BILL NUMBER: SB 1880 CHAPTERED
BILL TEXT
CHAPTER 606
FILED WITH SECRETARY OF STATE SEPTEMBER 21, 1998
APPROVED BY GOVERNOR SEPTEMBER 18, 1998
PASSED THE SENATE AUGUST 19, 1998
PASSED THE ASSEMBLY AUGUST 13, 1998
AMENDED IN ASSEMBLY JULY 7, 1998
AMENDED IN SENATE APRIL 13, 1998
INTRODUCED BY Committee on Public Safety (Senators Vasconcellos
(Chair), Burton, Kopp, McPherson, Polanco, Rainey, Schiff, and
Watson)
FEBRUARY 19, 1998
An act to amend Section 219 of the Code of Civil Procedure, to
amend Section 1231.2 of the Evidence Code, to amend Section 3579 of
the Government Code, to amend Section 1797.187 of the Health and
Safety Code, to amend Section 6404.5 of the Labor Code, to amend
Sections 76, 148.10, 11105, 11105.2, 12028.5, 13300, and 13519 of,
and to amend, repeal, and add Section 831.5 of, the Penal Code, and
to amend Sections 1807.5 and 13351.5 of the Vehicle Code, relating to
crimes.
LEGISLATIVE COUNSEL'S DIGEST
SB 1880, Committee on Public Safety. Various criminal law
provisions.
(1) The Governor's Reorganization Plan No. 1 of 1995 abolished the
California State Police Division in the Department of General
Services and transferred the functions of the division and the duties
and responsibilities assigned to that division to the Department of
the California Highway Patrol. The changes made by that plan were
codified in 1996.
This bill would make nonsubstantive, technical changes to the law
to correct obsolete cross-references that resulted from the changes
in the code that effected the reorganization of those law enforcement
agencies.
(2) Existing law defines a custodial officer as a public officer,
not a peace officer, employed by a law enforcement agency of
specified counties. The duties of this custodial officer may include
the serving of warrants, court orders, writs, and subpoenas in a
detention facility or under circumstances arising directly out of
maintaining custody of prisoners and related tasks.
This bill additionally would authorize the sheriff in counties
having a population of 100,000 or less to assign a custodial officer
as a court bailiff on an interim basis, and, when under the direction
of the sheriff, a custodial officer assigned as a court bailiff may
carry or possess firearms. The bill also would provide that during a
state of emergency, a custodial officer may be assigned limited law
enforcement responsibilities under the supervision of a peace
officer, including the powers of arrest. The bill would provide for
the repeal of these provisions relating to custodial officers on
January 1, 2003.
(3) Existing law provides that upon receipt of a duly certified
abstract of the record of any court showing that a person has been
convicted of committing assault with a deadly weapon or an instrument
other than a firearm and that a vehicle was found by the court to
constitute the deadly weapon or instrument used to commit that
offense, the Department of Motor Vehicles immediately shall revoke
the privilege of that person to drive a motor vehicle and shall not
reinstate that privilege revoked under any circumstances.
This bill would instead provide that the Department of Motor
Vehicles shall revoke the privilege of that person to drive a motor
vehicle where the person has been convicted of felony assault and
shall rescind any revocation order issued on or after January 1,
1995, where the person has been convicted of misdemeanor assault.
(4) The bill would make technical and nonsubstantive or clarifying
changes to other penal provisions.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 219 of the Code of Civil Procedure is amended
to read:
219. (a) Except as provided in subdivision (b), the jury
commissioner shall randomly select jurors for jury panels to be sent
to courtrooms for voir dire.
(b) (1) Notwithstanding subdivision (a), no peace officer, as
defined in Section 830.1 and subdivision (a) of Section 830.2 of the
Penal Code, shall be selected for voir dire in civil or criminal
matters.
(2) Notwithstanding subdivision (a), no peace officer, as defined
in subdivisions (b) and (c) of Section 830.2 of the Penal Code, shall
be selected for voir dire in criminal matters.
SEC. 2. Section 1231.2 of the Evidence Code is amended to read:
1231.2. A peace officer may administer and certify oaths for
purposes of this article.
SEC. 3. Section 3579 of the Government Code is amended to read:
3579. (a) In each case where the appropriateness of a unit is an
issue, in determining an appropriate unit, the board shall take into
consideration all of the following criteria:
(1) The internal and occupational community of interest among the
employees, including, but not limited to, the extent to which they
perform functionally related services or work toward established
common goals, the history of employee representation with the
employer, the extent to which the employees belong to the same
employee organization, the extent to which the employees have common
skills, working conditions, job duties, or similar educational or
training requirements, and the extent to which the employees have
common supervision.
(2) The effect that the projected unit will have on the meet and
confer relationships, emphasizing the availability and authority of
employer representatives to deal effectively with employee
organizations representing the unit, and taking into account factors
such as work location, the numerical size of the unit, the
relationship of the unit to organizational patterns of the higher
education employer, and the effect on the existing classification
structure or existing classification schematic of dividing a single
class or single classification schematic among two or more units.
(3) The effect of the proposed unit on efficient operations of the
employer and the compatibility of the unit with the responsibility
of the higher education employer and its employees to serve students
and the public.
(4) The number of employees and classifications in a proposed
unit, and its effect on the operations of the employer, on the
objectives of providing the employees the right to effective
representation, and on the meet and confer relationship.
(5) The impact on the meet and confer relationship created by
fragmentation of employee groups or any proliferation of units among
the employees of the employer.
(b) There shall be a presumption that professional employees and
nonprofessional employees shall not be included in the same
representation unit. However, the presumption shall be rebuttable,
depending upon what the evidence pertinent to the criteria set forth
in subdivision (a) establishes.
(c) There shall be a presumption that all employees within an
occupational group or groups shall be included within a single
representation unit. However, the presumption shall be rebutted if
there is a preponderance of evidence that a single representation
unit is inconsistent with the criteria set forth in subdivision (a)
or with the purposes of this chapter.
(d) Notwithstanding the foregoing provisions of this section, or
any other provision of law, an appropriate group of skilled crafts
employees shall have the right to be a single, separate unit of
representation. Skilled crafts employees shall include, but not
necessarily be limited to, employment categories such as carpenters,
plumbers, electricians, painters, and operating engineers. The
single unit of representation shall include not less than all skilled
crafts employees at a campus or at a Lawrence Laboratory.
(e) Notwithstanding the foregoing provisions of this section, the
only appropriate representation units including members of the
academic senate of the University of California shall be either a
single statewide unit consisting of all eligible members of the
senate, or divisional units consisting of all eligible members of a
division of the senate. In addition to the limitations of
subdivision (q) of Section 3562, the scope of representation of any
divisional unit shall be limited to those matters which have
customarily been determined on a division basis, but the employer
shall consult with the exclusive representative of a division on
matters which would be within the scope of representation or
consultation of a statewide representative. When 35 percent of the
eligible members of the academic senate are represented by an
exclusive representative or representatives in divisional units, the
board, on petition of a representative or of an organization
comprised of those representatives, shall conduct an election to
determine if the eligible members of the entire senate wish
thereafter to be represented by a representative or organization in a
single unit on all matters within the scope of representation. Any
other exclusive representative or organization of representatives or
any employee organization meeting the requirements of subdivision (a)
of Section 3577 shall be entitled, on petition, to appear on the
ballot, and in the event no choice receives a majority of the votes
cast, the runoff provisions of subdivision (a) of Section 3577 shall
be applicable.
(f) The board shall not determine that any unit is appropriate if
it includes, together with other employees, employees who are defined
as peace officers pursuant to subdivisions (b) and (c) of Section
830.2 of the Penal Code.
SEC. 4. Section 1797.187 of the Health and Safety Code is amended
to read:
1797.187. A peace officer as described in Section 830.1,
subdivision (a) of Section 830.2, or subdivision (g) of Section 830.3
of the Penal Code, while in the service of the agency or local
agency which employs him or her, shall be notified by the agency or
local agency if the peace officer is exposed to a known carcinogen,
as defined by the International Agency for Research on Cancer, or as
defined by its director, during the investigation of any place where
any controlled substance, as defined in Section 11007 is suspected
of being manufactured, stored, transferred, or sold, or any toxic
waste spills, accidents, leaks, explosions, or fires.
The Commission on Peace Officers Standards and Training basic
training course, and other training courses as the commission
determines appropriate, shall include, on or before January 1, 1990,
instruction on, but not limited to, the identification and handling
of possible carcinogenic materials and the potential health hazards
associated with these materials, protective equipment, and clothing
available to minimize contamination, handling, and disposing of
materials and measures and procedures that can be adopted to minimize
exposure to possible hazardous materials.
SEC. 5. Section 6404.5 of the Labor Code is amended to read:
6404.5. (a) The Legislature finds and declares that regulation of
smoking in the workplace is a matter of statewide interest and
concern. It is the intent of the Legislature in enacting this
section to prohibit the smoking of tobacco products in all (100
percent of) enclosed places of employment in this state, as covered
by this section, thereby eliminating the need of local governments to
enact workplace smoking restrictions within their respective
jurisdictions. It is further the intent of the Legislature to create
a uniform statewide standard to restrict and prohibit the smoking of
tobacco products in enclosed places of employment, as specified in
this section, in order to reduce employee exposure to environmental
tobacco smoke to a level that will prevent anything other than
insignificantly harmful effects to exposed employees, and also to
eliminate the confusion and hardship that can result from enactment
or enforcement of disparate local workplace smoking restrictions.
Notwithstanding any other provision of this section, it is the intent
of the Legislature that any area not defined as a "place of
employment" pursuant to subdivision (d) or in which the smoking of
tobacco products is not regulated pursuant to subdivision (e) shall
be subject to local regulation of smoking of tobacco products.
(b) No employer shall knowingly or intentionally permit, and no
person shall engage in, the smoking of tobacco products in an
enclosed space at a place of employment.
(c) For purposes of this section, an employer who permits any
nonemployee access to his or her place of employment on a regular
basis has not acted knowingly or intentionally if he or she has taken
the following reasonable steps to prevent smoking by a nonemployee:
(1) Posted clear and prominent signs, as follows:
(A) Where smoking is prohibited throughout the building or
structure, a sign stating "No smoking" shall be posted at each
entrance to the building or structure.
(B) Where smoking is permitted in designated areas of the building
or structure, a sign stating "Smoking is prohibited except in
designated areas" shall be posted at each entrance to the building or
structure.
(2) Has requested, when appropriate, that a nonemployee who is
smoking refrain from smoking in the enclosed workplace.
For purposes of this subdivision, "reasonable steps" does not
include (A) the physical ejection of a nonemployee from the place of
employment or (B) any requirement for making a request to a
nonemployee to refrain from smoking, under circumstances involving a
risk of physical harm to the employer or any employee.
(d) For purposes of this section, "place of employment" does not
include any of the following:
(1) Sixty-five percent of the guest room accommodations in a
hotel, motel, or similar transient lodging establishment.
(2) Areas of the lobby in a hotel, motel, or other similar
transient lodging establishment designated for smoking by the
establishment. An establishment may permit smoking in a designated
lobby area that does not exceed 25 percent of the total floor area of
the lobby or, if the total area of the lobby is 2,000 square feet or
less, that does not exceed 50 percent of the total floor area of the
lobby. For purposes of this paragraph, "lobby" means the common
public area of an establishment in which registration and other
similar or related transactions, or both, are conducted and in which
the establishment's guests and members of the public typically
congregate.
(3) Meeting and banquet rooms in a hotel, motel, other transient
lodging establishment similar to a hotel or motel, restaurant, or
public convention center, except while food or beverage functions are
taking place, including setup, service, and cleanup activities, or
when the room is being used for exhibit purposes. At times when
smoking is not permitted in a meeting or banquet room pursuant to
this paragraph, the establishment may permit smoking in corridors and
prefunction areas adjacent to and serving the meeting or banquet
room if no employee is stationed in that corridor or area on other
than a passing basis.
(4) Retail or wholesale tobacco shops and private smokers'
lounges. For purposes of this paragraph:
(A) "Private smokers' lounge" means any enclosed area in or
attached to a retail or wholesale tobacco shop that is dedicated to
the use of tobacco products, including, but not limited to, cigars
and pipes.
(B) "Retail or wholesale tobacco shop" means any business
establishment the main purpose of which is the sale of tobacco
products, including, but not limited to, cigars, pipe tobacco, and
smoking accessories.
(5) Cabs of motortrucks, as defined in Section 410 of the Vehicle
Code, or truck tractors, as defined in Section 655 of the Vehicle
Code, if no nonsmoking employees are present.
(6) Warehouse facilities. For purposes of this paragraph,
"warehouse facility" means a warehouse facility with more than
100,000 square feet of total floor space, and 20 or fewer full-time
employees working at the facility, but does not include any area
within a facility that is utilized as office space.
(7) Gaming clubs, in which smoking is permitted by subdivision
(f). For purposes of this paragraph, "gaming club" means any gaming
club, as defined in Section 19802 of the Business and Professions
Code, or bingo facility, as defined in Section 326.5 of the Penal
Code, that restricts access to minors under 18 years of age.
(8) Bars and taverns, in which smoking is permitted by subdivision
(f). For purposes of this paragraph, "bar" or "tavern" means a
facility primarily devoted to the serving of alcoholic beverages for
consumption by guests on the premises, in which the serving of food
is incidental. "Bar or tavern" includes those facilities located
within a hotel, motel, or other similar transient occupancy
establishment. However, when located within a building in
conjunction with another use, including a restaurant, "bar" or
"tavern" includes only those areas used primarily for the sale and
service of alcoholic beverages. "Bar" or "tavern" does not include
the dining areas of a restaurant, regardless of whether alcoholic
beverages are served therein.
(9) Theatrical production sites, if smoking is an integral part of
the story in the theatrical production.
(10) Medical research or treatment sites, if smoking is integral
to the research and treatment being conducted.
(11) Private residences, except for private residences licensed as
family day care homes, during the hours of operation as family day
care homes and in those areas where children are present.
(12) Patient smoking areas in long-term health care facilities, as
defined in Section 1418 of the Health and Safety Code.
(13) Breakrooms designated by employers for smoking, provided that
all of the following conditions are met:
(A) Air from the smoking room shall be exhausted directly to the
outside by an exhaust fan. Air from the smoking room shall not be
recirculated to other parts of the building.
(B) The employer shall comply with any ventilation standard or
other standard utilizing appropriate technology, including, but not
limited to, mechanical, electronic, and biotechnical systems, adopted
by the Occupational Safety and Health Standards Board or the federal
Environmental Protection Agency. If both adopt inconsistent
standards, the ventilation standards of the Occupational Safety and
Health Standards Board shall be no less stringent than the standards
adopted by the federal Environmental Protection Agency.
(C) The smoking room shall be located in a nonwork area where no
one, as part of his or her work responsibilities, is required to
enter. For purposes of this paragraph, "work responsibilities" does
not include any custodial or maintenance work carried out in the
breakroom when it is unoccupied.
(D) There are sufficient nonsmoking breakrooms to accommodate
nonsmokers.
(14) Employers with a total of five or fewer employees, either
full-time or part-time, may permit smoking where all of the following
conditions are met:
(A) The smoking area is not accessible to minors.
(B) All employees who enter the smoking area consent to permit
smoking. No one, as part of his or her work responsibilities, shall
be required to work in an area where smoking is permitted. An
employer who is determined by the division to have used coercion to
obtain consent or who has required an employee to work in the smoking
area shall be subject to the penalty provisions of Section 6427.
(C) Air from the smoking area shall be exhausted directly to the
outside by an exhaust fan. Air from the smoking area shall not be
recirculated to other parts of the building.
(D) The employer shall comply with any ventilation standard or
other standard utilizing appropriate technology, including, but not
limited to, mechanical, electronic, and biotechnical systems, adopted
by the Occupational Safety and Health Standards Board or the federal
Environmental Protection Agency. If both adopt inconsistent
standards, the ventilation standards of the Occupational Safety and
Health Standards Board shall be no less stringent than the standards
adopted by the federal Environmental Protection Agency.
This paragraph shall not be construed to (i) supersede or render
inapplicable any condition or limitation on smoking areas made
applicable to specific types of business establishments by any other
paragraph of this subdivision or (ii) apply in lieu of any otherwise
applicable paragraph of this subdivision that has become inoperative.
(e) Paragraphs (13) and (14) of subdivision (d) shall not be
construed to require employers to provide reasonable accommodation to
smokers, or to provide breakrooms for smokers or nonsmokers.
(f) (1) Except as otherwise provided in this subdivision, smoking
may be permitted in gaming clubs, as defined in paragraph (7) of
subdivision (d), and in bars and taverns, as defined in paragraph (8)
of subdivision (d), until the earlier of the following:
(A) January 1, 1998.
(B) The date of adoption of a regulation (i) by the Occupational
Safety and Health Standards Board reducing the permissible employee
exposure level to environmental tobacco smoke to a level that will
prevent anything other than insignificantly harmful effects to
exposed employees or (ii) by the federal Environmental Protection
Agency establishing a standard for reduction of permissible exposure
to environmental tobacco smoke to an exposure level that will prevent
anything other than insignificantly harmful effects to exposed
persons.
(2) If a regulation specified in subparagraph (B) of paragraph (1)
is adopted on or before January 1, 1998, smoking may thereafter be
permitted in gaming clubs and in bars and taverns, subject to full
compliance with, or conformity to, the standard in the regulation
within two years following the date of adoption of the regulation.
An employer failing to achieve compliance with, or conformity to, the
regulation within this two-year period shall prohibit smoking in the
gaming club, bar, or tavern until compliance or conformity is
achieved. If the Occupational Safety and Health Standards Board and
the federal Environmental Protection Agency both adopt regulations
specified in subparagraph (B) of paragraph (1) that are inconsistent,
the regulations of the Occupational Safety Standards Board shall be
no less stringent than the regulations of the federal Environmental
Protection Agency.
(3) If a regulation specified in subparagraph (B) of paragraph (1)
is not adopted on or before January 1, 1998, the exemptions
specified in paragraphs (7) and (8) of subdivision (d) shall be
inoperative on and after January 1, 1998, until a regulation is
adopted. Upon adoption of such a regulation on or after January 1,
1998, smoking may thereafter be permitted in gaming clubs and in bars
and taverns, subject to full compliance with, or conformity to, the
standard in the regulation within two years following the date of
adoption of the regulation. An employer failing to achieve
compliance with, or conformity to, the regulation within this
two-year period shall prohibit smoking in the gaming club, bar, or
tavern until compliance or conformity is achieved. If the
Occupational Safety and Health Standards Board and the federal
Environmental Protection Agency both adopt regulations specified in
subparagraph (B) of paragraph (1) that are inconsistent, the
regulations of the Occupational Safety and Health Standards Board
shall be no less stringent than the regulations of the federal
Environmental Protection Agency.
(4) From January 1, 1997, to December 31, 1997, inclusive, smoking
may be permitted in gaming clubs, as defined in paragraph (7) of
subdivision (d), and in bars and taverns, as defined in paragraph (8)
of subdivision (d), subject to both of the following conditions:
(A) If practicable, the gaming club or bar or tavern shall
establish a designated nonsmoking area.
(B) If feasible, no employee shall be required, in the performance
of ordinary work responsibilities, to enter any area in which
smoking is permitted.
(g) The smoking prohibition set forth in this section shall
constitute a uniform statewide standard for regulating the smoking of
tobacco products in enclosed places of employment and shall
supersede and render unnecessary the local enactment or enforcement
of local ordinances regulating the smoking of tobacco products in
enclosed places of employment. Insofar as the smoking prohibition
set forth in this section is applicable to all (100 percent of)
places of employment within this state and, therefore, provides the
maximum degree of coverage, the practical effect of this section is
to eliminate the need of local governments to enact enclosed
workplace smoking restrictions within their respective jurisdictions.
(h) Nothing in this section shall prohibit an employer from
prohibiting smoking in an enclosed place of employment for any
reason.
(i) The enactment of local regulation of smoking of tobacco
products in enclosed places of employment by local governments shall
be suspended only for as long as, and to the extent that, the (100
percent) smoking prohibition provided for in this section remains in
effect. In the event this section is repealed or modified by
subsequent legislative or judicial action so that the (100 percent)
smoking prohibition is no longer applicable to all enclosed places of
employment in California, local governments shall have the full
right and authority to enforce previously enacted, and to enact and
enforce new, restrictions on the smoking of tobacco products in
enclosed places of employment within their jurisdictions, including a
complete prohibition of smoking. Notwithstanding any other
provision of this section, any area not defined as a "place of
employment" or in which the smoking is not regulated pursuant to
subdivision (d) or (e), shall be subject to local regulation of
smoking of tobacco products.
(j) Any violation of the prohibition set forth in subdivision (b)
is an infraction, punishable by a fine not to exceed one hundred
dollars ($100) for a first violation, two hundred dollars ($200) for
a second violation within one year, and five hundred dollars ($500)
for a third and for each subsequent violation within one year. This
subdivision shall be enforced by local law enforcement agencies
including, but not limited to, local health departments, as
determined by the local governing body.
(k) Notwithstanding Section 6309, the division shall not be
required to respond to any complaint regarding the smoking of tobacco
products in an enclosed space at a place of employment, unless the
employer has been found guilty pursuant to subdivision (j) of a third
violation of subdivision (b) within the previous year.
(l) If any provision of this act or the application thereof to any
person or circumstances is held invalid, that invalidity shall not
affect other provisions or applications of the act that can be given
effect without the invalid provision of application, and to this end
the provisions of this act are severable.
SEC. 6. Section 76 of the Penal Code is amended to read:
76. (a) Every person who knowingly and willingly threatens the
life of, or threatens serious bodily harm to, any elected public
official, county public defender, county clerk, exempt appointee of
the Governor, judge, or Deputy Commissioner of the Board of Prison
Terms, or the staff or immediate family of any elected public
official, county public defender, county clerk, exempt appointee of
the Governor, judge, or Deputy Commissioner of the Board of Prison
Terms, with the specific intent that the statement is to be taken as
a threat, and the apparent ability to carry out that threat by any
means, is guilty of a public offense, punishable as follows:
(1) Upon a first conviction, the offense is punishable by a fine
not exceeding five thousand dollars ($5,000), or by imprisonment in
the state prison, or in a county jail not exceeding one year, or by
both that fine and imprisonment.
(2) If the person has been convicted previously of violating this
section, the previous conviction shall be charged in the accusatory
pleading, and if the previous conviction is found to be true by the
jury upon a jury trial, or by the court upon a court trial, or is
admitted by the defendant, the offense is punishable by imprisonment
in the state prison.
(b) (1) Any law enforcement agency which has knowledge of a
violation of this section shall immediately report that information
to the California Department of Justice.
(2) In addition to the reporting requirement imposed by paragraph
(1), if a violation of this section occurs that involves a
constitutional officer of the state, a Member of the Legislature, or
a member of the judiciary, the law enforcement agency which has
knowledge of the violation shall immediately report that information
to the Department of the California Highway Patrol.
(c) For purposes of this section, the following definitions shall
apply:
(1) "Apparent ability to carry out that threat" includes the
ability to fulfill the threat at some future date when the person
making the threat is an incarcerated prisoner with a stated release
date.
(2) "Serious bodily harm" includes serious physical injury or
serious traumatic condition.
(3) "Immediate family" means a spouse, parent, or child, or anyone
who has regularly resided in the household for the past six months.
(4) "Staff of a judge" means court officers and employees,
including commissioners, referees, and retired judges sitting on
assignment.
(5) "Threat" means a verbal or written threat or a threat implied
by a pattern of conduct or a combination of verbal or written
statements and conduct made with the intent and the apparent ability
to carry out the threat so as to cause the person who is the target
of the threat to reasonably fear for his or her safety or the safety
of his or her immediate family.
(d) As for threats against staff, the threat must relate directly
to the official duties of the staff of the elected public official,
county public defender, county clerk, exempt appointee of the
Governor, judge, or Deputy Commissioner of the Board of Prison Terms
in order to constitute a public offense under this section.
(e) A threat must relate directly to the official duties of a
Deputy Commissioner of the Board of Prison Terms in order to
constitute a public offense under
this section.
SEC. 7. Section 148.10 of the Penal Code is amended to read:
148.10. (a) Every person who willfully resists a peace officer in
the discharge or attempt to discharge any duty of his or her office
or employment and the willful resistance of the person proximately
causes death or serious bodily injury to a peace officer, shall be
punished by imprisonment in the state prison for two, three, or four
years, or a fine of not less than one thousand dollars ($1,000) or
more than ten thousand dollars ($10,000), or both the fine and
imprisonment, or by imprisonment in a county jail for not more than
one year, or by a fine of not more than one thousand dollars
($1,000), or by both the fine and imprisonment.
(b) For purposes of subdivision (a), the following facts shall be
found by the trier of fact:
(1) That the peace officer's action was reasonable based on the
facts or circumstances confronting the officer at the time.
(2) That the detention and arrest was lawful and there existed
probable cause or reasonable cause to detain.
(3) That the person who willfully resisted, any peace officer knew
or reasonably should have known that the other person was a peace
officer engaged in the performance of his or her duties.
(c) This section shall not apply to conduct which occurs during
labor picketing, demonstrations, or disturbing the peace.
(d) For purposes of this section, "serious bodily injury" is
defined in paragraph (4) of subdivision (f) of Section 243.
SEC. 8. Section 831.5 of the Penal Code is amended to read:
831.5. (a) As used in this section, a custodial officer is a
public officer, not a peace officer, employed by a law enforcement
agency of San Diego County, Fresno County, Kern County, Stanislaus
County, Riverside County, or a county having a population of 425,000
or less who has the authority and responsibility for maintaining
custody of prisoners and performs tasks related to the operation of a
local detention facility used for the detention of persons usually
pending arraignment or upon court order either for their own
safekeeping or for the specific purpose of serving a sentence
therein. Custodial officers of a county shall be employees of, and
under the authority of, the sheriff, except in counties in which the
sheriff, as of July 1, 1993, is not in charge of and the sole and
exclusive authority to keep the county jail and the prisoners in it.
A custodial officer includes a person designated as a correctional
officer, jailer, or other similar title. The duties of a custodial
officer may include the serving of warrants, court orders, writs, and
subpoenas in the detention facility or under circumstances arising
directly out of maintaining custody of prisoners and related tasks.
In counties having a population of 100,000 or less, a custodial
officer may be assigned by the sheriff as a court bailiff on an
interim basis, and, when under the direction of the sheriff, a
custodial officer assigned as a court bailiff may carry or possess
firearms.
(b) Notwithstanding any other provision of law, during a state of
emergency as defined in Section 8558 of the Government Code, a
custodial officer may be assigned limited law enforcement
responsibilities under the supervision of a peace officer. While on
this assignment, the custodial officer may exercise the powers of
arrest pursuant to Section 836.5.
(c) A custodial officer has no right to carry or possess firearms
in the performance of his or her prescribed duties, except, under the
direction of the sheriff or chief of police, while assigned as a
court bailiff or engaged in transporting prisoners, guarding
hospitalized prisoners, or suppressing jail riots, lynchings,
escapes, or rescues in or about a detention facility falling under
the care and custody of the sheriff or chief of police.
(d) Each person described in this section as a custodial officer
shall, within 90 days following the date of the initial assignment to
that position, satisfactorily complete the training course specified
in Section 832. In addition, each person designated as a custodial
officer shall, within one year following the date of the initial
assignment as a custodial officer, have satisfactorily met the
minimum selection and training standards prescribed by the Board of
Corrections pursuant to Section 6035. Persons designated as
custodial officers, before the expiration of the 90-day and one-year
periods described in this subdivision, who have not yet completed the
required training, shall not carry or possess firearms in the
performance of their prescribed duties, but may perform the duties of
a custodial officer only while under the direct supervision of a
peace officer, as described in Section 830.1, who has completed the
training prescribed by the Commission on Peace Officer Standards and
Training, or a custodial officer who has completed the training
required in this section.
(e) At any time 20 or more custodial officers are on duty, there
shall be at least one peace officer, as described in Section 830.1,
on duty at the same time to supervise the performance of the
custodial officers.
(f) This section shall not be construed to confer any authority
upon any custodial officer except while on duty.
(g) A custodial officer may use reasonable force in establishing
and maintaining custody of persons delivered to him or her by a law
enforcement officer, may make arrests for misdemeanors and felonies
within the local detention facility pursuant to a duly issued
warrant, may make warrantless arrests pursuant to Section 836.5 only
during the duration of his or her job, may release without further
criminal process persons arrested for intoxication, and may release
misdemeanants on citation to appear in lieu of or after booking.
(h) This section shall remain in effect only until January 1, 2003,
and as of that date is repealed, unless a later enacted statute,
that is enacted before January 1, 2003, deletes or extends that date.
SEC. 8.5. Section 831.5 is added to the Penal Code, to read:
831.5. (a) As used in this section, a custodial officer is a
public officer, not a peace officer, employed by a law enforcement
agency of San Diego County, Fresno County, Kern County, Stanislaus
County, Riverside County, or a county having a population of 425,000
or less who has the authority and responsibility for maintaining
custody of prisoners and performs tasks related to the operation of a
local detention facility used for the detention of persons usually
pending arraignment or upon court order either for their own
safekeeping or for the specific purpose of serving a sentence
therein. Custodial officers of a county shall be employees of, and
under the authority of, the sheriff, except in counties in which the
sheriff, as of July 1, 1993, is not in charge of and the sole and
exclusive authority to keep the county jail and the prisoners in it.
A custodial officer includes a person designated as a correctional
officer, jailer, or other similar title. The duties of a custodial
officer may include the serving of warrants, court orders, writs, and
subpoenas in the detention facility or under circumstances arising
directly out of maintaining custody of prisoners and related tasks.
(b) A custodial officer has no right to carry or possess firearms
in the performance of his or her prescribed duties, except, under the
direction of the sheriff or chief of police, while engaged in
transporting prisoners; guarding hospitalized prisoners; or
suppressing jail riots, lynchings, escapes, or rescues in or about a
detention facility falling under the care and custody of the sheriff
or chief of police.
(c) Each person described in this section as a custodial officer
shall, within 90 days following the date of the initial assignment to
that position, satisfactorily complete the training course specified
in Section 832. In addition, each person designated as a custodial
officer shall, within one year following the date of the initial
assignment as a custodial officer, have satisfactorily met the
minimum selection and training standards prescribed by the Board of
Corrections pursuant to Section 6035. Persons designated as
custodial officers, before the expiration of the 90-day and one-year
periods described in this subdivision, who have not yet completed the
required training, shall not carry or possess firearms in the
performance of their prescribed duties, but may perform the duties of
a custodial officer only while under the direct supervision of a
peace officer, as described in Section 830.1, who has completed the
training prescribed by the Commission on Peace Officer Standards and
Training, or a custodial officer who has completed the training
required in this section.
(d) At any time 20 or more custodial officers are on duty, there
shall be at least one peace officer, as described in Section 830.1,
on duty at the same time to supervise the performance of the
custodial officers.
(e) This section shall not be construed to confer any authority
upon any custodial officer except while on duty.
(f) A custodial officer may use reasonable force in establishing
and maintaining custody of persons delivered to him or her by a law
enforcement officer; may make arrests for misdemeanors and felonies
within the local detention facility pursuant to a duly issued
warrant; may make warrantless arrests pursuant to Section 836.5 only
during the duration of his or her job; may release without further
criminal process persons arrested for intoxication; and may release
misdemeanants on citation to appear in lieu of or after booking.
(g) This section shall become operative on January 1, 2003.
SEC. 9. Section 11105 of the Penal Code is amended to read:
11105. (a) (1) The Department of Justice shall maintain state
summary criminal history information.
(2) As used in this section:
(A) "State summary criminal history information" means the master
record of information compiled by the Attorney General pertaining to
the identification and criminal history of any person, such as name,
date of birth, physical description, fingerprints, photographs, date
of arrests, arresting agencies and booking numbers, charges,
dispositions, and similar data about the person.
(B) "State summary criminal history information" does not refer to
records and data compiled by criminal justice agencies other than
the Attorney General, nor does it refer to records of complaints to
or investigations conducted by, or records of intelligence
information or security procedures of, the office of the Attorney
General and the Department of Justice.
(b) The Attorney General shall furnish state summary criminal
history information to any of the following, if needed in the course
of their duties, provided that when information is furnished to
assist an agency, officer, or official of state or local government,
a public utility, or any entity, in fulfilling employment,
certification, or licensing duties, Chapter 1321 of the Statutes of
1974 and of Section 432.7 of the Labor Code shall apply:
(1) The courts of the state.
(2) Peace officers of the state as defined in Section 830.1,
subdivisions (a) and (e) of Section 830.2, subdivision (a) of Section
830.3, subdivisions (a) and (b) of Section 830.5, and subdivision
(a) of Section 830.31.
(3) District attorneys of the state.
(4) Prosecuting city attorneys of any city within the state.
(5) Probation officers of the state.
(6) Parole officers of the state.
(7) A public defender or attorney of record when representing a
person in proceedings upon a petition for a certificate of
rehabilitation and pardon pursuant to Section 4852.08.
(8) A public defender or attorney of record when representing a
person in a criminal case and if authorized access by statutory or
decisional law.
(9) Any agency, officer, or official of the state if the criminal
history information is required to implement a statute or regulation
that expressly refers to specific criminal conduct applicable to the
subject person of the state summary criminal history information, and
contains requirements or exclusions, or both, expressly based upon
that specified criminal conduct.
(10) Any city or county, or city and county, or district, or any
officer, or official thereof if access is needed in order to assist
that agency, officer, or official in fulfilling employment,
certification, or licensing duties, and if the access is specifically
authorized by the city council, board of supervisors, or governing
board of the city, county, or district if the criminal history
information is required to implement a statute, ordinance, or
regulation that expressly refers to specific criminal conduct
applicable to the subject person of the state summary criminal
history information, and contains requirements or exclusions, or
both, expressly based upon that specified criminal conduct.
(11) The subject of the state summary criminal history information
under procedures established under Article 5 (commencing with
Section 11120) of Chapter 1 of Title 1 of Part 4.
(12) Any person or entity when access is expressly authorized by
statute if the criminal history information is required to implement
a statute or regulation that expressly refers to specific criminal
conduct applicable to the subject person of the state summary
criminal history information, and contains requirements or
exclusions, or both, expressly based upon that specified criminal
conduct.
(13) Health officers of a city, county, or city and county, or
district, when in the performance of their official duties enforcing
Section 120175 of the Health and Safety Code.
(14) Any managing or supervising correctional officer of a county
jail or other county correctional facility.
(15) Any humane society, or society for the prevention of cruelty
to animals, for the specific purpose of complying with Section 14502
of the Corporations Code for the appointment of level 1 humane
officers.
(c) The Attorney General may furnish state summary criminal
history information upon a showing of a compelling need to any of the
following, provided that when information is furnished to assist an
agency, officer, or official of state or local government, a public
utility, or any entity, in fulfilling employment, certification, or
licensing duties, Chapter 1321 of the Statutes of 1974 and of Section
432.7 of the Labor Code shall apply:
(1) Any public utility as defined in Section 216 of the Public
Utilities Code that operates a nuclear energy facility when access is
needed in order to assist in employing persons to work at the
facility, provided that, if the Attorney General supplies the data,
he or she shall furnish a copy of the data to the person to whom the
data relates.
(2) To a peace officer of the state other than those included in
subdivision (b).
(3) To a peace officer of another country.
(4) To public officers (other than peace officers) of the United
States, other states, or possessions or territories of the United
States, provided that access to records similar to state summary
criminal history information is expressly authorized by a statute of
the United States, other states, or possessions or territories of the
United States if the information is needed for the performance of
their official duties.
(5) To any person when disclosure is requested by a probation,
parole, or peace officer with the consent of the subject of the state
summary criminal history information and for purposes of furthering
the rehabilitation of the subject.
(6) The courts of the United States, other states, or territories
or possessions of the United States.
(7) Peace officers of the United States, other states, or
territories or possessions of the United States.
(8) To any individual who is the subject of the record requested
if needed in conjunction with an application to enter the United
States or any foreign nation.
(9) Any public utility as defined in Section 216 of the Public
Utilities Code, if access is needed in order to assist in employing
current or prospective employees who in the course of their
employment may be seeking entrance to private residences. The
information provided shall be limited to the record of convictions
and any arrest for which the person is released on bail or on his or
her own recognizance pending trial.
If the Attorney General supplies the data pursuant to this
paragraph, the Attorney General shall furnish a copy of the data to
the current or prospective employee to whom the data relates.
Any information obtained from the state summary criminal history
is confidential and the receiving public utility shall not disclose
its contents, other than for the purpose for which it was acquired.
The state summary criminal history information in the possession of
the public utility and all copies made from it shall be destroyed not
more than 30 days after employment or promotion or transfer is
denied or granted, except for those cases where a current or
prospective employee is out on bail or on his or her own recognizance
pending trial, in which case the state summary criminal history
information and all copies shall be destroyed not more than 30 days
after the case is resolved.
A violation of this paragraph is a misdemeanor, and shall give the
current or prospective employee who is injured by the violation a
cause of action against the public utility to recover damages
proximately caused by the violations. Any public utility's request
for state summary criminal history information for purposes of
employing current or prospective employees who may be seeking
entrance to private residences in the course of their employment
shall be deemed a "compelling need" as required to be shown in this
subdivision.
Nothing in this section shall be construed as imposing any duty
upon public utilities to request state summary criminal history
information on any current or prospective employees.
(10) To any campus of the California State University or the
University of California, or any four-year college or university
accredited by a regional accreditation organization approved by the
United States Department of Education, if needed in conjunction with
an application for admission by a convicted felon to any special
education program for convicted felons, including, but not limited
to, university alternatives and halfway houses. Only conviction
information shall be furnished. The college or university may
require the convicted felon to be fingerprinted, and any inquiry to
the department under this section shall include the convicted felon's
fingerprints and any other information specified by the department.
(d) Whenever an authorized request for state summary criminal
history information pertains to a person whose fingerprints are on
file with the Department of Justice and the department has no
criminal history of that person, and the information is to be used
for employment, licensing, or certification purposes, the fingerprint
card accompanying the request for information, if any, may be
stamped "no criminal record" and returned to the person or entity
making the request.
(e) Whenever state summary criminal history information is
furnished as the result of an application and is to be used for
employment, licensing, or certification purposes, the Department of
Justice may charge the person or entity making the request a fee that
it determines to be sufficient to reimburse the department for the
cost of furnishing the information. In addition, the Department of
Justice may add a surcharge to the fee to fund maintenance and
improvements to the systems from which the information is obtained.
Notwithstanding any other law, any person or entity required to pay a
fee to the department for information received under this section
may charge the applicant a fee sufficient to reimburse the person or
entity for this expense. All moneys received by the department
pursuant to this section, Sections 11105.3 and 12054 of the Penal
Code, and Section 13588 of the Education Code shall be deposited in a
special account in the General Fund to be available for expenditure
by the department to offset costs incurred pursuant to those sections
and for maintenance and improvements to the systems from which the
information is obtained upon appropriation by the Legislature.
(f) Whenever there is a conflict, the processing of criminal
fingerprints and fingerprints of applicants for security guard or
alarm agent registrations or firearms qualification permits submitted
pursuant to Section 7514 of the Business and Professions Code shall
take priority over the processing of applicant fingerprints.
(g) It is not a violation of this section to disseminate
statistical or research information obtained from a record, provided
that the identity of the subject of the record is not disclosed.
(h) It is not a violation of this section to include information
obtained from a record in (1) a transcript or record of a judicial or
administrative proceeding or (2) any other public record if the
inclusion of the information in the public record is authorized by a
court, statute, or decisional law.
(i) Notwithstanding any other law, the Department of Justice or
any state or local law enforcement agency may require the submission
of fingerprints for the purpose of conducting summary criminal
history information checks that are authorized by law.
(j) The state summary criminal history information shall include
any finding of mental incompetence pursuant to Chapter 6 (commencing
with Section 1367) of Title 10 of Part 2 arising out of a complaint
charging a felony offense specified in Section 290.
SEC. 10. Section 11105.2 of the Penal Code is amended to read:
11105.2. (a) The Department of Justice may provide subsequent
arrest notification to any agency authorized by Section 11105 to
receive state summary criminal history information to assist in
fulfilling employment, licensing, or certification duties upon the
arrest of any person whose fingerprints are maintained on file at the
Department of Justice as the result of an application for licensing,
employment, or certification. The notification shall consist of a
current copy of the person's state summary criminal history
transcript.
(b) Any agency, other than a law enforcement agency employing
peace officers as defined in Section 830.1, subdivisions (a) and (e)
of Section 830.2, subdivision (a) of Section 830.3, subdivisions (a)
and (b) of Section 830.5, and subdivision (a) of Section 830.31,
shall enter into a contract with the Department of Justice in order
to receive notification of subsequent arrests for licensing,
employment, or certification purposes.
(c) Any agency which submits the fingerprints of applicants for
licensing, employment, or certification to the Department of Justice
for the purpose of establishing a record of the applicant to receive
notification of subsequent arrests shall immediately notify the
department when the employment of the applicant is terminated, when
the applicant's license or certificate is revoked, or when the
applicant may no longer renew or reinstate the license or
certificate. The Department of Justice shall terminate subsequent
arrest notification on any applicant upon the request of the
licensing, employment, or certifying authority.
(d) Any agency receiving a notification of subsequent arrest for a
person unknown to the agency, or for a person no longer employed by
the agency, or no longer eligible to renew the certificate or license
for which subsequent arrest notification service was established
shall immediately return the subsequent arrest notification to the
Department of Justice, informing the department that the agency is no
longer interested in the applicant. The agency shall not record or
otherwise retain any information received as a result of the
subsequent arrest notice.
(e) Any agency which submits the fingerprints of an applicant for
employment, licensing, or certification to the Department of Justice
for the purpose of establishing a record at the department to
receive notification of subsequent arrest shall immediately notify
the department if the applicant is not subsequently employed, or if
the applicant is denied licensing or certification.
(f) An agency which fails to provide the Department of Justice
with notification as set forth in subdivisions (c), (d), and (e) may
be denied further subsequent arrest notification service.
(g) Notwithstanding subdivisions (c), (d), and (f), subsequent
arrest notification by the Department of Justice and retention by the
employing agency shall continue as to retired peace officers listed
in subdivision (c) of Section 830.5.
SEC. 11. Section 12028.5 of the Penal Code is amended to read:
12028.5. (a) As used in this section, the following definitions
shall apply:
(1) "Abuse" means intentionally or recklessly causing or
attempting to cause bodily injury, or placing another person in
reasonable apprehension of imminent serious bodily injury to himself,
herself, or another.
(2) "Family violence" has the same meaning as domestic violence as
defined in subdivision (b) of Section 13700, and also includes any
abuse perpetrated against a family or household member.
(3) "Family or household member" means a spouse, former spouse,
parent, child, any person related by consanguinity or affinity within
the second degree, or any person who regularly resides or who
regularly resided in the household.
The presumption applies that the male parent is the father of any
child of the female pursuant to the Uniform Parentage Act (Part 3
(commencing with Section 7600) of Division 12 of the Family Code).
(4) "Deadly weapon" means any weapon, the possession or concealed
carrying of which is prohibited by Section 12020.
(b) A sheriff, undersheriff, deputy sheriff, marshal, deputy
marshal, or police officer of a city, as defined in subdivision (a)
of Section 830.1, a peace officer of the Department of the California
Highway Patrol, as defined in subdivision (a) of Section 830.2, a
member of the University of California Police Department, as defined
in subdivision (b) of Section 830.2, an officer listed in Section
830.6 while acting in the course and scope of his or her employment
as a peace officer, a member of a California State University Police
Department, as defined in subdivision (c) of Section 830.2, a peace
officer of the Department of Parks and Recreation, as defined in
subdivision (f) of Section 830.2, a peace officer, as defined in
subdivision (d) of Section 830.31, and a peace officer, as
defined in Section 830.5, who is
at the scene of a family violence incident involving a threat to
human life or a physical assault, may take temporary custody of any
firearm or other deadly weapon in plain sight or discovered pursuant
to a consensual search as necessary for the protection of the peace
officer or other persons present. Upon taking custody of a firearm
or other deadly weapon, the officer shall give the owner or person
who possessed the firearm a receipt. The receipt shall describe the
firearm or other deadly weapon and list any identification or serial
number on the firearm. The receipt shall indicate where the firearm
or other deadly weapon can be recovered and the date after which the
owner or possessor can recover the firearm or other deadly weapon.
No firearm or other deadly weapon shall be held less than 48 hours.
Except as provided in subdivision (e), if a firearm or other deadly
weapon is not retained for use as evidence related to criminal
charges brought as a result of the family violence incident or is not
retained because it was illegally possessed, the firearm or other
deadly weapon shall be made available to the owner or person who was
in lawful possession 48 hours after the seizure or as soon thereafter
as possible, but no later than 72 hours after the seizure. In any
civil action or proceeding for the return of firearms or ammunition
or other deadly weapon seized by any state or local law enforcement
agency and not returned within 72 hours following the initial
seizure, except as provided in subdivision (c), the court shall allow
reasonable attorney's fees to the prevailing party.
(c) Any firearm or other deadly weapon which has been taken into
custody that has been stolen shall be restored to the lawful owner,
as soon as its use for evidence has been served, upon his or her
identification of the firearm or other deadly weapon and proof of
ownership.
(d) Any firearm or other deadly weapon taken into custody and held
by a police, university police, or sheriff's department or by a
marshal's office, by a peace officer of the Department of the
California Highway Patrol, as defined in subdivision (a) of Section
830.2, by a peace officer of the Department of Parks and Recreation,
as defined in subdivision (f) of Section 830.2, by a peace officer,
as defined in subdivision (d) of Section 830.31, or by a peace
officer, as defined in Section 830.5, for longer than 12 months and
not recovered by the owner or person who has lawful possession at the
time it was taken into custody, shall be considered a nuisance and
sold or destroyed as provided in subdivision (c) of Section 12028.
Firearms or other deadly weapons not recovered within 12 months due
to an extended hearing process as provided in subdivision (i), are
not subject to destruction until the court issues a decision, and
then only if the court does not order the return of the firearm or
other deadly weapon to the owner.
(e) In those cases where a law enforcement agency has reasonable
cause to believe that the return of a firearm or other deadly weapon
would be likely to result in endangering the victim or the person
reporting the assault or threat, the agency shall advise the owner of
the firearm or other deadly weapon, and within 10 days of the
seizure, initiate a petition in superior court to determine if the
firearm or other deadly weapon should be returned.
(f) The law enforcement agency shall inform the owner or person
who had lawful possession of the firearm or other deadly weapon, at
that person's last known address by registered mail, return receipt
requested, that he or she has 30 days from the date of receipt of the
notice to respond to the court clerk to confirm his or her desire
for a hearing, and that the failure to respond shall result in a
default order forfeiting the confiscated firearm or other deadly
weapon. For the purposes of this subdivision, the person's last
known address shall be presumed to be the address provided to the law
enforcement officer by that person at the time of the family
violence incident. In the event the person whose firearm or other
deadly weapon was seized does not reside at the last address provided
to the agency, the agency shall make a diligent, good faith effort
to learn the whereabouts of the person and to comply with these
notification requirements.
(g) If the person requests a hearing, the court clerk shall set a
hearing no later than 30 days from receipt of that request. The
court clerk shall notify the person, the law enforcement agency
involved, and the district attorney of the date, time, and place of
the hearing. Unless it is shown by clear and convincing evidence
that the return of the firearm or other deadly weapon would result in
endangering the victim or the person reporting the assault or
threat, the court shall order the return of the firearm or other
deadly weapon and shall award reasonable attorney's fees to the
prevailing party.
(h) If the person does not request a hearing or does not otherwise
respond within 30 days of the receipt of the notice, the law
enforcement agency may file a petition for an order of default and
may dispose of the firearm or other deadly weapon as provided in
Section 12028.
(i) If, at the hearing, the court does not order the return of the
firearm or other deadly weapon to the owner or person who had lawful
possession, that person may petition the court for a second hearing
within 12 months from the date of the initial hearing. If the owner
or person who had lawful possession does not petition the court
within this 12-month period for a second hearing or is unsuccessful
at the second hearing in gaining return of the firearm or other
deadly weapon, the firearm or other deadly weapon may be disposed of
as provided in Section 12028.
(j) The law enforcement agency, or the individual law enforcement
officer, shall not be liable for any act in the good faith exercise
of this section.
SEC. 12. Section 13300 of the Penal Code is amended to read:
13300. (a) As used in this section:
(1) "Local summary criminal history information" means the master
record of information compiled by any local criminal justice agency
pursuant to Chapter 2 (commencing with Section 13100) of Title 3 of
Part 4 pertaining to the identification and criminal history of any
person, such as name, date of birth, physical description, dates of
arrests, arresting agencies and booking numbers, charges,
dispositions, and similar data about the person.
(2) "Local summary criminal history information" does not refer to
records and data compiled by criminal justice agencies other than
that local agency, nor does it refer to records of complaints to or
investigations conducted by, or records of intelligence information
or security procedures of, the local agency.
(3) "Local agency" means a local criminal justice agency.
(b) A local agency shall furnish local summary criminal history
information to any of the following, when needed in the course of
their duties, provided that when information is furnished to assist
an agency, officer, or official of state or local government, a
public utility, or any entity, in fulfilling employment,
certification, or licensing duties, Chapter 1321 of the Statutes of
1974 and Section 432.7 of the Labor Code shall apply:
(1) The courts of the state.
(2) Peace officers of the state, as defined in Section 830.1,
subdivisions (a) and (d) of Section 830.2, subdivisions (a), (b), and
(j) of Section 830.3, and subdivisions (a), (b), and (c) of Section
830.5.
(3) District attorneys of the state.
(4) Prosecuting city attorneys of any city within the state.
(5) Probation officers of the state.
(6) Parole officers of the state.
(7) A public defender or attorney of record when representing a
person in proceedings upon a petition for a certificate of
rehabilitation and pardon pursuant to Section 4852.08.
(8) A public defender or attorney of record when representing a
person in a criminal case and when authorized access by statutory or
decisional law.
(9) Any agency, officer, or official of the state when the local
summary criminal history information is required to implement a
statute, regulation, or ordinance that expressly refers to specific
criminal conduct applicable to the subject person of the local
summary criminal history information, and contains requirements or
exclusions, or both, expressly based upon the specified criminal
conduct.
(10) Any city, county, city and county, or district, or any
officer or official thereof, when access is needed in order to assist
the agency, officer, or official in fulfilling employment,
certification, or licensing duties, and when the access is
specifically authorized by the city council, board of supervisors, or
governing board of the city, county, or district when the local
summary criminal history information is required to implement a
statute, regulation, or ordinance that expressly refers to specific
criminal conduct applicable to the subject person of the local
summary criminal history information, and contains requirements or
exclusions, or both, expressly based upon the specified criminal
conduct.
(11) The subject of the local summary criminal history
information.
(12) Any person or entity when access is expressly authorized by
statute when the local summary criminal history information is
required to implement a statute, regulation, or ordinance that
expressly refers to specific criminal conduct applicable to the
subject person of the local summary criminal history information, and
contains requirements or exclusions, or both, expressly based upon
the specified criminal conduct.
(13) Any managing or supervising correctional officer of a county
jail or other county correctional facility.
(c) The local agency may furnish local summary criminal history
information, upon a showing of a compelling need, to any of the
following, provided that when information is furnished to assist an
agency, officer, or official of state or local government, a public
utility, or any entity, in fulfilling employment, certification, or
licensing duties, Chapter 1321 of the Statutes of 1974 and Section
432.7 of the Labor Code shall apply:
(1) Any public utility, as defined in Section 216 of the Public
Utilities Code, which operates a nuclear energy facility when access
is needed to assist in employing persons to work at the facility,
provided that, if the local agency supplies the information, it shall
furnish a copy of this information to the person to whom the
information relates.
(2) To a peace officer of the state other than those included in
subdivision (b).
(3) To a peace officer of another country.
(4) To public officers, other than peace officers, of the United
States, other states, or possessions or territories of the United
States, provided that access to records similar to local summary
criminal history information is expressly authorized by a statute of
the United States, other states, or possessions or territories of the
United States when this information is needed for the performance of
their official duties.
(5) To any person when disclosure is requested by a probation,
parole, or peace officer with the consent of the subject of the local
summary criminal history information and for purposes of furthering
the rehabilitation of the subject.
(6) The courts of the United States, other states, or territories
or possessions of the United States.
(7) Peace officers of the United States, other states, or
territories or possessions of the United States.
(8) To any individual who is the subject of the record requested
when needed in conjunction with an application to enter the United
States or any foreign nation.
(9) Any public utility, as defined in Section 216 of the Public
Utilities Code, when access is needed to assist in employing persons
who will be seeking entrance to private residences in the course of
their employment. The information provided shall be limited to the
record of convictions and any arrest for which the person is released
on bail or on his or her own recognizance pending trial.
If the local agency supplies the information pursuant to this
paragraph, it shall furnish a copy of the information to the person
to whom the information relates.
Any information obtained from the local summary criminal history
is confidential and the receiving public utility shall not disclose
its contents, other than for the purpose for which it was acquired.
The local summary criminal history information in the possession of
the public utility and all copies made from it shall be destroyed 30
days after employment is denied or granted, including any appeal
periods, except for those cases where an employee or applicant is out
on bail or on his or her own recognizance pending trial, in which
case the state summary criminal history information and all copies
shall be destroyed 30 days after the case is resolved, including any
appeal periods.
A violation of any of the provisions of this paragraph is a
misdemeanor, and shall give the employee or applicant who is injured
by the violation a cause of action against the public utility to
recover damages proximately caused by the violation.
Nothing in this section shall be construed as imposing any duty
upon public utilities to request local summary criminal history
information on any current or prospective employee.
Seeking entrance to private residences in the course of employment
shall be deemed a "compelling need" as required to be shown in this
subdivision.
(10) Any city, county, city and county, or district, or any
officer or official thereof, if a written request is made to a local
law enforcement agency and the information is needed to assist in the
screening of a prospective concessionaire, and any affiliate or
associate thereof, as these terms are defined in subdivision (k) of
Section 432.7 of the Labor Code, for the purposes of consenting to,
or approving of, the prospective concessionaire's application for, or
acquisition of, any beneficial interest in a concession, lease, or
other property interest.
Any local government's request for local summary criminal history
information for purposes of screening a prospective concessionaire
and their affiliates or associates before approving or denying an
application for, or acquisition of, any beneficial interest in a
concession, lease, or other property interest is deemed a "compelling
need" as required by this subdivision. However, only local summary
criminal history information pertaining to criminal convictions may
be obtained pursuant to this paragraph.
Any information obtained from the local summary criminal history
is confidential and the receiving local government shall not disclose
its contents, other than for the purpose for which it was acquired.
The local summary criminal history information in the possession of
the local government and all copies made from it shall be destroyed
not more than 30 days after the local government's final decision to
grant or deny consent to, or approval of, the prospective
concessionaire's application for, or acquisition of, a beneficial
interest in a concession, lease, or other property interest. Nothing
in this section shall be construed as imposing any duty upon a local
government, or any officer or official thereof, to request local
summary criminal history information on any current or prospective
concessionaire or their affiliates or associates.
(d) Whenever an authorized request for local summary criminal
history information pertains to a person whose fingerprints are on
file with the local agency and the local agency has no criminal
history of that person, and the information is to be used for
employment, licensing, or certification purposes, the fingerprint
card accompanying the request for information, if any, may be stamped
"no criminal record" and returned to the person or entity making the
request.
(e) A local agency taking fingerprints of a person who is an
applicant for licensing, employment, or certification may charge a
fee not to exceed ten dollars ($10) to cover the cost of taking the
fingerprints and processing the required documents.
(f) Whenever local summary criminal history information furnished
pursuant to this section is to be used for employment, licensing, or
certification purposes, the local agency shall charge the person or
entity making the request a fee which it determines to be sufficient
to reimburse the local agency for the cost of furnishing the
information, provided that no fee shall be charged to any public law
enforcement agency for local summary criminal history information
furnished to assist it in employing, licensing, or certifying a
person who is applying for employment with the agency as a peace
officer or criminal investigator. Any state agency required to pay a
fee to the local agency for information received under this section
may charge the applicant a fee sufficient to reimburse the agency for
the expense.
(g) Whenever there is a conflict, the processing of criminal
fingerprints shall take priority over the processing of applicant
fingerprints.
(h) It is not a violation of this article to disseminate
statistical or research information obtained from a record, provided
that the identity of the subject of the record is not disclosed.
(i) It is not a violation of this article to include information
obtained from a record in (1) a transcript or record of a judicial or
administrative proceeding or (2) any other public record when the
inclusion of the information in the public record is authorized by a
court, statute, or decisional law.
(j) Notwithstanding any other law, the Department of Justice or
any state or local law enforcement agency may require the submission
of fingerprints for the purpose of conducting summary criminal
history information record checks which are authorized by law.
(k) Any local criminal justice agency may release, within five
years of the arrest, information concerning an arrest or detention of
a peace officer or applicant for a position as a peace officer, as
defined in Section 830, which did not result in conviction, and for
which the person did not complete a postarrest diversion program or a
deferred entry of judgment program, to a government agency employer
of that peace officer or applicant.
(l) Any local criminal justice agency may release information
concerning an arrest of a peace officer or applicant for a position
as a peace officer, as defined in Section 830, which did not result
in conviction but for which the person completed a postarrest
diversion program or a deferred entry of judgment program, or
information concerning a referral to and participation in any
postarrest diversion program or a deferred entry of judgment program
to a government agency employer of that peace officer or applicant.
(m) Notwithstanding subdivision (k) or (l), a local criminal
justice agency shall not release information under the following
circumstances:
(1) Information concerning an arrest for which diversion or a
deferred entry of judgment program has been ordered without
attempting to determine whether diversion or a deferred entry of
judgment program has been successfully completed.
(2) Information concerning an arrest or detention followed by a
dismissal or release without attempting to determine whether the
individual was exonerated.
(3) Information concerning an arrest without a disposition without
attempting to determine whether diversion has been successfully
completed or the individual was exonerated.
SEC. 13. Section 13519 of the Penal Code is amended to read:
13519. (a) The commission shall implement by January 1, 1986, a
course or courses of instruction for the training of law enforcement
officers in California in the handling of domestic violence
complaints and also shall develop guidelines for law enforcement
response to domestic violence. The course or courses of instruction
and the guidelines shall stress enforcement of criminal laws in
domestic violence situations, availability of civil remedies and
community resources, and protection of the victim. Where
appropriate, the training presenters shall include domestic violence
experts with expertise in the delivery of direct services to victims
of domestic violence, including utilizing the staff of shelters for
battered women in the presentation of training.
As used in this section, "law enforcement officer" means any
officer or employee of a local police department or sheriff's office,
any peace officer of the Department of Parks and Recreation, as
defined in subdivision (f) of Section 830.2, any peace officer of the
University of California Police Department, as defined in
subdivision (b) of Section 830.2, any peace officer of the California
State University Police Departments, as defined in subdivision (c)
of Section 830.2, or a peace officer, as defined in subdivision (d)
of Section 830.31.
(b) The course of basic training for law enforcement officers
shall, no later than January 1, 1986, include adequate instruction in
the procedures and techniques described below:
(1) The provisions set forth in Title 5 (commencing with Section
13700) relating to response, enforcement of court orders, and data
collection.
(2) The legal duties imposed on police officers to make arrests
and offer protection and assistance including guidelines for making
felony and misdemeanor arrests.
(3) Techniques for handling incidents of domestic violence that
minimize the likelihood of injury to the officer and that promote the
safety of the victim.
(4) The nature and extent of domestic violence.
(5) The legal rights of, and remedies available to, victims of
domestic violence.
(6) The use of an arrest by a private person in a domestic
violence situation.
(7) Documentation, report writing, and evidence collection.
(8) Domestic violence diversion as provided in Chapter 2.6
(commencing with Section 1000.6) of Title 6 of Part 2.
(9) Tenancy issues and domestic violence.
(10) The impact on children of law enforcement intervention in
domestic violence.
(11) The services and facilities available to victims and
batterers.
(12) The use and applications of this code in domestic violence
situations.
(13) Verification and enforcement of temporary restraining orders
when (A) the suspect is present and (B) the suspect has fled.
(14) Verification and enforcement of stay-away orders.
(15) Cite and release policies.
(16) Emergency assistance to victims and how to assist victims in
pursuing criminal justice options.
The guidelines developed by the commission shall also incorporate
the foregoing factors.
(c) (1) All law enforcement officers who have received their basic
training before January 1, 1986, shall participate in supplementary
training on domestic violence subjects, as prescribed and certified
by the commission.
(2) Except as provided in paragraph (3), the training specified in
paragraph (1) shall be completed no later than January 1, 1989.
(3) (A) The training for peace officers of the Department of Parks
and Recreation, as defined in subdivision (g) of Section 830.2,
shall be completed no later than January 1, 1992.
(B) The training for peace officers of the University of
California Police Department and the California State University
Police Departments, as defined in Section 830.2, shall be completed
no later than January 1, 1993.
(C) The training for peace officers employed by a housing
authority, as defined in subdivision (d) of Section 830.31, shall be
completed no later than January 1, 1995.
(4) Local law enforcement agencies are encouraged to include, as a
part of their advanced officer training program, periodic updates
and training on domestic violence. The commission shall assist where
possible.
(d) The course of instruction, the learning and performance
objectives, the standards for the training, and the guidelines shall
be developed by the commission in consultation with appropriate
groups and individuals having an interest and expertise in the field
of domestic violence. The groups and individuals shall include, but
shall not be limited to, the following: one representative each from
the California Peace Officers' Association, the Peace Officers'
Research Association of California, the State Bar of California, the
California Women Lawyers' Association, and the State Commission on
the Status of Women; two representatives from the commission; two
representatives from the California Alliance Against Domestic
Violence; two peace officers, recommended by the commission, who are
experienced in the provision of domestic violence training; and two
domestic violence experts, recommended by the California Alliance
Against Domestic Violence, who are experienced in the provision of
direct services to victims of domestic violence. At least one of the
persons selected shall be a former victim of domestic violence.
The commission, in consultation with these groups and individuals,
shall review existing training programs to determine in what ways
domestic violence training might be included as a part of ongoing
programs.
(e) Each law enforcement officer below the rank of supervisor who
is assigned to patrol duties and would normally respond to domestic
violence calls or incidents of domestic violence shall complete,
every two years, an updated course of instruction on domestic
violence that is developed according to the standards and guidelines
developed pursuant to subdivision (d). The instruction required
pursuant to this subdivision shall be funded from existing resources
available for the training required pursuant to this section. It is
the intent of the Legislature not to increase the annual training
costs of local government entities.
SEC. 14. Section 1807.5 of the Vehicle Code is amended to read:
1807.5. (a) Notwithstanding Section 1808, any record of the
department of a conviction of Section 23103 as specified in Section
23103.5, or of a conviction of Section 23152 or 23153 which occurred
before January 1, 1987, is not a public record on and after a date
which is five years after the date of conviction of that offense, and
the department shall, thereafter, make any information relating to
that conviction available only to persons authorized by law to
receive the information.
(b) For the purposes of this section, "persons authorized by law
to receive the information" means any of the following:
(1) The
courts of the state.
(2) Peace officers, as defined in Section 830.1 of the Penal Code;
subdivision (a) of Section 830.2 of the Penal Code; subdivisions
(a), (b), and (j) of Section 830.3 of the Penal Code; and
subdivisions (a), (b), and (c) of Section 830.5 of the Penal Code.
(3) The Attorney General.
(4) District attorneys of any county within the state.
(5) Prosecuting city attorneys of any city within the state.
(6) Probation officers of any city or county of the state.
(7) Parole officers of any city or county of the state.
SEC. 15. Section 13351.5 of the Vehicle Code is amended to read:
13351.5. (a) Upon receipt of a duly certified abstract of the
record of any court showing that a person has been convicted of a
felony for a violation of Section 245 of the Penal Code and that a
vehicle was found by the court to constitute the deadly weapon or
instrument used to commit that offense, the department immediately
shall revoke the privilege of that person to drive a motor vehicle.
(b) The department shall not reinstate a privilege revoked under
subdivision (a) under any circumstances.
(c) Notwithstanding subdivision (b), the department shall
terminate any revocation order issued under this section on or after
January 1, 1995, for a misdemeanor conviction of violating Section
245 of the Penal Code.
SEC. 16. It is the intent of the Legislature that the amendments
made in Section 8 of this act to Section 831.5 of the Penal Code are
for the purpose of permitting sheriffs in counties with populations
of 100,000 or less, in which fully trained deputy sheriffs are not
available to perform the duties of bailiffs in the courts of those
counties, to use custodial officers as bailiffs in those courts, on
an interim basis, until such time as fully trained deputy sheriffs
are available to perform those duties. This legislation is necessary
as a result of the problems experienced by certain counties in
recruiting, training, and retaining qualified persons for the
position of deputy sheriff.
SEC. 17. Any section of any act enacted by the Legislature during
the 1998 calendar year that takes effect on or before January 1,
1999, and that amends, amends and renumbers, adds, repeals and adds,
or repeals a section that is amended, amended and renumbered,
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 1998 calendar year and takes
effect on or before January 1, 1999, amends, amends and renumbers,
adds, repeals and adds, or repeals any section contained in that
article, chapter, part, title, or division.