BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 708 (Knight)
As Introduced February 17, 2011
Hearing date: June 14, 2011
Penal Code
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CRIMES INVOLVING HIDDEN RECORDINGS:
STATUTE OF LIMITATIONS
HISTORY
Source: Author
Prior Legislation: None
Support: California State Sheriffs' Association; California
District Attorneys Association; California Narcotics
Officers' Association; California Police Chiefs
Association
Opposition:None known
Assembly Floor Vote: Ayes 74 - Noes 0
KEY ISSUE
SHOULD THE STATUTE OF LIMITATIONS FOR SPECIFIED MISDEMEANORS
PROHIBITING CONCEALED CAMERAS BE ONE YEAR AFTER THE CAMERA IS FOUND?
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PURPOSE
The purpose of this bill is to provide that a criminal complaint
in specified offenses relating to concealed cameras be filed
within one year of the camera being found.
Existing law 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 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 � 647(j)(2).)
Existing law 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 �
647(j)(3).)
Existing law provides that, except in cases where a different
punishment is 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 �19.)
Existing law 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
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offense. (Penal Code � 802.)
Existing law provides that unless provided, as specified, a
limitation of time is not tolled or extended for any reason.
(Penal Code � 803(a).)
Existing law provides 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
� 803.6(a).)
Existing law provides 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 �
803(e).)
Existing law 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 � 801.5 and 803(c).)
This bill provides that a criminal complaint must 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 in Penal Code Section 647
(j)(2)and (3).
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
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prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
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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 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. The Statute of Limitations Generally; Law Revision Commission
Report
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The statute of limitations requires commencement of a
prosecution within a certain period of time after the commission
of a crime. A prosecution is initiated by filing an indictment
or information, filing a complaint, certifying a case to
superior court, or issuing an arrest or bench warrant. (Penal
Code � 804.) The failure of a prosecution to be commenced
within the applicable period of limitation is 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. The defense
may only be waived under limited circumstances. (See Cowan v.
Superior Court (1996) 14 Cal.4th 367.) A misdemeanor offense
must be charged within one year of the crime. (Penal Code �
802.)
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3. Delayed Discovery and the Statute of Limitations
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.) Specifically, 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
� 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 � 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.
4. Case Must be Brought One Year From Discovery
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 �� 647(j) (2) and (3).)
This bill provides that for crimes involving hidden recordings
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the statute of limitations does not begin until the offense is
discovered. The rationale for this bill is that 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 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. Under
this bill, the case could be brought even if the hidden camera
is discovered years after the offense.
SHOULD A CRIMINAL COMPLAINT BE BROUGHT WITHIN ONE YEAR OF A
HIDDEN CAMERA BEING DISCOVERED?
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