BILL NUMBER: SB 1062 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Strickland
FEBRUARY 16, 2010
An act to amend Section 7480 of the Government Code, to amend
Section 668 of the Harbors and Navigation Code, to amend Section
11370.2 of the Health and Safety Code, to amend Sections 171b, 171.5,
245.5, 266h, 266i, 273.6, 626.10, 786, 1328d, 1417.6, 11160, 12021,
13540, 13542, and 13821 of, and to repeal Chapter 3 (commencing with
Section 1228) of Title 8 of Part 2 of, the Penal Code, to amend
Section 40000.7 of the Vehicle Code, to amend Sections 12301.6 and
12305.86 of the Welfare and Institutions Code, and to repeal Section
58 of Chapter 28 of the Third Extraordinary Session of the Statutes
of 2009, relating to public safety.
LEGISLATIVE COUNSEL'S DIGEST
SB 1062, as introduced, Strickland. Public safety omnibus bill.
(1) Existing law provides the circumstances in which a local or
state government agency may procure the financial records of an
individual in the course of a criminal or civil investigation and
specifies certain instances where the dissemination of financial
records may be required by an order by a judge. Under existing law a
court may order the production of relevant records in the possession
of a real estate recordholder upon the ex parte application by a
peace officer stating the records are relevant to an ongoing felony
fraud investigation.
This bill would state that the provisions of existing law
regarding the procurement of financial records by the government do
not prohibit the production of real estate documents upon the ex
parte application of a peace officer during the course of the felony
fraud investigation.
(2) Under existing law, persons convicted of specified drug
offenses are subject to a separate consecutive 3-year term of
imprisonment for each prior conviction of an offense in a list of
similar drug offenses.
This bill would expand these lists of drug offenses.
(3) Under existing law it is a crime to bring a taser into a state
or local building, into the secure area of an airport, or to a
school. Provisions of existing law also impose various penalties for
assaulting someone with a taser. Existing law defines the term "less
lethal weapon" as any device that is designed to expel less lethal
ammunition for the purpose of incapacitating, immobilizing, or
stunning a human being through the infliction of any less than lethal
impairment of physical condition, function, or senses, including
physical pain or discomfort.
This bill would replace the term "taser" with the term "less
lethal weapon" in various provisions of the Penal Code as provided.
(4) Under existing law the pimping of, or the pandering of, a
minor is a felony. Existing law imposes a higher triad of sentences
if the minor is under 16 years of age than if the minor is over 16
years of age but does not specify the possible sentences if the minor
is exactly 16 years of age.
This bill would clarify that if the minor victim is exactly 16
years of age or older, the lower triad of sentences applies.
(5) Existing law makes it a crime to posses a firearm if the
person knows he or she is prohibited from doing so by the provisions
of specified protective orders.
This bill would apply these provisions to a protective order
sought by an officer of a postsecondary educational institution where
a student has suffered a credible threat of violence.
(6) Two existing provisions of law both enact the California
Community Corrections Performance Incentives Act. One of these
provisions includes a victim representative on a local advisory panel
created by the act.
This bill would repeal the version of the act that does not
include the victim representative in its provisions.
(7) Under existing law, the service of a subpoena by mail or
messenger is effected if and when the recipient acknowledges receipt
of the subpoena. Under existing law acknowledgment may be made by
telephone, mail, or in person.
This bill would include any form of electronic communication as an
acceptable means of acknowledging the receipt of a subpoena for
purposes of affecting service.
(8) Existing law requires criminal background checks be performed
for prospective in-home service providers as a condition of IHSS
enrollment. If the applicant or provider is rejected as a result of
information contained in the criminal background report, existing law
requires that he or she receive a copy of that report from the
Department of Justice, that he or she be advised of his or her right
to contest the criminal background report, and that he or she be
informed of his or her right to submit a claim and proof of indigency
for a waiver of the fee for obtaining a copy of a criminal history
record.
This bill would provide that if an applicant or provider is
rejected as a result of information contained in the criminal
background report, the individual shall receive a copy of the
Department of Justice criminal offender record information response
from the primary response recipient.
(9) This bill would make various technical corrections.
(10) The bill would provide that any section of any other act
enacted by the Legislature during the 2010 calendar year that takes
effect on or before January 1, 2011, and that affects a provision of
this act would prevail over this act.
(11) By expanding the scope of crimes involving the use of a taser
to encompass crimes committed with a less lethal weapon, this bill
would impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 7480 of the Government Code, as amended by
Section 1 of Chapter 234 of the Statutes of 2008, is amended to read:
7480. Nothing in this chapter shall prohibit any of the
following:
(a) The dissemination of any financial information that is not
identified with, or identifiable as being derived from, the financial
records of a particular customer.
(b) When any police or sheriff's department or district attorney
in this state certifies to a bank, credit union, or savings
association in writing that a crime report has been filed that
involves the alleged fraudulent use of drafts, checks, access cards,
or other orders drawn upon any bank, credit union, or savings
association in this state, the police or sheriff's department or
district attorney, a county adult protective services office when
investigating the financial abuse of an elder or dependent adult, or
a long-term care ombudsman when investigating the financial abuse of
an elder or dependent adult, may request a bank, credit union, or
savings association to furnish, and a bank, credit union, or savings
association shall furnish, a statement setting forth the following
information with respect to a customer account specified by the
requesting party for a period 30 days prior to, and up to 30 days
following, the date of occurrence of the alleged illegal act
involving the account:
(1) The number of items dishonored.
(2) The number of items paid that created overdrafts.
(3) The dollar volume of the dishonored items and items paid which
created overdrafts and a statement explaining any credit arrangement
between the bank, credit union, or savings association and customer
to pay overdrafts.
(4) The dates and amounts of deposits and debits and the account
balance on these dates.
(5) A copy of the signature card, including the signature and any
addresses appearing on a customer's signature card.
(6) The date the account opened and, if applicable, the date the
account closed.
(7) Surveillance photographs and video recordings of persons
accessing the crime victim's financial account via an automated
teller machine (ATM) or from within the financial institution for
dates on which illegal acts involving the account were alleged to
have occurred. Nothing in this paragraph does any of the following:
(A) Requires a financial institution to produce a photograph or
video recording if it does not possess the photograph or video
recording.
(B) Affects any existing civil immunities as provided in Section
47 of the Civil Code or any other provision of law.
(8) A bank, credit union, or savings association that provides the
requesting party with copies of one or more complete account
statements prepared in the regular course of business shall be deemed
to be in compliance with paragraphs (1), (2), (3), and (4).
(c) When any police or sheriff's department or district attorney
in this state certifies to a bank, credit union, or savings
association in writing that a crime report has been filed that
involves the alleged fraudulent use of drafts, checks, access cards,
or other orders drawn upon any bank, credit union, or savings
association doing business in this state, the police or sheriff's
department or district attorney, a county adult protective services
office when investigating the financial abuse of an elder or
dependent adult, or a long-term care ombudsman when investigating the
financial abuse of an elder or dependent adult, may request, with
the consent of the accountholder, the bank, credit union, or savings
association to furnish, and the bank, credit union, or savings
association shall furnish, a statement setting forth the following
information with respect to a customer account specified by the
requesting party for a period 30 days prior to, and up to 30 days
following, the date of occurrence of the alleged illegal act
involving the account:
(1) The number of items dishonored.
(2) The number of items paid that created overdrafts.
(3) The dollar volume of the dishonored items and items paid which
created overdrafts and a statement explaining any credit arrangement
between the bank, credit union, or savings association and customer
to pay overdrafts.
(4) The dates and amounts of deposits and debits and the account
balance on these dates.
(5) A copy of the signature card, including the signature and any
addresses appearing on a customer's signature card.
(6) The date the account opened and, if applicable, the date the
account closed.
(7) Surveillance photographs and video recordings of persons
accessing the crime victim's financial account via an automated
teller machine (ATM) or from within the financial institution for
dates on which illegal acts involving this account were alleged to
have occurred. Nothing in this paragraph does any of the following:
(A) Requires a financial institution to produce a photograph or
video recording if it does not possess the photograph or video
recording.
(B) Affects any existing civil immunities as provided in Section
47 of the Civil Code or any other provision of law.
(8) A bank, credit union, or savings association doing business in
this state that provides the requesting party with copies of one or
more complete account statements prepared in the regular course of
business shall be deemed to be in compliance with paragraphs (1),
(2), (3), and (4).
(d) For purposes of subdivision (c), consent of the accountholder
shall be satisfied if an accountholder provides to the financial
institution and the person or entity seeking disclosure, a signed and
dated statement containing all of the following:
(1) Authorization of the disclosure for the period specified in
subdivision (c).
(2) The name of the agency or department to which disclosure is
authorized and, if applicable, the statutory purpose for which the
information is to be obtained.
(3) A description of the financial records that are authorized to
be disclosed.
(e) (1) The Attorney General, a supervisory agency, the Franchise
Tax Board, the State Board of Equalization, the Employment
Development Department, the Controller or an inheritance tax referee
when administering the Prohibition of Gift and Death Taxes (Part 8
(commencing with Section 13301) of Division 2 of the Revenue and
Taxation Code), a police or sheriff's department or district
attorney, a county adult protective services office when
investigating the financial abuse of an elder or dependent adult, a
long-term care ombudsman when investigating the financial abuse of an
elder or dependent adult, a county welfare department when
investigating welfare fraud, a county auditor-controller or director
of finance when investigating fraud against the county, or the
Department of Corporations when conducting investigations in
connection with the enforcement of laws administered by the
Commissioner of Corporations, from requesting of an office or branch
of a financial institution, and the office or branch from responding
to a request, as to whether a person has an account or accounts at
that office or branch and, if so, any identifying numbers of the
account or accounts.
(2) No additional information beyond that specified in this
section shall be released to a county welfare department without
either the accountholder's written consent or a judicial writ, search
warrant, subpoena, or other judicial order.
(3) A county auditor-controller or director of finance who
unlawfully discloses information he or she is authorized to request
under this subdivision is guilty of the unlawful disclosure of
confidential data, a misdemeanor, which shall be punishable as set
forth in Section 7485.
(f) The examination by, or disclosure to, any supervisory agency
of financial records that relate solely to the exercise of its
supervisory function. The scope of an agency's supervisory function
shall be determined by reference to statutes that grant authority to
examine, audit, or require reports of financial records or financial
institutions as follows:
(1) With respect to the Commissioner of Financial Institutions by
reference to Division 1 (commencing with Section 99), Division 1.5
(commencing with Section 4800), Division 2 (commencing with Section
5000), Division 5 (commencing with Section 14000), Division 7
(commencing with Section 18000), Division 15 (commencing with Section
31000), and Division 16 (commencing with Section 33000), of the
Financial Code.
(2) With respect to the Controller by reference to Title 10
(commencing with Section 1300) of Part 3 of the Code of Civil
Procedure.
(3) With respect to the Administrator of Local Agency Security by
reference to Article 2 (commencing with Section 53630) of Chapter 4
of Part 1 of Division 2 of Title 5 of the Government Code.
(g) The disclosure to the Franchise Tax Board of (1) the amount of
any security interest that a financial institution has in a
specified asset of a customer or (2) financial records in connection
with the filing or audit of a tax return or tax information return
that are required to be filed by the financial institution pursuant
to Part 10 (commencing with Section 17001), Part 11 (commencing with
Section 23001), or Part 18 (commencing with Section 38001), of the
Revenue and Taxation Code.
(h) The disclosure to the State Board of Equalization of any of
the following:
(1) The information required by Sections 6702, 6703, 8954, 8957,
30313, 30315, 32383, 32387, 38502, 38503, 40153, 40155, 41122,
41123.5, 43443, 43444.2, 44144, 45603, 45605, 46404, 46406, 50134,
50136, 55203, 55205, 60404, and 60407 of the Revenue and Taxation
Code.
(2) The financial records in connection with the filing or audit
of a tax return required to be filed by the financial institution
pursuant to Part 1 (commencing with Section 6001), Part 2 (commencing
with Section 7301), Part 3 (commencing with Section 8601), Part 13
(commencing with Section 30001), Part 14 (commencing with Section
32001), and Part 17 (commencing with Section 37001), of Division 2 of
the Revenue and Taxation Code.
(3) The amount of any security interest a financial institution
has in a specified asset of a customer, if the inquiry is directed to
the branch or office where the interest is held.
(i) The disclosure to the Controller of the information required
by Section 7853 of the Revenue and Taxation Code.
(j) The disclosure to the Employment Development Department of the
amount of any security interest a financial institution has in a
specified asset of a customer, if the inquiry is directed to the
branch or office where the interest is held.
(k) The disclosure by a construction lender, as defined in Section
3087 of the Civil Code, to the Registrar of Contractors, of
information concerning the making of progress payments to a prime
contractor requested by the registrar in connection with an
investigation under Section 7108.5 of the Business and Professions
Code.
(l) Upon receipt of a written request from a local child support
agency referring to a support order pursuant to Section 17400 of the
Family Code, a financial institution shall disclose the following
information concerning the account or the person named in the
request, whom the local child support agency shall identify, whenever
possible, by social security number:
(1) If the request states the identifying number of an account at
a financial institution, the name of each owner of the account.
(2) Each account maintained by the person at the branch to which
the request is delivered, and, if the branch is able to make a
computerized search, each account maintained by the person at any
other branch of the financial institution located in this state.
(3) For each account disclosed pursuant to paragraphs (1) and (2),
the account number, current balance, street address of the branch
where the account is maintained, and, to the extent available through
the branch's computerized search, the name and address of any other
person listed as an owner.
(4) Whenever the request prohibits the disclosure, a financial
institution shall not disclose either the request or its response, to
an owner of the account or to any other person, except the officers
and employees of the financial institution who are involved in
responding to the request and to attorneys, employees of the local
child support agencies, auditors, and regulatory authorities who have
a need to know in order to perform their duties, and except as
disclosure may be required by legal process.
(5) No financial institution, or any officer, employee, or agent
thereof, shall be liable to any person for (A) disclosing information
in response to a request pursuant to this subdivision, (B) failing
to notify the owner of an account, or complying with a request under
this paragraph not to disclose to the owner, the request or
disclosure under this subdivision, or (C) failing to discover any
account owned by the person named in the request pursuant to a
computerized search of the records of the financial institution.
(6) The local child support agency may request information
pursuant to this subdivision only when the local child support agency
has received at least one of the following types of physical
evidence:
(A) Any of the following, dated within the last three years:
(i) Form 599.
(ii) Form 1099.
(iii) A bank statement.
(iv) A check.
(v) A bank passbook.
(vi) A deposit slip.
(vii) A copy of a federal or state income tax return.
(viii) A debit or credit advice.
(ix) Correspondence that identifies the child support obligor by
name, the bank, and the account number.
(x) Correspondence that identifies the child support obligor by
name, the bank, and the banking services related to the account of
the obligor.
(xi) An asset identification report from a federal agency.
(B) A sworn declaration of the custodial parent during the 12
months immediately preceding the request that the person named in the
request has had or may have had an account at an office or branch of
the financial institution to which the request is made.
(7) Information obtained by a local child support agency pursuant
to this subdivision shall be used only for purposes that are directly
connected with the administration of the duties of the local child
support agency pursuant to Section 17400 of the Family Code.
(m) (1) As provided in paragraph (1) of subdivision (c) of Section
666 of Title 42 of the United States Code, upon receipt of an
administrative subpoena on the current federally approved interstate
child support enforcement form, as approved by the federal Office of
Management and Budget, a financial institution shall provide the
information or documents requested by the administrative subpoena.
(2) The administrative subpoena shall refer to the current federal
Office of Management and Budget control number and be signed by a
person who states that he or she is an authorized agent of a state or
county agency responsible for implementing the child support
enforcement program set forth in Part D (commencing with Section 651)
of Subchapter IV of Chapter 7 of Title 42 of the United States Code.
A financial institution may rely on the statements made in the
subpoena and has no duty to inquire into the truth of any statement
in the subpoena.
(3) If the person who signs the administrative subpoena directs a
financial institution in writing not to disclose either the subpoena
or its response to any owner of an account covered by the subpoena,
the financial institution shall not disclose the subpoena or its
response to the owner.
(4) No financial institution, or any officer, employee, or agent
thereof, shall be liable to any person for (A) disclosing information
or providing documents in response to a subpoena pursuant to this
subdivision, (B) failing to notify any owner of an account covered by
the subpoena or complying with a request not to disclose to the
owner, the subpoena or disclosure under this subdivision, or (C)
failing to discover any account owned by the person named in the
subpoena pursuant to a computerized search of the records of the
financial institution.
(n) The dissemination of financial information and records
pursuant to any of the following:
(1) Compliance by a financial institution with the requirements of
Section 2892 of the Probate Code.
(2) Compliance by a financial institution with the requirements of
Section 2893 of the Probate Code.
(3) An order by a judge upon a written ex parte application by a
peace officer showing specific and articulable facts that there are
reasonable grounds to believe that the records or information sought
are relevant and material to an ongoing investigation of a felony
violation of Section 186.10 or of any felony subject to the
enhancement set forth in Section 186.11.
(A) The ex parte application shall specify with particularity the
records to be produced, which shall be only those of the individual
or individuals who are the subject of the criminal investigation.
(B) The ex parte application and any subsequent judicial order
shall be open to the public as a judicial record unless ordered
sealed by the court, for a period of 60 days. The sealing of these
records may be extended for 60-day periods upon a showing to the
court that it is necessary for the continuance of the investigation.
Sixty-day extensions may continue for up to one year or until
termination of the investigation of the individual or individuals,
whichever is sooner.
(C) The records ordered to be produced shall be returned to the
peace officer applicant or his or her designee within a reasonable
time period after service of the order upon the financial
institution.
(D) Nothing in this subdivision shall preclude the financial
institution from notifying a customer of the receipt of the order for
production of records unless a court orders the financial
institution to withhold notification to the customer upon a finding
that the notice would impede the investigation.
(E) Where a court has made an order pursuant to this paragraph to
withhold notification to the customer under this paragraph, the peace
officer or law enforcement agency who obtained the financial
information shall notify the customer by delivering a copy of the ex
parte order to the customer within 10 days of the termination of the
investigation.
(4) An order by a judge issued pursuant to subdivision (c) of
Section 532f of the Penal Code.
(4)
(5) No financial institution, or any officer, employee,
or agent thereof, shall be liable to any person for any of the
following:
(A) Disclosing information to a probate court pursuant to Sections
2892 and 2893.
(B) Disclosing information in response to a court order pursuant
to paragraph (3).
(C) Complying with a court order under this subdivision not to
disclose to the customer, the order, or the dissemination of
information pursuant to the court order.
(o) Disclosure by a financial institution to a peace officer, as
defined in Section 830.1 of the Penal Code, pursuant to the
following:
(1) Paragraph (1) of subdivision (a) of Section 1748.95 of the
Civil Code, provided that the financial institution has first
complied with the requirements of paragraph (2) of subdivision (a)
and subdivision (b) of Section 1748.95 of the Civil Code.
(2) Paragraph (1) of subdivision (a) of Section 4002 of the
Financial Code, provided that the financial institution has first
complied with the requirements of paragraph (2) of subdivision (a)
and subdivision (b) of Section 4002 of the Financial Code.
(3) Paragraph (1) of subdivision (a) of Section 22470 of the
Financial Code, provided that any financial institution that is a
finance lender has first complied with the requirements of paragraph
(2) of subdivision (a) and subdivision (b) of Section 22470 of the
Financial Code.
(p) When the governing board of the Public Employees' Retirement
System or the State Teachers' Retirement System certifies in writing
to a financial institution that a benefit recipient has died and that
transfers to the benefit recipient's account at the financial
institution from the retirement system occurred after the benefit
recipient's date of death, the financial institution shall furnish
the retirement system with the name and address of any coowner,
cosigner, or any other person who had access to the funds in the
account following the date of the benefit recipient's death, or if
the account has been closed, the name and address of the person who
closed the account.
(q) When the retirement board of a retirement system established
under the County Employees Retirement Law of 1937 certifies in
writing to a financial institution that a retired member or the
beneficiary of a retired member has died and that transfers to the
account of the retired member or beneficiary of a retired member at
the financial institution from the retirement system occurred after
the date of death of the retired member or beneficiary of a retired
member, the financial institution shall furnish the retirement system
with the name and address of any coowner, cosigner, or any other
person who had access to the funds in the account following the date
of death of the retired member or beneficiary of a retired member, or
if the account has been closed, the name and address of the person
who closed the account.
(r) When the Franchise Tax Board certifies in writing to a
financial institution that (1) a taxpayer filed a tax return that
authorized a direct deposit refund with an incorrect financial
institution account or routing number that resulted in all or a
portion of the refund not being received, directly or indirectly, by
the taxpayer; (2) the direct deposit refund was not returned to the
Franchise Tax Board; and (3) the refund was deposited directly on a
specified date into the account of an accountholder of the financial
institution who was not entitled to receive the refund, then the
financial institution shall furnish to the Franchise Tax Board the
name and address of any coowner, cosigner, or any other person who
had access to the funds in the account following the date of direct
deposit refund, or if the account has been closed, the name and
address of the person who closed the account.
SEC. 2. Section 7480 of the Government Code, as amended by Section
2 of Chapter 234 of the Statutes of 2008, is amended to read:
7480. Nothing in this chapter prohibits any of the following:
(a) The dissemination of any financial information that is not
identified with, or identifiable as being derived from, the financial
records of a particular customer.
(b) When any police or sheriff's department or district attorney
in this state certifies to a bank, credit union, or savings
association in writing that a crime report has been filed that
involves the alleged fraudulent use of drafts, checks, or other
orders drawn upon any bank, credit union, or savings association in
this state, the police or sheriff's department or district attorney,
a county adult protective services office when investigating the
financial abuse of an elder or dependent adult, or a long-term care
ombudsman when investigating the financial abuse of an elder or
dependent adult, may request a bank, credit union, or savings
association to furnish, and a bank, credit union, or savings
association shall furnish, a statement setting forth the following
information with respect to a customer account specified by the
requesting party for a period 30 days prior to, and up to 30 days
following, the date of occurrence of the alleged illegal act
involving the account:
(1) The number of items dishonored.
(2) The number of items paid that created overdrafts.
(3) The dollar volume of the dishonored items and items paid which
created overdrafts and a statement explaining any credit arrangement
between the bank, credit union, or savings association and customer
to pay overdrafts.
(4) The dates and amounts of deposits and debits and the account
balance on these dates.
(5) A copy of the signature card, including the signature and any
addresses appearing on a customer's signature card.
(6) The date the account opened and, if applicable, the date the
account closed.
(7) A bank, credit union, or savings association that provides the
requesting party with copies of one or more complete account
statements prepared in the regular course of business shall be deemed
to be in compliance with paragraphs (1), (2), (3), and (4).
(c) When any police or sheriff's department or district attorney
in this state certifies to a bank, credit union, or savings
association in writing that a crime report has been filed that
involves the alleged fraudulent use of drafts, checks, or other
orders drawn upon any bank, credit union, or savings association
doing business in this state, the police or sheriff's department or
district attorney, a county adult protective services office when
investigating the financial abuse of an elder or dependent adult, or
a long-term care ombudsman when investigating the financial abuse of
an elder or dependent adult, may request, with the consent of the
accountholder, the bank, credit union, or savings association to
furnish, and the bank, credit union, or savings association shall
furnish, a statement setting forth the following information with
respect to a customer account specified by the requesting party for a
period 30 days prior to, and up to 30 days following, the date of
occurrence of the alleged illegal act involving the account:
(1) The number of items dishonored.
(2) The number of items paid that created overdrafts.
(3) The dollar volume of the dishonored items and items paid which
created overdrafts and a statement explaining any credit arrangement
between the bank, credit union, or savings association and customer
to pay overdrafts.
(4) The dates and amounts of deposits and debits and the account
balance on these dates.
(5) A copy of the signature card, including the signature and any
addresses appearing on a customer's signature card.
(6) The date the account opened and, if applicable, the date the
account closed.
(7) A bank, credit union, or savings association doing business in
this state that provides the requesting party with copies of one or
more complete account statements prepared in the regular course of
business shall be deemed to be in compliance with paragraphs (1),
(2), (3), and (4).
(d) For purposes of subdivision (c), consent of the accountholder
shall be satisfied if an accountholder provides to the financial
institution and the person or entity seeking disclosure, a signed and
dated statement containing all of the following:
(1)
Authorization of the disclosure for the period specified in
subdivision (c).
(2) The name of the agency or department to which disclosure is
authorized and, if applicable, the statutory purpose for which the
information is to be obtained.
(3) A description of the financial records that are authorized to
be disclosed.
(e) (1) The Attorney General, a supervisory agency, the Franchise
Tax Board, the State Board of Equalization, the Employment
Development Department, the Controller or an inheritance tax referee
when administering the Prohibition of Gift and Death Taxes (Part 8
(commencing with Section 13301) of Division 2 of the Revenue and
Taxation Code), a police or sheriff's department or district
attorney, a county adult protective services office when
investigating the financial abuse of an elder or dependent adult, a
long-term care ombudsman when investigating the financial abuse of an
elder or dependent adult, a county welfare department when
investigating welfare fraud, a county auditor-controller or director
of finance when investigating fraud against the county, or the
Department of Corporations when conducting investigations in
connection with the enforcement of laws administered by the
Commissioner of Corporations, from requesting of an office or branch
of a financial institution, and the office or branch from responding
to a request, as to whether a person has an account or accounts at
that office or branch and, if so, any identifying numbers of the
account or accounts.
(2) No additional information beyond that specified in this
section shall be released to a county welfare department without
either the accountholder's written consent or a judicial writ, search
warrant, subpoena, or other judicial order.
(3) A county auditor-controller or director of finance who
unlawfully discloses information he or she is authorized to request
under this subdivision is guilty of the unlawful disclosure of
confidential data, a misdemeanor, which shall be punishable as set
forth in Section 7485.
(f) The examination by, or disclosure to, any supervisory agency
of financial records that relate solely to the exercise of its
supervisory function. The scope of an agency's supervisory function
shall be determined by reference to statutes that grant authority to
examine, audit, or require reports of financial records or financial
institutions as follows:
(1) With respect to the Commissioner of Financial Institutions by
reference to Division 1 (commencing with Section 99), Division 1.5
(commencing with Section 4800), Division 2 (commencing with Section
5000), Division 5 (commencing with Section 14000), Division 7
(commencing with Section 18000), Division 15 (commencing with Section
31000), and Division 16 (commencing with Section 33000) of the
Financial Code.
(2) With respect to the Controller by reference to Title 10
(commencing with Section 1300) of Part 3 of the Code of Civil
Procedure.
(3) With respect to the Administrator of Local Agency Security by
reference to Article 2 (commencing with Section 53630) of Chapter 4
of Part 1 of Division 2 of Title 5 of the Government Code.
(g) The disclosure to the Franchise Tax Board of (1) the amount of
any security interest that a financial institution has in a
specified asset of a customer or (2) financial records in connection
with the filing or audit of a tax return or tax information return
that are required to be filed by the financial institution pursuant
to Part 10 (commencing with Section 17001), Part 11 (commencing with
Section 23001), or Part 18 (commencing with Section 38001) of the
Revenue and Taxation Code.
(h) The disclosure to the State Board of Equalization of any of
the following:
(1) The information required by Sections 6702, 6703, 8954, 8957,
30313, 30315, 32383, 32387, 38502, 38503, 40153, 40155, 41122,
41123.5, 43443, 43444.2, 44144, 45603, 45605, 46404, 46406, 50134,
50136, 55203, 55205, 60404, and 60407 of the Revenue and Taxation
Code.
(2) The financial records in connection with the filing or audit
of a tax return required to be filed by the financial institution
pursuant to Part 1 (commencing with Section 6001), Part 2 (commencing
with Section 7301), Part 3 (commencing with Section 8601), Part 13
(commencing with Section 30001), Part 14 (commencing with Section
32001), and Part 17 (commencing with Section 37001) of Division 2 of
the Revenue and Taxation Code.
(3) The amount of any security interest a financial institution
has in a specified asset of a customer, if the inquiry is directed to
the branch or office where the interest is held.
(i) The disclosure to the Controller of the information required
by Section 7853 of the Revenue and Taxation Code.
(j) The disclosure to the Employment Development Department of the
amount of any security interest a financial institution has in a
specified asset of a customer, if the inquiry is directed to the
branch or office where the interest is held.
(k) The disclosure by a construction lender, as defined in Section
3087 of the Civil Code, to the Registrar of Contractors, of
information concerning the making of progress payments to a prime
contractor requested by the registrar in connection with an
investigation under Section 7108.5 of the Business and Professions
Code.
(l) Upon receipt of a written request from a local child support
agency referring to a support order pursuant to Section 17400 of the
Family Code, a financial institution shall disclose the following
information concerning the account or the person named in the
request, whom the local child support agency shall identify, whenever
possible, by social security number:
(1) If the request states the identifying number of an account at
a financial institution, the name of each owner of the account.
(2) Each account maintained by the person at the branch to which
the request is delivered, and, if the branch is able to make a
computerized search, each account maintained by the person at any
other branch of the financial institution located in this state.
(3) For each account disclosed pursuant to paragraphs (1) and (2),
the account number, current balance, street address of the branch
where the account is maintained, and, to the extent available through
the branch's computerized search, the name and address of any other
person listed as an owner.
(4) Whenever the request prohibits the disclosure, a financial
institution shall not disclose either the request or its response, to
an owner of the account or to any other person, except the officers
and employees of the financial institution who are involved in
responding to the request and to attorneys, employees of the local
child support agencies, auditors, and regulatory authorities who have
a need to know in order to perform their duties, and except as
disclosure may be required by legal process.
(5) No financial institution, or any officer, employee, or agent
thereof, shall be liable to any person for (A) disclosing information
in response to a request pursuant to this subdivision, (B) failing
to notify the owner of an account, or complying with a request under
this paragraph not to disclose to the owner, the request or
disclosure under this subdivision, or (C) failing to discover any
account owned by the person named in the request pursuant to a
computerized search of the records of the financial institution.
(6) The local child support agency may request information
pursuant to this subdivision only when the local child support agency
has received at least one of the following types of physical
evidence:
(A) Any of the following, dated within the last three years:
(i) Form 599.
(ii) Form 1099.
(iii) A bank statement.
(iv) A check.
(v) A bank passbook.
(vi) A deposit slip.
(vii) A copy of a federal or state income tax return.
(viii) A debit or credit advice.
(ix) Correspondence that identifies the child support obligor by
name, the bank, and the account number.
(x) Correspondence that identifies the child support obligor by
name, the bank, and the banking services related to the account of
the obligor.
(xi) An asset identification report from a federal agency.
(B) A sworn declaration of the custodial parent during the 12
months immediately preceding the request that the person named in the
request has had or may have had an account at an office or branch of
the financial institution to which the request is made.
(7) Information obtained by a local child support agency pursuant
to this subdivision shall be used only for purposes that are directly
connected with the administration of the duties of the local child
support agency pursuant to Section 17400 of the Family Code.
(m) (1) As provided in paragraph (1) of subdivision (c) of Section
666 of Title 42 of the United States Code, upon receipt of an
administrative subpoena on the current federally approved interstate
child support enforcement form, as approved by the federal Office of
Management and Budget, a financial institution shall provide the
information or documents requested by the administrative subpoena.
(2) The administrative subpoena shall refer to the current federal
Office of Management and Budget control number and be signed by a
person who states that he or she is an authorized agent of a state or
county agency responsible for implementing the child support
enforcement program set forth in Part D (commencing with Section 651)
of Subchapter IV of Chapter 7 of Title 42 of the United States Code.
A financial institution may rely on the statements made in the
subpoena and has no duty to inquire into the truth of any statement
in the subpoena.
(3) If the person who signs the administrative subpoena directs a
financial institution in writing not to disclose either the subpoena
or its response to any owner of an account covered by the subpoena,
the financial institution shall not disclose the subpoena or its
response to the owner.
(4) No financial institution, or any officer, employee, or agent
thereof, shall be liable to any person for (A) disclosing information
or providing documents in response to a subpoena pursuant to this
subdivision, (B) failing to notify any owner of an account covered by
the subpoena or complying with a request not to disclose to the
owner, the subpoena or disclosure under this subdivision, or (C)
failing to discover any account owned by the person named in the
subpoena pursuant to a computerized search of the records of the
financial institution.
(n) The dissemination of financial information and records
pursuant to any of the following:
(1) Compliance by a financial institution with the requirements of
Section 2892 of the Probate Code.
(2) Compliance by a financial institution with the requirements of
Section 2893 of the Probate Code.
(3) An order by a judge upon a written ex parte application by a
peace officer showing specific and articulable facts that there are
reasonable grounds to believe that the records or information sought
are relevant and material to an ongoing investigation of a felony
violation of Section 186.10 or of any felony subject to the
enhancement set forth in Section 186.11.
(A) The ex parte application shall specify with particularity the
records to be produced, which shall be only those of the individual
or individuals who are the subject of the criminal investigation.
(B) The ex parte application and any subsequent judicial order
shall be open to the public as a judicial record unless ordered
sealed by the court, for a period of 60 days. The sealing of these
records may be extended for 60-day periods upon a showing to the
court that it is necessary for the continuance of the investigation.
Sixty-day extensions may continue for up to one year or until
termination of the investigation of the individual or individuals,
whichever is sooner.
(C) The records ordered to be produced shall be returned to the
peace officer applicant or his or her designee within a reasonable
time period after service of the order upon the financial
institution.
(D) Nothing in this subdivision shall preclude the financial
institution from notifying a customer of the receipt of the order for
production of records unless a court orders the financial
institution to withhold notification to the customer upon a finding
that the notice would impede the investigation.
(E) Where a court has made an order pursuant to this paragraph to
withhold notification to the customer under this paragraph, the peace
officer or law enforcement agency who obtained the financial
information shall notify the customer by delivering a copy of the ex
parte order to the customer within 10 days of the termination of the
investigation.
(4) An order by a judge issued pursuant to subdivision (c) of
Section 532f of the Penal Code.
(4)
(5) No financial institution, or any officer, employee,
or agent thereof, shall be liable to any person for any of the
following:
(A) Disclosing information to a probate court pursuant to Sections
2892 and 2893.
(B) Disclosing information in response to a court order pursuant
to paragraph (3).
(C) Complying with a court order under this subdivision not to
disclose to the customer, the order, or the dissemination of
information pursuant to the court order.
(o) Disclosure by a financial institution to a peace officer, as
defined in Section 830.1 of the Penal Code, pursuant to the
following:
(1) Paragraph (1) of subdivision (a) of Section 1748.95 of the
Civil Code, provided that the financial institution has first
complied with the requirements of paragraph (2) of subdivision (a)
and subdivision (b) of Section 1748.95 of the Civil Code.
(2) Paragraph (1) of subdivision (a) of Section 4002 of the
Financial Code, provided that the financial institution has first
complied with the requirements of paragraph (2) of subdivision (a)
and subdivision (b) of Section 4002 of the Financial Code.
(3) Paragraph (1) of subdivision (a) of Section 22470 of the
Financial Code, provided that any financial institution that is a
finance lender has first complied with the requirements of paragraph
(2) of subdivision (a) and subdivision (b) of Section 22470 of the
Financial Code.
(p) When the governing board of the Public Employees' Retirement
System or the State Teachers' Retirement System certifies in writing
to a financial institution that a benefit recipient has died and that
transfers to the benefit recipient's account at the financial
institution from the retirement system occurred after the benefit
recipient's date of death, the financial institution shall furnish
the retirement system the name and address of any coowner, cosigner,
or any other person who had access to the funds in the account
following the date of the benefit recipient's death, or if the
account has been closed, the name and address of the person who
closed the account.
(q) When the retirement board of a retirement system established
under the County Employees Retirement Law of 1937 certifies in
writing to a financial institution that a retired member or the
beneficiary of a retired member has died and that transfers to the
account of the retired member or beneficiary of a retired member at
the financial institution from the retirement system occurred after
the date of death of the retired member or beneficiary of a retired
member, the financial institution shall furnish the retirement system
the name and address of any coowner, cosigner, or any other person
who had access to the funds in the account following the date of
death of the retired member or beneficiary of a retired member, or if
the account has been closed, the name and address of the person who
closed the account.
(r) When the Franchise Tax Board certifies in writing to a
financial institution that (1) a taxpayer filed a tax return that
authorized a direct deposit refund with an incorrect financial
institution account or routing number that resulted in all or a
portion of the refund not being received, directly or indirectly, by
the taxpayer; (2) the direct deposit refund was not returned to the
Franchise Tax Board; and (3) the refund was deposited directly on a
specified date into the account of an accountholder of the financial
institution who was not entitled to receive the refund, then the
financial institution shall furnish to the Franchise Tax Board the
name and address of any coowner, cosigner, or any other person who
had access to the funds in the account following the date of direct
deposit refund, or if the account has been closed, the name and
address of the person who closed the account.
(s) This section shall become operative on January 1, 2013.
SEC. 3. Section 668 of the Harbors and Navigation Code is amended
to read:
668. (a) Any person who violates subdivision (c) of Section 652,
Section 654, 654.05, 654.06, 655.7, 658.3, 659, 673, 674, or 754, or
any regulations adopted pursuant thereto, or any regulation adopted
pursuant to Section 655.3 relating to vessel equipment requirements,
is guilty of an infraction, punishable by a fine of not more than two
hundred fifty dollars ($250).
(b) (1) Any person who violates Section 655.2, or any regulation
adopted pursuant thereto, or, except as provided in subdivision (a),
any regulation adopted pursuant to Section 655.3, is guilty of a
misdemeanor and shall be punished by a fine of not more than one
hundred dollars ($100) or imprisonment in the county jail for not
more than five days, or by both that fine and imprisonment, for each
violation.
(2) Any person who violates subdivision (a) or (b) of Section 658
is guilty of a misdemeanor and shall be punished by a fine of not
more than two hundred dollars ($200) for each violation.
(3) Any person who violates subdivision (d) of Section 652,
Section 652.5, subdivision (a) of Section 655, Section 655.05, 656,
or 656.1, subdivision (d) or (e) of Section 658, Section 663.6 or
665, or any rules and regulations adopted pursuant to subdivision (b)
or (c) of Section 660, is guilty of a misdemeanor and shall be
punished by a fine of not more than one thousand dollars ($1,000) or
imprisonment in the county jail for not more than six months, or by
both that fine and imprisonment, for each violation.
(c) (1) Any person convicted of a violation of Section 656.2 or
656.3 shall be punished by a fine of not less than one thousand
dollars ($1,000) or more than ten thousand dollars ($10,000), or by
imprisonment in the state prison or in the county jail for not more
than one year, or by both that fine and imprisonment.
(2) In imposing the minimum fine required by this subdivision, the
court shall take into consideration the defendant's ability to pay
the fine and, in the interest of justice for reasons stated in the
record, may reduce the amount of that minimum fine to less than the
amount otherwise required by this subdivision.
(d) Any person convicted of a violation of Section 658.5 shall be
punished by a fine of not more than one hundred dollars ($100).
(e) Any person convicted of a first violation of subdivision (b),
(c), (d), or (e) of Section 655, or of a violation of Section 655.4,
shall be punished by a fine of not more than one thousand dollars
($1,000) or imprisonment in the county jail for not more than six
months, or by both that fine and imprisonment. If probation is
granted, the court, as a condition of probation, may require the
person to participate in, and successfully complete, an alcohol or
drug education, training, or treatment program, in addition to
imposing any penalties required by this code. In order to enable all
persons to participate in licensed programs, every person referred to
a program licensed pursuant to Section 11836 of the Health and
Safety Code shall pay that program's costs commensurate with that
person's ability to pay as determined by Section 11837.4 of the
Health and Safety Code.
(f) Any person convicted of a second or subsequent violation of
subdivision (b), (c), (d), or (e) of Section 655 within seven years
of the first conviction of any of those subdivisions or subdivision
(f) of Section 655, or any person convicted of a violation of
subdivision (b), (c), (d), or (e) of Section 655 within seven years
of a separate conviction of subdivision (a) or (b) of Section 192.5
of the Penal Code, or a separate conviction of Section 23152 or 23153
of the Vehicle Code or Section 191.5 or subdivision (a) of Section
192.5 of the Penal Code, when the separate conviction resulted from
the operation of a motor vehicle, shall be punished by a fine of not
more than one thousand dollars ($1,000) or imprisonment in the county
jail for not more than one year, or by both that fine and
imprisonment. If probation is granted, the court, as a condition of
probation, may require the person to do either of the following, if
available in the county of the person's residence or employment:
(1) Participate, for at least 18 months subsequent to the
underlying conviction and in a manner satisfactory to the court, in a
program licensed pursuant to Chapter 9 (commencing with Section
11836) of Part 2 of Division 10.5 of the Health and Safety Code, as
designated by the court. In order to enable all required persons to
participate, each person shall pay the program costs commensurate
with the person's ability to pay as determined pursuant to Section
11837.4 of the Health and Safety Code.
(2) Participate, for at least 30 months subsequent to the
underlying conviction and in a manner satisfactory to the court, in a
program licensed pursuant to Chapter 9 (commencing with Section
11836) of Part 2 of Division 10.5 of the Health and Safety Code. A
person ordered to treatment pursuant to this paragraph shall apply to
the court or to a board of review, as designated by the court, at
the conclusion of the program to obtain the court's order of
satisfaction. Only upon the granting of that order of satisfaction by
the court may the program issue its certificate of successful
completion. A failure to obtain an order of satisfaction at the
conclusion of the program is a violation of probation. In order to
enable all required persons to participate, each person shall pay the
program costs commensurate with the person's ability to pay as
determined pursuant to Section 11837.4 of the Health and Safety Code.
No condition of probation required pursuant to this paragraph is a
basis for reducing any other probation requirement.
(g) Any person convicted of a violation of subdivision (f) of
Section 655 shall be punished by imprisonment in the state prison, or
in the county jail for not less than 90 days or more than one year,
and by a fine of not less than two hundred fifty dollars ($250) or
more than five thousand dollars ($5,000). If probation is granted,
the court, as a condition of probation, may require the person to
participate in, and successfully complete, a program licensed
pursuant to Chapter 9 (commencing with Section 11836) of Part 2 of
Division 10.5 of the Health and Safety Code, if available in the
person's county of residence or employment, as designated by the
court. In order to enable all required persons to participate, each
person shall pay the program costs commensurate with the person's
ability to pay as determined pursuant to Section 11837.4 of the
Health and Safety Code.
(h) (1) If any person is convicted of a violation of subdivision
(f) of Section 655 within seven years of a separate conviction of a
violation of subdivision (b), (c), (d), or (e) of Section 655 and is
granted probation, the court shall impose as a condition of probation
that the person be confined in the county jail for not less than
five days or more than one year and pay a fine of not less than two
hundred fifty dollars ($250) or more than five thousand dollars
($5,000).
(2) If any person is convicted of a violation of subdivision (f)
of Section 655 within seven years of a separate conviction of a
violation of subdivision (f) of Section 655, of subdivision (a) or
(b) of Section 192.5 of the Penal Code, or Section 23152 or 23153 of
the Vehicle Code or Section 191.5 or subdivision (a) of Section 192.5
of the Penal Code, when the separate conviction resulted from the
operation of a motor vehicle, and is granted probation, the court
shall impose as a condition of probation that the person be confined
in the county jail for not less than 90 days or more than one year,
and pay a fine of not less than two hundred fifty dollars ($250) or
more than five thousand dollars ($5,000), and the court, as a
condition of probation, may order that the person participate in a
manner satisfactory to the court, in a program licensed pursuant to
Chapter 9 (commencing with Section 11836) of Part 2 of Division 10.5
of the Health and Safety Code, if available in the county of the
person's residence or employment. In order to enable all required
persons to participate, each person shall pay the program costs
commensurate with the person's ability to pay as determined pursuant
to Section 11837.4 of the Health and Safety Code.
(i) The court shall not absolve a person who is convicted of a
violation of subdivision (f) of Section 655 within seven years of a
separate conviction of a violation of subdivision (b), (c), (d), (e),
or (f) of Section 655, of subdivision (a) or (b) of Section 192.5 of
the Penal Code, or Section 23152 or 23153 of the Vehicle Code or
Section 191.5 or subdivision (a) of Section 192.5 of the Penal Code,
when the separate conviction resulted from the operation of a motor
vehicle, from the minimum time in confinement provided in this
section and a fine of at least two hundred fifty dollars ($250),
except as provided in subdivision (h).
(j) Except in unusual cases where the interests of justice demand
an exception, the court shall not strike a separate conviction of an
offense under subdivision (b), (c), (d), (e), or (f) of Section 655
or of subdivision (a) or (b) of Section 192.5 of the Penal Code, or
Section 23152 or 23153 of the Vehicle Code or Section 191.5 or
subdivision (a) of Section 192.5 of the Penal Code, when the separate
conviction resulted from the operation of a motor vehicle, for
purposes of sentencing in order to avoid imposing, as part of the
sentence or as a term of probation, the minimum time in confinement
and the minimum fine, as provided in this section. When a separate
conviction is stricken by the court for purposes of sentencing, the
court shall specify the reason or reasons for the striking order. On
appeal by the people from an order striking a separate conviction, it
shall be conclusively presumed that the order was made only for the
reasons specified in the order, and the order shall be reversed if
there is no substantial basis in the record for any
of those reasons.
(k) A person who flees the scene of the crime after committing a
violation of Section 191.5 or paragraph (1) of subdivision
(c) of Section 192 subdivision (a), (b), or (c) of
Section 192.5 of the Penal Code shall be subject to subdivision
(c) of Section 20001 of the Vehicle Code.
( l ) Any person who violates Section 654.3 is guilty
of an infraction punishable by a fine of not more than five hundred
dollars ($500) for each separate violation.
SEC. 4. Section 11370.2 of the Health and Safety Code is amended
to read:
11370.2. (a) Any person convicted of a violation of, or of a
conspiracy to violate, Section 11351, 11351.5, or 11352 shall
receive, in addition to any other punishment authorized by law,
including Section 667.5 of the Penal Code, a full, separate, and
consecutive three-year term for each prior felony conviction of, or
for each prior felony conviction of conspiracy to violate, Section
11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6,
11380, 11380.5, or 11383, 11383.5, 11383.6,
or 11383.7, whether or not the prior conviction resulted in a
term of imprisonment.
(b) Any person convicted of a violation of, or of a conspiracy to
violate, Section 11378.5, 11379.5, 11379.6, 11380.5, or
11383 , 11383.5, 11383.6, or 11383.7 shall
receive, in addition to any other punishment authorized by law,
including Section 667.5 of the Penal Code, a full, separate, and
consecutive three-year term for each prior felony conviction of, or
for each prior felony conviction of conspiracy to violate, Section
11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6,
11380, 11380.5, or 11383, 11383.5, 11383.6,
or 11383.7, whether or not the prior conviction resulted in a
term of imprisonment.
(c) Any person convicted of a violation of, or of a conspiracy to
violate, Section 11378 or 11379 with respect to any substance
containing a controlled substance specified in paragraph (1) or (2)
of subdivision (d) of Section 11055 shall receive, in addition to any
other punishment authorized by law, including Section 667.5 of the
Penal Code, a full, separate, and consecutive three-year term for
each prior felony conviction of, or for each prior felony conviction
of conspiracy to violate, Section 11351, 11351.5, 11352, 11378,
11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or
11383, 11383.5, 11383.6, or 11383.7, whether or
not the prior conviction resulted in a term of imprisonment.
(d) The enhancements provided for in this section shall be pleaded
and proven as provided by law.
(e) The conspiracy enhancements provided for in this section shall
not be imposed unless the trier of fact finds that the defendant
conspirator was substantially involved in the planning, direction,
execution, or financing of the underlying offense.
(f) Prior convictions from another jurisdiction qualify for use
under this section pursuant to Section 668.
SEC. 5. Section 171b of the Penal Code is amended to read:
171b. (a) Any person who brings or possesses within any state or
local public building or at any meeting required to be open to the
public pursuant to Chapter 9 (commencing with Section 54950) of Part
1 of Division 2 of Title 5 of, or Article 9 (commencing with Section
11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of, the
Government Code, any of the following is guilty of a public offense
punishable by imprisonment in a county jail for not more than one
year, or in the state prison:
(1) Any firearm.
(2) Any deadly weapon described in Section 653k or 12020.
(3) Any knife with a blade length in excess of four inches, the
blade of which is fixed or is capable of being fixed in an unguarded
position by the use of one or two hands.
(4) Any unauthorized tear gas weapon.
(5) Any taser less lethal weapon, as
defined in Section 12601, or stun gun, as defined in Section
244.5.
(6) Any instrument that expels a metallic projectile, such as a BB
or pellet, through the force of air pressure, CO2 pressure, or
spring action, or any spot marker gun or paint gun.
(b) Subdivision (a) shall not apply to, or affect, any of the
following:
(1) A person who possesses weapons in, or transports weapons into,
a court of law to be used as evidence.
(2) (A) A duly appointed peace officer as defined in Chapter 4.5
(commencing with Section 830) of Title 3 of Part 2, a retired peace
officer with authorization to carry concealed weapons as described in
subdivision (a) of Section 12027, a full-time paid peace officer of
another state or the federal government who is carrying out official
duties while in California, or any person summoned by any of these
officers to assist in making arrests or preserving the peace while he
or she is actually engaged in assisting the officer.
(B) Notwithstanding subparagraph (A), subdivision (a) shall apply
to any person who brings or possesses any weapon specified therein
within any courtroom if he or she is a party to an action pending
before the court.
(3) A person holding a valid license to carry the firearm pursuant
to Article 3 (commencing with Section 12050) of Chapter 1 of Title 2
of Part 4.
(4) A person who has permission to possess that weapon granted in
writing by a duly authorized official who is in charge of the
security of the state or local government building.
(5) A person who lawfully resides in, lawfully owns, or is in
lawful possession of, that building with respect to those portions of
the building that are not owned or leased by the state or local
government.
(6) A person licensed or registered in accordance with, and acting
within the course and scope of, Chapter 11.5 (commencing with
Section 7512) or Chapter 11.6 (commencing with Section 7590) of
Division 3 of the Business and Professions Code who has been hired by
the owner or manager of the building if the person has permission
pursuant to paragraph (5).
(7) (A) A person who, for the purpose of sale or trade, brings any
weapon that may otherwise be lawfully transferred, into a gun show
conducted pursuant to Sections 12071.1 and 12071.4.
(B) A person who, for purposes of an authorized public exhibition,
brings any weapon that may otherwise be lawfully possessed, into a
gun show conducted pursuant to Sections 12071.1 and 12071.4.
(c) As used in this section, "state or local public building"
means a building that meets all of the following criteria:
(1) It is a building or part of a building owned or leased by the
state or local government, if state or local public employees are
regularly present for the purposes of performing their official
duties. A state or local public building includes, but is not limited
to, a building that contains a courtroom.
(2) It is not a building or facility, or a part thereof, that is
referred to in Section 171c, 171d, 626.9, 626.95, or 626.10 of this
code, or in Section 18544 of the Elections Code.
(3) It is a building not regularly used, and not intended to be
used, by state or local employees as a place of residence.
SEC. 6. Section 171.5 of the Penal Code is amended to read:
171.5. (a) For purposes of this section:
(1) "Airport" means an airport, with a secured area, that
regularly serves an air carrier holding a certificate issued by the
United States Secretary of Transportation.
(2) "Passenger vessel terminal" means only that portion of a
harbor or port facility, as described in Section 105.105(a)(2) of
Title 33 of the Code of Federal Regulations, with a secured area that
regularly serves scheduled commuter or passenger operations.
(3) "Sterile area" means a portion of an airport defined in the
airport security program to which access generally is controlled
through the screening of persons and property, as specified in
Section 1540.5 of Title 49 of the Code of Federal Regulations, or a
portion of any passenger vessel terminal to which, pursuant to the
requirements set forth in Sections 105.255(a)(1), 105.255(c)(1), and
105.260(a) of Title 33 of the Code of Federal Regulations, access is
generally controlled in a manner consistent with the passenger vessel
terminal's security plan and the MARSEC level in effect at the time.
(b) It is unlawful for any person to knowingly possess, within any
sterile area of an airport or a passenger vessel terminal, any of
the items listed in subdivision (c).
(c) The following items are unlawful to possess as provided in
subdivision (b):
(1) Any firearm.
(2) Any knife with a blade length in excess of four inches, the
blade of which is fixed, or is capable of being fixed, in an
unguarded position by the use of one or two hands.
(3) Any box cutter or straight razor.
(4) Any metal military practice hand grenade.
(5) Any metal replica hand grenade.
(6) Any plastic replica hand grenade.
(7) Any imitation firearm as defined in Section 417.4.
(8) Any frame, receiver, barrel, or magazine of a firearm.
(9) Any unauthorized tear gas weapon.
(10) Any taser less lethal weapon, as
defined in Section 12601, or stun gun, as defined in Section
244.5.
(11) Any instrument that expels a metallic projectile, such as a
BB or pellet, through the force of air pressure, CO2 pressure, or
spring action, or any spot marker gun or paint gun.
(12) Any ammunition as defined in Section 12316.
(d) Subdivision (b) shall not apply to, or affect, any of the
following:
(1) A duly appointed peace officer, as defined in Chapter 4.5
(commencing with Section 830) of Title 3 of Part 2, a retired peace
officer with authorization to carry concealed weapons as described in
subdivision (a) of Section 12027, a full-time paid peace officer of
another state or the federal government who is carrying out official
duties while in California, or any person summoned by any of these
officers to assist in making arrests or preserving the peace while he
or she is actually engaged in assisting the officer.
(2) A person who has authorization to possess a weapon specified
in subdivision (c), granted in writing by an airport security
coordinator who is designated as specified in Section 1542.3 of Title
49 of the Code of Federal Regulations, and who is responsible for
the security of the airport.
(3) A person, including an employee of a licensed contract guard
service, who has authorization to possess a weapon specified in
subdivision (c) granted in writing by a person discharging the duties
of Facility Security Officer or Company Security Officer pursuant to
an approved United States Coast Guard facility security plan, and
who is responsible for the security of the passenger vessel terminal.
(e) A violation of this section is punishable by imprisonment in a
county jail for a period not exceeding six months, or by a fine not
exceeding one thousand dollars ($1,000), or by both that fine and
imprisonment.
(f) The provisions of this section are cumulative, and shall not
be construed as restricting the application of any other law.
However, an act or omission that is punishable in different ways by
this and any other provision of law shall not be punished under more
than one provision.
(g) Nothing in this section is intended to affect existing state
or federal law regarding the transportation of firearms on airplanes
in checked luggage, or the possession of the items listed in
subdivision (c) in areas that are not "sterile areas."
SEC. 7. Section 245.5 of the Penal Code is amended to read:
245.5. (a) Every person who commits an assault with a deadly
weapon or instrument, other than a firearm, or by any means likely to
produce great bodily injury upon the person of a school employee,
and who knows or reasonably should know that the victim is a school
employee engaged in the performance of his or her duties, when that
school employee is engaged in the performance of his or her duties,
shall be punished by imprisonment in the state prison for three,
four, or five years, or in a county jail not exceeding one year.
(b) Every person who commits an assault with a firearm upon the
person of a school employee, and who knows or reasonably should know
that the victim is a school employee engaged in the performance of
his or her duties, when the school employee is engaged in the
performance of his or her duties, shall be punished by imprisonment
in the state prison for four, six, or eight years, or in a county
jail for not less than six months and not exceeding one year.
(c) Every person who commits an assault upon the person of a
school employee with a less lethal weapon, as defined in Section
12601, or a stun gun or taser , as
defined in Section 244.5 , and who knows or reasonably should
know that the person is a school employee engaged in the performance
of his or her duties, when the school employee is engaged in the
performance of his or her duties, shall be punished by imprisonment
in a county jail for a term not exceeding one year or by imprisonment
in the state prison for two, three, or four years.
This subdivision shall not be construed to preclude or in any way
limit the applicability of Section 245 in any criminal prosecution.
(d) As used in the section, "school employee" means any person
employed as a permanent or probationary certificated or classified
employee of a school district on a part-time or full-time basis,
including a substitute teacher. "School employee," as used in this
section, also includes a student teacher, or a school board member.
"School," as used in this section, has the same meaning as that term
is defined in Section 626.
SEC. 8. Section 266h of the Penal Code is amended to read:
266h. (a) Except as provided in subdivision (b), any person who,
knowing another person is a prostitute, lives or derives support or
maintenance in whole or in part from the earnings or proceeds of the
person's prostitution, or from money loaned or advanced to or charged
against that person by any keeper or manager or inmate of a house or
other place where prostitution is practiced or allowed, or who
solicits or receives compensation for soliciting for the person, is
guilty of pimping, a felony, and shall be punishable by imprisonment
in the state prison for three, four, or six years.
(b) Any person who, knowing another person is a prostitute, lives
or derives support or maintenance in whole or in part from the
earnings or proceeds of the person's prostitution, or from money
loaned or advanced to or charged against that person by any keeper or
manager or inmate of a house or other place where prostitution is
practiced or allowed, or who solicits or receives compensation for
soliciting for the person, when the prostitute is a minor, is guilty
of pimping a minor, a felony, and shall be punishable as follows:
(1) If the person engaged in prostitution is a minor over
the age of 16 years of age or older , the
offense is punishable by imprisonment in the state prison for three,
four, or six years.
(2) If the person engaged in prostitution is under 16 years of
age, the offense is punishable by imprisonment in the state prison
for three, six, or eight years.
SEC. 9. Section 266i of the Penal Code is amended to read:
266i. (a) Except as provided in subdivision (b), any person who
does any of the following is guilty of pandering, a felony, and shall
be punishable by imprisonment in the state prison for three, four,
or six years:
(1) Procures another person for the purpose of prostitution.
(2) By promises, threats, violence, or by any device or scheme,
causes, induces, persuades or encourages another person to become a
prostitute.
(3) Procures for another person a place as an inmate in a house of
prostitution or as an inmate of any place in which prostitution is
encouraged or allowed within this state.
(4) By promises, threats, violence or by any device or scheme,
causes, induces, persuades or encourages an inmate of a house of
prostitution, or any other place in which prostitution is encouraged
or allowed, to remain therein as an inmate.
(5) By fraud or artifice, or by duress of person or goods, or by
abuse of any position of confidence or authority, procures another
person for the purpose of prostitution, or to enter any place in
which prostitution is encouraged or allowed within this state, or to
come into this state or leave this state for the purpose of
prostitution.
(6) Receives or gives, or agrees to receive or give, any money or
thing of value for procuring, or attempting to procure, another
person for the purpose of prostitution, or to come into this state or
leave this state for the purpose of prostitution.
(b) Any person who does any of the acts described in subdivision
(a) with another person who is a minor is guilty of pandering, a
felony, and shall be punishable as follows:
(1) If the other person is a minor over the age of
16 years of age or older , the offense is
punishable by imprisonment in the state prison for three, four, or
six years.
(2) If the other person is under 16 years of age, the offense is
punishable by imprisonment in the state prison for three, six, or
eight years.
SEC. 10. Section 273.6 of the Penal Code is amended to read:
273.6. (a) Any intentional and knowing violation of a protective
order, as defined in Section 6218 of the Family Code, or of an order
issued pursuant to Section 527.6, 527.8, or 527.85 of the Code of
Civil Procedure, or Section 15657.03 of the Welfare and Institutions
Code, is a misdemeanor punishable by a fine of not more than one
thousand dollars ($1,000), or by imprisonment in a county jail for
not more than one year, or by both that fine and imprisonment.
(b) In the event of a violation of subdivision (a) that results in
physical injury, the person shall be punished by a fine of not more
than two thousand dollars ($2,000), or by imprisonment in a county
jail for not less than 30 days nor more than one year, or by both
that fine and imprisonment. However, if the person is imprisoned in a
county jail for at least 48 hours, the court may, in the interest of
justice and for reasons stated on the record, reduce or eliminate
the 30-day minimum imprisonment required by this subdivision. In
determining whether to reduce or eliminate the minimum imprisonment
pursuant to this subdivision, the court shall consider the
seriousness of the facts before the court, whether there are
additional allegations of a violation of the order during the
pendency of the case before the court, the probability of future
violations, the safety of the victim, and whether the defendant has
successfully completed or is making progress with counseling.
(c) Subdivisions (a) and (b) shall apply to the following court
orders:
(1) Any order issued pursuant to Section 6320 or 6389 of the
Family Code.
(2) An order excluding one party from the family dwelling or from
the dwelling of the other.
(3) An order enjoining a party from specified behavior that the
court determined was necessary to effectuate the order described in
subdivision (a).
(4) Any order issued by another state that is recognized under
Part 5 (commencing with Section 6400) of Division 10 of the Family
Code.
(d) A subsequent conviction for a violation of an order described
in subdivision (a), occurring within seven years of a prior
conviction for a violation of an order described in subdivision (a)
and involving an act of violence or "a credible threat" of violence,
as defined in subdivision (c) of Section 139, is punishable by
imprisonment in a county jail not to exceed one year, or in the state
prison.
(e) In the event of a subsequent conviction for a violation of an
order described in subdivision (a) for an act occurring within one
year of a prior conviction for a violation of an order described in
subdivision (a) that results in physical injury to a victim, the
person shall be punished by a fine of not more than two thousand
dollars ($2,000), or by imprisonment in a county jail for not less
than six months nor more than one year, by both that fine and
imprisonment, or by imprisonment in the state prison. However, if the
person is imprisoned in a county jail for at least 30 days, the
court may, in the interest of justice and for reasons stated in the
record, reduce or eliminate the six-month minimum imprisonment
required by this subdivision. In determining whether to reduce or
eliminate the minimum imprisonment pursuant to this subdivision, the
court shall consider the seriousness of the facts before the court,
whether there are additional allegations of a violation of the order
during the pendency of the case before the court, the probability of
future violations, the safety of the victim, and whether the
defendant has successfully completed or is making progress with
counseling.
(f) The prosecuting agency of each county shall have the primary
responsibility for the enforcement of orders described in
subdivisions (a), (b), (d), and (e).
(g) (1) Every person who owns, possesses, purchases, or receives a
firearm knowing he or she is prohibited from doing so by the
provisions of a protective order as defined in Section 136.2 of this
code, Section 6218 of the Family Code, or Section 527.6 or
, 527.8 , or 527.85 of the
Code of Civil Procedure, or Section 15657.03 of the Welfare and
Institutions Code, shall be punished under subdivision (g) of Section
12021.
(2) Every person subject to a protective order described in
paragraph (1) shall not be prosecuted under this section for owning,
possessing, purchasing, or receiving a firearm to the extent that
firearm is granted an exemption pursuant to subdivision (f) of
Section 527.9 of the Code of Civil Procedure, or subdivision (h) of
Section 6389 of the Family Code.
(h) If probation is granted upon conviction of a violation of
subdivision (a), (b), (c), (d), or (e), the court shall impose
probation consistent with Section 1203.097, and the conditions of
probation may include, in lieu of a fine, one or both of the
following requirements:
(1) That the defendant make payments to a battered women's shelter
or to a shelter for abused elder persons or dependent adults, up to
a maximum of five thousand dollars ($5,000), pursuant to Section
1203.097.
(2) That the defendant reimburse the victim for reasonable costs
of counseling and other reasonable expenses that the court finds are
the direct result of the defendant's offense.
(i) For any order to pay a fine, make payments to a battered women'
s shelter, or pay restitution as a condition of probation under
subdivision (e), the court shall make a determination of the
defendant's ability to pay. In no event shall any order to make
payments to a battered women's shelter be made if it would impair the
ability of the defendant to pay direct restitution to the victim or
court-ordered child support. Where the injury to a married person is
caused in whole or in part by the criminal acts of his or her spouse
in violation of this section, the community property may not be used
to discharge the liability of the offending spouse for restitution to
the injured spouse, required by Section 1203.04, as operative on or
before August 2, 1995, or Section 1202.4, or to a shelter for costs
with regard to the injured spouse and dependents, required by this
section, until all separate property of the offending spouse is
exhausted.
SEC. 11. Section 626.10 of the Penal Code is amended to read:
626.10. (a) (1) Any person, except a duly appointed peace officer
as defined in Chapter 4.5 (commencing with Section 830) of Title 3
of Part 2, a full-time paid peace officer of another state or the
federal government who is carrying out official duties while in this
state, a person summoned by any officer to assist in making arrests
or preserving the peace while the person is actually engaged in
assisting any officer, or a member of the military forces of this
state or the United States who is engaged in the performance of his
or her duties, who brings or possesses any dirk, dagger, ice pick,
knife having a blade longer than 21/2 inches, folding knife with a
blade that locks into place, razor with an unguarded blade,
taser less lethal weapon, as defined in Section 12601
, or stun gun, as defined in subdivision (a) of Section 244.5,
any instrument that expels a metallic projectile such as a BB or a
pellet, through the force of air pressure, CO2 pressure, or spring
action, or any spot marker gun, upon the grounds of, or within, any
public or private school providing instruction in kindergarten or any
of grades 1 to 12, inclusive, is guilty of a public offense,
punishable by imprisonment in a county jail not exceeding one year,
or by imprisonment in the state prison.
(2) Any person, except a duly appointed peace officer as defined
in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, a
full-time paid peace officer of another state or the federal
government who is carrying out official duties while in this state, a
person summoned by any officer to assist in making arrests or
preserving the peace while the person is actually engaged in
assisting any officer, or a member of the military forces of this
state or the United States who is engaged in the performance of his
or her duties, who brings or possesses a razor blade or a box cutter
upon the grounds of, or within, any public or private school
providing instruction in kindergarten or any of grades 1 to 12,
inclusive, is guilty of a public offense, punishable by imprisonment
in a county jail not exceeding one year.
(b) Any person, except a duly appointed peace officer as defined
in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, a
full-time paid peace officer of another state or the federal
government who is carrying out official duties while in this state, a
person summoned by any officer to assist in making arrests or
preserving the peace while the person is actually engaged in
assisting any officer, or a member of the military forces of this
state or the United States who is engaged in the performance of his
or her duties, who brings or possesses any dirk, dagger, ice pick, or
knife having a fixed blade longer than 21/2 inches upon the grounds
of, or within, any private university, the University of California,
the California State University, or the California Community Colleges
is guilty of a public offense, punishable by imprisonment in a
county jail not exceeding one year, or by imprisonment in the state
prison.
(c) Subdivisions (a) and (b) do not apply to any person who brings
or possesses a knife having a blade longer than 21/2 inches, a razor
with an unguarded blade, a razor blade, or a box cutter upon the
grounds of, or within, a public or
private school providing instruction in kindergarten or any of
grades 1 to 12, inclusive, or any private university, state
university, or community college at the direction of a faculty member
of the private university, state university, or community college,
or a certificated or classified employee of the school for use in a
private university, state university, community college, or
school-sponsored activity or class.
(d) Subdivisions (a) and (b) do not apply to any person who brings
or possesses an ice pick, a knife having a blade longer than 21/2
inches, a razor with an unguarded blade, a razor blade, or a box
cutter upon the grounds of, or within, a public or private school
providing instruction in kindergarten or any of grades 1 to 12,
inclusive, or any private university, state university, or community
college for a lawful purpose within the scope of the person's
employment.
(e) Subdivision (b) does not apply to any person who brings or
possesses an ice pick or a knife having a fixed blade longer than
21/2 inches upon the grounds of, or within, any private university,
state university, or community college for lawful use in or around a
residence or residential facility located upon those grounds or for
lawful use in food preparation or consumption.
(f) Subdivision (a) does not apply to any person who brings an
instrument that expels a metallic projectile such as a BB or a
pellet, through the force of air pressure, CO2 pressure, or spring
action, or any spot marker gun, or any razor blade or box cutter upon
the grounds of, or within, a public or private school providing
instruction in kindergarten or any of grades 1 to 12, inclusive, if
the person has the written permission of the school principal or his
or her designee.
(g) Any certificated or classified employee or school peace
officer of a public or private school providing instruction in
kindergarten or any of grades 1 to 12, inclusive, may seize any of
the weapons described in subdivision (a), and any certificated or
classified employee or school peace officer of any private
university, state university, or community college may seize any of
the weapons described in subdivision (b), from the possession of any
person upon the grounds of, or within, the school if he or she knows,
or has reasonable cause to know, the person is prohibited from
bringing or possessing the weapon upon the grounds of, or within, the
school.
(h) As used in this section, "dirk" or "dagger" means a knife or
other instrument with or without a handguard that is capable of ready
use as a stabbing weapon that may inflict great bodily injury or
death.
(i) Any person who, without the written permission of the college
or university president or chancellor or his or her designee, brings
or possesses a less lethal weapon, as defined in Section 12601, or a
stun gun, as defined in Section 12650, upon the grounds of or within,
a public or private college or university campus is guilty of a
misdemeanor.
SEC. 12. Section 786 of the Penal Code is amended to read:
786. (a) When property taken in one jurisdictional territory by
burglary, carjacking, robbery, theft, or embezzlement has been
brought into another, or when property is received in one
jurisdictional territory with the knowledge that it has been stolen
or embezzled and the property was stolen or embezzled in another
jurisdictional territory, the jurisdiction of the offense is in any
competent court within either jurisdictional territory, or any
contiguous jurisdictional territory if the arrest is made within the
contiguous territory, the prosecution secures on the record the
defendant's knowing, voluntary, and intelligent waiver of the right
of vicinage, and the defendant is charged with one or more property
crimes in the arresting territory.
(b) (1) The jurisdiction of a criminal action for unauthorized
use, retention, or transfer of personal identifying information, as
defined in subdivision (b) of Section 530.55, shall also include the
county where the theft of the personal identifying information
occurred, the county in which the victim resided at the time the
offense was committed, or the county where the information was used
for an illegal purpose. If multiple offenses of unauthorized use of
personal identifying information, either all involving the same
defendant or defendants and the same personal identifying information
belonging to the one person, or all involving the same defendant or
defendants and the same scheme or substantially similar activity,
occur in multiple jurisdictions, then any of those jurisdictions is a
proper jurisdiction for all of the offenses. Jurisdiction also
extends to all associated offenses connected together in their
commission to the underlying identify
identity theft offense or identity theft offenses.
(2) When charges alleging multiple offenses of unauthorized use of
personal identifying information occurring in multiple territorial
jurisdictions are filed in one county pursuant to this section, the
court shall hold a hearing to consider whether the matter should
proceed in the county of filing, or whether one or more counts should
be severed. The district attorney filing the complaint shall present
evidence to the court that the district attorney in each county
where any of the charges could have been filed has agreed that the
matter should proceed in the county of filing. In determining whether
all counts in the complaint should be joined in one county for
prosecution, the court shall consider the location and complexity of
the likely evidence, where the majority of the offenses occurred,
whether or not the offenses involved substantially similar activity
or the same scheme, the rights of the defendant and the people, and
the convenience of, or hardship to, the victim and witnesses.
(3) When an action for unauthorized use, retention, or transfer of
personal identifying information is filed in the county in which the
victim resided at the time the offense was committed, and no other
basis for the jurisdiction applies, the court, upon its own motion or
the motion of the defendant, shall hold a hearing to determine
whether the county of the victim's residence is the proper venue for
trial of the case. In ruling on the matter, the court shall consider
the rights of the parties, the access of the parties to evidence, the
convenience to witnesses, and the interests of justice.
(c) This section shall not be interpreted to alter victims' rights
under Section 530.6.
SEC. 13. Chapter 3 (commencing with Section 1228) of Title 8 of
Part 2 of the Penal Code, as added by Section 36 of Chapter 28 of the
3rd Extraordinary Session of the Statutes of 2009, is repealed.
SEC. 14. Section 1328d of the Penal Code is amended to read:
1328d. Notwithstanding Section 1328, a subpoena may be delivered
by mail or messenger. Service shall be effected when the witness
acknowledges receipt of the subpoena to the sender, by telephone, by
mail, by any form of electronic communication, including the
Internet, or in person, and identifies himself or herself by
reference to his or her date of birth and his or her driver's license
number or Department of Motor Vehicles identification card number.
The sender shall make a written notation of the identifying
information obtained during any acknowledgment by telephone or in
person. A subpoena issued and acknowledged pursuant to this section
shall have the same force and effect as a subpoena personally served.
Failure to comply with a subpoena issued and acknowledged pursuant
to this section may be punished as a contempt and the subpoena may so
state; provided, that a warrant of arrest or a body attachment may
not be issued based upon a failure to appear after being subpoenaed
pursuant to this section.
A party requesting a continuance based upon the failure of a
witness to appear in court at the time and place required for his or
her appearance or testimony pursuant to a subpoena, shall prove to
the court that the party has complied with the provisions of this
section. Such a continuance shall only be granted for a period of
time which would allow personal service of the subpoena and in no
event longer than that allowed by law, including the requirements of
Sections 861 and 1382.
SEC. 15. Section 1417.6 of the Penal Code is amended to read:
1417.6. (a) The provisions of Section 1417.5 shall not apply to
any dangerous or deadly weapons, narcotic or poisonous drugs,
explosives, or any property of any kind or character whatsoever the
possession of which is prohibited by law and that was used by a
defendant in the commission of the crime of which the defendant was
convicted, or with which the defendant was armed or that the
defendant had upon his or her person at the time of the defendant's
arrest.
Any of this property introduced or filed as an exhibit shall be,
by order of the trial court, destroyed or otherwise disposed of under
the conditions provided in the order no sooner than 60 days
following the final determination of the criminal action or
proceeding.
(b) (1) Every person who knowingly has in his or her possession
any tool or device that is seized and of a type used in the
commission of a violation of Section 10801, 10802, or 10803 of the
Vehicle Code, shall be subject to having the tool or device intended
for the above purpose deemed a nuisance as provided in paragraph (2).
(2) An evidentiary hearing shall be held only upon conviction of
the defendant for a violation of Section 10801, 10802, or 10803 of
the Vehicle Code and after 15 days' notice is given to the defendant
of the state's intent to declare as a nuisance any property that is
described in paragraph (1). All relevant evidence shall be admissible
at the hearing and the state shall prove by a preponderance of the
evidence that the property seized is of a type used in facilitating
the commission of the crime of which the defendant was convicted.
(3) If a person purports to be the lawful owner of any tool or
device the state seeks to be declared a nuisance, the person shall
show proof by a preponderance of the evidence at the hearing pursuant
to paragraph (2), that he or she owns the tool or device, and the
illegal use of the tool or device was without his or her knowledge or
consent.
(4) Following a determination that the property shall be declared
a nuisance, the property shall be disposed of as provided in
paragraph (2) or (3) of subdivision (b) (c)
of Section 1417.5.
SEC. 16. Section 11160 of the Penal Code is amended to read:
11160. (a) Any health practitioner employed in a health facility,
clinic, physician's office, local or state public health department,
or a clinic or other type of facility operated by a local or state
public health department who, in his or her professional capacity or
within the scope of his or her employment, provides medical services
for a physical condition to a patient whom he or she knows or
reasonably suspects is a person described as follows, shall
immediately make a report in accordance with subdivision (b):
(1) Any person suffering from any wound or other physical injury
inflicted by his or her own act or inflicted by another where the
injury is by means of a firearm.
(2) Any person suffering from any wound or other physical injury
inflicted upon the person where the injury is the result of
assaultive or abusive conduct.
(b) Any health practitioner employed in a health facility, clinic,
physician's office, local or state public health department, or a
clinic or other type of facility operated by a local or state public
health department shall make a report regarding persons described in
subdivision (a) to a local law enforcement agency as follows:
(1) A report by telephone shall be made immediately or as soon as
practically possible.
(2) A written report shall be prepared on the standard form
developed in compliance with paragraph (4) of this subdivision, and
Section 11160.2, and adopted by the agency or agencies designated by
the Director of Finance pursuant to Section 13820, or on a form
developed and adopted by another state agency that otherwise fulfills
the requirements of the standard form. The completed form shall be
sent to a local law enforcement agency within two working days of
receiving the information regarding the person.
(3) A local law enforcement agency shall be notified and a written
report shall be prepared and sent pursuant to paragraphs (1) and (2)
even if the person who suffered the wound, other injury, or
assaultive or abusive conduct has expired, regardless of whether or
not the wound, other injury, or assaultive or abusive conduct was a
factor contributing to the death, and even if the evidence of the
conduct of the perpetrator of the wound, other injury, or assaultive
or abusive conduct was discovered during an autopsy.
(4) The report shall include, but shall not be limited to, the
following:
(A) The name of the injured person, if known.
(B) The injured person's whereabouts.
(C) The character and extent of the person's injuries.
(D) The identity of any person the injured person alleges
inflicted the wound, other injury, or assaultive or abusive conduct
upon the injured person.
(c) For the purposes of this section, "injury" shall not include
any psychological or physical condition brought about solely through
the voluntary administration of a narcotic or restricted dangerous
drug.
(d) For the purposes of this section, "assaultive or abusive
conduct" shall include any of the following offenses:
(1) Murder, in violation of Section 187.
(2) Manslaughter, in violation of Section 192 or 192.5.
(3) Mayhem, in violation of Section 203.
(4) Aggravated mayhem, in violation of Section 205.
(5) Torture, in violation of Section 206.
(6) Assault with intent to commit mayhem, rape, sodomy, or oral
copulation, in violation of Section 220.
(7) Administering controlled substances or anesthetic to aid in
commission of a felony, in violation of Section 222.
(8) Battery, in violation of Section 242.
(9) Sexual battery, in violation of Section 243.4.
(10) Incest, in violation of Section 285.
(11) Throwing any vitriol, corrosive acid, or caustic chemical
with intent to injure or disfigure, in violation of Section 244.
(12) Assault with a less lethal weapon, as defined in Section
12601, or stun gun or taser , in violation
of Section 244.5.
(13) Assault with a deadly weapon, firearm, assault weapon, or
machinegun, or by means likely to produce great bodily injury, in
violation of Section 245.
(14) Rape, in violation of Section 261.
(15) Spousal rape, in violation of Section 262.
(16) Procuring any female to have sex with another man, in
violation of Section 266, 266a, 266b, or 266c.
(17) Child abuse or endangerment, in violation of Section 273a or
273d.
(18) Abuse of spouse or cohabitant, in violation of Section 273.5.
(19) Sodomy, in violation of Section 286.
(20) Lewd and lascivious acts with a child, in violation of
Section 288.
(21) Oral copulation, in violation of Section 288a.
(22) Sexual penetration, in violation of Section 289.
(23) Elder abuse, in violation of Section 368.
(24) An attempt to commit any crime specified in paragraphs (1) to
(23), inclusive.
(e) When two or more persons who are required to report are
present and jointly have knowledge of a known or suspected instance
of violence that is required to be reported pursuant to this section,
and when there is an agreement among these persons to report as a
team, the team may select by mutual agreement a member of the team to
make a report by telephone and a single written report, as required
by subdivision (b). The written report shall be signed by the
selected member of the reporting team. Any member who has knowledge
that the member designated to report has failed to do so shall
thereafter make the report.
(f) The reporting duties under this section are individual, except
as provided in subdivision (e).
(g) No supervisor or administrator shall impede or inhibit the
reporting duties required under this section and no person making a
report pursuant to this section shall be subject to any sanction for
making the report. However, internal procedures to facilitate
reporting and apprise supervisors and administrators of reports may
be established, except that these procedures shall not be
inconsistent with this article. The internal procedures shall not
require any employee required to make a report under this article to
disclose his or her identity to the employer.
(h) For the purposes of this section, it is the Legislature's
intent to avoid duplication of information.
SEC. 17. Section 12021 of the Penal Code is amended to read:
12021. (a) (1) Any person who has been convicted of a felony
under the laws of the United States, the State of California, or any
other state, government, or country or of an offense enumerated in
subdivision (a), (b), or (d) of Section 12001.6, or who is addicted
to the use of any narcotic drug, and who owns, purchases, receives,
or has in his or her possession or under his or her custody or
control any firearm is guilty of a felony.
(2) Any person who has two or more convictions for violating
paragraph (2) of subdivision (a) of Section 417 and who owns,
purchases, receives, or has in his or her possession or under his or
her custody or control any firearm is guilty of a felony.
(b) Notwithstanding subdivision (a), any person who has been
convicted of a felony or of an offense enumerated in Section 12001.6,
when that conviction results from certification by the juvenile
court for prosecution as an adult in an adult court under Section 707
of the Welfare and Institutions Code, and who owns or has in his or
her possession or under his or her custody or control any firearm is
guilty of a felony.
(c) (1) Except as provided in subdivision (a) or paragraph (2) of
this subdivision, any person who has been convicted of a misdemeanor
violation of Section 71, 76, 136.1, 136.5, or 140, subdivision (d) of
Section 148, Section 171b, 171c, 171d, 186.28, 240, 241, 242, 243,
243.4, 244.5, 245, 245.5, 246.3, 247, 273.5, 273.6, 417, 417.6, 422,
626.9, 646.9, 12023, or 12024, subdivision (b) or (d) of Section
12034, Section 12040, subdivision (b) of Section 12072, subdivision
(a) of former Section 12100, Section 12220, 12320, or 12590, or
Section 8100, 8101, or 8103 of the Welfare and Institutions Code, any
firearm-related offense pursuant to Sections 871.5 and 1001.5 of the
Welfare and Institutions Code, or of the conduct punished in
paragraph (3) of subdivision (g) of Section 12072, and who, within 10
years of the conviction, owns, purchases, receives, or has in his or
her possession or under his or her custody or control, any firearm
is guilty of a public offense, which shall be punishable by
imprisonment in a county jail not exceeding one year or in the state
prison, by a fine not exceeding one thousand dollars ($1,000), or by
both that imprisonment and fine. The court, on forms prescribed by
the Department of Justice, shall notify the department of persons
subject to this subdivision. However, the prohibition in this
paragraph may be reduced, eliminated, or conditioned as provided in
paragraph (2) or (3).
(2) Any person employed as a peace officer described in Section
830.1, 830.2, 830.31, 830.32, 830.33, or 830.5 whose employment or
livelihood is dependent on the ability to legally possess a firearm,
who is subject to the prohibition imposed by this subdivision because
of a conviction under Section 273.5, 273.6, or 646.9, may petition
the court only once for relief from this prohibition. The petition
shall be filed with the court in which the petitioner was sentenced.
If possible, the matter shall be heard before the same judge who
sentenced the petitioner. Upon filing the petition, the clerk of the
court shall set the hearing date and shall notify the petitioner and
the prosecuting attorney of the date of the hearing. Upon making each
of the following findings, the court may reduce or eliminate the
prohibition, impose conditions on reduction or elimination of the
prohibition, or otherwise grant relief from the prohibition as the
court deems appropriate:
(A) Finds by a preponderance of the evidence that the petitioner
is likely to use a firearm in a safe and lawful manner.
(B) Finds that the petitioner is not within a prohibited class as
specified in subdivision (a), (b), (d), (e), or (g) or Section
12021.1, and the court is not presented with any credible evidence
that the petitioner is a person described in Section 8100 or 8103 of
the Welfare and Institutions Code.
(C) (i) Finds that the petitioner does not have a previous
conviction under this subdivision no matter when the prior conviction
occurred.
(ii) In making its decision, the court shall consider the
petitioner's continued employment, the interest of justice, any
relevant evidence, and the totality of the circumstances. The court
shall require, as a condition of granting relief from the prohibition
under this section, that the petitioner agree to participate in
counseling as deemed appropriate by the court. Relief from the
prohibition shall not relieve any other person or entity from any
liability that might otherwise be imposed. It is the intent of the
Legislature that courts exercise broad discretion in fashioning
appropriate relief under this paragraph in cases in which relief is
warranted. However, nothing in this paragraph shall be construed to
require courts to grant relief to any particular petitioner. It is
the intent of the Legislature to permit persons who were convicted of
an offense specified in Section 273.5, 273.6, or 646.9 to seek
relief from the prohibition imposed by this subdivision.
(3) Any person who is subject to the prohibition imposed by this
subdivision because of a conviction of an offense prior to that
offense being added to paragraph (1) may petition the court only once
for relief from this prohibition. The petition shall be filed with
the court in which the petitioner was sentenced. If possible, the
matter shall be heard before the same judge that sentenced the
petitioner. Upon filing the petition, the clerk of the court shall
set the hearing date and notify the petitioner and the prosecuting
attorney of the date of the hearing. Upon making each of the
following findings, the court may reduce or eliminate the
prohibition, impose conditions on reduction or elimination of the
prohibition, or otherwise grant relief from the prohibition as the
court deems appropriate:
(A) Finds by a preponderance of the evidence that the petitioner
is likely to use a firearm in a safe and lawful manner.
(B) Finds that the petitioner is not within a prohibited class as
specified in subdivision (a), (b), (d), (e), or (g) or Section
12021.1, and the court is not presented with any credible evidence
that the petitioner is a person described in Section 8100 or 8103 of
the Welfare and Institutions Code.
(C) (i) Finds that the petitioner does not have a previous
conviction under this subdivision, no matter when the prior
conviction occurred.
(ii) In making its decision, the court may consider the interest
of justice, any relevant evidence, and the totality of the
circumstances. It is the intent of the Legislature that courts
exercise broad discretion in fashioning appropriate relief under this
paragraph in cases in which relief is warranted. However, nothing in
this paragraph shall be construed to require courts to grant relief
to any particular petitioner.
(4) Law enforcement officials who enforce the prohibition
specified in this subdivision against a person who has been granted
relief pursuant to paragraph (2) or (3) shall be immune from any
liability for false arrest arising from the enforcement of this
subdivision unless the person has in his or her possession a
certified copy of the court order that granted the person relief from
the prohibition. This immunity from liability shall not relieve any
person or entity from any other liability that might otherwise be
imposed.
(d) (1) Any person who, as an express condition of probation, is
prohibited or restricted from owning, possessing, controlling,
receiving, or purchasing a firearm and who owns, purchases, receives,
or has in his or her possession or under his or her custody or
control, any firearm but who is not subject to subdivision (a) or (c)
is guilty of a public offense, which shall be punishable by
imprisonment in a county jail not exceeding one year or in the state
prison, by a fine not exceeding one thousand dollars ($1,000), or by
both that imprisonment and fine. The court, on forms provided by the
Department of Justice, shall notify the department of persons subject
to this subdivision. The notice shall include a copy of the order of
probation and a copy of any minute order or abstract reflecting the
order and conditions of probation.
(2) For any person who is subject to subdivision (a), (b), or (c),
the court shall, at the time judgment is imposed, provide on a form
supplied by the Department of Justice, a notice to the defendant
prohibited by this section from owning, purchasing, receiving,
possessing or having under his or her custody or control, any
firearm. The notice shall inform the defendant of the prohibition
regarding firearms and include a form to facilitate the transfer of
firearms. Failure to provide the notice shall not be a defense to a
violation of this section.
(e) Any person who (1) is alleged to have committed an offense
listed in subdivision (b) of Section 707 of the Welfare and
Institutions Code, an offense described in subdivision (b) of Section
1203.073, any offense enumerated in paragraph (1) of subdivision
(c), or any offense described in subdivision (a) of Section 12025,
subdivision (a) of Section 12031, or subdivision (a) of Section
12034, and (2) is subsequently adjudged a ward of the juvenile court
within the meaning of Section 602 of the Welfare and Institutions
Code because the person committed an offense listed in subdivision
(b) of Section 707 of the Welfare and Institutions Code, an offense
described in subdivision (b) of Section 1203.073, any offense
enumerated in paragraph (1) of subdivision (c), or any offense
described in subdivision (a) of Section 12025, subdivision (a) of
Section 12031, or subdivision (a) of Section 12034, shall not own, or
have in his or her possession or under his or her custody or
control, any firearm until the age of 30 years. A violation of this
subdivision shall be punishable by imprisonment in a county jail not
exceeding one year or in the state prison, by a fine not exceeding
one thousand dollars
($1,000), or by both that imprisonment and fine. The juvenile court,
on forms prescribed by the Department of Justice, shall notify the
department of persons subject to this subdivision. Notwithstanding
any other law, the forms required to be submitted to the department
pursuant to this subdivision may be used to determine eligibility to
acquire a firearm.
(f) Subdivision (a) shall not apply to a person who has been
convicted of a felony under the laws of the United States unless
either of the following criteria is satisfied:
(1) Conviction of a like offense under California law can only
result in imposition of felony punishment.
(2) The defendant was sentenced to a federal correctional facility
for more than 30 days, or received a fine of more than one thousand
dollars ($1,000), or received both punishments.
(g) (1) Every person who purchases or receives, or attempts to
purchase or receive, a firearm knowing that he or she is prohibited
from doing so by a temporary restraining order or injunction issued
pursuant to Section 527.6 or , 527.8
, or 527.85 of the Code of Civil Procedure, a protective
order as defined in Section 6218 of the Family Code, a protective
order issued pursuant to Section 136.2 or 646.91 of this code, or a
protective order issued pursuant to Section 15657.03 of the Welfare
and Institutions Code, is guilty of a public offense, which shall be
punishable by imprisonment in a county jail not exceeding one year or
in the state prison, by a fine not exceeding one thousand dollars
($1,000), or by both that imprisonment and fine.
(2) Every person who owns or possesses a firearm knowing that he
or she is prohibited from doing so by a temporary restraining order
or injunction issued pursuant to Section 527.6 or
, 527.8 , or 527.85 of the Code of Civil
Procedure, a protective order as defined in Section 6218 of the
Family Code, a protective order issued pursuant to Section 136.2 or
646.91 of this code, or a protective order issued pursuant to Section
15657.03 of the Welfare and Institutions Code, is guilty of a public
offense, which shall be punishable by imprisonment in a county jail
not exceeding one year, by a fine not exceeding one thousand dollars
($1,000), or by both that imprisonment and fine.
(3) The Judicial Council shall provide notice on all protective
orders that the respondent is prohibited from owning, possessing,
purchasing, receiving, or attempting to purchase or receive a firearm
while the protective order is in effect. The order shall also state
that the firearm shall be relinquished to the local law enforcement
agency for that jurisdiction or sold to a licensed gun dealer, and
that proof of surrender or sale shall be filed within a specified
time of receipt of the order. The order shall state the penalties for
a violation of the prohibition. The order shall also state on its
face the expiration date for relinquishment.
(4) If probation is granted upon conviction of a violation of this
subdivision, the court shall impose probation consistent with
Section 1203.097.
(h) (1) A violation of subdivision (a), (b), (c), (d), or (e) is
justifiable where all of the following conditions are met:
(A) The person found the firearm or took the firearm from a person
who was committing a crime against him or her.
(B) The person possessed the firearm no longer than was necessary
to deliver or transport the firearm to a law enforcement agency for
that agency's disposition according to law.
(C) If the firearm was transported to a law enforcement agency, it
was transported in accordance with paragraph (18) of subdivision (a)
of Section 12026.2.
(D) If the firearm is being transported to a law enforcement
agency, the person transporting the firearm has given prior notice to
the law enforcement agency that he or she is transporting the
firearm to the law enforcement agency for disposition according to
law.
(2) Upon the trial for violating subdivision (a), (b), (c), (d),
or (e), the trier of fact shall determine whether the defendant was
acting within the provisions of the exemption created by this
subdivision.
(3) The defendant has the burden of proving by a preponderance of
the evidence that he or she comes within the provisions of the
exemption created by this subdivision.
(i) Subject to available funding, the Attorney General, working
with the Judicial Council, the California Alliance Against Domestic
Violence, prosecutors, and law enforcement, probation, and parole
officers, shall develop a protocol for the implementation of the
provisions of this section. The protocol shall be designed to
facilitate the enforcement of restrictions on firearm ownership,
including provisions for giving notice to defendants who are
restricted, provisions for informing those defendants of the
procedures by which defendants shall dispose of firearms when
required to do so, provisions explaining how defendants shall provide
proof of the lawful disposition of firearms, and provisions
explaining how defendants may obtain possession of seized firearms
when legally permitted to do so pursuant to this section or any other
provision of law. The protocol shall be completed on or before
January 1, 2005.
SEC. 18. Section 13540 of the Penal Code is amended to read:
13540. (a) Any person or persons desiring peace officer status
under Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2
who, on January 1, 1990, were not entitled to be designated as peace
officers under that chapter shall request the Commission on Peace
Officer Standards and Training to undertake a feasibility study
regarding designating that person or persons as peace officers. The
request and study shall be undertaken in accordance with regulations
adopted by the commission. The commission may charge any person
requesting a study, a fee, not to exceed the actual cost of
undertaking the study. Nothing in this article shall apply to or
otherwise affect the authority of the Director of
Corrections, the Director of the Youth Authority, the Director of the
Youthful Offender Parole Board, or the Secretary of the Youth and
Adult Correctional Agency Chief Deputy Secretary for
Adult Operations, the Chief Deputy Secretary for Juvenile Justice,
the Chair of the Board of Parole Hearings, or the Secretary of the
Department of Corrections and Rehabilitation to designate peace
officers as provided for in Section 830.5.
(b) Any person or persons who are designated as peace officers
under Chapter 4.5, (commencing with Section 830) of Title 3 of Part
2, and who desire a change in peace officer designation or status,
shall request the Commission on Peace Officer Standards and Training
to undertake a study to assess the need for a change in designation
or status. The request and study shall be undertaken in accordance
with regulations adopted by the commission. The commission may charge
any person, agency, or organization requesting a study, a fee, not
to exceed the actual cost of undertaking the study.
SEC. 19. Section 13542 of the Penal Code is amended to read:
13542. (a) In order for the commission to give a favorable
recommendation as to a change in designation to peace
officer status peace officer designation , the
person or persons desiring the designation change
shall be employed by an agency with a supervisory structure
consisting of a chief law enforcement officer, the agency shall agree
to comply with the training requirements set forth in Section 832,
and shall be subject to the funding restriction set forth in Section
13526. The commission shall issue the study and its recommendations
to the requesting person or agency within 18 months of the mutual
acceptance of a contract between the requesting person or agency and
the commission. A copy of that study and recommendations shall also
be submitted to the Legislature.
(b) (1) In order for the commission to give a favorable
recommendation as to a change in peace officer designation or status,
the person or persons desiring the change in peace officer
designation or status shall be employed by an agency that is
currently participating in the Peace Officer Standard Training
program participates in, and complies with,
regulations set forth by the Commission on Peace Officer Standards
and Training .
(2) If the designation change is moving the person or persons into
Section 830.1, the person or persons shall obtain the basic
certificate issued by the Commission on Peace Officer Standards and
Training, set forth in Section 832.4.
(3) The commission shall issue the study and its recommendations,
as specified in subdivision (b) of Section 13540, to the requesting
person or persons, within 12 months of the mutual acceptance of a
contract between the requesting person or agency and the commission,
or as soon as possible thereafter if the commission shows good cause
as to the need for an extension of the 12-month time period.
(4) A copy of that study and recommendation shall also be
submitted to the Legislature.
SEC. 20. Section 13821 of the Penal Code is amended to read:
13821. (a) Of the amount deposited in the Local Safety and
Protection Account in the Transportation Fund authorized by Section
10752.2 of the Revenue and Taxation Code, the Controller shall
allocate 12.68 percent in the 2008-09 fiscal year and 11.42 percent
in the 2009-10 fiscal year, and each fiscal year thereafter, to the
California Emergency Management Agency. The Controller shall allocate
these funds on a quarterly basis beginning April 1, 2009.
(b) There funds shall be allocated by the California Emergency
Management Agency according to the agency's existing programmatic
guidelines and consistent with the programs approved in the Budget
Act of 2008. Of the amount allocated pursuant to subdivision (a), the
California Emergency Management Agency shall distribute these funds
according to the following percentages:
(1) The California Multi-Jurisdictional Methamphetamine
Enforcement Teams shall receive 33.95 percent in the 2008-09 fiscal
year and each fiscal year thereafter.
(2) The Multi-Agency Gang Enforcement Consortium shall received
0.15 percent in the 2008-09 fiscal year, and each fiscal year
thereafter.
(3) The CALGANG program administered by the Department of Justice
shall receive 0.47 percent in the 2008-09 fiscal year, and each
fiscal year thereafter.
(4) The Evidentiary Medical Training Program shall receive 1.02
percent in the 2008-09 fiscal year and each fiscal year thereafter.
(5) The Public Prosecutors and Public Defenders Legal Training
program shall receive 0.01 percent in the 2008-09 fiscal year and
each fiscal year thereafter.
(6) The Sexual Assault Felony Enforcement Teams, authorized by
Section 13887, shall receive 8.93 percent in the 2008-09 fiscal year
and each fiscal year thereafter.
(7) The Vertical Prosecution Block Grant Program shall receive
25.35 percent in the 2008-09 fiscal year and each fiscal year
thereafter.
(8) The High Technology Theft Apprehension and Prosection
Prosecution Program, authorized by Section
13848.2, shall receive 20.84 percent in the 2008-09 fiscal year, and
each fiscal year thereafter.
(9) The Gang Violence Suppression Program authorized by Section
13826.1, shall receive 2.8 percent in the 2008-09 fiscal year and
each fiscal year thereafter.
(10) The Central Valley and Central Coast Rural Crim
Crime Prevention Programs, authorized by
Sections 14170 and 14180, shall receive 6.49 percent in the 2008-09
fiscal year and each fiscal year thereafter.
(c) Beginning in the 2009-10 fiscal year and each fiscal year
thereafter, the California Emergency Management Agency may retain up
to 3 percent of the funds allocated in subdivision (a) for program
administrative costs.
SEC. 21. Section 40000.7 of the Vehicle Code is amended to read:
40000.7. (a) A violation of any of the following provisions is a
misdemeanor, and not an infraction:
(1) Section 2416, relating to regulations for emergency vehicles.
(2) Section 2800, relating to failure to obey an officer's lawful
order or submit to a lawful inspection.
(3) Section 2800.1, relating to fleeing from a peace officer.
(4) Section 2801, relating to failure to obey a firefighter's
lawful order.
(5) Section 2803, relating to unlawful vehicle or load.
(6) Section 2813, relating to stopping for inspection.
(7) Subdivisions (b), (c), and (d) of Section 4461 and
subdivisions (b) and (c) of Section 4463, relating to disabled person
placards and disabled person and disabled veteran license plates.
(8) Section 4462.5, relating to deceptive or false evidence of
vehicle registration.
(9) Section 4463.5, relating to deceptive or facsimile license
plates.
(10) Section 5105.5, relating to environmental license plates.
(11)
(10) Section 5500, relating to the surrender of
registration documents and license plates before dismantling may
begin.
(12)
(11) Section 5506, relating to the sale of a total loss
salvage vehicle, or of a vehicle reported for dismantling by a
salvage vehicle rebuilder.
(13)
(12) Section 5753, relating to delivery of certificates
of ownership and registration when committed by a dealer or any
person while a dealer within the preceding 12 months.
(14)
(13) Section 5901, relating to dealers and
lessor-retailers giving notice.
(15)
(14) Section 5901.1, relating to lessors giving notice
and failure to pay fee.
(16)
(15) Section 8802, relating to the return of canceled,
suspended, or revoked certificates of ownership, registration cards,
or license plates, when committed by any person with intent to
defraud.
(17)
(16) Section 8803, relating to return of canceled,
suspended, or revoked documents and license plates of a dealer,
manufacturer, remanufacturer, transporter, dismantler, or salesman.
(b) This section shall become operative on January 1, 2001.
SEC. 22. Section 12301.6 of the Welfare and Institutions Code is
amended to read:
12301.6. (a) Notwithstanding Sections 12302 and 12302.1, a county
board of supervisors may, at its option, elect to do either of the
following:
(1) Contract with a nonprofit consortium to provide for the
delivery of in-home supportive services.
(2) Establish, by ordinance, a public authority to provide for the
delivery of in-home supportive services.
(b) (1) To the extent that a county elects to establish a public
authority pursuant to paragraph (2) of subdivision (a), the enabling
ordinance shall specify the membership of the governing body of the
public authority, the qualifications for individual members, the
manner of appointment, selection, or removal of members, how long
they shall serve, and other matters as the board of supervisors deems
necessary for the operation of the public authority.
(2) A public authority established pursuant to paragraph (2) of
subdivision (a) shall be both of the following:
(A) An entity separate from the county, and shall be required to
file the statement required by Section 53051 of the Government Code.
(B) A corporate public body, exercising public and essential
governmental functions and that has all powers necessary or
convenient to carry out the delivery of in-home supportive services,
including the power to contract for services pursuant to Sections
12302 and 12302.1 and that makes or provides for direct payment to a
provider chosen by the recipient for the purchase of services
pursuant to Sections 12302 and 12302.2. Employees of the public
authority shall not be employees of the county for any purpose.
(3) (A) As an alternative, the enabling ordinance may designate
the board of supervisors as the governing body of the public
authority.
(B) Any enabling ordinance that designates the board of
supervisors as the governing body of the public authority shall also
specify that no fewer than 50 percent of the membership of the
advisory committee shall be individuals who are current or past users
of personal assistance services paid for through public or private
funds or recipients of services under this article.
(C) If the enabling ordinance designates the board of supervisors
as the governing body of the public authority, it shall also require
the appointment of an advisory committee of not more than 11
individuals who shall be designated in accordance with subparagraph
(B).
(D) Prior to making designations of committee members pursuant to
subparagraph (C), or governing body members in accordance with
paragraph (4), the board of supervisors shall solicit recommendations
of qualified members of either the governing body of the public
authority or of any advisory committee through a fair and open
process that includes the provision of reasonable written notice to,
and a reasonable response time by, members of the general public and
interested persons and organizations.
(4) If the enabling ordinance does not designate the board of
supervisors as the governing body of the public authority, the
enabling ordinance shall require the membership of the governing body
to meet the requirements of subparagraph (B) of paragraph (3).
(c) (1) Any public authority created pursuant to this section
shall be deemed to be the employer of in-home supportive services
personnel referred to recipients under paragraph (3) of subdivision
(e) within the meaning of Chapter 10 (commencing with Section 3500)
of Division 4 of Title 1 of the Government Code. Recipients shall
retain the right to hire, fire, and supervise the work of any in-home
supportive services personnel providing services to them.
(2) (A) Any nonprofit consortium contracting with a county
pursuant to this section shall be deemed to be the employer of
in-home supportive services personnel referred to recipients pursuant
to paragraph (3) of subdivision (e) for the purposes of collective
bargaining over wages, hours, and other terms and conditions of
employment.
(B) Recipients shall retain the right to hire, fire, and supervise
the work of any in-home supportive services personnel providing
services for them.
(d) A public authority established pursuant to this section or a
nonprofit consortium contracting with a county pursuant to this
section, when providing for the delivery of services under this
article by contract in accordance with Sections 12302 and 12302.1 or
by direct payment to a provider chosen by a recipient in accordance
with Sections 12302 and 12302.2, shall comply with and be subject to,
all statutory and regulatory provisions applicable to the respective
delivery mode.
(e) Any nonprofit consortium contracting with a county pursuant to
this section or any public authority established pursuant to this
section shall provide for all of the following functions under this
article, but shall not be limited to those functions:
(1) The provision of assistance to recipients in finding in-home
supportive services personnel through the establishment of a
registry.
(2) (A) (i) The investigation of the qualifications and background
of potential personnel. Upon the effective date of the amendments to
this section made during the 2009-10 Fourth Extraordinary Session of
the Legislature, the investigation with respect to any provider in
the registry or prospective registry applicant shall include criminal
background checks requested by the nonprofit consortium or public
authority and conducted by the Department of Justice pursuant to
Section 15660, for those public authorities or nonprofit consortia
using the agencies on the effective date of the amendments to this
section made during the 2009-10 Fourth Extraordinary Session of the
Legislature. Criminal background checks shall be performed no later
than July 1, 2010, for any provider who is already on the registry on
the effective date of amendments to this section made during the
2009-10 Fourth Extraordinary Session of the Legislature, for whom a
criminal background check pursuant to this section has not previously
been provided, as a condition of the provider's continued enrollment
in the IHSS program. Criminal background checks shall be conducted
at the provider's expense.
(ii) Upon notice from the Department of Justice notifying the
public authority or nonprofit consortium that the prospective
registry applicant has been convicted of a criminal offense specified
in Section 12305.81, the public authority or nonprofit consortium
shall deny the request to be placed on the registry for providing
supportive services to any recipient of the In-Home Supportive
Services program.
(B) (i) If an applicant or provider is rejected as a result of
information contained in the Department of Justice
criminal background report offender record
information response , the applicant or provider
individual shall receive a copy of his
or her own criminal history record the response
from the Department of Justice, as provided in Article 5
(commencing with Section 11120) of Chapter 1 of Title 1 of Part 4 of
the Penal Code, to review the information for accuracy and
completeness. The applicant or provider shall be advised that if,
upon review of his or her own criminal history record he or she finds
the information to be inaccurate or incomplete, the applicant or
provider shall have the right to submit a formal challenge to the
Department of Justice to contest the criminal background report
primary response recipient .
(ii) The department shall develop a written appeal process for the
current and prospective providers who are determined ineligible to
receive payment for the provision of services in the In-Home
Supportive Services program.
(C) An applicant shall be informed of his or her right to a waiver
of the fee for obtaining a copy of a criminal history record, and of
how to submit a claim and proof of indigency, as required by Section
11123 of the Penal Code.
(D)
(C) Nothing in this paragraph shall be construed to
prohibit the Department of Justice from assessing a fee pursuant to
Section 11105 or 11123 of the Penal Code to cover
the cost of furnishing summary criminal history information.
(E)
(D) As used in this section, "nonprofit consortium"
means a nonprofit public benefit corporation that has all powers
necessary to carry out the delivery of in-home supportive services
under the delegated authority of a government entity.
(3) Establishment of a referral system under which in-home
supportive services personnel shall be referred to recipients.
(4) Providing for training for providers and recipients.
(5) (A) Performing any other functions related to the delivery of
in-home supportive services.
(B) (i) Upon request of a recipient of in-home supportive services
pursuant to this chapter, or a recipient of personal care services
under the Medi-Cal program pursuant to Section 14132.95, a public
authority or nonprofit consortium may provide a criminal background
check on a nonregistry applicant or provider from the Department of
Justice, in accordance with clause (i) of subparagraph (A) of
paragraph (2) of subdivision (e). If the person who is the subject of
the criminal background check is not hired or is terminated because
of the information contained in the criminal background report, the
provisions of subparagraph (B) of paragraph (2) of subdivision (e)
shall apply.
(ii) A recipient of in-home supportive services pursuant to this
chapter or a recipient of personal care services under the Medi-Cal
program may elect to employ an individual as their service provider
notwithstanding the individual's record of previous criminal
convictions, unless those convictions include any of the offenses
specified in Section 12305.81.
(6) Ensuring that the requirements of the personal care option
pursuant to Subchapter 19 (commencing with Section 1396) of Chapter 7
of Title 42 of the United States Code are met.
(f) (1) Any nonprofit consortium contracting with a county
pursuant to this section or any public authority created pursuant to
this section shall be deemed not to be the employer of in-home
supportive services personnel referred to recipients under this
section for purposes of liability due to the negligence or
intentional torts of the in-home supportive services personnel.
(2) In no case shall a nonprofit consortium contracting with a
county pursuant to this section or any public authority created
pursuant to this section be held liable for action or omission of any
in-home supportive services personnel whom the nonprofit consortium
or public authority did not list on its registry or otherwise refer
to a recipient.
(3) Counties and the state shall be immune from any liability
resulting from their implementation of this section in the
administration of the In-Home Supportive Services program. Any
obligation of the public authority or consortium pursuant to this
section, whether statutory, contractual, or otherwise, shall be the
obligation solely of the public authority or nonprofit consortium,
and shall not be the obligation of the county or state.
(g) Any nonprofit consortium contracting with a county pursuant to
this section shall ensure that it has a governing body that complies
with the requirements of subparagraph (B) of paragraph (3) of
subdivision (b) or an advisory committee that complies with
subparagraphs (B) and (C) of paragraph (3) of subdivision (b).
(h) Recipients of services under this section may elect to receive
services from in-home supportive services personnel who are not
referred to them by the public authority or nonprofit consortium.
Those personnel shall be referred to the public authority or
nonprofit consortium for the purposes of wages, benefits, and other
terms and conditions of employment.
(i) (1) Nothing in this section shall be construed to affect the
state's responsibility with respect to the state payroll system,
unemployment insurance, or workers' compensation and other provisions
of Section 12302.2 for providers of in-home supportive services.
(2) The Controller shall make any deductions from the wages of
in-home supportive services personnel, who are employees of a public
authority pursuant to paragraph (1) of subdivision (c), that are
agreed to by that public authority in collective bargaining with the
designated representative of the in-home supportive services
personnel pursuant to Chapter 10 (commencing with Section 3500) of
Division 4 of Title 1 of the Government Code and transfer the
deducted funds as directed in
that agreement.
(3) Any county that elects to provide in-home supportive services
pursuant to this section shall be responsible for any increased costs
to the in-home supportive services case management, information, and
payrolling system attributable to that election. The department
shall collaborate with any county that elects to provide in-home
supportive services pursuant to this section prior to implementing
the amount of financial obligation for which the county shall be
responsible.
(j) To the extent permitted by federal law, personal care option
funds, obtained pursuant to Subchapter 19 (commencing with Section
1396) of Chapter 7 of Title 42 of the United States Code, along with
matching funds using the state and county sharing ratio established
in subdivision (c) of Section 12306, or any other funds that are
obtained pursuant to Subchapter 19 (commencing with Section 1396) of
Chapter 7 of Title 42 of the United States Code, may be used to
establish and operate an entity authorized by this section.
(k) Notwithstanding any other provision of law, the county, in
exercising its option to establish a public authority, shall not be
subject to competitive bidding requirements. However, contracts
entered into by either the county, a public authority, or a nonprofit
consortium pursuant to this section shall be subject to competitive
bidding as otherwise required by law.
(l) (1) The department may adopt regulations implementing this
section as emergency regulations in accordance with Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code. For the purposes of the Administrative
Procedure Act, the adoption of the regulations shall be deemed an
emergency and necessary for the immediate preservation of the public
peace, health and safety, or general welfare. Notwithstanding Chapter
3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title
2 of the Government Code, these emergency regulations shall not be
subject to the review and approval of the Office of Administrative
Law.
(2) Notwithstanding subdivision (h) of Section 11346.1 and Section
11349.6 of the Government Code, the department shall transmit these
regulations directly to the Secretary of State for filing. The
regulations shall become effective immediately upon filing by the
Secretary of State.
(3) Except as otherwise provided for by Section 10554, the Office
of Administrative Law shall provide for the printing and publication
of these regulations in the California Code of Regulations. Emergency
regulations adopted pursuant to this subdivision shall remain in
effect for no more than 180 days.
(m) (1) In the event that a county elects to form a nonprofit
consortium or public authority pursuant to subdivision (a) before the
State Department of Health Care Services has obtained all necessary
federal approvals pursuant to paragraph (3) of subdivision (j) of
Section 14132.95, all of the following shall apply:
(A) Subdivision (d) shall apply only to those matters that do not
require federal approval.
(B) The second sentence of subdivision (h) shall not be operative.
(C) The nonprofit consortium or public authority shall not provide
services other than those specified in paragraphs (1), (2), (3),
(4), and (5) of subdivision (e).
(2) Paragraph (1) shall become inoperative when the State
Department of Health Care Services has obtained all necessary federal
approvals pursuant to paragraph (3) of subdivision (j) of Section
14132.95.
(n) (1) One year after the effective date of the first approval by
the department granted to the first public authority, the Bureau of
State Audits shall commission a study to review the performance of
that public authority.
(2) The study shall be submitted to the Legislature and the
Governor not later than two years after the effective date of the
approval specified in subdivision (a). The study shall give special
attention to the health and welfare of the recipients under the
public authority, including the degree to which all required services
have been delivered, out-of-home placement rates, prompt response to
recipient complaints, and any other issue the director deems
relevant.
(3) The report shall make recommendations to the Legislature and
the Governor for any changes to this section that will further ensure
the well-being of recipients and the most efficient delivery of
required services.
(o) Commencing July 1, 1997, the department shall provide annual
reports to the appropriate fiscal and policy committees of the
Legislature on the efficacy of the implementation of this section,
and shall include an assessment of the quality of care provided
pursuant to this section.
(p) (1) Notwithstanding any other provision of law, and except as
provided in paragraph (2), the department shall, no later than
January 1, 2009, implement subparagraphs (A) and (B) through an all
county letter from the director:
(A) Subparagraphs (A) and (B) of paragraph (2) of subdivision (e).
(B) Subparagraph (B) of paragraph (5) of subdivision (e).
(2) The department shall, no later than July 1, 2009, adopt
regulations to implement subparagraphs (A) and (B) of paragraph (1).
(q) The amendments made to paragraphs (2) and (5) of subdivision
(e) made by the act that added this subdivision during the 2007-08
Regular Session of the Legislature shall only be implemented to the
extent that an appropriation is made in the annual Budget Act or
other statute, except for the amendments that added subparagraph (D)
of paragraph (2) of subdivision (e), which shall go into effect
January 1, 2009.
SEC. 23. Section 12305.86 of the Welfare and Institutions Code is
amended to read:
12305.86. (a) Effective October 1, 2009, a county shall
investigate the background of a person who seeks to become a
supportive services provider and who is not listed on the registry of
a public authority or nonprofit consortium pursuant to Section
12301.6. This investigation shall include criminal background checks
conducted by the Department of Justice pursuant to Section 15660.
(b) No later than July 1, 2010, the county shall complete a
criminal background check pursuant to subdivision (a) for a provider
who is providing in-home supportive services prior to October 1,
2009, and who is not listed on a public authority or nonprofit
consortium registry, as a condition of the provider's continued
enrollment in the IHSS program. Criminal background checks shall be
conducted at the provider's expense.
(c) Upon notice from the Department of Justice that a prospective
or current provider has been convicted of a criminal offense
specified in Section 12305.81, the county shall deny or terminate the
applicant's request to become a provider of supportive services to
any recipient of the In-Home Supportive Services program.
(1) If an applicant or provider is rejected as a result of
information contained in the Department of Justice
criminal background report offender record
information response , the applicant or provider
individual shall receive a copy of his
or her own criminal history record the response
from the Department of Justice, as provided in Article 5
(commencing with Section 11120) of Chapter 1 of Title 1 of Part 4 of
the Penal Code, to review the information for accuracy and
completeness. The applicant or provider shall be advised that if,
upon review of his or her own criminal history record, he or she
finds the information to be inaccurate or incomplete, the applicant
or provider shall have the right to submit a formal challenge to the
Department of Justice to contest the criminal background report
primary response recipient .
(2) The department shall develop a written appeal process for the
current and prospective providers who are determined ineligible to
receive payment for the provision of services under the In-Home
Supportive Services program.
(3) An applicant shall be informed of his or her right to a waiver
of the fee for obtaining a copy of a criminal history record, and of
how to submit a claim and proof of indigency, as required by Section
11123 of the Penal Code.
(d) Nothing in this section shall be construed to prohibit the
Department of Justice from assessing a fee pursuant to Section 11105
or 11123 of the Penal Code to cover the cost of furnishing summary
criminal history information.
(e) The department shall seek federal financial participation, to
the extent possible, to cover any costs associated with this section.
SEC. 24. Section 58 of Chapter 28 of the Third Extraordinary
Session of the Statutes of 2009 is repealed.
SEC. 58. The Judicial Council shall consider
the adoption of appropriate modifications to the Criminal Rules of
Court, and of other judicial branch policies, procedures, and
programs, affecting felony probation services that would support
implementation of the evidence-based probation supervision practices
described in Chapter 3 (commencing with Section 1228) of Title 8 of
Part 2 of the Penal Code.
SEC. 25. Any section of any other act enacted by the Legislature
during the 2010 calendar year that takes effect on or before January
1, 2011, 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.
SEC. 26. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.