BILL ANALYSIS �
AB 708
Page 1
Date of Hearing: April 5, 2011
Consultant: Stefani Salt
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 708 (Knight) - As Introduced: February 17, 2011
SUMMARY : Adds crimes involving hidden recordings to the list
of offenses for which the statute of limitations does not begin
to run until discovery of the offense. Specifically, this bill
provides that a criminal complaint may be filed within one year
of the date of discovery of a hidden recording related to a
violation of provisions prohibiting the use of concealed
camcorders, motion picture cameras, or photographic cameras, to
secretly videotape another, as specified.
EXISTING LAW :
1)Declares that it is a misdemeanor for a person to use a
concealed camcorder, motion picture camera or photographic
camera to secretly record, as specified, another identifiable
person under or through the clothing being worn by that other
person, for the purpose of viewing the body of or
undergarments worn by that other person, without the consent
or knowledge of that other person, with the intent to arouse,
appeal to or gratify lust, passions or sexual desires of that
person, and invade the privacy of that other person, under
circumstances in which the other person has a reasonable
expectation of privacy. �Penal Code Section 647(j)(2).]
2)Provides that it is a misdemeanor for a person to use a
concealed camcorder, motion picture camera or photographic
camera to secretly record, as specified, another identifiable
person who may be in a state of full or partial undress, for
the purpose of viewing the body of or undergarments worn by
that other person, without the consent or knowledge of that
other person, in the interior of an area in which that other
person has a reasonable expectation of privacy, with the
intent to invade the privacy of that other person. �Penal
Code Section 647(j)(3).]
3)Directs that, except in cases where a different punishment is
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prescribed by California law, every offense declared to be a
misdemeanor is punishable by imprisonment in the county jail
not exceeding six months, or by fine not exceeding $1,000, or
by both. (Penal Code Section 19.)
4)States that, unless specified, prosecution for an offense not
punishable by death or imprisonment in state prison shall be
commenced within one year after commission of the offense.
(Penal Code Section 802.)
5)Declares that unless provided, as specified, a limitation of
time is not tolled or extended for any reason. �Penal Code
Section 803(a).]
6)Clarifies that if more than one time period, as specified,
applies, the time for commencing an action shall be governed
by the period that expires later in time. �Penal Code Section
803.6(a).]
7)Directs that the statute of limitations for a number of
specified crimes, including offenses under the Water Code, the
Health and Safety Code or the Business and Professions Code,
does not commence to run until the offense has been, or could
reasonably have been, discovered. The crimes include
hazardous waste violations, water quality offenses, pharmacy
law violations and illegal immigration consultation. �Penal
Code Section 803(e).]
8)Provides that prosecution for specified offenses punishable by
imprisonment in state prison relating to fraud, breach of
fiduciary duty, theft or embezzlement upon an elder or
dependent adult or official misconduct must be commenced
within four years after discovery of the commission of the
offense or within four years after the completion of the
offense, whichever is later. �Penal Code Sections 801.5 and
803(c).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Hidden cameras
are appropriate in incidences where you are protecting the
safety of yourself, your children, your home, or other
specific security precautions. When it comes to video
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surveillance of other people, it is illegal to have a
concealed camcorder, motion picture camera, or photographic
camera of any type, to secretly videotape individuals where
they would normally expect complete privacy. Examples of
expected privacy areas would be bedrooms, bathrooms, locker
rooms, dressing rooms or hotel rooms.
"There is discrepancy in current law dealing with specific
statute of limitations for illegal hidden cameras. Recently
an investigation took place in Sacramento County where a man
was accused of secretly videotaping individuals in his home
where they would normally expect complete privacy. Some of
the evidence dates back more than three years of the official
investigation, falling outside of the statute of limitations
for prosecution.
"In order to protect public's safety and ensure individuals
are given their right to full privacy, existing law must be
amended. �This bill] will address this issue regarding the
statute of limitation by providing that a criminal complaint
may be filed within one year of the date on which a hidden
recording is discovered relating to the provision of illegal
hidden camera devices. This bill is a minor amendment to the
penal code that will have a profound impact upon improving and
protecting the privacy of individuals."
2)Operation of the Statute of Limitations : Statutes of
limitation require that prosecution commence within a certain
period of time after commission of a crime. Prosecution
commences upon filing an indictment or information, filing a
complaint, certifying a case to superior court, or issuing an
arrest or bench warrant. (Penal Code Section 804.) If a
prosecution is not commenced within the applicable time
limitation, it provides a complete defense to the charge. The
statute of limitations is jurisdictional and may be raised as
a defense at any time before or after judgment. �People v.
Morris (1988) 46 Cal.3d 1, 13, fn. 4; People v. Chadd (1981)
28 Cal.3d 739, 756-757.] This defense may only be waived
under limited circumstances. �See Cowan v. Superior Court
(1996) 14 Cal.4th 367.]
3)Statutes of Limitation under Current Law : The amount of time
within which a prosecuting agency may charge an alleged
perpetrator varies based on the crime. A misdemeanor offense
must be charged within one year of the crime. (Penal Code
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Section 802.) Felonies generally require prosecution within
three years, although there are exceptions. (Penal Code
Section 801.) Offenses that may be sentenced to more than
eight years in prison must be charged within six years.
(Penal Code Section 800.) There is no statute of limitations
for offenses punishable by death or life imprisonment and
embezzlement of public money; these crimes may be prosecuted
at any time. (Penal Code Section 799.) Unless otherwise
specified, the statute of limitations begins to run at the
time the crime is committed. �See Penal Code Section 803(a).]
4)Public Policy Reasoning Behind Statutes of Limitation :
Criminal statutes of limitation are laws that limit the time
during which a prosecution can be commenced. These statutes
have been in operation for over 350 years and are deeply
rooted in the American legal system.
There are several rationales underlying statutes of limitation.
First, they ensure that prosecutions are based upon reasonably
fresh evidence - the idea being that over time memories fade;
witnesses die or leave the area; and physical evidence becomes
more difficult to obtain, identify or preserve. �See United
States v. Ewell (1966) 383 U.S. 116, 122 (stating that the
statute of limitations "is usually considered the primary
guarantee against bringing overly stale criminal charges.");
Stogner v. California (2003) 539 U.S. 607, 615.] In short,
the possibility of erroneous conviction is minimized when
prosecution is prompt. Second, statutes of limitation
encourage law enforcement officials to investigate suspected
criminal activity in a timely fashion, which hopefully
provides a stronger deterrent effect. �People v. Zamora
(1976) 18 Cal.3d 538, 547.] Statutes of limitation may also
reduce the possibility of blackmail from threats to disclose
information to prosecutors or law enforcement officials.
(Id.) Another rationale reasons that as time goes by the
likelihood that an offender has reformed increases, making
punishment less necessary. (Id.) Correspondingly, society's
retributive impulse may lessen over time, making punishment
less desirable. (Id.) Finally, there is the thought that
statutes of limitation provide an overall sense of security
and stability to human affairs. (Lauren Kerns, Incorporating
Tolling Provisions into Sex Crimes Statute of Limitations, 13
Temple Policy and Civil Rights Law Review, 325, 327.)
Statutes of limitation reflect legislative assessments of the
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relative interests of the State and the defendant in
administering and receiving justice. There is a measure of
predictability provided by specifying a limit beyond which
there is an irrebuttable presumption that a defendant's right
to a fair trial would be prejudiced. (See Stogner v.
California, supra, 539 U.S. 607, 615.) Additionally, the
adoption of statutes of limitation represents legislative
recognition that for all but the most serious offenses, a
never-ending threat of prosecution is more detrimental to the
functioning of a civilized society than it is beneficial.
(People v. Zamora, supra, 18 Cal. 3d 538, 547.)
The United States Supreme Court illustrated these public policy
rationales in Stogner v. California, supra, 539 U.S. 607. In
Stogner, the court ruled that application of a new state law
permitting resurrection of otherwise time-barred criminal
prosecutions violated the ex post facto clause of the United
States Constitution. The court held that an otherwise lapsed
statute of limitation may not be revived for offenses that may
have been committed years before. The State may not
retrospectively prosecute cases where the statute of
limitations has expired. Rather, the State may only apply new
rules related to tolling statutes of limitation to conduct
committed after the law is passed. The court reiterated its
prior statements regarding the underlying purpose of statutes
of limitation: "A statute of limitations reflects a
legislative judgment that, after a certain time, no quantum of
evidence is sufficient to convict. And that judgment
typically rests, in large part, upon evidentiary concerns--for
example, concern that the passage of time has eroded memories
or made witnesses or other evidence unavailable." (Id. at
615.) The court stated that a law reviving tolled statutes of
limitation deprives the defendant of the "fair warning" that
might have led him or her to preserve exculpatory evidence,
and warned that "a Constitution that permits such an
extension, by allowing legislatures to pick and choose when to
act retroactively, risks 'both arbitrary and potentially
vindictive legislation.'" (Id. at 611.) As the court pointed
out, without knowing of the possibility that he or she may be
prosecuted, a potential defendant may discard exculpatory
evidence which he or she certainly would have maintained had
he or she known a criminal prosecution was looming in the
distant future.
5)Delayed Discovery and the Statute of Limitations : As stated,
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existing law establishes alternate statutes of limitation for
various crimes so that the applicable time period in which to
prosecute these crimes does not begin until the offense is
discovered. (Penal Code Section 803.) The statute of
limitations for a number of specified crimes, including
hazardous waste violations, water quality offenses, pharmacy
law violations and illegal immigration consultation, "does not
commence to run until the offense has been discovered, or
could reasonably have been discovered . . . . " �Penal Code
Section 803(e).] Existing law also delays the operation of
the statute of limitations so that it does not begin to run
until discovery of the crime for those offenses "punishable by
imprisonment in the state prison, a material element of which
is fraud or breach of a fiduciary obligation, the commission
of the crimes of theft or embezzlement upon an elder or
dependent adult, or the basis of which is misconduct in office
by a public officer, employee, or appointee." �Penal Code
Section 803(c).] Prosecution for specified crimes must be
commenced within four years after discovery or completion of
the offense, whichever is later. (Penal Code Section 801.5.)
Courts have interpreted Penal Code Section 803(c) to require a
showing of reasonable diligence in discovering the facts of a
theft. In other words, "discovery" is not synonymous with
actual knowledge: "The statute commences to run . . . after
one has knowledge of facts sufficient to make a reasonably
prudent person suspicious of fraud, thus putting him on
inquiry . . . . " (People v. Zamora, supra, 18 Cal.3d 538,
561.) This definition of "discovery" likely applies to the
adjusted statute of limitations for hidden recordings provided
in this bill.
Existing law makes it a misdemeanor to secretly videotape,
without consent, any individual that is in a place where they
expect reasonable privacy. �Penal Code Section 647(j)(2) and
(3).] This bill includes crimes involving hidden recordings
with the list of crimes for which the statute of limitations
does not begin until the offense is discovered. Although
there does not appear to be a discrepancy in current law
surrounding this issue, adjusting the statute of limitations
in this fashion seems reasonable given the nature of the
crime. Hidden recordings are generally kept secret and, thus,
the victims of these crimes are unaware that their privacy has
been violated. If the statute of limitations begins to toll
on the date the crime is committed, as it does under current
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law, this means that a perpetrator will not be punished for
that crime if he or she successfully keeps the recording
secret for one year. (See Penal Code Section 802; Penal Code
Section 647.)
6)Arguments in Support : According to the California State
Sheriffs' Association , "Current law establishes the statute of
limitations for a criminal complaint to be filed up to a year
from the date of the crime (not the date of discovery). A
�r]ecent investigation took place in Sacramento County
involving a man who was accused of secretly videotaping
individuals in his home where the recordings dated back more
than three years, which according to current law is outside
the statute of limitations allowed for such crimes to be
prosecuted.
"�This bill] would ensure that this issue is addressed by
providing that a criminal complaint may be filed within one
year of the date from which a hidden recording is discovered,
not just from when it occurs."
REGISTERED SUPPORT / OPPOSITION :
Support
California Districts Attorneys Association
California Police Chiefs Association
California State Sheriffs' Association
Opposition
None
Analysis Prepared by : Stefani Salt / PUB. S. / (916) 319-3744