapter requiring
his or her attendance may be served either by delivering a copy to
the peace officer personally or by delivering two copies to his or
her immediate superior or agent designated by his or her immediate
superior to receive the service or, in those counties where the local
agencies have consented with the begin insert district attorney’s office, end insert
marshal’s begin delete office end delete begin insert office, end insert or sheriff’s office, where appropriate, to
participate, by sending a copy by electronic means, including
electronic mail, computer modem, facsimile, or other electronic
means, to begin insert him or her personally, or to end insert his or her immediate superior
or agent designated by the immediate superior to receive the
service. If the service is made by electronic means, the begin insert peace officer
named in the subpoena, or his or her end insert immediate superior or agency
designated by his or her immediate superior shall acknowledge
receipt of the subpoena by telephone or electronic means to the
sender of origin. If service is made upon the immediate superior
or agent designated by the immediate superior, the immediate
superior or the agent shall deliver a copy of the subpoena to the
peace officer as soon as possible and in no event later than a time
which will enable the peace officer to comply with the subpoena.

(d) If the immediate superior or his or her designated agent upon
whom service is attempted to be made knows he or she will be
unable to deliver a copy of the subpoena to the peace officer within
a time which will allow the peace officer to comply with the
subpoena, the immediate superior or agent may refuse to accept
service of process and is excused from any duty, liability, or
penalty arising in connection with the service, upon notifying the
server of that fact.

(e) If the immediate superior or his or her agent is tendered
service of a subpoena less than five working days prior to the date
of hearing, and he or she is not reasonably certain he or she can
complete the service, he or she may refuse acceptance.

(f) If the immediate superior or agent upon whom service has
been made, subsequently determines that he or she will be unable
to deliver a copy of the subpoena to the peace officer within a time
which will allow the peace officer to comply with the subpoena,
the immediate superior or agent shall notify the server or his or
her office or agent not less than 48 hours prior to the hearing date
indicated on the subpoena, and is thereby excused from any duty,
liability, or penalty arising because of his or her failure to deliver
a copy of the subpoena to the peace officer. The server, so notified,
is therewith responsible for preparing the written return of service
and for notifying the originator of the subpoena if required.

(g) Notwithstanding subdivision (c), in the case of peace officers
employed by the California Highway Patrol, if service is made
upon the immediate superior or upon an agent designated by the
immediate superior of the peace officer, the immediate superior
or the agent shall deliver a copy of the subpoena to the peace officer
on the officer’s first workday following acceptance of service of
process. In this case, failure of the immediate superior or the
designated agent to deliver the subpoena shall not constitute a
defect in service.

SEC. 3.  

Section 1424.5 of the Penal Code is amended to read:

1424.5.  

(a) (1) Upon receiving information that a prosecuting
attorney may have deliberately and intentionally withheld begin delete relevant
or end delete begin insert relevant, end insert material exculpatory evidence or information in
violation of law, a court may make a finding, supported by clear
and convincing evidence, that a violation occurred. If the court
finds such a violation, the court shall inform the State Bar of
California of that violation if the prosecuting attorney acted in bad
faith and the impact of the withholding contributed to a guilty
verdict, guilty or nolo contendere plea, or, if identified before
conclusion of trial, seriously limited the ability of a defendant to
present a defense.

(2) A court may hold a hearing to consider whether a violation
occurred pursuant to paragraph (1).

(b) (1) If a court finds, pursuant to subdivision (a), that a
violation occurred in bad faith, the court may disqualify an
individual prosecuting attorney from a case.

(2) Upon a determination by a court to disqualify an individual
prosecuting attorney pursuant to paragraph (1), the defendant or
his or her counsel may file and serve a notice of a motion pursuant
to Section 1424 to disqualify the prosecuting attorney’s office if
there is sufficient evidence that other employees of the prosecuting
attorney’s office knowingly and in bad faith participated in or
sanctioned the intentional withholding of the begin delete relevant or end delete begin insert relevant, end insert
material exculpatory evidence or information and that withholding
is part of a pattern and practice of violations.

(c) This section does not limit the authority or discretion of, or
any requirement placed upon, the court or other individuals to
make reports to the State Bar of California regarding the same
conduct, or otherwise limit other available legal authority,
requirements, remedies, or actions.

SEC. 4.  

Section 13823.11 of the Penal Code is amended to
read:

13823.11.  

The minimum standards for the examination and
treatment of victims of sexual assault or attempted sexual assault,
including child molestation and the collection and preservation of
evidence therefrom include all of the following:

(a) Law enforcement authorities shall be notified.

(b) In conducting the physical examination, the outline indicated
in the form adopted pursuant to subdivision (c) of Section 13823.5
shall be followed.

(c) Consent for a physical examination, treatment, and collection
of evidence shall be obtained.

(1) Consent to an examination for evidence of sexual assault
shall be obtained prior to the examination of a victim of sexual
assault and shall include separate written documentation of consent
to each of the following:

(A) Examination for the presence of injuries sustained as a result
of the assault.

(B) Examination for evidence of sexual assault and collection
of physical evidence.

(C) Photographs of injuries.

(2) Consent to treatment shall be obtained in accordance with
usual hospital policy.

(3) A victim of sexual assault shall be informed that he or she
may refuse to consent to an examination for evidence of sexual
assault, including the collection of physical evidence, but that a
refusal is not a ground for denial of treatment of injuries and for
possible pregnancy and sexually transmitted diseases, if the person
wishes to obtain treatment and consents thereto.

(4) Pursuant to Chapter 3 (commencing with Section 6920) of
Part 4 of Division 11 of the Family Code, a minor may consent to
hospital, medical, and surgical care related to a sexual assault
without the consent of a parent or guardian.

(5) In cases of known or suspected child abuse, the consent of
the parents or legal guardian is not required. In the case of
suspected child abuse and nonconsenting parents, the consent of
the local agency providing child protective services or the local
law enforcement agency shall be obtained. Local procedures
regarding obtaining consent for the examination and treatment of,
and the collection of evidence from, children from child protective
authorities shall be followed.

(d) A history of sexual assault shall be taken.

The history obtained in conjunction with the examination for
evidence of sexual assault shall follow the outline of the form
established pursuant to subdivision (c) of Section 13823.5 and
shall include all of the following:

(1) A history of the circumstances of the assault.

(2) For a child, any previous history of child sexual abuse and
an explanation of injuries, if different from that given by parent
or person accompanying the child.

(3) Physical injuries reported.

(4) Sexual acts reported, whether or not ejaculation is suspected,
and whether or not a condom or lubricant was used.

(5) Record of relevant medical history.

(e) (1) If indicated by the history of contact, a female victim
of sexual assault shall be provided with the option of postcoital
contraception by a physician or other health care provider.

(2) Postcoital contraception shall be dispensed by a physician
or other health care provider upon the request of the victim.

(f) Each adult and minor victim of sexual assault who consents
to a medical examination for collection of evidentiary material
shall have a physical examination which includes, but is not limited
to, all of the following:

(1) Inspection of the clothing, body, and external genitalia for
injuries and foreign materials.

(2) Examination of the mouth, vagina, cervix, penis, anus, and
rectum, as indicated.

(3) Documentation of injuries and evidence collected.

Prepubertal children shall not have internal vaginal or anal
examinations unless absolutely necessary. This does not preclude
careful collection of evidence using a swab.

(g) The collection of physical evidence shall conform to the
following procedures:

(1) Each victim of sexual assault who consents to an examination
for collection of evidence shall have the following items of
evidence collected, except where he or she specifically objects:

(A) Clothing worn during the assault.

(B) Foreign materials revealed by an examination of the
clothing, body, external genitalia, and pubic hair combings.

(C) Swabs and slides from the mouth, vagina, rectum, and penis,
as indicated, to determine the presence or absence of begin delete sperm and
sperm motility, and for genetic marker typing. end delete begin insert semen. end insert

(D) If indicated by the history of contact, the victim’s urine and
blood sample, for toxicology purposes, to determine if drugs or
alcohol were used in connection with the assault. Toxicology
results obtained pursuant to this paragraph shall not be admissible
in any criminal or civil action or proceeding against any victim
who consents to the collection of physical evidence pursuant to
this paragraph. Except for purposes of prosecuting or defending
the crime or crimes necessitating the examination specified by this
section, any toxicology results obtained pursuant to this paragraph
shall be kept confidential, may not be further disclosed, and shall
not be required to be disclosed by the victim for any purpose not
specified in this paragraph. The victim shall specifically be
informed of the immunity and confidentiality safeguards provided
herein.

(2) Each victim of sexual assault who consents to an examination
for the collection of evidence shall have reference specimens taken,
except when he or she specifically objects thereto. A reference
specimen is a standard from which to obtain baseline information
(for example: pubic and head hair, blood, and saliva for begin delete genetic
marker typing). end delete begin insert DNA comparison and analysis). Reference
specimens may also be collected at a later time if they are needed. end insert
These specimens shall be taken in accordance with the standards
of the local criminalistics laboratory.

(3) A baseline gonorrhea culture, and syphilis serology, shall
be taken, if indicated by the history of contact. Specimens for a
pregnancy test shall be taken, if indicated by the history of contact.

(4) (A) If indicated by the history of contact, a female victim
of sexual assault shall be provided with the option of postcoital
contraception by a physician or other health care provider.

(B) Postcoital contraception shall be dispensed by a physician
or other health care provider upon the request of the victim.

(h) Preservation and disposition of physical evidence shall
conform to the following procedures:

(1) All swabs and slides shall be air-dried prior to packaging.

(2) All items of evidence including laboratory specimens shall
be clearly labeled as to the identity of the source and the identity
of the person collecting them.

(3) The evidence shall have a form attached which documents
its chain of custody and shall be properly sealed.

(4) The evidence shall be turned over to the proper law
enforcement agency.

SEC. 5.  

Section 40800 of the Vehicle Code is amended to read:

40800.  

(a) A traffic officer on duty for the exclusive or main
purpose of enforcing the provisions of Division 10 (commencing
with Section 20000) or begin insert Division end insert 11 (commencing with Section
21000) shall wear a full distinctive uniform, and if the officer while
on duty uses a motor vehicle, it begin delete must be painted end delete begin insert shall be end insert a
distinctive color specified by the commissioner.

(b) This section does not apply to an officer assigned exclusively
to the duty of investigating and securing evidence in reference to
the theft of a begin delete vehicle or end delete begin insert vehicle, end insert failure of a person to stop in the
event of an begin delete accident or end delete begin insert accident, end insert violation of Section 23109 or
begin delete 23109.1 or end delete begin insert 23109.1, end insert in reference to a felony charge, or to an officer
engaged in serving a warrant when the officer is not engaged in
patrolling the highways for the purpose of enforcing the traffic
laws.

SEC. 6.  

Any section of any act enacted by the Legislature
during the 2016 calendar year that takes effect on or before January
1, 2017, and that amends, amends and renumbers, adds, repeals
and adds, or repeals a section that is amended, amended and
renumbered, added, repealed and added, or repealed by this act,
shall prevail over this act, whether that act is enacted prior to, or
subsequent to, the enactment of this act. The repeal, or repeal and
addition, of any article, chapter, part, title, or division of any code
by this act shall not become operative if any section of any other
act that is enacted by the Legislature during the 2016 calendar year
and takes effect on or before January 1, 2017, amends, amends
and renumbers, adds, repeals and adds, or repeals any section
contained in that article, chapter, part, title, or division.