Bill Text: CA AB109 | 2011-2012 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Criminal justice alignment.
Spectrum: Partisan Bill (Democrat 15-0)
Status: (Passed) 2011-04-04 - Chaptered by Secretary of State - Chapter 15, Statutes of 2011. [AB109 Detail]
Download: California-2011-AB109-Amended.html
Bill Title: Criminal justice alignment.
Spectrum: Partisan Bill (Democrat 15-0)
Status: (Passed) 2011-04-04 - Chaptered by Secretary of State - Chapter 15, Statutes of 2011. [AB109 Detail]
Download: California-2011-AB109-Amended.html
BILL NUMBER: AB 109 AMENDED
BILL TEXT
AMENDED IN SENATE MARCH 14, 2011
INTRODUCED BY Committee on Budget (Blumenfield (Chair), Alejo,
Allen, Brownley, Buchanan, Butler, Cedillo, Chesbro, Dickinson,
Feuer, Gordon, Huffman, Mitchell, Monning, and Swanson)
JANUARY 10, 2011
An act relating to the Budget Act of 2011.
An act to amend Sections 585, 650, 654.1, 655.5, 729, 1282.3, 1701,
1701.1, 1960, 2052, 2315, 4324, 5536.5, 6126, 6153, 6788, 7028.16,
7739, 10238.6, 11020, 11023, 11286, 11287, 11320, 16755, 17511.9,
17550.19, 22430, and 25618 of the Business and Professions Code, to
amend Sections 892, 1695.8, 1812.125, 1812.217, 2945.7, 2985.2, and
2985.3 of the Civil Code, to amend Sections 2255, 2256, 6811, 6814,
8812, 8815, 12672, 12675, 22002, 25540, 27202, 28880, 29102, 29550,
31410, 31411, and 35301 of the Corporations Code, to amend Section
7054 of the Education Code, to amend Sections 18002, 18100, 18101,
18102, 18106, 18200, 18201, 18203, 18204, 18205, 18310, 18311, 18400,
18403, 18502, 18520, 18521, 18522, 18523, 18524, 18540,
18544, 18545, 18560, 18561, 18564, 18566, 18567, 18568, 18573, 18575,
18578, 18611, 18613, 18614, 18620, 18621, 18640, 18660, 18661, and
18680 of the Elections Code, to amend Sections 3510, 3532, 5300,
5302, 5303, 5304, 5305, 5307, 10004, 12102, 14752, 17700, 18349.5,
18435, 22753, 22780, 31880, and 50500 of the Financial Code, to amend
Sections 12004 and 12005 of the Fish and Game Code, to amend
Sections 17701, 18932, 18933, 19440, 19441, and 80174 of the Food and
Agriculture Code, to amend Sections 1195, 1368, 1369, 3108, 3109,
5954, 6200, 6201, 9056, 27443, and 51018.7 of the Government Code, to
amend Sections 264, 310, and 668 of the Harbors and Navigation Code,
to amend Sections 1390, 1522.01, 1621.5, 7051, 7051.5, 8113.5, 8785,
11100, 11100.1, 11105, 11153, 11153.5, 11162.5, 11350, 11351,
11351.5, 11352, 11353.5, 11353.6, 11353.7, 11356, 11357, 11358,
11359, 11360, 11362, 11366.5, 11366.6, 11366.8, 11370.6, 11371,
11371.1, 11374.5, 11377, 11378, 11378.5, 11379, 11379.5, 11379.6,
11380.7, 11381, 11383, 11383.5, 11383.6, 11383.7, 12401,
12700, 17061, 18124.5, 25180.7, 25189.5, 25189.6, 25189.7,
25190, 25191, 25395.13, 25515, 25541, 42400.3, 44209, 100895,
109335, 115215, 116730, 116750, 118340, and 131130 of the Health and
Safety Code, to amend Sections 700, 750, 833, 1043, 1215.10, 1764.7,
1814, 1871.4, 10192.165, 11161, 11162, 11163, 11760, 11880, 12660,
and 12845 of the Insurance Code, to amend Sections 227, 6425, and
7771 of the Labor Code, to amend Sections 145, 1318, 1672, and 1673,
of the Military and Veterans Code, to amend Sections 17, 18, 19.2,
33, 38, 67.5, 69, 71, 72, 72.5, 76, 95, 95.1, 96, 99, 107, 109, 113,
114, 115.1, 126, 136.7, 137, 139, 140, 142, 146a, 146e, 148, 148.1,
148.3, 148.4, 148.10, 149, 153, 156, 157, 168, 171c, 171d, 181, 182,
186.10, 186.22, 186.26, 186.28, 186.33, 191.5, 193, 193.5, 210.5,
217.1, 218.1, 219.1, 222, 237, 241.1, 241.4, 241.7, 243, 243.1,
243.6, 244.5, 245, 245.6, 246.3, 247.5, 261.5, 265, 266b, 266e, 266f,
266g, 271, 271a, 273.4, 273.6, 273.65, 273d, 278, 278.5,
280, 284, 288.2, 290.018, 290.4, 290.45, 290.46, 298.2, 299.5, 311.9,
313.4, 337.3, 337.7, 337b, 337c, 337d, 337e, 337f, 350, 367f, 367g,
368, 374.2, 374.8, 375, 382.5, 382.6, 386, 387, 399.5, 404.6, 405b,
417, 417.3, 417.6, 422, 422.7, 453, 455, 461, 463, 464, 470a, 470b,
473, 474, 478, 479, 480, 481, 483.5, 484b, 484i, 487b, 487d, 489,
496, 496a, 496d, 499c, 499d, 500, 502, 506b, 520, 529, 529a, 530.5,
532a, 532f, 533, 535, 537e, 538.5, 548, 549, 550, 551, 560, 560.4,
566, 570, 577, 578, 580, 581, 587, 587.1, 591, 593, 594, 594.3,
594.35, 594.4, 597, 597.5, 598c, 598d, 600, 601, 610, 617, 620, 621,
625b, 626.9, 626.95, 626.10, 629.84, 631, 636, 637, 647.6, 653f,
653h, 653j, 653s, 653t, 653u, 653w, 664, 666, 666.5, 667.5, 668, 800,
801, 803, 836.6, 1168, 1170, 1174.4, 1203.016, 1208.2, 1213, 1320,
1320.5, 2600, 2650, 2772, 2790, 2900.5, 2932, 3000, 3000.1, 3001,
3003, 3056, 3057, 4011.7, 4016.5, 4019, 4131.5, 4501.1, 4502, 4530,
4532, 4533, 4536, 4550, 4573, 4573.6, 4573.9, 4574, 4600, 11411,
11413, 11418, 11419, 12021, 12021.1, 1202 1.5,
12022, 12022.5, 12022.9, 12025, 12035, 12040, 12072, 12076, 12090,
12101, 12220, 12280, 12281, 12303.3, 12303.6, 12304, 12312, 12320,
12355, 12370, 12403.7, 12422, 12520, 18715, 18720, 18725, 18730,
18735, 18740, 20110, 22810, 22910, 23900, 25110, 25300, 25400, 25850,
27590, 28250, 29700, 30315, 30600, 30605, 30725, 31360, 32625, and
33410 of, to add Sections 17.5, 1203.018, 1230.1, 2057, 3000.08, and
3000.09 to, to add Title 2.05 (commencing with Section 3450) to Part
3 of, and to repeal Sections 3060 and 3061 of, the Penal Code, to
amend Sections 10283 and 10873 of the Public Contract Code, to amend
Sections 5097.99, 14591, 25205, and 48680 of the Public Resources
Code, to amend Sections 7680, 7724, 7903, and 21407.6 of the Public
Utilities Code, to amend Sections 7093.6, 9278, 14521, 16910,
18631.7, 19705, 19708, 30459.15, 32471.5, 32555, 38800, 40211.5,
41171.5, 43522.5, 43606, 45867.5, 45955, 46628, 46705, 50156.18,
55332.5, 55363, and 60637 of the Revenue and Taxation
Code, to amend Sections 2478, 2800.4, 4463, 10501, 10752, 10801,
10802, 10803, 10851, 21464, 21651, 23104, 23105, 23109, 23109.1,
23110, 23550, and 42000 of the Vehicle Code, to amend Section 13387
of the Water Code, and to amend Sections 871.5, 1001.5, 1731.5,
1768.7, 1768.85, 3002, 7326, 8100, 8101, 8103, 10980, 14107.2,
14107.3, 14107.4, and 17410 of, and to add Section 1710.5 to, the
Welfare and Institutions Code, relating to criminal justice
realignment, making an appropriation therefor, and declaring the
urgency thereof, to take effect immediately, bill related to the
budget.
LEGISLATIVE COUNSEL'S DIGEST
AB 109, as amended, Committee on Budget. Budget Act of
2011. Criminal justice alignment.
(1) Existing law defines a felony as a crime which is punishable
with death or by imprisonment in the state prison. Existing law also
provides that except in cases where a different punishment is
prescribed by law, every offense declared to be a felony, or to be
punishable by imprisonment in a state prison, is punishable by
imprisonment in any of the state prisons for 16 months, or 2 or 3
years. Every offense which is prescribed to be a felony punishable by
imprisonment in any of the state prisons or by a fine, but without
an alternate sentence to the county jail, may be punishable by
imprisonment in the county jail not exceeding one year or by a fine,
or by both.
This bill would instead provide that a felony is a crime that is
punishable with death, by imprisonment in the state prison, or
notwithstanding any other provision of law, by imprisonment in a
county jail for more than one year. The bill would generally provide
that felonies are punishable by imprisonment in a county jail for 16
months, or 2 or 3 years. The bill provides exceptions to imprisonment
in a county jail for a variety of felonies, including serious
felonies and violent felonies, as defined, felonies requiring
registration as a sex offender, and when the defendant has a prior
conviction for a serious or violent felony, or a felony subjecting
the defendant to registration as a sex offender, among other
exceptions.
The bill would authorize counties to contract with the Department
of Corrections and Rehabilitation for beds in state prisons for the
commitment of persons from the county convicted of a felony.
(2) Existing law establishes within the Department of Corrections
and Rehabilitation, the Division of Juvenile Justice, consisting of
the Division of Juvenile Facilities, the Division of Juvenile
Programs, and the Division of Juvenile Parole Operations, which
operate the statewide system governing wards of the court and other
persons committed to the department, and the detention,
rehabilitation, probation, and parole thereof. Under existing law,
and under specified circumstances, the juvenile court is authorized
to commit persons to the Division of Juvenile Justice.
This bill would provide that on and after July 1, 2011, unless a
county has entered a memorandum of understanding with the state, the
Division of Juvenile Justice shall no longer accept any juvenile
offender commitments from the juvenile courts. The bill would,
notwithstanding any other law and on and after July 1, 2011,
authorize a county to enter into a memorandum of understanding with
the state to provide for the admission of minors adjudicated for
specified offenses to the Division of Juvenile Justice.
(3) Existing law authorizes the board of supervisors of any county
to authorize the correctional administrator to offer a program under
which minimum security inmates and low-risk offenders committed to a
county jail or other county correctional facility or granted
probation, or inmates participating in a work furlough program, may
voluntarily participate in a home detention program in lieu of
confinement in the county jail or other county correctional facility
under the auspices of the probation officer. Existing law provides
that the board of supervisors of any county may, upon determination
by the correctional administrator that conditions in a jail facility
warrant the necessity of releasing sentenced misdemeanor inmates
prior to their serving the full amount of a given sentence due to
lack of jail space, offer a program under which specified inmates may
be required to participate in an involuntary home detention program.
This bill would enhance the authorization granted to the
correctional administrator to offer a voluntary home detention
program to include all inmates and additionally subject those inmates
to involuntary participation in a home detention program. The bill
would provide that the board of supervisors of any county may
authorize the correctional administrator to offer a program under
which inmates being held in lieu of bail may be placed in an
electronic monitoring program, as specified. The bill would establish
criteria for inmates to be eligible for the electronic monitoring
program. The bill would make it a misdemeanor for any inmate who is a
participant in an electronic monitoring program to fail to comply
with the prescribed rules and regulations. By creating a new crime,
the bill would impose a state-mandated local program.
(4) Existing law provides for an administrative and application
fee for specified work furlough and voluntary electronic home
detention program participants. Existing law limits the fees to the
pro rata cost of the program to which the person is accepted, as
specified. Existing law exempts privately operated voluntary
electronic monitoring programs from this fee limitation.
This bill would additionally exempt electronic monitoring programs
created by this bill from the fee limitation.
(5) Existing law provides that in all felony and misdemeanor
convictions when the defendant has been in custody, including, but
not limited to, any time spent in a jail, camp, work furlough,
facility, halfway house, rehabilitation facility, hospital, prison,
juvenile detention facility, or similar residential institution, all
days of custody of the defendant, including days served as a
condition of probation credited to the period of confinement, as
specified, shall be credited upon his or her term of imprisonment, or
credited to any fine, as specified.
This bill includes all days served in a home detention program to
that provision, as specified. The bill would also provide that time
served in a home detention program, as specified, shall qualify as
mandatory time in jail.
(6) Existing law provides that in regards to persons sentenced to
the state prison, except for certain specified prisoners, for every 6
months of continuous incarceration, a prisoner shall be awarded
credit reductions from his or her term of confinement of 6 months, as
specified, and that a lesser amount of credit based on this ratio
shall be awarded for any lesser period of continuous incarceration.
Credit accumulated pursuant to those provisions may be denied or lost
for any specified act committed by the prisoner, including acts for
misconduct that could be prosecuted as a felony or a misdemeanor, or
misconduct that is a serious disciplinary offense. Existing law
requires the Department of Corrections and Rehabilitation to provide
notice to a prisoner regarding the denial or loss of credits and
permits the prisoner to appeal the decision of the department, as
specified.
This bill would provide that credit accumulated while a prisoner
is confined to a county jail, city jail, industrial farm, or road
camp may be denied or lost for any specified act. The bill would
require, for those prisoners confined to a county jail, city jail,
industrial farm, or road camp, the sheriff or director of the county
correctional department to provide notice to a prisoner regarding the
denial or loss of credits and would permit the prisoner to appeal
the decision of the sheriff or director of the county correctional
department, as specified. By imposing additional duties on local law
enforcement agencies, this bill would impose a state-mandated local
program.
(7) Existing law provides time credit for work performance and
good behavior to prisoners confined to a county jail, industrial
farm, or road camp, or any city jail, industrial farm, or road camp.
Specifically, except regarding certain prisoners who are limited to
15% credit against sentenced time, existing law provides that a term
of 6 days will be deemed to have been served for every 4 days spent
in actual custody, as specified.
This bill would require, for prisoners whose crimes are committed
on or after July 1, 2011, except those who are limited to 15% credit
against sentenced time, and who are confined to a county jail, city
jail, industrial farm, or road camp, that a term of 4 days be deemed
to have been served for every 2 days spent in actual custody, as
specified.
(8) Existing law generally provides that the Board of Parole
Hearings, a state agency, shall have the power to allow prisoners
imprisoned in the state prisons to go upon parole outside the prison
walls and enclosures, as specified. Existing law authorizes each
county to establish a local Community Corrections Partnership to
provide a system of felony probation supervision services, as
specified.
This bill would enact the Postrelease Community Supervision Act of
2011 to provide that any person released from prison on or after
July 1, 2011, after serving a term in prison for certain felonies
that are, among other things, not serious or violent, shall be
subject to, for a period not exceeding 3 years, community supervision
provided by a county agency designated by that county's board of
supervisors, as prescribed. By imposing additional duties as local
agencies, this bill would impose a state-mandated local program. The
bill would also require the courts to establish a process to
determine if there has been a violation of the conditions of the
postrelease supervision, and the courts would be authorized to take
certain actions upon such a finding. The bill would establish within
each county local Community Corrections Partnership an executive
committee, as specified, to recommend a local plan to the county
board of supervisors on how the 2011 public safety realignment should
be implemented within that county.
(9) Existing law generally commits persons convicted of felonies
to the jurisdiction of the Department of Corrections and
Rehabilitation. Existing law also provides for parole of those
felons, under the jurisdiction of the Board of Parole Hearings.
This bill would limit the jurisdiction of the Board of Parole
Hearings for purposes of parole supervision by providing that persons
who are released from prison after serving terms for a serious
felony, as defined, a violent felony, as defined, a term imposed
because of 2 or more prior felony convictions, as specified, or a
term for an offense whereby the person may be classified as a High
Risk Sex Offender, would be subject to parole supervision by the
department or the court, as specified.
The bill would require that any parolee who was paroled from state
prison prior to July 1, 2011, be subject to certain parole
supervision requirements, including, but not limited to, that he or
she remain under the supervision of the department until a specified
circumstance occurs, and that those parolees, being held for a parole
violation in county jail on July 1, 2011, be subject to the
jurisdiction of the board. Eligible parolees released from prison
after serving terms for a serious felony, a violent felony, a term
imposed because of 2 or more prior felony convictions, as specified,
or a term for an offense whereby the person may be classified as a
High Risk Sex Offender, whose parole is revoked by the board, would
be remanded to state prison, and after his or her release
jurisdiction over the parolee would remain under the Division of
Adult Parole Operations. Any subsequent revocation action would be
conducted by the court in the county into which the parolee was
released.
(10) Existing law, as amended by Proposition 83 when that
initiative was approved by the voters at the November 7, 2006,
statewide general election, requires a person who has been convicted
of a specified sex offense and who has been released on parole from
state prison, to be discharged from parole by the board if he or she
has been on parole continuously for 6 years since release from
confinement, or 20 years in the case of conviction for specified sex
offenses, unless the board determines, for good cause, that the
person will be retained on parole. A measure that amends Proposition
83 requires a 2/3 vote in each house unless the measure expands the
scope of the application of the proposition's provisions or increases
the punishments or penalties provided therein.
This bill would transfer the above-referenced duties from the
board to the courts. The bill would increase the above-described
parole periods to 61/2 years and 201/2 years, respectively.
(11) Existing law generally requires an inmate who is released on
parole to be returned to the county that was the last legal residence
of the inmate prior to his or her incarceration. Existing law also
requires the department to release specified information regarding
paroled inmates to local law enforcement, as specified, and to
control and be responsible for the Law Enforcement Automated Data
System (LEADS) regarding that information.
This bill would generally require an inmate who is released under
a postrelease supervision program to be returned to the county that
was the last legal residence of the inmate prior to his or her
incarceration. The bill would also require the Department of
Corrections and Rehabilitation to include information on inmates
released under a postrelease supervision program in LEADS. The bill
would require county agencies supervising inmates released under a
postrelease supervision program to provide to the department any
inmate information requested by the department that is to be used in
LEADS. By imposing new duties on local agencies, the bill would
impose a state-mandated local program.
(12) The bill would make additional conforming changes.
(13) By imposing additional burdens on local government entities,
this bill would impose a state-mandated local program.
(14) The bill would become operative no earlier than July 1, 2011,
and only upon creation of a community corrections grant program to
assist in implementing this act and upon an appropriation to fund the
grant program.
(15) This bill would appropriate $1,000 from the General Fund to
the Department of Corrections and Rehabilitation for purposes of
state operations.
(16) 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 with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
(17) The California Constitution authorizes the Governor to
declare a fiscal emergency and to call the Legislature into special
session for that purpose. The Governor issued a proclamation
declaring a fiscal emergency, and calling a special session for this
purpose, on January 20, 2011.
This bill would state that it addresses the fiscal emergency
declared by the Governor by proclamation issued on January 20, 2011,
pursuant to the California Constitution.
(18) This bill would declare that it is to take effect immediately
as a bill providing for appropriations related to the Budget Bill.
This bill would express the intent of the Legislature to enact
statutory changes relating to the Budget Act of 2011.
Vote: majority 2/3 . Appropriation:
no yes . Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. This act is titled and may be cited as the
2011 Realignment Legislation addressing public safety.
SEC. 2. Section 585 of the Business and Professions
Code is amended to read:
585. Any person, company, or association violating the provisions
of this article is guilty of a felony and upon conviction thereof
shall be punishable by a fine of not less than two thousand dollars
($2,000) nor more than six thousand dollars ($6,000), or by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code . The
enforcement remedies provided under this article are not exclusive
and shall not preclude the use of any other criminal, civil, or
administrative remedy.
SEC. 3. Section 650 of the Business and Professions
Code is amended to read:
650. (a) Except as provided in Chapter 2.3 (commencing with
Section 1400) of Division 2 of the Health and Safety Code, the offer,
delivery, receipt, or acceptance by any person licensed under this
division or the Chiropractic Initiative Act of any rebate, refund,
commission, preference, patronage dividend, discount, or other
consideration, whether in the form of money or otherwise, as
compensation or inducement for referring patients, clients, or
customers to any person, irrespective of any membership, proprietary
interest, or coownership in or with any person to whom these
patients, clients, or customers are referred is unlawful.
(b) The payment or receipt of consideration for services other
than the referral of patients which is based on a percentage of gross
revenue or similar type of contractual arrangement shall not be
unlawful if the consideration is commensurate with the value of the
services furnished or with the fair rental value of any premises or
equipment leased or provided by the recipient to the payer.
(c) The offer, delivery, receipt, or acceptance of any
consideration between a federally qualified health center, as defined
in Section 1396d(l)(2)(B) of Title 42 of the United States Code, and
any individual or entity providing goods, items, services,
donations, loans, or a combination thereof to the health center
entity pursuant to a contract, lease, grant, loan, or other
agreement, if that agreement contributes to the ability of the health
center entity to maintain or increase the availability, or enhance
the quality, of services provided to a medically underserved
population served by the health center, shall be permitted only to
the extent sanctioned or permitted by federal law.
(d) Except as provided in Chapter 2.3 (commencing with Section
1400) of Division 2 of the Health and Safety Code and in Sections
654.1 and 654.2 of this code, it shall not be unlawful for any person
licensed under this division to refer a person to any laboratory,
pharmacy, clinic (including entities exempt from licensure pursuant
to Section 1206 of the Health and Safety Code), or health care
facility solely because the licensee has a proprietary interest or
coownership in the laboratory, pharmacy, clinic, or health care
facility, provided, however, that the licensee's return on investment
for that proprietary interest or coownership shall be based upon the
amount of the capital investment or proportional ownership of the
licensee which ownership interest is not based on the number or value
of any patients referred. Any referral excepted under this section
shall be unlawful if the prosecutor proves that there was no valid
medical need for the referral.
(e) Except as provided in Chapter 2.3 (commencing with Section
1400) of Division 2 of the Health and Safety Code and in Sections
654.1 and 654.2 of this code, it shall not be unlawful to provide
nonmonetary remuneration, in the form of hardware, software, or
information technology and training services, as described in
subsections (x) and (y) of Section 1001.952 of Title 42 of the Code
of Federal Regulations, as amended October 4, 2007, as published in
the Federal Register (72 Fed. Reg. 56632 and 56644), and subsequently
amended versions.
(f) "Health care facility" means a general acute care hospital,
acute psychiatric hospital, skilled nursing facility, intermediate
care facility, and any other health facility licensed by the State
Department of Public Health under Chapter 2 (commencing with Section
1250) of Division 2 of the Health and Safety Code.
(g) A violation of this section is a public offense and is
punishable upon a first conviction by imprisonment in a county jail
for not more than one year, or by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170 of
the Penal Code , or by a fine not exceeding fifty thousand
dollars ($50,000), or by both that imprisonment and fine. A second or
subsequent conviction is punishable by imprisonment in the
state prison pursuant to subdivision (h) of Section
1170 of the Penal Code , or by that imprisonment
in the state prison and a fine of fifty thousand
dollars ($50,000).
SEC. 4. Section 654.1 of the Business and Professions
Code is amended to read:
654.1. Persons licensed under Chapter 4 (commencing with Section
1600) of this division or licensed under Chapter 5 (commencing with
Section 2000) of this division or licensed under any initiative act
referred to in this division relating to osteopaths may not refer
patients, clients, or customers to any clinical laboratory licensed
under Section 1265 in which the licensee has any membership,
proprietary interest, or coownership in any form, or has any
profit-sharing arrangement, unless the licensee at the time of making
such referral discloses in writing such interest to the patient,
client, or customer. The written disclosure shall indicate that the
patient may choose any clinical laboratory for purposes of having any
laboratory work or assignment performed.
This section shall not apply to persons who are members of a
medical group which contracts to provide medical care to members of a
group practice prepayment plan registered under the Knox-Keene
Health Care Service Act of 1975, Chapter 2.2 (commencing with Section
1340) of Division 2 of the Health and Safety Code.
This section shall not apply to any referral to a clinical
laboratory which is owned and operated by a health facility licensed
pursuant to Chapter 2 (commencing with Section 1250) of Division 2 of
the Health and Safety Code.
This section does not prohibit the acceptance of evaluation
specimens for proficiency testing or referral of specimens or such
assignment from one clinical laboratory to another clinical
laboratory, either licensed or exempt under this chapter, providing
the report indicates clearly the laboratory performing the test.
"Proprietary interest" does not include ownership of a building
where space is leased to a clinical laboratory at the prevailing rate
under a straight lease arrangement.
A violation of this section is a public offense and is punishable
upon a first conviction by imprisonment in the
a county jail for not more than one year, or by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code , or by a
fine not exceeding ten thousand dollars ($10,000), or by both
such that imprisonment and fine. A
second or subsequent conviction shall be punishable by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code .
SEC. 5. Section 655.5 of the Business and Professions
Code is amended to read:
655.5. (a) It is unlawful for any person licensed under this
division or under any initiative act referred to in this division, or
any clinical laboratory, or any health facility when billing for a
clinical laboratory of the facility, to charge, bill, or otherwise
solicit payment from any patient, client, or customer for any
clinical laboratory service not actually rendered by the person or
clinical laboratory or under his, her or its direct supervision
unless the patient, client, or customer is apprised at the first time
of the charge, billing, or solicitation of the name, address, and
charges of the clinical laboratory performing the service. The first
such written charge, bill, or other solicitation of payment shall
separately set forth the name, address, and charges of the clinical
laboratory concerned and shall clearly show whether or not the charge
is included in the total of the account, bill, or charge. This
subdivision shall be satisfied if the required disclosures are made
to the third-party payer of the patient, client, or customer. If the
patient is responsible for submitting the bill for the charges to the
third-party payer, the bill provided to the patient for that purpose
shall include the disclosures required by this section. This
subdivision shall not apply to a clinical laboratory of a health
facility or a health facility when billing for a clinical laboratory
of the facility nor to a person licensed under this division or under
any initiative act referred to in this division if the standardized
billing form used by the facility or person requires a summary entry
for all clinical laboratory charges. For purposes of this
subdivision, "health facility" has the same meaning as defined in
Section 1250 of the Health and Safety Code.
(b) Commencing July 1, 1994, a clinical laboratory shall provide
to each of its referring providers, upon request, a schedule of fees
for services provided to patients of the referring provider. The
schedule shall be provided within two working days after the clinical
laboratory receives the request. For the purposes of this
subdivision, a "referring provider" means any provider who has
referred a patient to the clinical laboratory in the preceding
six-month period. Commencing July 1, 1994, a clinical laboratory that
provides a list of laboratory services to a referring provider or to
a potential referring provider shall include a schedule of fees for
the laboratory services listed.
(c) It is also unlawful for any person licensed under this
division or under any initiative act referred to in this division to
charge additional charges for any clinical laboratory service that is
not actually rendered by the licensee to the patient and itemized in
the charge, bill, or other solicitation of payment. This section
shall not be construed to prohibit any of the following:
(1) Any itemized charge for any service actually rendered to the
patient by the licensee.
(2) Any summary charge for services actually rendered to a patient
by a health facility, as defined in Section 1250 of the Health and
Safety Code, or by a person licensed under this division or under any
initiative act referred to in this division if the standardized
billing form used by the facility or person requires a summary entry
for all clinical laboratory charges.
(d) As used in this section, the term "any person licensed under
this division" includes a person licensed under paragraph (1) of
subdivision (a) of Section 1265, all wholly owned subsidiaries of the
person, a parent company that wholly owns the person, and any
subsidiaries wholly owned by the same parent that wholly owns the
person. "Wholly owned" means ownership directly or through one or
more subsidiaries. This section shall not apply to billings by a
person licensed under paragraph (1) of subdivision (a) of Section
1265 when the person licensed under paragraph (1) of subdivision (a)
of Section 1265 bills for services performed by any laboratory owned
or operated by the person licensed under paragraph (1) of subdivision
(a) of Section 1265.
(e) This section shall not apply to any person or clinical
laboratory who or which contracts directly with a health care service
plan licensed pursuant to Section 1349 of the Health and Safety
Code, if the services are to be provided to members of the plan on a
prepaid basis and without additional charge or liability on account
thereof.
(f) A violation of this section is a public offense and is
punishable upon a first conviction by imprisonment in the
a county jail for not more than one year, or by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code , or by a
fine not exceeding ten thousand dollars ($10,000), or by both that
imprisonment and fine. A second or subsequent conviction is
punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
.
(g) (1) Notwithstanding subdivision (f), a violation of this
section by a physician and surgeon for a first offense shall be
subject to the exclusive remedy of reprimand by the Medical Board of
California if the transaction that is the subject of the violation
involves a charge for a clinical laboratory service that is less than
the charge would have been if the clinical laboratory providing the
service billed a patient, client, or customer directly for the
clinical laboratory service, and if that clinical laboratory charge
is less than the charge listed in the clinical laboratory's schedule
of fees pursuant to subdivision (b).
(2) Nothing in this subdivision shall be construed to permit a
physician and surgeon to charge more than he or she was charged for
the laboratory service by the clinical laboratory providing the
service unless the additional charge is for service actually rendered
by the physician and surgeon to the patient.
SEC. 6. Section 729 of the Business and Professions
Code is amended to read:
729. (a) Any physician and surgeon, psychotherapist, alcohol and
drug abuse counselor or any person holding himself or herself out to
be a physician and surgeon, psychotherapist, or alcohol and drug
abuse counselor, who engages in an act of sexual intercourse, sodomy,
oral copulation, or sexual contact with a patient or client, or with
a former patient or client when the relationship was terminated
primarily for the purpose of engaging in those acts, unless the
physician and surgeon, psychotherapist, or alcohol and drug abuse
counselor has referred the patient or client to an independent and
objective physician and surgeon, psychotherapist, or alcohol and drug
abuse counselor recommended by a third-party physician and surgeon,
psychotherapist, or alcohol and drug abuse counselor for treatment,
is guilty of sexual exploitation by a physician and surgeon,
psychotherapist, or alcohol and drug abuse counselor.
(b) Sexual exploitation by a physician and surgeon,
psychotherapist, or alcohol and drug abuse counselor is a public
offense:
(1) An act in violation of subdivision (a) shall be punishable by
imprisonment in a county jail for a period of not more than six
months, or a fine not exceeding one thousand dollars ($1,000), or by
both that imprisonment and fine.
(2) Multiple acts in violation of subdivision (a) with a single
victim, when the offender has no prior conviction for sexual
exploitation, shall be punishable by imprisonment in a county jail
for a period of not more than six months, or a fine not exceeding one
thousand dollars ($1,000), or by both that imprisonment and fine.
(3) An act or acts in violation of subdivision (a) with two or
more victims shall be punishable by imprisonment in the
state prison pursuant to subdivision (h) of Section
1170 of the Penal Code for a period of 16 months, two years, or
three years, and a fine not exceeding ten thousand dollars
($10,000); or the act or acts shall be punishable by imprisonment in
a county jail for a period of not more than one year, or a fine not
exceeding one thousand dollars ($1,000), or by both that imprisonment
and fine.
(4) Two or more acts in violation of subdivision (a) with a single
victim, when the offender has at least one prior conviction for
sexual exploitation, shall be punishable by imprisonment in
the state prison pursuant to subdivision (h) of
Section 1170 of the Penal Code for a period of 16 months, two
years, or three years, and a fine not exceeding ten thousand dollars
($10,000); or the act or acts shall be punishable by imprisonment in
a county jail for a period of not more than one year, or a fine not
exceeding one thousand dollars ($1,000), or by both that imprisonment
and fine.
(5) An act or acts in violation of subdivision (a) with two or
more victims, and the offender has at least one prior conviction for
sexual exploitation, shall be punishable by imprisonment in
the state prison pursuant to subdivision (h) of
Section 1170 of the Penal Code for a period of 16 months, two
years, or three years, and a fine not exceeding ten thousand dollars
($10,000).
For purposes of subdivision (a), in no instance shall consent of
the patient or client be a defense. However, physicians and surgeons
shall not be guilty of sexual exploitation for touching any intimate
part of a patient or client unless the touching is outside the scope
of medical examination and treatment, or the touching is done for
sexual gratification.
(c) For purposes of this section:
(1) "Psychotherapist" has the same meaning as defined in Section
728.
(2) "Alcohol and drug abuse counselor" means an individual who
holds himself or herself out to be an alcohol or drug abuse
professional or paraprofessional.
(3) "Sexual contact" means sexual intercourse or the touching of
an intimate part of a patient for the purpose of sexual arousal,
gratification, or abuse.
(4) "Intimate part" and "touching" have the same meanings as
defined in Section 243.4 of the Penal Code.
(d) In the investigation and prosecution of a violation of this
section, no person shall seek to obtain disclosure of any
confidential files of other patients, clients, or former patients or
clients of the physician and surgeon, psychotherapist, or alcohol and
drug abuse counselor.
(e) This section does not apply to sexual contact between a
physician and surgeon and his or her spouse or person in an
equivalent domestic relationship when that physician and surgeon
provides medical treatment, other than psychotherapeutic treatment,
to his or her spouse or person in an equivalent domestic
relationship.
(f) If a physician and surgeon, psychotherapist, or alcohol and
drug abuse counselor in a professional partnership or similar group
has sexual contact with a patient in violation of this section,
another physician and surgeon, psychotherapist, or alcohol and drug
abuse counselor in the partnership or group shall not be subject to
action under this section solely because of the occurrence of that
sexual contact.
SEC. 7. Section 1282.3 of the Business and Professions
Code is amended to read:
1282.3. (a) It is unlawful for any person to act with willful or
wanton disregard for a person's safety that exposes the person to a
substantial risk of, or that causes, great bodily injury by affecting
the integrity of a clinical laboratory test or examination result
through improper collection, handling, storage, or labeling of the
biological specimen or the erroneous transcription or reporting of
clinical laboratory test or examination results.
(b) Notwithstanding Section 1287, a violation of this section
shall be punished as follows:
(1) A first conviction is punishable by imprisonment in a county
jail for a period of not more than one year, or by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code for 16 months, or two or
three years, by a fine not exceeding fifty thousand dollars
($50,000), or by both this imprisonment and fine.
(2) A second or subsequent conviction is punishable by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code for two,
four, or six years, or by a fine not exceeding fifty thousand dollars
($50,000), or by both this imprisonment and fine.
(c) The enforcement remedies provided under this section are not
exclusive, and shall not preclude the use of any other criminal or
civil remedy. However, an act or omission punishable in different
ways by this section and any other provision of law shall not be
punished under more than one provision. Under those circumstances,
the penalty to be imposed shall be determined as set forth in Section
654 of the Penal Code.
SEC. 8. Section 1701 of the Business and Professions
Code is amended to read:
1701. Any person is for the first offense guilty of a misdemeanor
and shall be punishable by a fine of not less than two hundred
dollars ($200) or more than three thousand dollars ($3,000), or by
imprisonment in the a county jail for
not to exceed six months, or both, and for the second or a subsequent
offense is guilty of a felony and upon conviction thereof shall be
punished by a fine of not less than two thousand dollars ($2,000) nor
more than six thousand dollars ($6,000), or by imprisonment
in the state prison pursuant to subdivision (h) of
Section 1170 of the Penal Code , or by both such fine and
imprisonment, who:
(a) Sells or barters or offers to sell or barter any dental degree
or any license or transcript made or purporting to be made pursuant
to the laws regulating the license and registration of dentists.
(b) Purchases or procures by barter any such diploma, license or
transcript with intent that the same shall be used in evidence of the
holder's qualification to practice dentistry, or in fraud of the
laws regulating such practice.
(c) With fraudulent intent, makes or attempts to make,
counterfeits or alters in a material regard any such diploma,
certificate or transcript.
(d) Uses, attempts or causes to be used, any such diploma,
certificate or transcript which has been purchased, fraudulently
issued, counterfeited or materially altered, either as a license to
practice dentistry, or in order to procure registration as a dentist.
(e) In an affidavit, required of an applicant for examination,
license or registration under this chapter, willfully makes a false
statement in a material regard.
(f) Practices dentistry or offers to practice dentistry as it is
defined in this chapter, either without a license, or when his
license has been revoked or suspended.
(g) Under any false, assumed or fictitious name, either as an
individual, firm, corporation or otherwise, or any name other than
the name under which he is licensed, practices, advertises or in any
other manner indicates that he is practicing or will practice
dentistry, except such name as is specified in a valid permit issued
pursuant to Section 1701.5.
SEC. 9. Section 1701.1 of the Business and Professions
Code is amended to read:
1701.1. (a) Notwithstanding Sections 1700 and 1701, a person who
willfully, under circumstances or conditions that cause or create
risk of bodily harm, serious physical or mental illness, or death,
practices or attempts to practice, or advertises or holds himself or
herself out as practicing dentistry without having at the time of so
doing a valid, unrevoked, and unsuspended certificate, license,
registration, or permit as provided in this chapter, or without being
authorized to perform that act pursuant to a certificate, license,
registration, or permit obtained in accordance with some other
provision of law, is guilty of a public offense, punishable by a fine
not exceeding ten thousand dollars ($10,000), by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code , by imprisonment in a
county jail not exceeding one year, or by both the fine and either
imprisonment.
(b) A person who conspires with or aids and abets another to
commit any act described in subdivision (a) is guilty of a public
offense and subject to the punishment described in subdivision (a).
(c) The remedy provided in this section shall not preclude any
other remedy provided by law.
SEC. 10. Section 1960 of the Business and Professions
Code is amended to read:
1960. For the first offense, a person is guilty of a misdemeanor
and shall be punishable by a fine of not less than two hundred
dollars ($200) nor more than three thousand dollars ($3,000), or by
imprisonment in a county jail for not to exceed six months, or by
both that fine and imprisonment, and for the second or a subsequent
offense is guilty of a felony and upon conviction thereof shall be
punished by a fine of not less than two thousand dollars ($2,000) nor
more than six thousand dollars ($6,000), or by imprisonment
in the state prison pursuant to subdivision (h) of
Section 1170 of the Penal Code , or by both that fine and
imprisonment, who does any of the following:
(a) Sells or barters or offers to sell or barter a dental hygiene
degree or transcript or a license issued under, or purporting to be
issued under, laws regulating licensure of registered dental
hygienists, registered dental hygienists in alternative practice, or
registered dental hygienists in extended functions.
(b) Purchases or procures by barter a diploma, license, or
transcript with intent that it shall be used as evidence of the
holder's qualification to practice dental hygiene, or in fraud of the
laws regulating the practice of dental hygiene.
(c) With fraudulent intent, makes, attempts to make, counterfeits,
or materially alters a diploma, certificate, or transcript.
(d) Uses, or attempts or causes to be used, any diploma,
certificate, or transcript that has been purchased, fraudulently
issued, counterfeited, or materially altered or in order to procure
licensure as a registered dental hygienist, registered dental
hygienist in alternative practice, or registered dental hygienist in
extended functions.
(e) In an affidavit required of an applicant for an examination or
license under this article, willfully makes a false statement in a
material regard.
(f) Practices dental hygiene or offers to practice dental hygiene,
as defined in this article, either without a license, or when his or
her license has been revoked or suspended.
(g) Under any false, assumed or fictitious name, either as an
individual, firm, corporation or otherwise, or any name other than
the name under which he or she is licensed, practices, advertises, or
in any other manner indicates that he or she practices or will
practice dental hygiene, except a name specified in a valid permit
issued pursuant to Section 1962.
SEC. 11. Section 2052 of the Business and Professions
Code is amended to read:
2052. (a)
Notwithstanding Section 146, any person who practices or attempts to
practice, or who advertises or holds himself or herself out as
practicing, any system or mode of treating the sick or afflicted in
this state, or who diagnoses, treats, operates for, or prescribes for
any ailment, blemish, deformity, disease, disfigurement, disorder,
injury, or other physical or mental condition of any person, without
having at the time of so doing a valid, unrevoked, or unsuspended
certificate as provided in this chapter or without being authorized
to perform the act pursuant to a certificate obtained in accordance
with some other provision of law is guilty of a public offense,
punishable by a fine not exceeding ten thousand dollars ($10,000), by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code , by
imprisonment in a county jail not exceeding one year, or by both the
fine and either imprisonment.
(b) Any person who conspires with or aids or abets another to
commit any act described in subdivision (a) is guilty of a public
offense, subject to the punishment described in that subdivision.
(c) The remedy provided in this section shall not preclude any
other remedy provided by law.
SEC. 12. Section 2315 of the Business and Professions
Code is amended to read:
2315. (a) Except as otherwise provided by law, any person found
guilty of a misdemeanor for a violation of this chapter shall be
punished by a fine of not less than two hundred dollars ($200) nor
more than one thousand two hundred dollars ($1,200) or by
imprisonment for a term of not less than 60 days nor more than 180
days, or by both such fine and imprisonment.
(b) A violation of Section 2273 is a public offense and is
punishable upon a first conviction by imprisonment in the
a county jail for not more than one year. A
second or subsequent conviction is punishable by imprisonment in
the a county jail for not more than one
year or by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
for 16 months or 2 or 3 years, or by a fine not exceeding ten
thousand dollars ($10,000) or by both the fine and imprisonment.
SEC. 13. Section 4324 of the Business and Professions
Code is amended to read:
4324. (a) Every person who signs the name of another, or of a
fictitious person, or falsely makes, alters, forges, utters,
publishes, passes, or attempts to pass, as genuine, any prescription
for any drugs is guilty of forgery and upon conviction thereof shall
be punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
, or by imprisonment in the a
county jail for not more than one year.
(b) Every person who has in his or her possession any drugs
secured by a forged prescription shall be punished by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code , or by imprisonment in
the county jail for not more than one year.
SEC. 14. Section 5536.5 of the Business and Professions
Code is amended to read:
5536.5. Any person who violates subdivision (a) of Section 5536
in connection with the offer or performance of architectural services
for the repair of damage to a residential or nonresidential
structure caused by a natural disaster for which a state of emergency
is proclaimed by the Governor pursuant to Section 8625 of the
Government Code, or for which an emergency or major disaster is
declared by the President of the United States, shall be punished by
a fine up to ten thousand dollars ($10,000), or by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code for 16 months, or for two
or three years, or by both the fine and imprisonment, or by a fine
up to one thousand dollars ($1,000), or by imprisonment in
the a county jail not exceeding one year, or by
both the fine and imprisonment.
SEC. 15. Section 6126 of the Business and Professions
Code is amended to read:
6126. (a) Any person advertising or holding himself or herself
out as practicing or entitled to practice law or otherwise practicing
law who is not an active member of the State Bar, or otherwise
authorized pursuant to statute or court rule to practice law in this
state at the time of doing so, is guilty of a misdemeanor punishable
by up to one year in a county jail or by a fine of up to one thousand
dollars ($1,000), or by both that fine and imprisonment. Upon a
second or subsequent conviction, the person shall be confined in a
county jail for not less than 90 days, except in an unusual case
where the interests of justice would be served by imposition of a
lesser sentence or a fine. If the court imposes only a fine or a
sentence of less than 90 days for a second or subsequent conviction
under this subdivision, the court shall state the reasons for its
sentencing choice on the record.
(b) Any person who has been involuntarily enrolled as an inactive
member of the State Bar, or has been suspended from membership from
the State Bar, or has been disbarred, or has resigned from the State
Bar with charges pending, and thereafter practices or attempts to
practice law, advertises or holds himself or herself out as
practicing or otherwise entitled to practice law, is guilty of a
crime punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code or in a county jail for a period not
to exceed six months . However, any person who has been
involuntarily enrolled as an inactive member of the State Bar
pursuant to paragraph (1) of subdivision (e) of Section 6007 and who
knowingly thereafter practices or attempts to practice law, or
advertises or holds himself or herself out as practicing or otherwise
entitled to practice law, is guilty of a crime punishable by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code or in
a county jail for a period not to exceed six months
.
(c) The willful failure of a member of the State Bar, or one who
has resigned or been disbarred, to comply with an order of the
Supreme Court to comply with Rule 9.20 of the California Rules of
Court, constitutes a crime punishable by imprisonment in the
state prison pursuant to subdivision (h) of Section
1170 of the Penal Code or in a county jail for
a period not to exceed six months .
(d) The penalties provided in this section are cumulative to each
other and to any other remedies or penalties provided by law.
SEC. 16. Section 6153 of the Business and Professions
Code is amended to read:
6153. Any person, firm, partnership, association, or corporation
violating subdivision (a) of Section 6152 is punishable, upon a first
conviction, by imprisonment in a county jail for not more than one
year or by a fine not exceeding fifteen thousand dollars ($15,000),
or by both that imprisonment and fine. Upon a second or subsequent
conviction, a person, firm, partnership, association, or corporation
is punishable by imprisonment in a county jail for not more than one
year, or by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
for two, three, or four years, or by a fine not exceeding fifteen
thousand dollars ($15,000), or by both that imprisonment and fine.
Any person employed either as an officer, director, trustee,
clerk, servant or agent of this state or of any county or other
municipal corporation or subdivision thereof, who is found guilty of
violating any of the provisions of this article, shall forfeit the
right to his office and employment in addition to any other penalty
provided in this article.
SEC. 17. Section 6788 of the Business and Professions
Code is amended to read:
6788. Any person who violates any provision of subdivisions (a)
to (i), inclusive, of Section 6787 in connection with the offer or
performance of engineering services for the repair of damage to a
residential or nonresidential structure caused by a disaster for
which a state of emergency is proclaimed by the Governor pursuant to
Section 8625 of the Government Code, or for which an emergency or
major disaster is declared by the President of the United States,
shall be punished by a fine up to ten thousand dollars ($10,000), or
by imprisonment in the state prison pursuant
to subdivision (h) of Section 1170 of the Penal Code for 16
months, or for two or three years, or by both the fine and
imprisonment, or by a fine up to one thousand dollars ($1,000), or by
imprisonment in the a county jail not
exceeding one year, or by both the fine and imprisonment.
SEC. 18. Section 7028.16 of the Business and
Professions Code is amended to read:
7028.16. A person who engages in the business or acts in the
capacity of a contractor, without having a license therefor, in
connection with the offer or performance of repairs to a residential
or nonresidential structure for damage caused by a natural disaster
for which a state of emergency is proclaimed by the Governor pursuant
to Section 8625 of the Government Code, or for which an emergency or
major disaster is declared by the President of the United States,
shall be punished by a fine up to ten thousand dollars ($10,000), or
by imprisonment in the state prison pursuant
to subdivision (h) of Section 1170 of the Penal Code for 16
months, or for two or three years, or by both that fine and
imprisonment, or by a fine up to one thousand dollars ($1,000), or by
imprisonment in the a county jail not
exceeding one year, or by both that fine and imprisonment. In
addition, a person who utilized the services of the unlicensed
contractor is a victim of crime regardless of whether that person had
knowledge that the contractor was unlicensed.
SEC. 19. Section 7739 of the Business and Professions
Code is amended to read:
7739. Any person willfully violating the provisions of this
article or any of them shall be punishable either by imprisonment in
the a county jail for a period not
exceeding six months, or by fine not exceeding five hundred dollars
($500), or by both imprisonment and fine, or by imprisonment
in the state prison pursuant to subdivision (h) of
Section 1170 of the Penal Code for 16 months, or two or three
years. If the violator is a funeral establishment licensee, he or she
shall also be subject to disciplinary action as provided in Article
6 (commencing with Section 7686).
SEC. 20. Section 10238.6 of the Business and
Professions Code is amended to read:
10238.6. Any person who does any of the following acts is guilty
of a public offense punishable by a fine not exceeding ten thousand
dollars ($10,000) or by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code , or in a county jail not exceeding one (1) year or
by both such that fine and
imprisonment.
(a) In any application to the commissioner or in any proceeding
before him, or in any examination, audit or investigation made by him
or on his authority, knowingly makes any false statement or
representation, or, with knowledge of its falsity, files or causes to
be filed in the office of the commissioner any false statement or
representation in a required report.
(b) Issues, circulates or publishes, or causes to be issued,
circulated or published any advertisement, pamphlet, prospectus or
circular concerning any real property security which contains any
statement that is false or misleading, or otherwise likely to deceive
a reader thereof, with knowledge that it contains such false,
misleading or deceptive statement.
(c) In any respect willfully violates or fails to comply with any
provision of this article, or willfully violates or fails, omits or
neglects to obey, observe or comply with any order, decision, demand,
requirement or permit, or any part or provisions thereof, of the
commissioner under this article.
(d) With one or more other persons, conspires to violate any
permit or order issued by the commissioner of any provision of this
article.
SEC. 21. Section 11020 of the Business and Professions
Code is amended to read:
11020. (a) It shall be unlawful for any person to make, issue,
publish, deliver, or transfer as true and genuine any public report
which is forged, altered, false, or counterfeit, knowing it to be
forged, altered, false, or counterfeit or to cause to be made or
participate in the making, issuance, delivery, transfer, or
publication of a public report with knowledge that it is forged,
altered, false, or counterfeit.
(b) Any person who violates subdivision (a) is guilty of a public
offense punishable by a fine not exceeding ten thousand dollars
($10,000) or by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
, or in the a county jail not
exceeding one year, or by both that fine and imprisonment.
(c) The penalty provided by this section is not an exclusive
penalty, and does not affect any other penalty, relief, or remedy
provided by law.
SEC. 22. Section 11023 of the Business and Professions
Code is amended to read:
11023. Any person who violates Section 11010, 11010.1, 11010.8,
11013.1, 11013.2, 11013.4, 11018.2, 11018.7, 11018.9, 11018.10,
11018.11, 11019, or 11022 is guilty of a public offense punishable by
a fine not exceeding ten thousand dollars ($10,000) or by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code , or in a
county jail not exceeding one year, or by both that fine and
imprisonment.
SEC. 23. Section 11286 of the Business and Professions
Code is amended to read:
11286. (a) It shall be unlawful for any person to make, issue,
publish, deliver, or transfer as true and genuine any public report
that is forged, altered, false, or counterfeit, knowing it to be
forged, altered, false, or counterfeit or to cause to be made or
participate in the making, issuance, delivery, transfer, or
publication of a public report with knowledge that it is forged,
altered, false, or counterfeit.
(b) Any person who violates subdivision (a) is guilty of a public
offense punishable by a fine not exceeding ten thousand dollars
($10,000), by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
, by imprisonment in the a county
jail not exceeding one year, or by both the fine and imprisonment.
(c) The penalty provided by this section is not an exclusive
penalty, and does not affect any other penalty, relief, or remedy
provided by law.
SEC. 24. Section 11287 of the Business and Professions
Code is amended to read:
11287. Any person who violates Section 11226, 11227, 11234,
11244, 11245, or 11283, is guilty of a public offense punishable by a
fine not to exceed ten thousand dollars ($10,000), by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code or in a county jail not
exceeding one year, or by both the fine and imprisonment.
SEC. 25. Section 11320 of the Business and Professions
Code is amended to read:
11320. No person shall engage in federally related real estate
appraisal activity governed by this part or assume or use the title
of or any title designation or abbreviation as a licensed appraiser
in this state without first obtaining a license as defined in Section
11302. Any person who willfully violates this provision is guilty of
a public offense punishable by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170 of
the Penal Code , or in a county jail for not more than one
year, or by a fine not exceeding ten thousand dollars ($10,000), or
by both the imprisonment and fine. The possession of a license issued
pursuant to this part does not preempt the application of other
statutes including the requirement for specialized training or
licensure pursuant to Article 3 (commencing with Section 750) of
Chapter 2.5 of Division 1 of the Public Resources Code.
SEC. 26. Section 16755 of the Business and Professions
Code is amended to read:
16755. (a) Any violation of this chapter is a conspiracy against
trade, and any person who engages in any such conspiracy or takes
part therein, or aids or advises in its commission, or who as
principal, manager, director, agent, servant or employee, or in any
other capacity, knowingly carries out any of the stipulations,
purposes, prices, rates, or furnishes any information to assist in
carrying out such purposes, or orders thereunder or in pursuance
thereof, is punishable, as follows:
(1) If the violator is a corporation, by a fine of not more than
one million dollars ($1,000,000) or the applicable amount under
paragraph (3), whichever is greater.
(2) If the violator is an individual, by imprisonment in
a state prison pursuant to subdivision (h) of Section
1170 of the Penal Code for one, two, or three years, by
imprisonment for not more than one year in a county jail, by a fine
of not more than the greater of two hundred fifty thousand dollars
($250,000), a fine of the applicable amount under paragraph (3), or
by both a fine and imprisonment.
(3) If any person derives pecuniary gain from a violation of this
chapter, or the violation results in pecuniary loss to a person other
than the violator, the violator may be fined not more than an amount
equal to the amount of the gross gain multiplied by two or an amount
equal to the amount of the gross loss multiplied by two, whichever
is applicable.
(b) Any action pursuant to this section may be commenced at any
time within four years after the commission of the last act
comprising a part of any violation. No cause of action barred under
existing law on the effective date of the amendment of this section
at the 1977-78 Regular Session of the Legislature shall be revived by
such amendment.
(c) Subject to Section 13521 of the Penal Code, all moneys
received by any court in payment of any fine or civil penalty imposed
pursuant to this section shall, as soon as practicable after receipt
thereof, be deposited with the county treasurer of the county in
which the court is situated. Amounts so deposited shall be paid as
soon as practicable as follows: 100 percent to the Treasurer by
warrant of the county auditor drawn upon the requisition of the clerk
or judge of said court to be deposited in the State Treasury on
order of the Controller if the moneys received resulted from an
action initiated and prosecuted by the Attorney General. If the
action was initiated and prosecuted by a district attorney then 100
percent shall be paid as soon as practicable to the treasurer of the
county in which the prosecution is conducted. If the action was
initiated and prosecuted jointly by the Attorney General and a
district attorney or jointly by more than one district attorney, such
amounts shall be paid to the State Treasurer and to the treasurer(s)
of the county or counties participating in the prosecution in a
proportion agreed upon by the agencies jointly prosecuting such case
and as approved by the court.
SEC. 27. Section 17511.9 of the Business and
Professions Code is amended to read:
17511.9. Except as provided in Section 17511.8, any person,
including, but not limited to, the seller, a salesperson, agent or
representative of the seller, or an independent contractor, who
willfully violates any provision of this article or who directly or
indirectly employs any device, scheme, or artifice to deceive in
connection with the offer or sale by any telephonic seller, or who
willfully, directly, or indirectly, engages in any act, practice, or
course of business which operates or would operate as a fraud or
deceit upon any person in connection with a sale by any telephonic
seller shall, upon conviction, be punished as follows:
(a) By a fine not exceeding ten thousand dollars ($10,000) for
each unlawful transaction.
(b) By imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code ,
or by imprisonment in the a county
jail for not more than one year.
(c) By both the fine and imprisonment specified in subdivisions
(a) and (b).
SEC. 28. Section 17550.19 of the Business and
Professions Code is amended to read:
17550.19. In addition to any civil penalties provided in this
division, violation of this article is punishable as follows:
(a) As a misdemeanor by a fine of not more than ten thousand
dollars ($10,000), by imprisonment in a county jail for not more than
one year, or by both that fine and imprisonment for each violation.
(b) In addition, any violation of Section 17550.14 or subdivision
(b) or (c) of Section 17550.15 where money or real or personal
property received or obtained by a seller of travel for
transportation or travel services from any and all persons aggregates
two thousand three hundred fifty dollars ($2,350) or more in any
consecutive 12-month period, or the payment or payments by or on
behalf of any one passenger exceeds in the aggregate nine hundred
fifty dollars ($950) in any 12-month period, is punishable either as
a misdemeanor or as a felony by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170 of
the Penal Code for 16 months, or two or three years, by a fine
of not more than twenty-five thousand dollars ($25,000), or by both
that fine and imprisonment for each violation.
(c) In addition, any intentional use for any purpose of a false
seller of travel registration number, with intent to defraud, by an
unregistered seller of travel is punishable as a misdemeanor or
felony as provided in this section.
(d) Any violation of Section 17550.15 shall be a misdemeanor and
shall be punished as provided in this section. Every act in violation
of Section 17550.15 may be prosecuted as a separate and distinct
violation and consecutive sentences may be imposed for each
violation.
(e) Sellers of travel shall also comply with Sections 17537,
17537.1, and 17537.2 of the Business and Professions Code and all
other applicable laws. This section shall not be construed to
preclude the applicability of any other provision of the criminal law
of this state that applies or may apply to any transaction.
SEC. 29. Section 22430 of the Business and Professions
Code is amended to read:
22430. (a) No deceptive identification document shall be
manufactured, sold, offered for sale, furnished, offered to be
furnished, transported, offered to be transported, or imported or
offered to be imported into this state unless there is diagonally
across the face of the document, in not less than 14-point type and
printed conspicuously on the document in permanent ink, the following
statement:
NOT A GOVERNMENT DOCUMENT
and, also printed conspicuously on the document, the name of the
manufacturer.
(b) As used in this section, "deceptive identification document"
means any document not issued by a governmental agency of this state,
another state, or the federal government, which purports to be, or
which might deceive an ordinary reasonable person into believing that
it is, a document issued by such an agency, including, but not
limited to, a driver's license, identification card, birth
certificate, passport, or social security card.
(c) Any person who violates or proposes to violate this section
may be enjoined by any court of competent jurisdiction. Actions for
injunction under this section may be prosecuted by the Attorney
General or any district attorney in this state in the name of the
people of the State of California upon their own complaint or upon
the complaint of any person.
(d) Any person who violates the provisions of subdivision (a) who
knows or reasonably should know that the deceptive identification
document will be used for fraudulent purposes is guilty of a crime,
and upon conviction therefor, shall be punished by imprisonment in
the county jail not to exceed one year, or by imprisonment
in the state prison pursuant to subdivision (h) of
Section 1170 of the Penal Code .
SEC. 30. Section 25618 of the Business and Professions
Code is amended to read:
25618. Every person convicted of a felony for a violation of any
of the provisions of this division for which another punishment is
not specifically provided for in this division shall be punished by a
fine of not more than ten thousand dollars ($10,000), imprisonment
in a county jail for not more than one year, imprisonment in
the state prison pursuant to subdivision (h) of
Section 1170 of the Penal Code , or by both that fine and
imprisonment.
SEC. 31. Section 892 of the Civil Code is amended to
read:
892. (a) Any person who engages in multiple acts of rent skimming
is subject to criminal prosecution. Each act of rent skimming
comprising the multiple acts of rent skimming shall be separately
alleged. A person found guilty of five acts shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code or by
imprisonment in the a county jail for
not more than one year, by a fine of not more than ten thousand
dollars ($10,000), or by both that fine and imprisonment. A person
found guilty of additional acts shall be separately punished for each
additional act by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code or by imprisonment in the a
county jail for not more than one year, by a fine of not more
than ten thousand dollars ($10,000), or by both that fine and
imprisonment.
(b) If a defendant has been once previously convicted of a
violation of subdivision (a), any subsequent knowing and willful act
of rent skimming shall be punishable by imprisonment in the
state prison pursuant to subdivision (h) of Section
1170 of the Penal Code or by imprisonment in the
a county jail for not more than one year, or by
a fine of not more than ten thousand dollars ($10,000), or by both
that fine and imprisonment.
(c) A
prosecution for a violation of this section shall be commenced within
three years after the date of the acquisition of the last parcel of
property that was the subject of the conduct for which the defendant
is prosecuted.
(d) The penalties under this section are in addition to any other
remedies or penalties provided by law for the conduct proscribed by
this section.
SEC. 32. Section 1695.8 of the Civil Code is amended to
read:
1695.8. Any equity purchaser who violates any subdivision of
Section 1695.6 or who engages in any practice which would operate as
a fraud or deceit upon an equity seller shall, upon conviction, be
punished by a fine of not more than twenty-five thousand dollars
($25,000), by imprisonment in the county jail for not more than one
year, or in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code , or by both
that fine and imprisonment for each violation.
SEC. 33. Section 1812.125 of the Civil Code is amended
to read:
1812.125. (a) Any person who violates subdivision (b) or (c) of
Section 1812.116 shall, upon conviction, be fined not more than ten
thousand dollars ($10,000) for each violation, or imprisoned
in the state prison pursuant to subdivision (h) of
Section 1170 of the Penal Code , or imprisoned in a
county jail for not more than one year, or be punished by both
such that fine and imprisonment.
(b) Any person who violates any other provision of this title
shall be guilty of a misdemeanor.
SEC. 34. Section 1812.217 of the Civil Code is amended
to read:
1812.217. Any person, including, but not limited to, the seller,
a salesman, agent or representative of the seller or an independent
contractor who attempts to sell or lease or sells or leases a seller
assisted marketing plan, who willfully violates any provision of this
title or employs, directly or indirectly, any device, scheme or
artifice to deceive in connection with the offer or sale of any
seller assisted marketing plan, or willfully engages, directly or
indirectly, in any act, practice or course of business which operates
or would operate as a fraud or deceit upon any person in connection
with the offer, purchase, lease or sale of any seller assisted
marketing plan shall, upon conviction, be fined not more than ten
thousand dollars ($10,000) for each unlawful transaction, or
imprisoned in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code , or
imprisoned in a county jail for not more than one year, or
be punished by both such that fine and
imprisonment.
SEC. 35. Section 2945.7 of the Civil Code is amended to
read:
2945.7. Any person who commits any violation described in Section
2945.4 shall be punished by a fine of not more than ten thousand
dollars ($10,000), by imprisonment in the county jail for not more
than one year, or in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code ,
or by both that fine and imprisonment for each violation. These
penalties are cumulative to any other remedies or penalties provided
by law.
SEC. 36. Section 2985.2 of the Civil Code is amended to
read:
2985.2. Any person, or the assignee of such person, who sells a
parcel of land under a sales contract which is not recorded and who
thereafter causes an encumbrance or encumbrances not consented to in
writing by the parties upon such property in an amount which,
together with existing encumbrances thereon exceeds the amount then
due under the contract, or under which the aggregate amount of any
periodic payments exceeds the periodic payments due on the contract,
excluding any pro rata amount for insurance and taxes, shall be
guilty of a public offense punishable by a fine not exceeding ten
thousand dollars ($10,000), or by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170 of
the Penal Code , or in the a
county jail not exceeding one year, or by both such
that fine and imprisonment.
SEC. 37. Section 2985.3 of the Civil Code is amended to
read:
2985.3. Every seller of improved or unimproved real property
under a real property sales contract, or his assignee, who knowingly
receives an installment payment from the buyer under a real property
sales contract at a time when there is then due any payment by the
seller, or his assignee, on an obligation secured by an encumbrance
on the property subject to the real property sales contract, and who
appropriates such payment received from the buyer to a use other than
payment of the amount then due on the seller's or assignee's
obligation, except to the extent the payment received from the buyer
exceeds the amount due from the seller or assignee, is guilty of a
public offense punishable by a fine not exceeding ten thousand
dollars ($10,000), or by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code , or in the a county
jail not exceeding one year, or by both such
that fine and imprisonment.
SEC. 38. Section 2255 of the Corporations Code is
amended to read:
2255. (a) Every director, officer or agent of any corporation,
domestic or foreign, who knowingly receives or acquires possession of
any property of the corporation, otherwise than in payment of a just
demand, and, with intent to defraud, omits to make, or to cause or
direct to be made, a full and true entry thereof in the books or
accounts of the corporation is guilty of a public offense.
(b) Every director, officer, agent or shareholder of any
corporation, domestic or foreign, who, with intent to defraud,
destroys, alters, mutilates or falsifies any of the books, papers,
writings or securities belonging to the corporation or makes or
concurs in omitting to make any material entry in any book of
accounts or other record or document kept by the corporation is
guilty of a public offense.
(c) Each public offense specified in this section is punishable by
imprisonment in a state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code , or by
imprisonment in a county jail for not exceeding
one year, or a fine not exceeding one thousand dollars ($1,000), or
by both such that fine and
imprisonment.
SEC. 39. Section 2256 of the Corporations Code is
amended to read:
2256. Every officer, agent or clerk of any corporation, domestic
or foreign, or any person proposing to organize such a corporation or
to increase the capital stock of any such corporation, who knowingly
exhibits any false, forged or altered book, paper, voucher, security
or other instrument of evidence to any public officer or board
authorized by law to examine the organization of such corporation or
to investigate its affairs or to allow an increase of its capital,
with intent to deceive such officer or board in respect thereto, is
punishable by imprisonment in a state prison
pursuant to subdivision (h) of Section 1170 of the Penal
Code , or by imprisonment in a county jail for not exceeding
one year.
SEC. 40. Section 6811 of the Corporations Code is
amended to read:
6811. Any director of any corporation who concurs in any vote or
act of the directors of the corporation or any of them, knowingly and
with dishonest or fraudulent purpose, to make any distribution with
the design of defrauding creditors, members, or the corporation, is
guilty of a crime. Each such crime is punishable by imprisonment
in a state prison pursuant to subdivision (h
) of Section 1170 of the Penal Code or by a fine of
not more than one thousand dollars ($1,000) or imprisonment in a
county jail for not more than one year, or both such
that fine and imprisonment.
SEC. 41. Section 6814 of the Corporations Code is
amended to read:
6814. Every director, officer or agent of any corporation, or any
person proposing to organize such a corporation, who knowingly
exhibits any false, forged or altered book, paper, voucher, security
or other instrument of evidence to any public officer or board
authorized by law to examine the organization of such corporation or
to investigate its affairs, with intent to deceive such officer or
board in respect thereto, is punishable by imprisonment in a
state prison pursuant to subdivision (h) of Section
1170 of the Penal Code , or by imprisonment in a county jail
for not more than one year.
SEC. 42. Section 8812 of the Corporations Code is
amended to read:
8812. Any director of any corporation who concurs in any vote or
act of the directors of the corporation or any of them, knowingly and
with dishonest or fraudulent purpose, to make any distribution of
assets, except in the case and in the manner allowed by this part,
either with the design of defrauding creditors or members or of
giving a false appearance to the value of the membership and thereby
defrauding purchasers is guilty of a crime. Each such crime is
punishable by imprisonment in a state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code ,
or by a fine of not more than one thousand dollars ($1,000) or
imprisonment in a county jail for not more than one year,
or by both such that fine and
imprisonment.
SEC. 43. Section 8815 of the Corporations Code is
amended to read:
8815. Every director, officer or agent of any corporation, or any
person proposing to organize such a corporation who knowingly
exhibits any false, forged or altered book, paper, voucher, security
or other instrument of evidence to any public officer or board
authorized by law to examine the organization of such corporation or
to investigate its affairs, with intent to deceive such officer or
board in respect thereto, is punishable by imprisonment in a
state prison pursuant to subdivision (h) of Section
1170 of the Penal Code , or by imprisonment in a county jail
for not exceeding one year.
SEC. 44. Section 12672 of the Corporations Code is
amended to read:
12672. Any director of any corporation who concurs in any vote or
act of the directors of the corporation or any of them, knowingly
and with dishonest or fraudulent purpose, to make any distribution of
assets, except in the case and in the manner allowed by this part,
either with the design of defrauding creditors or members or of
giving a false appearance to the value of the membership and thereby
defrauding purchasers is guilty of a crime. Each such crime is
punishable by imprisonment in a state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code ,
or by a fine of not more than one thousand dollars ($1,000) ,
or imprisonment in a county jail for not more than
one year, or by both such that fine and
imprisonment.
SEC. 45. Section 12675 of the Corporations Code is
amended to read:
12675. Every director, officer or agent of any corporation, or
any person proposing to organize such a corporation who knowingly
exhibits any false, forged, or altered book, paper, voucher,
security, or other instrument of evidence to any public officer or
board authorized by law to examine the organization of such
corporation or to investigate its affairs, with intent to deceive
such officer or board in respect thereto, is punishable by
imprisonment in a state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code , or by
imprisonment in a county jail for not exceeding one year.
SEC. 46. Section 22002 of the Corporations Code is
amended to read:
22002. (a) Every director, officer, or agent of any joint stock
association, who knowingly receives or possesses himself of any
property of the association, otherwise than in payment of a just
demand, and, with intent to defraud, omits to make, or to cause or
direct to be made, a full and true entry thereof in the books or
accounts of the association, is guilty of a public offense.
(b) Every director, officer, agent, or member of any joint stock
association who, with intent to defraud, destroys, alters, mutilates,
or falsifies any of the books, papers, writings, or securities
belonging to the association, or makes or concurs in making any false
entries, or omits or concurs in omitting to make any material entry
in any book of accounts or other record or document kept by the
association, is guilty of a public offense.
(c) Each public offense specified in this section is punishable by
imprisonment in a state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code , or by
imprisonment in a county jail not exceeding one year, or a fine not
exceeding one thousand dollars ($1,000), or by both such
that fine and imprisonment.
SEC. 47. Section 25540 of the Corporations Code is
amended to read:
25540. (a) Except as provided for in subdivision (b), any person
who willfully violates any provision of this division, or who
willfully violates any rule or order under this division, shall upon
conviction be fined not more than one million dollars ($1,000,000),
or imprisoned in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code , or in a
county jail for not more than one year, or be punished by both that
fine and imprisonment; but no person may be imprisoned for the
violation of any rule or order if he or she proves that he or she had
no knowledge of the rule or order.
(b) Any person who willfully violates Section 25400, 25401, or
25402, or who willfully violates any rule or order under this
division adopted pursuant to those provisions, shall upon conviction
be fined not more than ten million dollars ($10,000,000), or
imprisoned in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code for two,
three, or five years, or be punished by both that fine and
imprisonment.
(c) Any issuer, as defined in Section 2 of the Sarbanes-Oxley Act
of 2002 (Public Law 107-204), who willfully violates Section 25400,
25401, or 25402, or who willfully violates any rule or order under
this division adopted pursuant to those provisions, shall upon
conviction be fined not more than twenty-five million dollars
($25,000,000), or imprisoned in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
for two, three, or five years, or be punished by both that fine
and imprisonment.
SEC. 48. Section 25541 of the Corporations Code is
amended to read:
25541. (a) Any person who willfully employs, directly or
indirectly, any device, scheme, or artifice to defraud in connection
with the offer, purchase, or sale of any security or willfully
engages, directly or indirectly, in any act, practice, or course of
business which operates or would operate as a fraud or deceit upon
any person in connection with the offer, purchase, or sale of any
security shall upon conviction be fined not more than ten million
dollars ($10,000,000), or imprisoned in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code for two, three, or five years, or be punished by
both that fine and imprisonment.
(b) Any issuer, as defined in Section 2 of the Sarbanes-Oxley Act
of 2002 (Public Law 107-204), who willfully violates subdivision (a)
shall upon conviction be fined not more than twenty-five million
dollars ($25,000,000), or imprisoned in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code for two, three, or five years, or be punished by
both that fine and imprisonment.
SEC. 49. Section 27202 of the Corporations Code is
amended to read:
27202. Every individual who willfully violates Section 27101 is
guilty of a public offense punishable by a fine not exceeding two
hundred fifty thousand dollars ($250,000), or by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code for two, three, or four
years, or by both fine and imprisonment.
SEC. 50. Section 28880 of the Corporations Code is
amended to read:
28880. Any person who willfully violates any provision under this
chapter shall upon conviction be fined not more than two hundred
fifty thousand dollars ($250,000) or be imprisoned in the
state prison pursuant to subdivision (h) of Section
1170 of the Penal Code , or in a county jail for not more than
one year, or be punished by both that fine and imprisonment.
SEC. 51. Section 29102 of the Corporations Code is
amended to read:
29102. The felonies specified in this chapter are punishable, for
each offense, if the offender is a corporation, by a fine of not
less than one thousand dollars ($1,000) nor more than ten thousand
dollars ($10,000) or, if the offender is not a corporation, by
imprisonment in a state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code, or by a fine
of not less than one thousand dollars ($1,000) nor more than ten
thousand dollars ($10,000), or by both such
that imprisonment and fine.
SEC. 52. Section 29550 of the Corporations Code is
amended to read:
29550. (a) Except as provided in subdivision (b), any person who
willfully violates any provision of this law, or who willfully
violates any rule or order under this law, shall upon conviction be
fined not more than two hundred fifty thousand dollars ($250,000) or
imprisoned in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code, or in a
county jail for not more than one year, or be punished by both a fine
and imprisonment; but no person may be imprisoned for the violation
of any rule or order if that person proves that he or she had no
knowledge of the rule or order.
(b) Any person who willfully violates Section 29536 shall upon
conviction be fined not more than two hundred fifty thousand dollars
($250,000), or imprisoned in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
for two, three, or four years, or be punished by both a
that fine and imprisonment.
(c) One-half of the fines collected under this section shall be
paid to the State Corporations Fund to be used for the support of
this division. The remainder of the fines collected under this
section shall be paid to the state or local agency which brought the
criminal prosecution.
SEC. 53. Section 31410 of the Corporations Code is
amended to read:
31410. Any person who willfully violates any provision of this
law, or who willfully violates any rule or order under this law,
shall upon conviction be fined not more than one hundred thousand
dollars ($100,000) or imprisoned in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code , or in a county jail for not more than one year, or
be punished by both that fine and imprisonment; but no person may be
imprisoned for the violation of any rule or order if he or she proves
that he or she had no knowledge of the rule or order.
SEC. 54. Section 31411 of the Corporations Code is
amended to read:
31411. Any person who willfully employs, directly or indirectly,
any device, scheme, or artifice to defraud in connection with the
offer or sale of any franchise or willfully engages, directly or
indirectly, in any act, practice, or course of business which
operates or would operate as a fraud or deceit upon any person in
connection with the offer, purchase, or sale of any franchise shall
upon conviction be fined not more than one hundred thousand dollars
($100,000) or imprisoned in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code ,
or in a county jail for not more than one year, or be punished by
both that fine and imprisonment.
SEC. 55. Section 35301 of the Corporations Code is
amended to read:
35301. Any officer or member of the board of directors, board of
trustees, executive committee, or other similar governing body of a
subversive organization who violates any provision of this title, or
permits or acquiesces in the violation of any provision of this title
by the organization is guilty of a felony punishable by fine of not
less than five hundred dollars ($500) nor more than ten thousand
dollars ($10,000), or by imprisonment in a state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code , or by both that fine and
imprisonment .
SEC. 56. Section 7054 of the Education Code is amended
to read:
7054. (a) No school district or community college district funds,
services, supplies, or equipment shall be used for the purpose of
urging the support or defeat of any ballot measure or candidate,
including, but not limited to, any candidate for election to the
governing board of the district.
(b) Nothing in this section shall prohibit the use of any of the
public resources described in subdivision (a) to provide information
to the public about the possible effects of any bond issue or other
ballot measure if both of the following conditions are met:
(1) The informational activities are otherwise authorized by the
Constitution or laws of this state.
(2) The information provided constitutes a fair and impartial
presentation of relevant facts to aid the electorate in reaching an
informed judgment regarding the bond issue or ballot measure.
(c) A violation of this section shall be a misdemeanor or felony
punishable by imprisonment in the a
county jail not exceeding one year or by a fine not exceeding one
thousand dollars ($1,000), or by both, or imprisonment in a
state prison pursuant to subdivision (h) of Section
1170 of the Penal Code for 16 months, or two or three years.
SEC. 57. Section 18002 of the Elections Code is amended
to read:
18002. Every person charged with the performance of any duty
under any law of this state relating to elections, who willfully
neglects or refuses to perform it, or who, in his or her official
capacity, knowingly and fraudulently acts in contravention or
violation of any of those laws, is, unless a different punishment is
prescribed by this code, punishable by fine not exceeding one
thousand dollars ($1,000) or by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170 of
the Penal Code for 16 months or two or three years, or by both
that fine and imprisonment .
SEC. 58. Section 18100 of the Elections Code is amended
to read:
18100. (a) Every person who willfully causes, procures, or allows
himself or herself or any other person to be registered as a voter,
knowing that he or she or that other person is not entitled to
registration, is punishable by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170 of
the Penal Code for 16 months or two or three years, or in a
county jail for not more than one year.
(b) Every person who knowingly and willfully signs, or causes or
procures the signing of, an affidavit of registration of a
nonexistent person, and who mails or delivers, or causes or procures
the mailing or delivery of, that affidavit to a county elections
official is guilty of a crime punishable by imprisonment in
the state prison pursuant to subdivision (h) of
Section 1170 of the Penal Code for 16 months or two or three
years, or in a county jail for not more than one year. For purposes
of this subdivision, "nonexistent person" includes, but is not
limited to, deceased persons, animals, and inanimate objects.
SEC. 59. Section 18101 of the Elections Code is amended
to read:
18101. Every person who knowingly and willfully completes, or
causes or procures the completion of, in whole or in part, an
affidavit of registration or a voter registration card, with the
intent to cause the registration or reregistration as a voter of a
fictitious person or of any person who has not requested registration
or reregistration as a voter, is guilty of a crime punishable by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code for 16 months
or two or three years, or in a county jail for not more than one
year.
SEC. 60. Section 18102 of the Elections Code is amended
to read:
18102. Any deputy elections official or registration elections
official who knowingly registers a nonexistent person, knowingly
registers a person under a false name or address, or knowingly
registers a person who is ineligible to register is punishable by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code for 16 months
or two or three years , or in a county jail
for not more than one year.
SEC. 61. Section 18106 of the Elections Code is amended
to read:
18106. Every person is punishable by imprisonment in the
state prison pursuant to subdivision (h) of Section
1170 of the Penal Code for 16 months or two or three years
, or in the a county jail for
not more than one year who, without the specific consent of the
affiant, willfully and with the intent to affect the affiant's voting
rights, causes, procures, or allows the completion, alteration, or
defacement of the affiant's party affiliation declaration contained
in an executed, or partially executed, affidavit of registration
pursuant to subdivision (h) of Section 2150 and Section 2151.
This section shall not apply to a county elections official
carrying out his or her official duties.
SEC. 62. Section 18200 of the Elections Code is amended
to read:
18200. Every person who subscribes to any nomination petition a
fictitious name, or who intentionally subscribes thereto the name of
another, or who causes another to subscribe a fictitious name to a
nomination petition, is guilty of a felony and is punishable by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code for 16 months
or two or three years.
SEC. 63. Section 18201 of the Elections Code is amended
to read:
18201. Any person who falsely makes or fraudulently defaces or
destroys all or any part of a nomination paper, is punishable by a
fine not exceeding one thousand dollars ($1,000) or by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code for 16 months or two or
three years or by both the that fine
and imprisonment.
SEC. 64. Section 18203 of the Elections Code is amended
to read:
18203. Any person who files or submits for filing a nomination
paper or declaration of candidacy knowing that it or any part of it
has been made falsely is punishable by a fine not exceeding one
thousand dollars ($1,000) or by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170 of
the Penal Code for 16 months or two or three years or by both
the that fine and imprisonment.
SEC. 65. Section 18204 of the Elections Code is amended
to read:
18204. Any person who willfully suppresses all or any part of a
nomination paper or declaration of candidacy either before or after
filing is punishable by a fine not exceeding one thousand dollars
($1,000) or by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
for 16 months or two or three years or by both the
that fine and imprisonment.
SEC. 66. Section 18205 of the Elections Code is amended
to read:
18205. A person shall not directly or through any other person
advance, pay, solicit, or receive or cause to be advanced, paid,
solicited, or received, any money or other valuable consideration to
or for the use of any person in order to induce a person not to
become or to withdraw as a candidate for public office. Violation of
this section shall be punishable by imprisonment in the
state prison pursuant to subdivision (h) of Section
1170 of the Penal Code for 16 months or two or three years.
SEC. 67. Section 18310 of the Elections Code is amended
to read:
18310. A person shall not directly or through any other person
pay or receive any money or other valuable consideration before,
during, or after an election in order to reward any person or as a
reward for voting for or against or agreeing to vote for or against
the election or endorsement of any other person as the nominee or
candidate of any caucus, convention, organized assemblage of
delegates, or other body representing or claiming to represent a
political party, candidate, or principle, or any club, society, or
association. A violation of this section shall be punishable by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code for
16 months or two or three years.
SEC. 68. Section 18311 of the Elections Code is amended
to read:
18311. Every person is punishable by imprisonment in the
state prison pursuant to subdivision (h) of Section
1170 of the Penal Code for 16 months or two or three years who:
(a) Gives or offers a bribe to any officer or member of any
political convention, committee, or political gathering of any kind,
held for the purpose of nominating candidates for offices of honor,
trust, or profit in this state, with intent to influence the person
to whom the bribe is given or offered to be more favorable to one
candidate than another.
(b) Being a member of any of the bodies mentioned in this section
receives or offers to receive any bribe described in subdivision (a).
SEC. 69. Section 18400 of the Elections Code is amended
to read:
18400. A person who makes, uses, keeps, or furnishes to others,
paper or cards watermarked or overprinted in imitation of ballot
paper or ballot cards is punishable by a fine not exceeding one
thousand dollars ($1,000), or by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170 of
the Penal Code for 16 months, two or three years, or by both
the that fine and imprisonment.
SEC. 70. Section 18403 of the Elections Code is amended
to read:
18403. Any person other than an elections official or a member of
the precinct board who receives a voted ballot from a voter or who
examines or solicits the voter to show his or her voted ballot is
punishable by a fine not exceeding ten thousand dollars ($10,000), by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code for 16
months or two or three years , or in a county jail not
exceeding one year, or by both the that
fine and imprisonment. This section shall not apply to persons
returning a vote by mail ballot pursuant to Sections 3017 and 3021 or
persons assisting a voter pursuant to Section 14282.
SEC. 71. Section 18502 of the Elections Code is amended
to read:
18502. Any person who in any manner interferes with the officers
holding an election or conducting a canvass, or with the voters
lawfully exercising their rights of voting at an election, as to
prevent the election or canvass from being fairly held and lawfully
conducted, is punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code for 16 months or two or three years.
SEC. 72. Section 18520 of the Elections Code is amended
to read:
18520. A person shall not directly or through another person
give, offer, or promise any office, place, or employment, or promise
to procure or endeavor to procure any office, place, or employment to
or for any voter, or to or for any other person, in order to induce
that voter at any election to:
(a) Refrain from voting.
(b) Vote for any particular person.
(c) Refrain from voting for any particular person.
A violation of any of the provisions of this section shall be
punishable by imprisonment in the state prison
pursuant to subdivisio n (h) of Section 1170 of the
Penal Code for 16 months or two or three years.
SEC. 73. Section 18521 of the Elections Code is amended
to read:
18521. A person shall not directly or through any other person
receive, agree, or contract for, before, during or after an election,
any money, gift, loan, or other valuable consideration, office,
place, or employment for himself or any other person because he or
any other person:
(a) Voted, agreed to vote, refrained from voting, or agreed to
refrain from voting for any particular person or measure.
(b) Remained away from the polls.
(c) Refrained or agreed to refrain from voting.
(d) Induced any other person to:
(1) Remain away from the polls.
(2) Refrain from voting.
(3) Vote or refrain from voting for any particular person or
measure.
Any person violating this section is punishable by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code for 16 months or two or
three years.
SEC. 74. Section 18522 of the Elections Code is amended
to read:
18522. Neither a person nor a controlled committee shall directly
or through any other person or controlled committee pay, lend, or
contribute, or offer or promise to pay, lend, or contribute, any
money or other valuable consideration to or for any voter or to or
for any other person to:
(a) Induce any voter to:
(1) Refrain from voting at any election.
(2) Vote or refrain from voting at an election for any particular
person or measure.
(3) Remain away from the polls at an election.
(b) Reward any voter for having:
(1) Refrained from voting.
(2) Voted for any particular person or measure.
(3) Refrained from voting for any particular person or measure.
(4) Remained away from the polls at an election.
Any person or candidate violating this section is punishable by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code for 16 months
or two or three years.
SEC. 75. Section 18523 of the Elections Code is amended
to read:
18523. A person shall not directly or through any other person
advance or pay, or cause to be paid, any money or other valuable
thing to or for the use of any other person, with the intent that it,
or any part thereof, shall be used in bribery at any election, or
knowingly pay or cause to be paid any money or other valuable thing
to any person in discharge or repayment of any money, wholly or in
part, expended in bribery at any election.
Any person violating this section is punishable by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code for 16 months or two or
three years.
SEC. 76. Section 18524 of the Elections Code is amended
to read:
18524. A person shall not directly or through any other person
advance or pay, or cause to be paid, any money or other valuable
thing to or for the use of any other person, with the intent that it,
or any part thereof, will be used for boarding, lodging, or
maintaining a person at any place or domicile in any election
precinct, ward, or district, with intent to secure the vote of that
person or to induce that person to vote for any particular person or
measure.
Any person violating this section is punishable by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code for 16 months or two or
three years.
SEC. 77. Section 18540 of the Elections Code is amended
to read:
18540. (a) Every person who makes use of or threatens to make use
of any force, violence, or tactic of coercion or intimidation, to
induce or compel any other person to vote or refrain from voting at
any election or to vote or refrain from voting for any particular
person or measure at any election, or because any person voted or
refrained from voting at any election or voted or refrained from
voting for any particular person or measure at any election is guilty
of a felony punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code for 16 months or two or three years.
(b) Every person who hires or arranges for any other person to
make use of or threaten to make use of any force, violence, or tactic
of coercion or intimidation, to induce or compel any other person to
vote or refrain from voting at any election or to vote or refrain
from voting for any particular person or measure at any election, or
because any person voted or refrained from voting at any election or
voted or refrained from voting for any particular person or measure
at any election is guilty of a felony punishable by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code for 16 months or two or
three years.
SEC. 78. Section 18544 of the Elections Code is amended
to read:
18544. (a) Any person in possession of a firearm or any uniformed
peace officer, private guard, or security personnel or any person
who is wearing a uniform of a peace officer, guard, or security
personnel, who is stationed in the immediate vicinity of, or posted
at, a polling place without written authorization of the appropriate
city or county elections official is punishable by a fine not
exceeding ten thousand dollars ($10,000), by imprisonment in
the state prison pursuant to subdivision (h) of
Section 1170 of the Penal Code for 16 months or two or three
years , or in a county jail not exceeding one year, or by
both the that fine and imprisonment.
(b) This section shall not apply to any of the following:
(1) An unarmed uniformed guard or security personnel who is at the
polling place to cast his or her vote.
(2) A peace officer who is conducting official business in the
course of his or her public employment or who is at the polling place
to cast his or her vote.
(3) A private guard or security personnel hired or arranged for by
a city or county elections official.
(4) A private guard or security personnel hired or arranged for by
the owner or manager of the facility or property in which the
polling place is located if the guard or security personnel is not
hired or arranged solely for the day on which an election is held.
SEC. 79. Section 18545 of the Elections Code is amended
to read:
18545. Any person who hires or arranges for any other person in
possession of a firearm or any uniformed peace officer, private
guard, or security personnel or any person who is wearing a uniform
of a peace officer, guard, or security personnel, to be stationed in
the immediate vicinity of, or posted at, a polling place without
written authorization of the appropriate elections official is
punishable by a fine not exceeding ten thousand dollars ($10,000), by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code for 16
months or two or three years , or in a county jail not
exceeding one year, or by both the that
fine and imprisonment. This section shall not apply to the owner or
manager of the facility or property in which the polling place is
located if the private guard or security personnel is not hired or
arranged solely for the day on which the election is held.
SEC. 80. Section 18560 of the Elections Code is amended
to read:
18560. Every person is guilty of a crime punishable by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code for 16 months
or two or three years, or in a county jail not exceeding
one year, who:
(a) Not being entitled to vote at an election, fraudulently votes
or fraudulently attempts to vote at that election.
(b) Being entitled to vote at an election, votes more than once,
attempts to vote more than once, or knowingly hands in two or more
ballots folded together at that election.
(c) Impersonates or attempts to impersonate a voter at an
election.
SEC. 81. Section 18561 of the Elections Code is amended
to read:
18561. Every person is punishable by imprisonment in the
state prison pursuant to subdivision (h) of Section
1170 of the Penal Code for 16 months or two or three years who:
(a) Procures, assists, counsels, or advises another to give or
offer his vote at any election, knowing that the person is not
qualified to vote.
(b) Aids or abets in the commission of any of the offenses
mentioned in Section 18560.
SEC. 82. Section 18564 of the Elections Code is amended
to read:
18564. Any person is guilty of a felony, punishable by
imprisonment in a state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code for two,
three, or four years who, before or during an election:
(a) Tampers with, interferes with, or attempts to interfere with,
the correct operation of, or willfully damages in order to prevent
the use of, any voting machine, voting device, voting system, vote
tabulating device, or ballot tally software program source codes.
(b) Interferes or attempts to interfere with the secrecy of voting
or ballot tally software program source codes.
(c) Knowingly, and without authorization, makes or has in his or
her possession a key to a voting machine that has been adopted and
will be used in elections in this state.
(d) Willfully substitutes or attempts to substitute forged or
counterfeit ballot tally software program source codes.
SEC. 83. Section 18566 of the Elections Code is amended
to read:
18566. Every person is punishable by imprisonment in the
state prison pursuant to subdivision (h) of Section
1170 of the Penal Code for two, three, or four years who:
(a) Forges or counterfeits returns of an election purported to
have been held at a precinct where no election was in fact held.
(b) Willfully substitutes forged or counterfeit returns of
election in the place of true returns for a precinct where an
election was actually held.
SEC. 84. Section 18567 of the Elections Code is amended
to read:
18567. Every person who willfully adds to or subtracts from the
votes actually cast at an election, in any official or unofficial
returns, or who alters the returns, is punishable by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code for 16 months or two or
three years.
SEC. 85. Section 18568 of the Elections Code is amended
to read:
18568. Every person is punishable by a fine not exceeding one
thousand dollars ($1,000), or by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170 of
the Penal Code for 16 months or two or three years, or by both
the that fine and imprisonment, who:
(a) Aids in changing or destroying any poll list or official
ballot.
(b) Aids in wrongfully placing any ballots in the ballot container
or in taking any therefrom.
(c) Adds or attempts to add any ballots to those legally polled at
any election by fraudulently putting them into the ballot container,
either before or after the ballots therein have been counted.
(d) Adds to or mixes with, or attempts to add to or mix with, the
ballots polled, any other ballots, while they are being counted or
canvassed or at any other time, with intent to change the result of
the election, or allows another to do so, when in his or her power to
prevent it.
(e) Carries away or destroys, attempts to carry away or destroy,
or knowingly allows another to carry away or destroy, any poll list,
ballot container, or ballots lawfully polled or who willfully
detains, mutilates, or destroys any election returns.
(f) Removes any unvoted ballots from the polling place before the
completion of the ballot count.
SEC. 86. Section 18573 of the Elections Code is amended
to read:
18573. Every person is guilty of a felony punishable by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code for 16 months
or two or three years who furnishes any voter wishing to vote, who
cannot read, with a ballot, informing or giving that voter to
understand that it contains a name written or printed thereon
different from the name which is written or printed thereon, or
defrauds any voter at any election by deceiving and causing him or
her to vote for a different person for any office than he or she
intended or desired to vote for.
SEC. 87. Section 18575 of the Elections Code is amended
to read:
18575. Every person is guilty of a felony, and on conviction
shall be punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code for two, three or four years, who at any election:
(a) Without first having been appointed and qualified, acts as an
election officer.
(b) Not being an election officer, performs or discharges any of
the duties of an election officer in regard to the handling,
counting, or canvassing of any ballots.
SEC. 88. Section 18578 of the Elections Code is amended
to read:
18578. Any person who applies for, or who votes or attempts to
vote, a vote by mail ballot by fraudulently signing the name of a
fictitious person, or of a regularly qualified voter, or of a person
who is not qualified to vote, is guilty of a felony punishable by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code for 16 months
or two or three years, by a fine not exceeding one thousand dollars
($1,000), or by both the that fine and
imprisonment.
SEC. 89. Section 18611 of the Elections Code is amended
to read:
18611. Every person is punishable by a fine not exceeding five
thousand dollars ($5,000), or by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170 of
the Penal Code for 16 months or two or three years ,
or in a county jail not exceeding one year, or by both the
that fine and imprisonment, who circulates or
causes to be circulated any initiative, referendum, or recall
petition, knowing it to contain false, forged, or fictitious names.
SEC. 90. Section 18613 of the Elections Code is amended
to read:
18613. Every person who subscribes to any initiative, referendum,
or recall petition a fictitious name, or who subscribes thereto the
name of another, or who causes another to subscribe such a name to
that petition, is guilty of a felony and is punishable by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code for two,
three, or four years.
SEC. 91. Section 18614 of the Elections Code is amended
to read:
18614. Every person is punishable by a fine not exceeding five
thousand dollars ($5,000), or by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170 of
the Penal Code for 16 months or two or three years ,
or in a county jail not exceeding one year, or by both the
that fine and imprisonment, who files in the
office of the elections official or other officer designated by law
to receive the filing, any initiative, referendum, or recall petition
to which is attached, appended or subscribed any signature which the
person filing the petition knows to be false or fraudulent or not
the genuine signature of the person whose name it purports to be.
SEC. 92. Section 18620 of the Elections Code is amended
to read:
18620. Every person who seeks, solicits, bargains for, or obtains
any money, thing of value, or advantage of or from any person, firm,
or corporation for the purpose or represented purpose of
fraudulently inducing, persuading, or seeking the proponent or
proponents of any initiative or referendum measure or recall petition
to (a) abandon the measure or petition, (b) fail, neglect, or refuse
to file in the office of the elections official or other officer
designated by law, within the time required by law, the initiative or
referendum measure or recall petition after securing the number of
signatures required to qualify the measure or petition, (c) stop the
circulation of the initiative or referendum measure or recall
petition, or (d) perform any act that will prevent or aid in
preventing the initiative or referendum measure or recall petition
from qualifying as an initiative or referendum measure, or the recall
petition from resulting in a recall election, is punishable by a
fine not exceeding five thousand dollars ($5,000), or by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code for 16 months or two or
three years , or in a county jail not exceeding one year,
or by both the that fine and
imprisonment.
SEC. 93. Section 18621 of the Elections Code is amended
to read:
18621. Any proponent of an initiative or referendum measure or
recall petition who seeks, solicits, bargains for, or obtains any
money or thing of value of or from any person, firm, or corporation
for the purpose of abandoning the same or stopping the circulation of
petitions concerning the same, or failing or neglecting or refusing
to file the measure or petition in the office of the elections
official or other officer designated by law within the time required
by law after obtaining the number of signatures required under the
law to qualify the measure or petition, or performing any act that
will prevent or aid in preventing the initiative, referendum or
recall proposed from qualifying as an initiative or referendum
measure, or resulting in a recall election is punishable by a fine
not exceeding five thousand dollars ($5,000) or by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code for 16 months or two or
three years , or in a county jail not exceeding one year,
or by both the that fine and
imprisonment.
SEC. 94. Section 18640 of the Elections Code is amended
to read:
18640. Any person working for the proponent or proponents of an
initiative or referendum measure or recall petition who solicits
signatures to qualify the measure or petition and accepts any payment
therefor and who fails to surrender the measure or petition to the
proponents thereof for filing is punishable by a fine not exceeding
five thousand dollars ($5,000), or by imprisonment in the
state prison pursuant to subdivision (h) of Section
1170 of the Penal Code for 16 months or two or three years
, or in a county jail not exceeding one year, or by both
the that fine and imprisonment.
SEC. 95. Section 18660 of the Elections Code is amended
to read:
18660. Every person is punishable by a fine not exceeding five
thousand dollars ($5,000), or by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170 of
the Penal Code for 16 months or two or three years ,
or in a county jail not exceeding one year, or by both the
that fine and imprisonment, who makes any false
affidavit concerning any initiative, referendum, or recall petition
or the signatures appended thereto.
SEC. 96. Section 18661 of the Elections Code is amended
to read:
18661. Every public official or employee is punishable by a fine
not exceeding five thousand dollars ($5,000), or by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code for 16 months or two or
three years , or in a county jail not exceeding one year,
or by both the that fine and
imprisonment, who knowingly makes any false return, certification or
affidavit concerning any initiative, referendum, or recall petition
or the signatures appended thereto.
SEC. 97. Section 18680 of the Elections Code is amended
to read:
18680. Every person who is entrusted with money or things of
value for the purpose of promoting or defeating any initiative,
referendum, or recall petition or any measure that has qualified for
the ballot is a trustee of the money or things of value. If a person
wrongfully appropriates the money or things of value to any use or
purpose not in the due and lawful execution of the trust, the person
shall be punishable by a fine not exceeding
five thousand dollars ($5,000), or by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code for 16 months or two or
three years , or in a county jail not exceeding one year,
or by both the that fine and
imprisonment. The following expenses are within the due and lawful
execution of the trust:
(a) Securing signatures to initiative, referendum, or recall
petitions.
(b) Circulating initiative, referendum, or recall petitions.
(c) Holding and conducting public meetings.
(d) Printing and circulating prior to an election:
(1) Specimen ballots.
(2) Handbills.
(3) Cards.
(4) Other papers.
(e) Advertising.
(f) Postage.
(g) Expressage.
(h) Telegraphing.
(i) Telephoning.
(j) All salaries and expenses of:
(1) Campaign managers.
(2) Lecturers.
(3) Solicitors.
(4) Agents.
(5) All persons employed in transacting business at headquarters
or branch offices, if the business transacted is related to promoting
or defeating an initiative, referendum, or recall petition or any
measure which has qualified for the ballot.
(k) Maintaining headquarters and branch offices.
( l ) Renting of rooms for the transaction of the
business of an association.
(m) Attorney's fees and other costs in connection with litigation
where the litigation arises directly out of any of the following:
(1) Activities related to promoting or defeating an initiative,
referendum, or recall petition or any measure that has qualified for
the ballot.
(2) The enactment, by the initiative process, of any ordinance,
charter amendment, statute, or constitutional amendment.
(3) An election contest or recount.
(4) A violation of state or local campaign, disclosure, or
election laws.
The amendment of this section by adding subdivision (m) thereto,
made at the 1991-92 Regular Session of the Legislature, does not
constitute a change in, but is declaratory of, the existing law.
Expenses for food, clothing, shelter and other personal needs of
the trustee are not within the due and lawful execution of the trust.
However, expenses for travel and necessary accommodations for the
trustee are within the due and lawful execution of the trust, if the
travel and accommodations are related to promoting or defeating an
initiative, referendum, or recall petition or any measure that has
qualified for the ballot.
SEC. 98. Section 3510 of the Financial Code is amended
to read:
3510. It shall be unlawful for any director, officer, agent, or
employee of any corporation to use or to conspire to use the credit,
the funds, or the power of the corporation to fix or control the
price of any commodities, and any person violating this section shall
be punished by a fine of not less than two thousand dollars ($2,000)
nor more than ten thousand dollars ($10,000), imprisonment in a
county jail for not more than one year, imprisonment in the
state prison pursuant to subdivision (h) of Section
1170 of the Penal Code , or by both that fine and imprisonment,
in the discretion of the court.
SEC. 99. Section 3532 of the Financial Code is amended
to read:
3532. Whoever being connected in any capacity with any
corporation represents in any way that the State of California is
liable for the payment of any bond or other obligation, or the
interest thereon, issued or incurred by any corporation, or that the
State of California incurs any liability in respect of any act or
omission of the corporation, shall be punished by a fine of not more
than ten thousand dollars ($10,000) and by imprisonment in
the state prison pursuant to subdivision (h) of
Section 1170 of the Penal Code .
SEC. 100. Section 5300 of the Financial Code is amended
to read:
5300. Every person who willfully violates or willfully fails to
comply with any of the provisions of this division is guilty of a
public offense. Except where the offense is declared to be a felony
or a misdemeanor or a different punishment is prescribed, a person
convicted under this section shall be punished by a fine of not more
than ten thousand dollars ($10,000), or by imprisonment in the county
jail not exceeding one year or in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code , or by both that fine and imprisonment.
SEC. 101. Section 5302 of the Financial Code is amended
to read:
5302. (a) Whoever knowingly violates subdivision (a) or (b) of
Section 6525.5 shall be punished by a fine of not more than one
million dollars ($1,000,000) for each day the violation continues, by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code for 2, 3, or
4 years, or by both that fine and imprisonment.
(b) Any person who is subject to an order issued pursuant to
Section 8201 who knowingly violates the order, directly or
indirectly, shall be punished by a fine of not more than one million
dollars ($1,000,000) for each day violation continues, by
imprisonment in state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code for 2, 3, or
4 years, or by both that fine and imprisonment.
SEC. 102. Section 5303 of the Financial Code is amended
to read:
5303. Any officer, director, employee, or agent of any
association who (a) willfully makes or knowingly concurs in the
making or publishing of a false or untrue material entry in any book,
record, report, statement concerning the business or affairs of the
association, or statement of condition or in connection with any
transaction of the association, with intent to deceive any officer or
director thereof, or with intent to deceive any agency or examiner,
whether private or public, employed or lawfully appointed to examine
into the association's condition or to examine into any of the
association's affairs or transactions, or with intent to deceive any
public officer, office, or board to which the association is required
by law to report or that has authority by law to examine into the
association's affairs or transactions, (b) with like intent,
willfully omits to make a material new entry of any matter
particularly pertaining to the business, property, condition,
affairs, transactions, assets, or accounts of the association in any
appropriate book, record, report, or statement of the association,
which entry is required to be made by law or generally accepted
accounting principles applicable to a savings institution, or (c)
with like intent, willfully alters, abstracts, conceals, refuses to
allow to be inspected by the commissioner or the commissioner's
deputies or examiners, or destroys any books, records, reports, or
statements of the association made, written, or kept, or required to
be made, written, or kept by him or her or under his or her
direction, shall be punished by a fine of not more than one million
dollars ($1,000,000), by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code for two, three, or four years, or by both that fine
and imprisonment.
SEC. 103. Section 5304 of the Financial Code is amended
to read:
5304. (a) It is unlawful for any person to corruptly give, offer,
or promise anything of value to any other person, with intent to
influence or reward any institution-affiliated party in connection
with any business or transaction of a savings association.
(b) It is unlawful for any institution-affiliated party to
corruptly solicit or demand for the benefit of any person, or
corruptly accept or agree to accept, anything of value from any
person, intending to be influenced or rewarded in connection with any
business or transaction of the savings association.
(c) Any person who violates subdivision (a) or (b) shall be
punished by a fine of not more than one million dollars ($1,000,000)
or three times the value of the thing given, offered, promised,
solicited, demanded, accepted, or agreed to be accepted, whichever is
greater, by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
for 2, 3, or 4 years, or by both that fine and imprisonment. However,
if the value of the thing given, offered, promised, solicited,
demanded, accepted, or agreed to be accepted does not exceed one
thousand dollars ($1,000), the offense shall instead be punishable by
a fine of not more than one thousand dollars ($1,000), by
imprisonment in the a county jail for
not more than one year , or in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code , or by both that fine and imprisonment.
(d) This section does not apply to bona fide salary, wages, fees,
or other compensation paid, or expenses paid or reimbursed, in the
usual course of business or where the amount of money or monetary
worth of the thing of value is one hundred dollars ($100) or less.
SEC. 104. Section 5305 of the Financial Code is amended
to read:
5305. Any institution-affiliated party who abstracts or willfully
misapplies any of the money, funds, or property of the savings
association, or willfully misapplies its credit, is guilty of a
felony and shall be punished by a fine of not more than one million
dollars ($1,000,000), by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code for 2, 3, or 4 years, or by both that fine and
imprisonment. However, if the amount abstracted or willfully
misapplied does not exceed two hundred fifty dollars ($250), the
offense shall instead be punishable by a fine of not more than one
thousand dollars ($1,000), by imprisonment in the
a county jail for not more than one year , or
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code , or by both that fine
and imprisonment.
SEC. 105. Section 5307 of the Financial Code is amended
to read:
5307. Whoever willfully and knowingly makes, issues, circulates,
transmits, or causes or knowingly permits to be made, issued,
circulated, or transmitted, any statement or rumor which is written,
printed, reproduced in any manner, or communicated by word of mouth,
that is untrue in fact and is directly or by inference false, or
malicious in that it is calculated to injure the reputation or
business, financial condition, or standing of any association shall
be punished by a fine of not more than ten thousand dollars
($10,000), by imprisonment in the a
county jail not exceeding one year or in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code , or by both that fine and imprisonment.
SEC. 106. Section 10004 of the Financial Code is
amended to read:
10004. Except as expressly provided for in this chapter, any
person who, as principal, agent, salesperson, solicitor, or in any
other capacity, solicits or conducts in this state the business of
selling, disposing of, taking, or soliciting savings accounts of any
foreign savings association that has not complied with all the
requirements of this chapter, is guilty of a public offense
punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
, or in a county jail not exceeding one year, or by a fine not
exceeding ten thousand dollars ($10,000), or by both a
that fine and imprisonment.
SEC. 107. Section 12102 of the Financial Code is
amended to read:
12102. Any person who willfully violates any provision of this
division, or who willfully violates any rule or order under this
division, shall, upon conviction, be fined not more than ten thousand
dollars ($10,000), or imprisoned in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code, or in a county jail for not more than one year, or
be punished by both such that fine and
imprisonment, but no person may be imprisoned for the violation of
any rule or order unless he or she had knowledge of the rule or
order. Conviction under this section shall not preclude the
commissioner from exercising the authority provided in Section 12400.
SEC. 108. Section 14752 of the Financial Code is
amended to read:
14752. Except as provided for in Section 14051 and this article,
any person who willfully violates any provision of this division, or
who willfully violates any rule or order issued pursuant to this
division, shall upon conviction be fined not more than ten thousand
dollars ($10,000) or imprisoned in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code , or in a county jail for not more than one year, or
be punished by both such that fine and
imprisonment, but no person may be imprisoned for the violation of
any rule or order unless he or she had knowledge of the rule or
order. Conviction under this section shall not bar the exercise of
the administrative authority of the commissioner provided in Section
14208.
SEC. 109. Section 17700 of the Financial Code is
amended to read:
17700. Any person who willfully violates any provision of this
division, or who willfully violates any rule or order under this
division, shall, upon conviction, be fined not more than ten thousand
dollars ($10,000), imprisoned in a county jail for not more than one
year, imprisoned in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal
Code , or be punished by both that fine and imprisonment, but
no person may be imprisoned for the violation of any rule or order
unless he or she had knowledge of the rule or order. Conviction under
this section shall not preclude the commissioner from exercising the
authority provided in Section 17423.
SEC. 110. Section 18349.5 of the Financial Code is
amended to read:
18349.5. (a) For the purposes of this section, the following
definitions are applicable:
(1) "Account holder" includes, in the case of an investment
certificate account, an investment certificate holder; in the case of
a trust account, each trustor and beneficiary of the trust account;
and, in the case of any other fiduciary account, each person who
occupies, with respect to the account, a position which is similar to
the position that a trustor or beneficiary occupies with respect to
a trust account.
(2) "Industrial loan company" means any corporation which falls
within the definitions of Sections 18003 and 18003.5.
(3) "Order" means any approval, consent, authorization, permit,
exemption, denial, prohibition, or requirement applicable to a
specific case issued by the commissioner, including without
limitation, any condition thereof. "Order" does not include any
certificate of authority or license issued by the commissioner, but
does include any condition of a license and any written agreement
made by any person with the commissioner under this division.
(4) "Subject person of an industrial loan company" means any
director, officer, or employee of the industrial loan company, or any
person who participates in the conduct of the business of the
industrial loan company. However, "subject person of an industrial
loan company" does not include an individual who is a director,
officer, or employee of a controlling person of an industrial loan
company unless the individual is a director, officer, or employee of
the industrial loan company or participates in the conduct of the
industrial loan company.
(5) "Controlling person" means a person who, directly or
indirectly, controls an industrial loan company.
(6) "Violation" includes, without limitation, any act done, alone
or with one or more persons, for or toward causing, bringing about,
participation in, counseling, aiding or abetting a violation.
(b) If, after notice and opportunity for hearing, the commissioner
finds the following, the commissioner may issue an order suspending
or removing a subject person of an industrial loan company from his
or her office with the industrial loan company and prohibiting the
subject person from further participating in any manner in the
conduct of the business of the industrial loan company, except with
the prior consent of the commissioner:
(1) (A) That the subject person has violated any provision of this
division or of any regulation or order issued under this division,
or any provision of any other applicable law relating to the business
of the industrial loan company; or
(B) That the subject person has engaged or participated in any
unsafe or unsound act with respect to the business of the industrial
loan company; or
(C) That the subject person has committed or engaged in any act
which constitutes a breach of his or her fiduciary duty as a subject
person; and
(2) (A) That the industrial loan company has suffered or will
probably suffer substantial financial loss or other damage by reason
of that violation, act, or breach of fiduciary duty; or
(B) That the interests of the industrial loan company's
accountholders have been or are likely to be seriously prejudiced by
reason of the violation, act, or breach of fiduciary duty; or
(C) That the subject person has received financial gain by reason
of that violation, act, or breach of fiduciary duty; and
(3) That the violation, act, or breach of fiduciary duty is one
involving personal dishonesty on the part of the subject person, or
one which demonstrates a willful or continuing disregard for the
safety or soundness of the industrial loan company.
(c) If, after notice and opportunity for hearing, the commissioner
finds the following, the commissioner may issue an order suspending
or removing a subject person of an industrial loan company from his
or her office with the industrial loan company and prohibiting the
subject person from further participating in any manner in the
conduct of the business of the industrial loan company, except with
the prior consent of the commissioner:
(1) That the subject person's conduct or practice with respect to
another industrial loan company or business institution has resulted
in substantial financial loss or other damage; and
(2) That the conduct or practice has evidenced personal dishonesty
or willful or continuing disregard for the safety and soundness of
the other industrial loan company or business institution; and
(3) That the conduct or practice is relevant in that it
demonstrates unfitness to continue as a subject person of the
industrial loan company.
(d) If the commissioner finds the following, the commissioner may
immediately issue an order suspending or removing a subject person of
an industrial loan company from his or her office with the
industrial loan company and prohibiting the subject person from
further participating in any manner in the conduct of the business of
the industrial loan company, except with the prior consent of the
commissioner:
(1) That it is necessary for the protection of the industrial loan
company or the interests of the industrial loan company's account
holders that the commissioner issue the order immediately, and
(2) (A) That any of the factors set forth in paragraphs (1) and
(2) of subdivision (b) and any of the factors set forth in paragraph
(3) of subdivision (c) are true with respect to the subject person;
or
(B) That any of the factors set forth in paragraphs (1), (2), and
(3) of subdivision (c), and the factor set forth in paragraph (3) of
subdivision (c) are true with respect to the subject person.
(e) (1) If the commissioner finds the following, the commissioner
may immediately issue an order suspending or removing a subject
person of an industrial loan company from his or her office with the
industrial loan company and prohibiting the subject person from
further participating in any manner in the conduct of the business of
the industrial loan company, except with the prior consent of the
commissioner.
(A) That the subject person has been charged in an indictment
issued by a grand jury or in an information, complaint, or similar
pleading issued by a United States attorney, district attorney, or
other governmental official or agency authorized to prosecute crimes,
with a crime which is punishable by imprisonment for a term
exceeding one year and which involves dishonesty or breach of trust;
and
(B) That the person's continuing to serve as a subject person of
the industrial loan company may pose a material threat to the
interest of the industrial loan company's account holders or may
threaten to materially impair public confidence in the industrial
loan company. In case the criminal proceedings are terminated other
than by a judgment of conviction the order shall be deemed rescinded.
(2) If the commissioner finds the following, the commissioner may
immediately issue an order suspending or removing a subject person of
an industrial loan company or a former subject of an industrial loan
company, from his or her office, if any, with the industrial loan
company and prohibiting the person from further participating in any
manner in the conduct of the business of the industrial loan company,
except with the prior consent of the industrial loan company:
(A) That the person has been finally convicted of a crime which is
punishable by imprisonment for a term exceeding one year and which
involves dishonesty or breach of trust; and
(B) That the person's continuing to serve or resumption of service
as a subject person of the industrial loan company may pose a
material threat to the interests of the industrial loan company's
account holders or may threaten to materially impair public
confidence in the industrial loan company.
(3) The fact that any subject person of an industrial loan company
charged with a crime involving dishonesty or breach of trust is not
finally convicted of that crime shall not preclude the commissioner
from issuing an order regarding the subject person pursuant to other
provisions of this division.
(f) Within 30 days after an order is issued pursuant to
subdivision (d) or (e), the person to whom the order is issued may
file an application for a hearing.
(g) Any person to whom an order is issued under subdivision (b),
(c), (d), or (e) may apply to the commissioner to modify or rescind
that order. The commissioner shall not grant that application unless
the commissioner finds that it is in the public interest to do so and
that it is reasonable to believe that the person will, if and when
he or she becomes a subject person of an industrial loan company,
comply with all applicable provisions of this division and of any
regulation or order issued thereunder.
(h) A hearing held pursuant to this section shall be private
unless the commissioner, in his or her discretion, after fully
considering the views of the parties, determines that a public
hearing is necessary to protect the public interest.
(i) (1) It is unlawful for any subject person of an industrial
loan company or former subject person of an industrial loan company
to whom an order is issued under subdivision (b), (c), (d), or (e) to
do any of the following, except with the prior consent of the
commissioner, so long as the order is effective:
(A) To serve or act as a director, officer, employee, or agent of
any industrial loan company.
(B) To vote any shares or other securities of an industrial loan
company having voting rights, for the election of any person as a
director of an industrial loan company.
(C) Directly or indirectly, to solicit, procure, or transfer or
attempt to transfer, or vote any proxy, consent, or authorization
with respect to any shares or other securities of any industrial loan
company having voting rights.
(D) Otherwise to participate in any manner in the conduct of the
business of any industrial loan company.
(2) Any person who violates paragraph (1) shall, upon conviction,
be punished by a fine of not more than ten thousand dollars ($10,000)
or imprisoned in the state prison pursuant
to subdivision (h) of Section 1170 of the Penal Code , or in a
county jail not to exceed one year, or by both such
that fine and imprisonment.
(3) If the commissioner believes that any person has violated
paragraph (1), the commissioner may bring an action in a court of
competent jurisdiction petitioning the court to assess that person a
civil penalty in an amount as the commissioner may specify; provided,
however, that the amount of the civil penalty shall not exceed two
thousand five hundred dollars ($2,500) for each violation or, in the
case of a continuing violation, two thousand five hundred dollars
($2,500) for each day for which the violation continues.
In determining the amount of a civil penalty to be assessed under
this paragraph, the court shall consider the financial resources and
good faith of the person charged, the gravity of the violation, the
history of previous violations by the person, and such other factors
as in the opinion of the court may be relevant.
SEC. 111. Section 18435 of the Financial Code is
amended to read:
18435. Except as otherwise provided in this division, any person
who willfully violates any provision of this division, or who
willfully violates any rule or order adopted pursuant to this
division, shall, upon conviction, be punished by a fine of not more
than ten thousand dollars ($10,000), by imprisonment in the
a county jail for not more than one year or
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code , or by both that fine
and imprisonment. However, no person may be imprisoned for the
violation of any rule or order unless he or she had knowledge of the
rule or order. Conviction under this section shall not preclude the
commissioner from exercising the authority provided in Section
18349.5.
SEC. 112. Section 22753 of the Financial Code is
amended to read:
22753. Any person who willfully violates any provision of this
division or who willfully violates any rule or order adopted pursuant
to this division, shall, upon conviction, be punished by a fine of
not more than ten thousand dollars ($10,000), by imprisonment in a
county jail for not more than one year or in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code , or by both that fine and imprisonment. However, no
person may be imprisoned for the violation of any rule or order
unless he or she had knowledge of the rule or order.
Conviction under this section shall
not preclude the commissioner from exercising the authority in
Section 22713.
SEC. 113. Section 22780 of the Financial Code is
amended to read:
22780. Any person who willfully violates any provision of this
division, or who willfully violates any rule or order adopted
pursuant to this division, shall, upon conviction, be punished by a
fine of not more than ten thousand dollars ($10,000), by imprisonment
in a county jail for not more than one year or in the state
prison pursuant to subdivision (h) of Section 1170 of
the Penal Code , or by both that fine and imprisonment.
However, no person may be imprisoned for the violation of any rule or
order unless he or she had knowledge of the rule or order.
Conviction under this section shall not preclude the commissioner
from exercising the authority provided in Section 22713.
SEC. 114. Section 31880 of the Financial Code is
amended to read:
31880. Any person who violates any provision of this chapter
shall upon conviction be fined not more than ten thousand dollars
($10,000) or be imprisoned in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
, or in a county jail for not more than one year, or be
punished by both such that fine and
imprisonment.
SEC. 115. Section 50500 of the Financial Code is
amended to read:
50500. Any person who willfully violates any provision of this
division, or any rule or order under this division, shall, upon
conviction, be subject to a fine of not more than ten thousand
dollars ($10,000) or imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code, or in a county jail for not more than one year, or
to both that fine and imprisonment. No person may be imprisoned for
the violation of any rule or order unless he or she had knowledge of
the rule or order. Conviction under this section shall not preclude
the commissioner from exercising the authority provided in Section
50320.
SEC. 116. Section 12004 of the Fish and Game Code is
amended to read:
12004. (a) The punishment for a first conviction of a violation
of Section 8685.5, 8685.6, 8685.7, or 8688 is a fine of not more than
five thousand dollars ($5,000), or imprisonment in the
a county jail for a period not to exceed six
months, or the revocation of any license issued pursuant to Sections
8032 to 8036, inclusive, or any combination of these penalties.
(b) The punishment for a second or subsequent conviction of a
violation of Section 8685.5, 8685.6, 8685.7, or 8688, which offense
occurred within five years of another offense which resulted in a
conviction of Section 8685.5, 8685.6, 8685.7, or 8688 is a fine of
not more than ten thousand dollars ($10,000), or imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code , or imprisonment in
the a county jail for a period not to
exceed one year, or the revocation of any license issued pursuant to
Sections 8032 to 8036, inclusive, or any combination of these
penalties.
SEC. 117. Section 12005 of the Fish and Game Code is
amended to read:
12005. (a) Notwithstanding Section 12000, and except as otherwise
provided in subdivision (c), the punishment for each violation of
Section 4758 shall include both of the following:
(1) A fine of two hundred fifty dollars ($250) for each bear part.
As used in this paragraph, "bear part" means an individual part or
group of like parts of any bear that the defendant knowingly and
unlawfully sells, purchases, or possesses for sale. For the purposes
of this paragraph, claws, paws, or teeth from a single bear that are
knowingly purchased, sold, or possessed for sale with the intent that
they be delivered to a single end user shall be considered a single
part.
(2) An additional fine of not more than five thousand dollars
($5,000), imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code,
or the in a county jail for not more
than one year, or both the that fine
and imprisonment.
(b) If the conviction is for the possession of two bear gall
bladders and probation is granted, or if the execution or imposition
of sentence is suspended, it shall be a condition thereof that a
minimum term of 30 days shall be served in the
a county jail.
(c) (1) The possession of three or more bear gall bladders is
punishable by both of the following:
(A) The fine specified in paragraph (1) of subdivision (a).
(B) An additional fine of not more than ten thousand dollars
($10,000), imprisonment in the a county
jail for not more than one year, or both that fine and imprisonment.
(2) If probation is granted, or the execution or imposition of
sentence is suspended, it shall be a condition thereof that a minimum
term of three months shall be served in the
a county jail.
(d) Consecutive sentences shall be imposed for separate violations
of this section.
SEC. 118. Section 17701 of the Food and Agricultural
Code is amended to read:
17701. A violation of Section 17551 shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code .
SEC. 119. Section 18932 of the Food and Agricultural
Code is amended to read:
18932. Any person who is found guilty of violating any of the
provisions of this chapter or the regulations promulgated under this
chapter is subject to imprisonment in the a
county jail for not more than one year or a fine of not more
than one thousand dollars ($1,000), or both such imprisonment and
fine, but if the violation is committed after a conviction of such
person under this section has become final, or the violation is
committed with intent to defraud or mislead, the person shall be
subject to imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code ,
or a fine of not more than ten thousand dollars ($10,000), or both
such that imprisonment and fine.
SEC. 120. Section 18933 of the Food and Agricultural
Code is amended to read:
18933. Any person who, as principal or agent, employer or
employee, adulterates any meat or meat food product or poultry
product intended for sale as human food with the product of an animal
which has died otherwise than by slaughter or the product of an
animal which has not been slaughtered under inspection in accordance
with this chapter, shall be guilty of a felony punishable by a fine
of not less than ten thousand dollars ($10,000), or by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code , or both such
that imprisonment and fine.
SEC. 121. Section 19440 of the Food and Agricultural
Code is amended to read:
19440. Any person who is found guilty of violating any of the
provisions of this chapter or the rules and regulations promulgated
under this chapter is subject to imprisonment in the
a county jail for not more than one year or a
fine of not more than one thousand dollars ($1,000), or both
such that imprisonment and fine; but if the
violation is committed after a conviction of such person under this
section has become final, or the violation is committed with intent
to defraud or mislead, the person shall be subject to imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code , or a fine of not more
than ten thousand dollars ($10,000), or both such
that imprisonment and fine.
SEC. 122. Section 19441 of the Food and Agricultural
Code is amended to read:
19441. Any person who, as principal or agent, employer or
employee, adulterates any other meat or meat food product intended
for human food with horsemeat or the product of an animal which has
died otherwise than by slaughter or the product of an animal
slaughtered for pet food in accordance with this chapter, or
represents horsemeat or pet food to be any other meat or meat food
product, shall be guilty of a felony punishable by a fine of not less
than ten thousand dollars ($10,000), or by imprisonment in
the state prison pursuant to subdivision (h) of
Section 1170 of the Penal Code , or both.
SEC. 123. Section 80174 of the Food and Agricultural
Code is amended to read:
80174. A second conviction shall be punishable by a fine of not
less than three hundred dollars ($300), nor more than five thousand
dollars ($5,000), for each violation, by imprisonment in a county
jail for not more than one year, by imprisonment in the
state prison pursuant to subdivision (h) of Section
1170 of the Penal Code , or by both that fine and imprisonment,
and each violation shall constitute a separate offense.
Upon the second conviction, all permits issued to the person
convicted shall be revoked and the permittee shall be required to
surrender any unused tags and seals or wood receipts to the issuing
agency and no new or additional permits shall be issued to the
permittee at any time in the future from the date of conviction.
SEC. 123.5. Section 1195 of the Government Code is
amended to read:
1195. Every officer of the State, or of any county, city, or
judicial district who accepts, keeps, retains or diverts for his own
use or the use of any other person any part of the salary or fees
allowed by law to his deputy, or other subordinate officer, is guilty
of a felony punishable by imprisonment in the state prison for
16 months, or 2 or 3 years .
SEC. 124. Section 1368 of the Government Code is
amended to read:
1368. Every person who, while taking and subscribing to the oath
or affirmation required by this chapter, states as true any material
matter which he or she knows to be false, is guilty of perjury, and
is punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
for two, three, or four years.
SEC. 125. Section 1369 of the Government Code is
amended to read:
1369. Every person having taken and subscribed to the oath or
affirmation required by this chapter, who while holding office,
advocates or becomes a member of any party or organization, political
or otherwise, that advocates the overthrow of the government of the
United States by force or violence or other unlawful means, is guilty
of a felony, and is punishable by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170 of
the Penal Code .
SEC. 126. Section 3108 of the Government Code is
amended to read:
3108. Every person who, while taking and subscribing to the oath
or affirmation required by this chapter, states as true any material
matter which he or she knows to be false, is guilty of perjury, and
is punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
for two, three, or four years.
SEC. 127. Section 3109 of the Government Code is
amended to read:
3109. Every person having taken and subscribed to the oath or
affirmation required by this chapter, who, while in the employ of, or
service with, the state or any county, city, city and county, state
agency, public district, or disaster council or emergency
organization advocates or becomes a member of any party or
organization, political or otherwise, that advocates the overthrow of
the government of the United States by force or violence or other
unlawful means, is guilty of a felony, and is punishable by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code .
SEC. 128. Section 5954 of the Government Code is
amended to read:
5954. Any person who violates this chapter shall upon conviction
be fined not more than ten million dollars ($10,000,000), or
imprisoned in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code for five
years, or be punished by both that fine and imprisonment.
SEC. 129. Section 6200 of the Government Code is
amended to read:
6200. Every officer having the custody of any record, map, or
book, or of any paper or proceeding of any court, filed or deposited
in any public office, or placed in his or her hands for any purpose,
is punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
for two, three, or four years if, as to the whole or any part
of the record, map, book, paper, or proceeding, the officer willfully
does or permits any other person to do any of the following:
(a) Steal, remove, or secrete.
(b) Destroy, mutilate, or deface.
(c) Alter or falsify.
SEC. 130. Section 6201 of the Government Code is
amended to read:
6201. Every person not an officer referred to in Section 6200,
who is guilty of any of the acts specified in that section, is
punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
, or in a county jail not exceeding one year, or by a fine not
exceeding one thousand dollars ($1,000), or by both such
that fine and imprisonment.
SEC. 131. Section 8670.64 of the Government Code is
amended to read:
8670.64. (a) A person who commits any of the following acts,
shall, upon conviction, be punished by imprisonment in a county jail
for not more than one year or by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170 of
the Penal Code :
(1) Except as provided in Section 8670.27, knowingly fails to
follow the direction or orders of the administrator in connection
with an oil spill.
(2) Knowingly fails to notify the Coast Guard that a vessel is
disabled within one hour of the disability and the vessel, while
disabled, causes a discharge of oil which enters marine waters. For
the purposes of this paragraph, "vessel" means a vessel, as defined
in Section 21 of the Harbors and Navigation Code, of 300 gross
registered tons or more.
(3) Knowingly engages in or causes the discharge or spill of oil
into marine waters, or a person who reasonably should have known that
he or she was engaging in or causing the discharge or spill of oil
into marine waters, unless the discharge is authorized by the United
States, the state, or another agency with appropriate jurisdiction.
(4) Knowingly fails to begin cleanup, abatement, or removal of
spilled oil as required in Section 8670.25.
(b) The court shall also impose upon a person convicted of
violating subdivision (a), a fine of not less than five thousand
dollars ($5,000) or more than five hundred thousand dollars
($500,000) for each violation. For purposes of this subdivision, each
day or partial day that a violation occurs is a separate violation.
(c) (1) A person who knowingly does any of the acts specified in
paragraph (2) shall, upon conviction, be punished by a fine of not
less than two thousand five hundred dollars ($2,500) or more than two
hundred fifty thousand dollars ($250,000), or by imprisonment in a
county jail for not more than one year, or by both the fine and
imprisonment. Each day or partial day that a violation occurs is a
separate violation. If the conviction is for a second or subsequent
violation of this subdivision, the person shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code,
or in a county jail for not more than one year, or by a fine of not
less than five thousand dollars ($5,000) or more than five hundred
thousand dollars ($500,000), or by both the
that fine and imprisonment:
(2) The acts subject to this subdivision are all of the following:
(A) Failing to notify the California Emergency Management Agency
in violation of Section 8670.25.5.
(B) Knowingly making a false or misleading marine oil spill report
to the California Emergency Management Agency.
(C) Continuing operations for which an oil spill contingency plan
is required without an oil spill contingency plan approved pursuant
to Article 5 (commencing with Section 8670.28).
(D) Except as provided in Section 8670.27, knowingly failing to
follow the material provisions of an applicable oil spill contingency
plan.
SEC. 132. Section 9056 of the Government Code is
amended to read:
9056. Any person who shall secure through his influence,
knowingly exerted for that purpose, the introduction of any bill,
resolution or amendment into the State Legislature and shall
thereafter solicit or accept from any person other than a person upon
whose request he secured such introduction, any pay or other
valuable consideration for preventing or attempting to prevent, the
enactment or adoption of such measure, while it retains its original
purpose, shall be guilty of a crime and upon conviction thereof shall
be punishable by a fine of not exceeding ten thousand dollars
($10,000) or by imprisonment in the a
county jail for not more than one year or in the state
prison pursuant to subdivision (h) of Section 1170 of
the Penal Code , or by both such that
fine and imprisonment.
SEC. 133. Section 27443 of the Government Code is
amended to read:
27443. Every person holding the office of public administrator,
public guardian, or public conservator and any deputy or agent of
such officer is guilty of a crime who:
(a) Purchases, directly or indirectly, the property of any estate
or a claim against any estate administered by any public
adminstrator administrator , public guardian, or
public conservator in his official capacity, or
(b) Acts upon any transaction or expenditure in connection with
the administration of an estate by the public administrator, public
guardian, or public conservator in his official capacity, when he has
a financial interest in such transaction or expenditure, or, having
knowledge of such interest, is associated in business with anyone who
has such an interest.
Subdivisions (a) and (b) shall not be applicable to any act
specifically authorized by court order.
Any violation of this section is punishable by a fine not
exceeding one thousand dollars ($1,000), or by imprisonment in the
county jail not exceeding one year, or by both such fine and
imprisonment, or by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code . Upon conviction of this section a person forfeits
his office. This section is not intended to preclude prosecution
under any other provisions of the criminal law which are otherwise
applicable.
SEC. 134. Section 51018.7 of the Government Code is
amended to read:
51018.7. (a) Any person who willfully and knowingly violates any
provision of this chapter or a regulation issued pursuant thereto
shall, upon conviction, be subject, for each offense, to a fine of
not more than twenty-five thousand dollars ($25,000), imprisonment in
a county jail for not more than one year, imprisonment in
the state prison pursuant to subdivision (h) of
Section 1170 of the Penal Code , or by both that fine and
imprisonment.
(b) Any person who willfully and knowingly defaces, damages,
removes, or destroys any pipeline sign or right-of-way marker
required by federal or state law or regulation shall, upon
conviction, be subject, for each offense, to a fine of not more than
five thousand dollars ($5,000), imprisonment in a county jail for not
more than one year, or by both that fine and imprisonment.
SEC. 135. Section 264 of the Harbors and Navigation
Code is amended to read:
264. (a) A captain or other person having charge of any steam
vessel used for the conveyance of passengers, or of its boilers and
engines, who, from ignorance or gross neglect, or for the purpose of
excelling any other boat in speed, creates, or allows to be created,
such an undue quantity of steam as to burst or break the boiler, or
any apparatus or machinery connected with the boiler, by which
bursting or breaking human life is endangered, is guilty of a felony.
(b) Notwithstanding any other provision of law, a person found
guilty of a felony violation of this section shall be subject to a
fine not to exceed five thousand dollars ($5,000) or imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code for 16 months, two or
three years, or both that fine and imprisonment.
SEC. 136. Section 310 of the Harbors and Navigation
Code is amended to read:
310. Notwithstanding any other provision of law, a person found
guilty of a felony violation as provided in this chapter shall be
subject to a fine not to exceed five thousand dollars ($5,000) or
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code for 16
months, two or three years, or both that fine and imprisonment.
SEC. 137. 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
a 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 a 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 pursuant to
subdivision (h) of Section 1170 of the Penal Code, or in
the a 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 a
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 a 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 pursuant to subdivision (h) of Section 1170 of
the Penal Code , or in the a
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 a
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 a 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 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. 138. Section 1390 of the Health and Safety Code is
amended to read:
1390. Any person who willfully violates any provision of this
chapter or of any rule or order thereunder shall upon conviction be
fined not more than ten thousand dollars ($10,000) or imprisoned
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code , or in a county jail for
not more than one year, or be punished by both such fine and
imprisonment, but no person may be imprisoned for the violation of
any rule or order if it is proven that such person had no knowledge
of the rule or order.
SEC. 139. Section 1522.01 of the Health and Safety Code
is amended to read:
1522.01. (a) Any person required to be registered as a sex
offender under Section 290 of the Penal Code shall disclose this fact
to the licensee of a community care facility before becoming a
client of that facility. A community care facility client who fails
to disclose to the licensee his or her status as a registered sex
offender shall be guilty of a misdemeanor punishable pursuant to
subdivision (a) of Section 1540. The community care facility licensee
shall not be liable if the client who is required to register as a
sex offender fails to disclose this fact to the community care
facility licensee. However, this immunity does not apply if the
community care facility licensee knew that the client was required to
register as a sex offender.
(b) Any person or persons operating, pursuant to this chapter, a
community care facility that accepts as a client an individual who is
required to be registered as a sex offender under Section 290 of the
Penal Code shall confirm or deny whether any client of the facility
is a registered sex offender in response to any person who inquires
whether any client of the facility is a registered sex offender and
who meets any of the following criteria:
(1) The person is the parent, family member, or guardian of a
child residing within a one-mile radius of the facility.
(2) The person occupies a personal residence within a one-mile
radius of the facility.
(3) The person operates a business within a one-mile radius of the
facility.
(4) The person is currently a client within the facility or a
family member of a client within the facility.
(5) The person is applying for placement in the facility, or
placement of a family member in the facility.
(6) The person is arranging for a client to be placed in the
facility.
(7) The person is a law enforcement officer.
If the community care facility licensee indicates a client is a
registered sex offender, the interested person may describe physical
characteristics of a client and the facility shall disclose that
client's name upon request, if the physical description matches the
client. The facility shall also advise the interested person that
information about registered sex offenders is available to the public
via the Internet Web site maintained by the Department of Justice
pursuant to Section 290.46 of the Penal Code.
(c) Any person who uses information disclosed pursuant to this
section to commit a felony shall be punished, in addition and
consecutive to, any other punishment, by a five-year term of
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code .
(d) Any person who uses information disclosed pursuant to this
section to commit a misdemeanor shall be subject to, in addition to
any other penalty or fine imposed, a fine of not less than five
hundred dollars ($500) and not more than one thousand dollars
($1,000).
(e) Except as authorized under another provision of law, or to
protect a child, use of any of the information disclosed pursuant to
this section for the purpose of applying for, obtaining, or denying
any of the following, is prohibited:
(1) Health insurance.
(2) Insurance.
(3) Loans.
(4) Credit.
(5) Employment.
(6) Education, scholarships, or fellowships.
(7) Benefits, privileges, or services provided by any business
establishment.
(8) Housing or accommodations.
(f) Any use of information disclosed pursuant to this section for
purposes other than those provided by subdivisions (a) and (b) shall
make the user liable for the actual damages, and any amount that may
be determined by a jury or a court sitting without a jury, not
exceeding three times the amount of actual damage, and not less than
two hundred fifty dollars ($250), and attorney's fees, exemplary
damages, or a civil penalty not exceeding twenty-five thousand
dollars ($25,000).
(g) Whenever there is reasonable cause to believe that any person
or group of persons is engaged in a pattern or practice of misuse of
the information disclosed pursuant to this section, the Attorney
General, any district attorney, or city attorney, or any person
aggrieved by the misuse of that information is authorized to bring a
civil action in the appropriate court requesting preventive relief,
including an application for a permanent or temporary injunction,
restraining order, or other order against the person or group of
persons responsible for the pattern or practice of misuse. The
foregoing remedies shall be independent of any other remedies or
procedures that may be available to an aggrieved party under other
provisions of law, including Part 2 (commencing with Section 43) of
Division 1 of the Civil Code.
(h) The civil and criminal penalty moneys collected pursuant to
this section shall be transferred to the Community Care Licensing
Division of the State Department of Social Services, upon
appropriation by the Legislature.
SEC. 140. Section 1621.5 of the Health and Safety Code
is amended to read:
1621.5. (a) It is a felony punishable by imprisonment
in the state prison pursuant to subdivision (h) of
Section 1170 of the Penal Code for two, four, or six years, for
any person to donate blood, body organs or other tissue, semen to
any medical center or semen bank that receives semen for purposes of
artificial insemination, or breast milk to any medical center or
breast milk bank that receives breast milk for purposes of
distribution, whether he or she is a paid or a volunteer donor, who
knows that he or she has acquired immune deficiency
immunodeficiency syndrome (AIDS) , as
diagnosed by a physician and surgeon, or who knows that he or she
has tested reactive to HIV. This section shall not apply to any
person who is mentally incompetent or who self-defers his or her
blood at a blood bank or plasma center pursuant to subdivision (b) of
Section 1603.3 or who donates his or her blood for purposes of an
autologous donation.
(b) In a criminal investigation for a violation of this section,
no person shall disclose the results of a blood test to detect the
etiologic agent of AIDS or antibodies to that agent to any officer,
employee, or agent of a state or local agency or department unless
the test results are disclosed as otherwise required by law pursuant
to any one of the following:
(1) A search warrant issued pursuant to Section 1524 of the Penal
Code.
(2) A judicial subpoena or subpoena duces tecum issued and served
in compliance with Chapter 2 (commencing with Section 1985) of Title
3 of Part 4 of the Code of Civil Procedure.
(3) An order of a court.
(c) For purposes of this section, "blood" means "human whole
blood" and "human whole blood derivatives," as defined for purposes
of this chapter and includes "blood components," as defined in
subdivision (k) of Section 1603.1.
SEC. 141. Section 7051 of the Health and Safety Code is
amended to read:
7051. Every person who removes any part of any human remains from
any place where it has been interred, or from any place where it is
deposited while awaiting interment or cremation, with intent to sell
it or to dissect it, without authority of law, or written permission
of the person or persons having the right to control the remains
under Section 7100, or with malice or wantonness, has committed a
public offense that is punishable by imprisonment in the
state prison pursuant to subdivision (h) of Section
1170 of the Penal Code .
This section shall not prohibit the removal of foreign materials,
pacemakers, or prostheses from cremated remains by an employee of a
licensed crematory prior to final processing of ashes. Dental gold or
silver, jewelry, or mementos, to the extent that they can be
identified, may be removed by the employee prior to final processing
if the equipment is such that it will not process these materials.
However, any dental gold and silver, jewelry, or mementos that are
removed shall be returned to the urn or cremated remains container,
unless otherwise directed by the person or persons having the right
to control the disposition.
SEC. 142. Section 7051.5 of the Health and Safety Code
is amended to read:
7051.5. Every person who removes or possesses dental gold or
silver, jewelry, or mementos from any human remains without specific
written permission of the person or persons having the right to
control those remains under Section 7100 is punishable by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code . The fact
that residue and any unavoidable dental gold or dental silver, or
other precious metals remain in the cremation chamber or other
equipment or any container used in a prior cremation is not a
violation of this section.
SEC. 143. Section 8113.5 of the Health and Safety Code
is amended to read:
8113.5. (a) Except with the express written permission of the
person entitled to control the disposition of the remains, or in the
case of a double burial consented to by both parties, no person shall
knowingly or willfully inter the remains of more than one body in a
single plot, or place a casket or other human remains in an already
occupied grave.
(b) Violation of subdivision (a) is a crime punishable as
follows:
(1) A first offense, or a second offense not committed within a
year of the first, is punishable as a misdemeanor by imprisonment in
the a county jail not exceeding one
year.
(2) A second offense committed within a year of the first offense
is punishable as a misdemeanor or a felony by imprisonment in
the a county jail not exceeding one
year, or in state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code .
(3) A third or subsequent offense shall be punishable as a felony
by imprisonment in the state prison pursuant
to subdivision (h) of Section 1170 of the Penal Code .
SEC. 144. Section 8785 of the Health and Safety Code is
amended to read:
8785. Any person, partnership, or corporation administering,
managing, or having responsibility for endowment care or special care
funds who violates the provisions of this chapter relating to the
collection, investment, or use of those funds shall be punished
either by imprisonment in the a county
jail for a period not exceeding six months or by fine not exceeding
five hundred dollars ($500), or by both such imprisonment and fine,
or by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
for 16 months, or two or three years. If the violator is a cemetery
licensee or the holder of a certificate of authority, he, she, or it
shall be subject to disciplinary action as provided in Article 6
(commencing with Section 9725) of Chapter 19 of Division 3 of the
Business and Professions Code.
SEC. 145. Section 11100 of the Health and Safety Code
is amended to read:
11100. (a) Any manufacturer, wholesaler, retailer, or other
person or entity in this state that sells, transfers, or otherwise
furnishes any of the following substances to any person or entity in
this state or any other state shall submit a report to the Department
of Justice of all of those transactions:
(1) Phenyl-2-propanone.
(2) Methylamine.
(3) Ethylamine.
(4) D-lysergic acid.
(5) Ergotamine tartrate.
(6) Diethyl malonate.
(7) Malonic acid.
(8) Ethyl malonate.
(9) Barbituric acid.
(10) Piperidine.
(11) N-acetylanthranilic acid.
(12) Pyrrolidine.
(13) Phenylacetic acid.
(14) Anthranilic acid.
(15) Morpholine.
(16) Ephedrine.
(17) Pseudoephedrine.
(18) Norpseudoephedrine.
(19) Phenylpropanolamine.
(20) Propionic anhydride.
(21) Isosafrole.
(22) Safrole.
(23) Piperonal.
(24) Thionylchloride.
(25) Benzyl cyanide.
(26) Ergonovine maleate.
(27) N-methylephedrine.
(28) N-ethylephedrine.
(29) N-methylpseudoephedrine.
(30) N-ethylpseudoephedrine.
(31) Chloroephedrine.
(32) Chloropseudoephedrine.
(33) Hydriodic acid.
(34) Gamma-butyrolactone, including butyrolactone; butyrolactone
gamma; 4-butyrolactone; 2(3H)-furanone dihydro; dihydro-2
(3H)-furanone; tetrahydro-2-furanone; 1,2-butanolide; 1,4-butanolide;
4-butanolide; gamma-hydroxybutyric acid lactone; 3-hydroxybutyric
acid lactone and 4-hydroxybutanoic acid lactone with Chemical
Abstract Service number (96-48-0).
(35) 1,4-butanediol, including butanediol; butane-1,4-diol;
1,4-butylene glycol; butylene glycol; 1,4-dihydroxybutane;
1,4-tetramethylene glycol; tetramethylene glycol; tetramethylene
1,4-diol with Chemical Abstract Service number (110-63-4).
(36) Red phosphorus, including white phosphorus, hypophosphorous
acid and its salts, ammonium hypophosphite, calcium hypophosphite,
iron hypophosphite, potassium hypophosphite, manganese hypophosphite,
magnesium hypophosphite, sodium hypophosphite, and phosphorous acid
and its salts.
(37) Iodine or tincture of iodine.
(38) Any of the substances listed by the Department of Justice in
regulations promulgated pursuant to subdivision (b).
(b) The Department of Justice may adopt rules and regulations in
accordance with Chapter 3.5 (commencing with Section 11340) of Part 1
of Division 3 of Title 2 of the Government Code that add substances
to subdivision (a) if the substance is a precursor to a controlled
substance and delete substances from subdivision (a). However, no
regulation adding or deleting a substance shall have any effect
beyond March 1 of the year following the calendar year during which
the regulation was adopted.
(c) (1) (A) Any manufacturer, wholesaler, retailer, or other
person or entity in this state, prior to selling, transferring, or
otherwise furnishing any substance specified in subdivision (a) to
any person or business entity in this state or any other state, shall
require (A) a letter of authorization from that person or business
entity that includes the currently valid business license number or
federal Drug Enforcement Administration (DEA) registration number,
the address of the business, and a full description of how the
substance is to be used, and (B) proper identification from the
purchaser. The manufacturer, wholesaler, retailer, or other person or
entity in this state shall retain this information in a readily
available manner for three years. The requirement for a full
description of how the substance is to be used does not require the
person or business entity to reveal their chemical processes that are
typically considered trade secrets and proprietary information.
(B) For the purposes of this paragraph, "proper identification"
for in-state or out-of-state purchasers includes two or more of the
following: federal tax identification number; seller's permit
identification number; city or county business license number;
license issued by the California Department of Health Services;
registration number issued by the Federal Drug Enforcement
Administration; precursor business permit number issued by the Bureau
of Narcotic Enforcement of the California Department of Justice;
driver's license; or other identification issued by a state.
(2) (A) Any manufacturer, wholesaler, retailer, or other person or
entity in this state that exports a substance specified in
subdivision (a) to any person or business entity located in a foreign
country shall, on or before the date of exportation, submit to the
Department of Justice a notification of that transaction, which
notification shall include the name and quantity of the substance to
be exported and the name, address, and, if assigned by the foreign
country or subdivision thereof, business identification number of the
person or business entity located in a foreign country importing the
substance.
(B) The department may authorize the submission of the
notification on a monthly basis with respect to repeated, regular
transactions between an exporter and an importer involving a
substance specified in subdivision (a), if the department determines
that a pattern of regular supply of the substance exists between the
exporter and importer and that the importer has established a record
of utilization of the substance for lawful purposes.
(d) (1) Any manufacturer, wholesaler, retailer, or other person or
entity in this state that sells, transfers, or otherwise furnishes a
substance specified in subdivision (a) to a person or business
entity in this state or any other state shall, not less than 21 days
prior to delivery of the substance, submit a report of the
transaction, which includes the identification information specified
in subdivision (c), to the Department of Justice. The Department of
Justice may authorize the submission of the reports on a monthly
basis with respect to repeated, regular transactions between the
furnisher and the recipient involving the substance or substances if
the Department of Justice determines that a pattern of regular supply
of the substance or substances exists between the manufacturer,
wholesaler, retailer, or other person or entity that sells,
transfers, or otherwise furnishes the substance or substances and the
recipient of the substance or substances, and the recipient has
established a record of utilization of the substance or substances
for lawful purposes.
(2) The person selling, transferring, or otherwise furnishing any
substance specified in subdivision (a) shall affix his or her
signature or otherwise identify himself or herself as a witness to
the identification of the purchaser or purchasing individual, and
shall, if a common carrier is used, maintain a manifest of the
delivery to the purchaser for three years.
(e) This section shall not apply to any of the following:
(1) Any pharmacist or other authorized person who sells or
furnishes a substance upon the prescription of a physician, dentist,
podiatrist, or veterinarian.
(2) Any physician, dentist, podiatrist, or veterinarian who
administers or furnishes a substance to his or her patients.
(3) Any manufacturer or wholesaler licensed by the California
State Board of Pharmacy that sells, transfers, or otherwise furnishes
a substance to a licensed pharmacy, physician, dentist, podiatrist,
or veterinarian, or a retail distributor as defined in subdivision
(h), provided that the manufacturer or wholesaler submits records of
any suspicious sales or transfers as determined by the Department of
Justice.
(4) Any analytical research facility that is registered with the
federal Drug Enforcement Administration of the United States
Department of Justice.
(5) A state-licensed health care facility that administers or
furnishes a substance to its patients.
(6) (A) Any sale, transfer, furnishing, or receipt of any product
that contains ephedrine, pseudoephedrine, norpseudoephedrine, or
phenylpropanolamine and which is lawfully sold, transferred, or
furnished over the counter without a prescription pursuant to the
federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 301 et seq.) or
regulations adopted thereunder. However, this section shall apply to
preparations in solid or liquid dosage form, except pediatric liquid
forms, as defined, containing ephedrine, pseudoephedrine,
norpseudoephedrine, or phenylpropanolamine where the individual
transaction involves more than three packages or nine grams of
ephedrine, pseudoephedrine, norpseudoephedrine, or
phenylpropanolamine.
(B) Any ephedrine, pseudoephedrine, norpseudoephedrine, or
phenylpropanolamine product subsequently removed from exemption
pursuant to Section 814 of Title 21 of the United States Code shall
similarly no longer be exempt from any state reporting or permitting
requirement, unless otherwise reinstated pursuant to subdivision (d)
or (e) of Section 814 of Title 21 of the United States Code as an
exempt product.
(7) The sale, transfer, furnishing, or receipt of any betadine or
povidone solution with an iodine content not exceeding 1 percent in
containers of eight ounces or less, or any tincture of iodine not
exceeding 2 percent in containers of one ounce or less, that is sold
over the counter.
(8) Any transfer of a substance specified in subdivision (a) for
purposes of lawful disposal as waste.
(f) (1) Any person specified in subdivision (a) or (d) who does
not submit a report as required by that subdivision or who knowingly
submits a report with false or fictitious information shall be
punished by imprisonment in a county jail not exceeding six
months, by a fine not exceeding
five thousand dollars ($5,000), or by both the fine and imprisonment.
(2) Any person specified in subdivision (a) or (d) who has
previously been convicted of a violation of paragraph (1) shall, upon
a subsequent conviction thereof, be punished by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code , or by imprisonment in a
county jail not exceeding one year, by a fine not exceeding one
hundred thousand dollars ($100,000), or by both the fine and
imprisonment.
(g) (1) Except as otherwise provided in subparagraph (A) of
paragraph (6) of subdivision (e), it is unlawful for any
manufacturer, wholesaler, retailer, or other person to sell,
transfer, or otherwise furnish a substance specified in subdivision
(a) to a person under 18 years of age.
(2) Except as otherwise provided in subparagraph (A) of paragraph
(6) of subdivision (e), it is unlawful for any person under 18 years
of age to possess a substance specified in subdivision (a).
(3) Notwithstanding any other law, it is unlawful for any retail
distributor to (i) sell in a single transaction more than three
packages of a product that he or she knows to contain ephedrine,
pseudoephedrine, norpseudoephedrine, or phenylpropanolamine, or (ii)
knowingly sell more than nine grams of ephedrine, pseudoephedrine,
norpseudoephedrine, or phenylpropanolamine, other than pediatric
liquids as defined. Except as otherwise provided in this section, the
three package per transaction limitation or nine gram per
transaction limitation imposed by this paragraph shall apply to any
product that is lawfully sold, transferred, or furnished over the
counter without a prescription pursuant to the federal Food, Drug,
and Cosmetic Act (21 U.S.C. Sec. 301 et seq.), or regulations adopted
thereunder, unless exempted from the requirements of the federal
Controlled Substances Act by the federal Drug Enforcement
Administration pursuant to Section 814 of Title 21 of the United
States Code.
(4) (A) A first violation of this subdivision is a misdemeanor.
(B) Any person who has previously been convicted of a violation of
this subdivision shall, upon a subsequent conviction thereof, be
punished by imprisonment in a county jail not exceeding one year, by
a fine not exceeding ten thousand dollars ($10,000), or by both the
fine and imprisonment.
(h) For the purposes of this article, the following terms have the
following meanings:
(1) "Drug store" is any entity described in Code 5912 of the
Standard Industrial Classification (SIC) Manual published by the
United States Office of Management and Budget, 1987 edition.
(2) "General merchandise store" is any entity described in Codes
5311 to 5399, inclusive, and Code 5499 of the Standard Industrial
Classification (SIC) Manual published by the United States Office of
Management and Budget, 1987 edition.
(3) "Grocery store" is any entity described in Code 5411 of the
Standard Industrial Classification (SIC) Manual published by the
United States Office of Management and Budget, 1987 edition.
(4) "Pediatric liquid" means a nonencapsulated liquid whose unit
measure according to product labeling is stated in milligrams,
ounces, or other similar measure. In no instance shall the dosage
units exceed 15 milligrams of phenylpropanolamine or pseudoephedrine
per five milliliters of liquid product, except for liquid products
primarily intended for administration to children under two years of
age for which the recommended dosage unit does not exceed two
milliliters and the total package content does not exceed one fluid
ounce.
(5) "Retail distributor" means a grocery store, general
merchandise store, drugstore, or other related entity, the activities
of which, as a distributor of ephedrine, pseudoephedrine,
norpseudoephedrine, or phenylpropanolamine products, are limited
exclusively to the sale of ephedrine, pseudoephedrine,
norpseudoephedrine, or phenylpropanolamine products for personal use
both in number of sales and volume of sales, either directly to
walk-in customers or in face-to-face transactions by direct sales.
"Retail distributor" includes an entity that makes a direct sale, but
does not include the parent company of that entity if the company is
not involved in direct sales regulated by this article.
(6) "Sale for personal use" means the sale in a single transaction
to an individual customer for a legitimate medical use of a product
containing ephedrine, pseudoephedrine, norpseudoephedrine, or
phenylpropanolamine in dosages at or below that specified in
paragraph (3) of subdivision (g). "Sale for personal use" also
includes the sale of those products to employers to be dispensed to
employees from first-aid kits or medicine chests.
(i) It is the intent of the Legislature that this section shall
preempt all local ordinances or regulations governing the sale by a
retail distributor of over-the-counter products containing ephedrine,
pseudoephedrine, norpseudoephedrine, or phenylpropanolamine.
SEC. 146. Section 11100.1 of the Health and Safety Code
is amended to read:
11100.1. (a) Any manufacturer, wholesaler, retailer, or other
person or entity in this state that obtains from a source outside of
this state any substance specified in subdivision (a) of Section
11100 shall submit a report of that transaction to the Department of
Justice 21 days in advance of obtaining the substance. However, the
Department of Justice may authorize the submission of reports within
72 hours, or within a timeframe and in a manner acceptable to the
Department of Justice, after the actual physical obtaining of a
specified substance with respect to repeated transactions between a
furnisher and an obtainer involving the substances, if the Department
of Justice determines that the obtainer has established a record of
utilization of the substances for lawful purposes. This section does
not apply to any person whose prescribing or dispensing activities
are subject to the reporting requirements set forth in Section 11164;
any manufacturer or wholesaler who is licensed by the California
State Board of Pharmacy and also registered with the federal Drug
Enforcement Administration of the United States Department of
Justice; any analytical research facility that is registered with the
federal Drug Enforcement Administration of the United States
Department of Justice; or any state-licensed health care facility.
(b) (1) Any person specified in subdivision (a) who does not
submit a report as required by that subdivision shall be punished by
imprisonment in a county jail not exceeding six months, by a fine not
exceeding five thousand dollars ($5,000), or by both that fine and
imprisonment.
(2) Any person specified in subdivision (a) who has been
previously convicted of a violation of subdivision (a) who
subsequently does not submit a report as required by subdivision (a)
shall be punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code , or by imprisonment in a county jail not exceeding
one year, by a fine not exceeding one hundred thousand dollars
($100,000), or by both that fine and imprisonment.
SEC. 147. Section 11105 of the Health and Safety Code
is amended to read:
11105. (a) It is unlawful for any person to knowingly make a
false statement in connection with any report or record required
under this article.
(b) (1) Any person who violates this section shall be punished
by imprisonment in the state prison pursuant
to subdivision (h) of Section 1170 of the Penal Code , or by
imprisonment in the a county jail not
exceeding one year, or by a fine not exceeding five thousand dollars
($5,000), or by both such that fine and
imprisonment.
(2) Any person who has been previously convicted of violating
this section and who subsequently violates this section shall be
punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
for two, three, or four years, or by a fine not exceeding one hundred
thousand dollars ($100,000), or by both such
that fine and imprisonment.
SEC. 148. Section 11153 of the Health and Safety Code
is amended to read:
11153. (a) A prescription for a controlled substance shall only
be issued for a legitimate medical purpose by an individual
practitioner acting in the usual course of his or her professional
practice. The responsibility for the proper prescribing and
dispensing of controlled substances is upon the prescribing
practitioner, but a corresponding responsibility rests with the
pharmacist who fills the prescription. Except as authorized by this
division, the following are not legal prescriptions: (1) an order
purporting to be a prescription which is issued not in the usual
course of professional treatment or in legitimate and authorized
research; or (2) an order for an addict or habitual user of
controlled substances, which is issued not in the course of
professional treatment or as part of an authorized narcotic treatment
program, for the purpose of providing the user with controlled
substances, sufficient to keep him or her comfortable by maintaining
customary use.
(b) Any person who knowingly violates this section shall be
punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code,
or in the a county jail not exceeding
one year, or by a fine not exceeding twenty thousand dollars
($20,000), or by both a that fine and
imprisonment.
(c) No provision of the amendments to this section enacted during
the second year of the 1981-82 Regular Session shall be construed as
expanding the scope of practice of a pharmacist.
SEC. 149. Section 11153.5 of the Health and Safety Code
is amended to read:
11153.5. (a) No wholesaler or manufacturer, or agent or employee
of a wholesaler or manufacturer, shall furnish controlled substances
for other than legitimate medical purposes.
(b) Anyone who violates this section knowing, or having a
conscious disregard for the fact, that the controlled substances are
for other than a legitimate medical purpose shall be punishable by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code , or in
the a county jail not exceeding one
year, or by a fine not exceeding twenty thousand dollars ($20,000),
or by both a that fine and
imprisonment.
(c) Factors to be considered in determining whether a wholesaler
or manufacturer, or agent or employee of a wholesaler or
manufacturer, furnished controlled substances knowing or having a
conscious disregard for the fact that the controlled substances are
for other than legitimate medical purposes shall include, but not be
limited to, whether the use of controlled substances was for purposes
of increasing athletic ability or performance, the amount of
controlled substances furnished, the previous ordering pattern of the
customer (including size and frequency of orders), the type and size
of the customer, and where and to whom the customer distributes the
product.
SEC. 150. Section 11162.5 of the Health and Safety Code
is amended to read:
11162.5. (a) Every person who counterfeits a prescription blank
purporting to be an official prescription blank prepared and issued
pursuant to Section 11161.5, or knowingly possesses more than three
counterfeited prescription blanks, shall be punished by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code or by imprisonment in a
county jail for not more than one year.
(b) Every person who knowingly possesses three or fewer
counterfeited prescription blanks purporting to be official
prescription blanks prepared and issued pursuant to Section 11161.5,
shall be guilty of a misdemeanor punishable by imprisonment in a
county jail not exceeding six months, or by a fine not exceeding one
thousand dollars ($1,000), or by both that fine and imprisonment
.
SEC. 151. Section 11350 of the Health and Safety Code
is amended to read:
11350. (a) Except as otherwise provided in this division, every
person who possesses (1) any controlled substance specified in
subdivision (b) or (c), or paragraph (1) of subdivision (f) of
Section 11054, specified in paragraph (14), (15), or (20) of
subdivision (d) of Section 11054, or specified in subdivision (b) or
(c) of Section 11055, or specified in subdivision (h) of Section
11056, or (2) any controlled substance classified in Schedule III,
IV, or V which is a narcotic drug, unless upon the written
prescription of a physician, dentist, podiatrist, or veterinarian
licensed to practice in this state, shall be punished by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code .
(b) Except as otherwise provided in this division, every person
who possesses any controlled substance specified in subdivision (e)
of Section 11054 shall be punished by imprisonment in the
a county jail for not more than one year or
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code .
(c) Except as otherwise provided in this division, whenever a
person who possesses any of the controlled substances specified in
subdivision (a) or (b), the judge may, in addition to any punishment
provided for pursuant to subdivision (a) or (b), assess against that
person a fine not to exceed seventy dollars ($70) with proceeds of
this fine to be used in accordance with Section 1463.23 of the Penal
Code. The court shall, however, take into consideration the defendant'
s ability to pay, and no defendant shall be denied probation because
of his or her inability to pay the fine permitted under this
subdivision.
(d) Except in unusual cases in which it would not serve the
interest of justice to do so, whenever a court grants probation
pursuant to a felony conviction under this section, in addition to
any other conditions of probation which may be imposed, the following
conditions of probation shall be ordered:
(1) For a first offense under this section, a fine of at least
one thousand dollars ($1,000) or community service.
(2) For a second or subsequent offense under this section, a fine
of at least two thousand dollars ($2,000) or community service.
(3) If a defendant does not have the ability to pay the minimum
fines specified in paragraphs (1) and (2), community service shall be
ordered in lieu of the fine.
SEC. 152. Section 11351 of the Health and Safety Code
is amended to read:
11351. Except as otherwise provided in this division, every
person who possesses for sale or purchases for purposes of sale (1)
any controlled substance specified in subdivision (b), (c), or (e) of
Section 11054, specified in paragraph (14), (15), or (20) of
subdivision (d) of Section 11054, or specified in subdivision (b) or
(c) of Section 11055, or specified in subdivision (h) of Section
11056, or (2) any controlled substance classified in Schedule III,
IV, or V which is a narcotic drug, shall be punished by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code for two, three, or four
years.
SEC. 153. Section 11351.5 of the Health and Safety Code
is amended to read:
11351.5. Except as otherwise provided in this division, every
person who possesses for sale or purchases for purposes of sale
cocaine base which is specified in paragraph (1) of subdivision (f)
of Section 11054, shall be punished by imprisonment in the
state prison pursuant to subdivision (h) of Section
1170 of the Penal Code for a period of three, four, or five
years.
SEC. 154. Section 11352 of the Health and Safety Code
is amended to read:
11352. (a) Except as otherwise provided in this division, every
person who transports, imports into this state, sells, furnishes,
administers, or gives away, or offers to transport, import into this
state, sell, furnish, administer, or give away, or attempts to import
into this state or transport (1) any controlled substance specified
in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f)
of Section 11054, specified in paragraph (14), (15), or (20) of
subdivision (d) of Section 11054, or specified in subdivision (b) or
(c) of Section 11055, or specified in subdivision (h) of Section
11056, or (2) any controlled substance classified in Schedule III,
IV, or V which is a narcotic drug, unless upon the written
prescription of a physician, dentist, podiatrist, or veterinarian
licensed to practice in this state, shall be punished by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code for three, four, or five
years.
(b) Notwithstanding the penalty provisions of subdivision (a),
any person who transports for sale any controlled substances
specified in subdivision (a) within this state from one county to
another noncontiguous county shall be punished by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code for three, six, or nine
years.
SEC. 155. Section 11353.5 of the Health and Safety Code
is amended to read:
11353.5. Except as authorized by law, any person 18 years of age
or older who unlawfully prepares for sale upon school grounds or a
public playground, a child day care facility, a church, or a
synagogue, or sells or gives away a controlled substance, other than
a controlled substance described in Section 11353 or 11380, to a
minor upon the grounds of, or within, any school, child day care
facility, public playground, church, or synagogue providing
instruction in preschool, kindergarten, or any of grades 1 to 12,
inclusive, or providing child care services, during hours in which
those facilities are open for classes, school-related programs, or
child care, or at any time when minors are using the facility where
the offense occurs, or upon the grounds of a public playground during
the hours in which school-related programs for minors are being
conducted, or at any time when minors are using the facility where
the offense occurs, shall be punished by imprisonment in the
state prison pursuant to subdivision (h) of Section
1170 of the Penal Code for five, seven, or nine years.
Application of this section shall be limited to persons at least five
years older than the minor to whom he or she prepares for sale,
sells, or gives away a controlled substance.
SEC. 156. Section 11353.6 of the Health and Safety Code
is amended to read:
11353.6. (a) This section shall be known, and may be cited, as
the Juvenile Drug Trafficking and Schoolyard Act of 1988.
(b) Any person 18 years of age or over who is convicted of a
violation of Section 11351.5, 11352, or 11379.6, as those sections
apply to paragraph (1) of subdivision (f) of Section 11054, or of
Section 11351, 11352, or 11379.6, as those sections apply to
paragraph (11) of subdivision (c) of Section 11054, or of Section
11378, 11379, or 11379.6, as those sections apply to paragraph (2) of
subdivision (d) of Section 11055, or of a conspiracy to commit one
of those offenses, where the violation takes place upon the grounds
of, or within 1,000 feet of, a public or private elementary,
vocational, junior high, or high school during hours that the school
is open for classes or school-related programs, or at any time when
minors are using the facility where the offense occurs, shall receive
an additional punishment of 3, 4, or 5 years at the court's
discretion.
(c) Any person 18 years of age or older who is convicted of a
violation pursuant to subdivision (b) which involves a minor who is
at least four years younger than that person, as a full and
separately served enhancement to that provided in subdivision (b),
shall be punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code for 3, 4, or 5 years at the court's discretion.
(d) The additional terms provided in this section shall not be
imposed unless the allegation is charged in the accusatory pleading
and admitted or found to be true by the trier of fact.
(e) The additional terms provided in this section shall be in
addition to any other punishment provided by law and shall not be
limited by any other provision of law.
(f) Notwithstanding any other provision of law, the court may
strike the additional punishment for the enhancements provided in
this section if it determines that there are circumstances in
mitigation of the additional punishment and states on the record its
reasons for striking the additional punishment.
(g) "Within 1,000 feet of a public or private elementary,
vocational, junior high, or high school" means any public area or
business establishment where minors are legally permitted to conduct
business which is located within 1,000 feet of any public or private
elementary, vocational, junior high, or high school.
SEC. 157. Section 11353.7 of the Health and Safety Code
is amended to read:
11353.7. Except as authorized by law, and except as provided
otherwise in Sections 11353.1, 11353.6, and 11380.1 with respect to
playgrounds situated in a public park, any person 18 years of age or
older who unlawfully prepares for sale in a public park, including
units of the state park system and state vehicular recreation areas,
or sells or gives away a controlled substance to a minor under the
age of 14 years in a public park, including units of the state park
system and state vehicular recreation areas, during hours in which
the public park, including units of the state park system and state
vehicular recreation areas, is open for use, with knowledge that the
person is a minor under the age of 14 years, shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code for three,
six, or nine years.
SEC. 158. Section 11356 of the Health and Safety Code
is amended to read:
11356. As used in this article "felony offense," and "offense
punishable as a felony" refer to an offense prior to July 1,
2011, for which the law prescribes imprisonment in the state
prison , or for an offense on or after July 1, 2011,
imprisonment in either the state prison or pursuant to subdivision
(h) of Section 1170 of the Penal Code , as either an
alternative or the sole penalty, regardless of the sentence the
particular defendant received.
SEC. 159. Section 11357 of the Health and Safety Code
is amended to read:
11357. (a) Except as authorized by law, every person who
possesses any concentrated cannabis shall be punished by imprisonment
in the county jail for a period of not more than one year or by a
fine of not more than five hundred dollars ($500), or by both such
fine and imprisonment, or shall be punished by imprisonment
in the state prison pursuant to subdivision (h) of
Section 1170 of the Penal Code .
(b) Except as authorized by law, every person who possesses not
more than 28.5 grams of marijuana, other than concentrated cannabis,
is guilty of an infraction punishable by a fine of not more than one
hundred dollars ($100).
(c) Except as authorized by law, every person who possesses more
than 28.5 grams of marijuana, other than concentrated cannabis, shall
be punished by imprisonment in the a
county jail for a period of not more than six months or by a fine of
not more than five hundred dollars ($500), or by both such fine and
imprisonment.
(d) Except as authorized by law, every person 18 years of age or
over who possesses not more than 28.5 grams of marijuana, other than
concentrated cannabis, upon the grounds of, or within, any school
providing instruction in kindergarten or any of grades 1 through 12
during hours the school is open for classes or school-related
programs is guilty of a misdemeanor and shall be punished by a fine
of not more than five hundred dollars ($500), or by imprisonment in
the a county jail for a period of not
more than 10 days, or both.
(e) Except as authorized by law, every person under the age of 18
who possesses not more than 28.5 grams of marijuana, other than
concentrated cannabis, upon the grounds of, or within, any school
providing instruction in kindergarten or any of grades 1 through 12
during hours the school is open for classes or school-related
programs is guilty of a misdemeanor and shall be subject to the
following dispositions:
(1) A fine of not more than two hundred fifty dollars ($250), upon
a finding that a first offense has been committed.
(2) A fine of not more than five hundred dollars ($500), or
commitment to a juvenile hall, ranch, camp, forestry camp, or secure
juvenile home for a period of not more than 10 days, or both, upon a
finding that a second or subsequent offense has been committed.
SEC. 160. Section 11358 of the Health and Safety Code
is amended to read:
11358. Every person who plants, cultivates, harvests, dries, or
processes any marijuana or any part thereof, except as otherwise
provided by law, shall be punished by imprisonment in the
state prison pursuant to subdivision (h) of Section
1170 of the Penal Code .
SEC. 161. Section 11359 of the Health and Safety Code
is amended to read:
11359. Every person who possesses for sale any marijuana, except
as otherwise provided by law, shall be punished by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code .
SEC. 162. Section 11360 of the Health and Safety Code
is amended to read:
11360. (a) Except as otherwise provided by this section or as
authorized by law, every person who transports, imports into this
state, sells, furnishes, administers, or gives away, or offers to
transport, import into this state, sell, furnish, administer, or give
away, or attempts to import into this state or transport any
marijuana shall be punished by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170 of
the Penal Code for a period of two, three or four years.
(b) Except as authorized by law, every person who gives away,
offers to give away, transports, offers to transport, or attempts
to transport not more
than 28.5 grams of marijuana, other than concentrated cannabis, is
guilty of a misdemeanor and shall be punished by a fine of not more
than one hundred dollars ($100). In any case in which a person is
arrested for a violation of this subdivision and does not demand to
be taken before a magistrate, such person shall be released by the
arresting officer upon presentation of satisfactory evidence of
identity and giving his written promise to appear in court, as
provided in Section 853.6 of the Penal Code, and shall not be
subjected to booking.
SEC. 163. Section 11362 of the Health and Safety Code
is amended to read:
11362. As used in this article "felony offense," and offense
"punishable as a felony" refer to an offense prior to July 1,
2011, for which the law prescribes imprisonment in the state
prison , or for an offense on or after July 1, 2011,
imprisonment in either the state prison or pursuant to subdivision
(h) of Section 1170 of the Penal Code , as either an
alternative or the sole penalty, regardless of the sentence the
particular defendant received.
SEC. 164. Section 11366.5 of the Health and Safety Code
is amended to read:
11366.5. (a) Any person who has under his or her management or
control any building, room, space, or enclosure, either as an owner,
lessee, agent, employee, or mortgagee, who knowingly rents, leases,
or makes available for use, with or without compensation, the
building, room, space, or enclosure for the purpose of unlawfully
manufacturing, storing, or distributing any controlled substance for
sale or distribution shall be punished by imprisonment in the county
jail for not more than one year, or in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code .
(b) Any person who has under his or her management or control any
building, room, space, or enclosure, either as an owner, lessee,
agent, employee, or mortgagee, who knowingly allows the building,
room, space, or enclosure to be fortified to suppress law enforcement
entry in order to further the sale of any amount of cocaine base as
specified in paragraph (1) of subdivision (f) of Section 11054,
cocaine as specified in paragraph (6) of subdivision (b) of Section
11055, heroin, phencyclidine, amphetamine, methamphetamine, or
lysergic acid diethylamide and who obtains excessive profits from the
use of the building, room, space, or enclosure shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code for two,
three, or four years.
(c) Any person who violates subdivision (a) after previously
being convicted of a violation of subdivision (a) shall be punished
by imprisonment in the state prison pursuant
to subdivision (h) of Section 1170 of the Penal Code for two,
three, or four years.
(d) For the purposes of this section, "excessive profits" means
the receipt of consideration of a value substantially higher than
fair market value.
SEC. 165. Section 11366.6 of the Health and Safety Code
is amended to read:
11366.6. Any person who utilizes a building, room, space, or
enclosure specifically designed to suppress law enforcement entry in
order to sell, manufacture, or possess for sale any amount of cocaine
base as specified in paragraph (1) of subdivision (f) of Section
11054, cocaine as specified in paragraph (6) of subdivision (b) of
Section 11055, heroin, phencyclidine, amphetamine, methamphetamine,
or lysergic acid diethylamide shall be punished by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code for three, four, or five
years.
SEC. 166. Section 11366.8 of the Health and Safety Code
is amended to read:
11366.8. (a) Every person who possesses, uses, or controls a
false compartment with the intent to store, conceal, smuggle, or
transport a controlled substance within the false compartment shall
be punished by imprisonment in a county jail for a term of
imprisonment not to exceed one year or in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code .
(b) Every person who designs, constructs, builds, alters, or
fabricates a false compartment for, or installs or attaches a false
compartment to, a vehicle with the intent to store, conceal, smuggle,
or transport a controlled substance shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code for 16 months
or two or three years.
(c) The term "vehicle" means any of the following vehicles
without regard to whether the vehicles are private or commercial,
including, but not limited to, cars, trucks, buses, aircraft, boats,
ships, yachts, and vessels.
(d) The term "false compartment" means any box, container, space,
or enclosure that is intended for use or designed for use to
conceal, hide, or otherwise prevent discovery of any controlled
substance within or attached to a vehicle, including, but not limited
to, any of the following:
(1) False, altered, or modified fuel tanks.
(2) Original factory equipment of a vehicle that is modified,
altered, or changed.
(3) Compartment, space, or box that is added to, or fabricated,
made, or created from, existing compartments, spaces, or boxes within
a vehicle.
SEC. 167. Section 11370.6 of the Health and Safety Code
is amended to read:
11370.6. (a) Every person who possesses any moneys or negotiable
instruments in excess of one hundred thousand dollars ($100,000)
which have been obtained as the result of the unlawful sale,
possession for sale, transportation, manufacture, offer for sale, or
offer to manufacture any controlled substance listed in Section
11054, 11055, 11056, 11057, or 11058, with knowledge that the moneys
or negotiable instruments have been so obtained, and any person who
possesses any moneys or negotiable instruments in excess of one
hundred thousand dollars ($100,000) which are intended by that person
for the unlawful purchase of any controlled substance listed in
Section 11054, 11055, 11056, 11057, or 11058 and who commits an act
in substantial furtherance of the unlawful purchase, shall be
punished by imprisonment in the a
county jail for a term not to exceed one year, or by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code for two, three, or four
years.
(b) In consideration of the constitutional right to counsel
afforded by the Sixth Amendment to the United States Constitution and
Section 15 of Article 1 of the California Constitution, when a case
charged under subdivision (a) involves an attorney who accepts a fee
for representing a client in a criminal investigation or proceeding,
the prosecution shall additionally be required to prove that the
moneys or negotiable instruments were accepted by the attorney with
the intent to participate in the unlawful conduct described in
subdivision (a) or to disguise or aid in disguising the source of the
funds or the nature of the criminal activity.
(c) In determining the guilt or innocence of a person charged
under subdivision (a), the trier of fact may consider the following
in addition to any other relevant evidence:
(1) The lack of gainful employment by the person charged.
(2) The expert opinion of a qualified controlled substances
expert as to the source of the assets.
(3) The existence of documents or ledgers that indicate sales of
controlled substances.
SEC. 168. Section 11371 of the Health and Safety Code
is amended to read:
11371. Any person who shall knowingly violate any of the
provisions of Section 11153, 11154, 11155, or 11156 with respect to
(1) a controlled substance specified in subdivision (b), (c), or (d)
of Section 11055, or (2) a controlled substance specified in
paragraph (1) of subdivision (b) of Section 11056, or (3) a
controlled substance which is a narcotic drug classified in Schedule
III, IV, or V, or who in any voluntary manner solicits, induces,
encourages or intimidates any minor with the intent that such minor
shall commit any such offense, shall be punished by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code, or in a
county jail not exceeding one year, or by a fine not exceeding twenty
thousand dollars ($20,000), or by both such fine and imprisonment.
SEC. 169. Section 11371.1 of the Health and Safety Code
is amended to read:
11371.1. Any person who shall knowingly violate any of the
provisions of Section 11173 or 11174 with respect to (1) a controlled
substance specified in subdivision (b), (c), or (d) of Section
11055, or (2) a controlled substance specified in paragraph (1) of
subdivision (b) of Section 11056, or (3) a controlled substance which
is a narcotic drug classified in Schedule III, IV, or V, or who in
any voluntary manner solicits, induces, encourages or intimidates any
minor with the intent that such minor shall commit any such offense,
shall be punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code , or in a county jail not exceeding one year.
SEC. 170. Section 11374.5 of the Health and Safety Code
is amended to read:
11374.5. (a) Any manufacturer of a controlled substance who
disposes of any hazardous substance that is a controlled substance or
a chemical used in, or is a byproduct of, the manufacture of a
controlled substance in violation of any law regulating the disposal
of hazardous substances or hazardous waste is guilty of a public
offense punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code for two, three, or four years or in the county jail
not exceeding one year.
(b) (1) In addition to any other penalty or liability imposed by
law, a person who is convicted of violating subdivision (a), or any
person who is convicted of the manufacture, sale, possession for
sale, possession, transportation, or disposal of any hazardous
substance that is a controlled substance or a chemical used in, or is
a byproduct of, the manufacture of a controlled substance in
violation of any law, shall pay a penalty equal to the amount of the
actual cost incurred by the state or local agency to remove and
dispose of the hazardous substance that is a controlled substance or
a chemical used in, or is a byproduct of, the manufacture of a
controlled substance and to take removal action with respect to any
release of the hazardous substance or any items or materials
contaminated by that release, if the state or local agency requests
the prosecuting authority to seek recovery of that cost. The court
shall transmit all penalties collected pursuant to this subdivision
to the county treasurer of the county in which the court is located
for deposit in a special account in the county treasury. The county
treasurer shall pay that money at least once a month to the agency
that requested recovery of the cost for the removal action. The
county may retain up to 5 percent of any assessed penalty for
appropriate and reasonable administrative costs attributable to the
collection and disbursement of the penalty.
(2) If the Department of Toxic Substances Control has requested
recovery of the cost of removing the hazardous substance that is a
controlled substance or a chemical used in, or is a byproduct of, the
manufacture of a controlled substance or taking removal action with
respect to any release of the hazardous substance, the county
treasurer shall transfer funds in the amount of the penalty collected
to the Treasurer, who shall deposit the money in the Illegal Drug
Lab Cleanup Account, which is hereby created in the General Fund in
the State Treasury. The Department of Toxic Substances Control may
expend the money in the Illegal Drug Lab Cleanup Account, upon
appropriation by the Legislature, to cover the cost of taking removal
actions pursuant to Section 25354.5.
(3) If a local agency and the Department of Toxic Substances
Control have both requested recovery of removal costs with respect to
a hazardous substance that is a controlled substance or a chemical
used in, or is a byproduct of, the manufacture of a controlled
substance, the county treasurer shall apportion any penalty collected
among the agencies involved in proportion to the costs incurred.
(c) As used in this section the following terms have the
following meaning:
(1) "Dispose" means to abandon, deposit, intern, or otherwise
discard as a final action after use has been achieved or a use is no
longer intended.
(2) "Hazardous substance" has the same meaning as defined in
Section 25316.
(3) "Hazardous waste" has the same meaning as defined in Section
25117.
(4) For purposes of this section, "remove" or "removal" has the
same meaning as set forth in Section 25323.
SEC. 171. Section 11377 of the Health and Safety Code
is amended to read:
11377. (a) Except as authorized by law and as otherwise provided
in subdivision (b) or Section 11375, or in Article 7 (commencing with
Section 4211) of Chapter 9 of Division 2 of the Business and
Professions Code, every person who possesses any controlled substance
which is (1) classified in Schedule III, IV, or V, and which is not
a narcotic drug, (2) specified in subdivision (d) of Section 11054,
except paragraphs (13), (14), (15), and (20) of subdivision (d), (3)
specified in paragraph (11) of subdivision (c) of Section 11056, (4)
specified in paragraph (2) or (3) of subdivision (f) of Section
11054, or (5) specified in subdivision (d), (e), or (f) of Section
11055, unless upon the prescription of a physician, dentist,
podiatrist, or veterinarian, licensed to practice in this state,
shall be punished by imprisonment in a county jail for a period of
not more than one year or in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
.
(b) (1) Any person who violates subdivision (a) by unlawfully
possessing a controlled substance specified in subdivision (f) of
Section 11056, and who has not previously been convicted of a
violation involving a controlled substance specified in subdivision
(f) of Section 11056, is guilty of a misdemeanor.
(2) Any person who violates subdivision (a) by unlawfully
possessing a controlled substance specified in subdivision (g) of
Section 11056 is guilty of a misdemeanor.
(3) Any person who violates subdivision (a) by unlawfully
possessing a controlled substance specified in paragraph (7) or (8)
of subdivision (d) of Section 11055 is guilty of a misdemeanor.
(4) Any person who violates subdivision (a) by unlawfully
possessing a controlled substance specified in paragraph (8) of
subdivision (f) of Section 11057 is guilty of a misdemeanor.
(c) In addition to any fine assessed under subdivision (b), the
judge may assess a fine not to exceed seventy dollars ($70) against
any person who violates subdivision (a), with the proceeds of this
fine to be used in accordance with Section 1463.23 of the Penal Code.
The court shall, however, take into consideration the defendant's
ability to pay, and no defendant shall be denied probation because of
his or her inability to pay the fine permitted under this
subdivision.
SEC. 172. Section 11378 of the Health and Safety Code
is amended to read:
11378. Except as otherwise provided in Article 7 (commencing with
Section 4211) of Chapter 9 of Division 2 of the Business and
Professions Code, every person who possesses for sale any controlled
substance which is (1) classified in Schedule III, IV, or V and which
is not a narcotic drug, except subdivision (g) of Section 11056, (2)
specified in subdivision (d) of Section 11054, except paragraphs
(13), (14), (15), (20), (21), (22), and (23) of subdivision (d), (3)
specified in paragraph (11) of subdivision (c) of Section 11056, (4)
specified in paragraph (2) or (3) of subdivision (f) of Section
11054, or (5) specified in subdivision (d), (e), or (f), except
paragraph (3) of subdivision (e) and subparagraphs (A) and (B) of
paragraph (2) of subdivision (f), of Section 11055, shall be punished
by imprisonment in the state prison pursuant
to subdivision (h) of Section 1170 of the Penal Code .
SEC. 173. Section 11378.5 of the Health and Safety Code
is amended to read:
11378.5. Except as otherwise provided in Article 7 (commencing
with Section 4211) of Chapter 9 of Division 2 of the Business and
Professions Code, every person who possesses for sale phencyclidine
or any analog or any precursor of phencyclidine which is specified in
paragraph (21), (22), or (23) of subdivision (d) of Section 11054 or
in paragraph (3) of subdivision (e) or in subdivision (f), except
subparagraph (A) of paragraph (1) of subdivision (f), of Section
11055, shall be punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code for a period of three, four, or five years.
SEC. 174. Section 11379 of the Health and Safety Code
is amended to read:
11379. (a) Except as otherwise provided in subdivision (b) and
in Article 7 (commencing with Section 4211) of Chapter 9 of Division
2 of the Business and Professions Code, every person who transports,
imports into this state, sells, furnishes, administers, or gives
away, or offers to transport, import into this state, sell, furnish,
administer, or give away, or attempts to import into this state or
transport any controlled substance which is (1) classified in
Schedule III, IV, or V and which is not a narcotic drug, except
subdivision (g) of Section 11056, (2) specified in subdivision (d) of
Section 11054, except paragraphs (13), (14), (15), (20), (21), (22),
and (23) of subdivision (d), (3) specified in paragraph (11) of
subdivision (c) of Section 11056, (4) specified in paragraph (2) or
(3) of subdivision (f) of Section 11054, or (5) specified in
subdivision (d) or (e), except paragraph (3) of subdivision (e), or
specified in subparagraph (A) of paragraph (1) of subdivision (f), of
Section 11055, unless upon the prescription of a physician, dentist,
podiatrist, or veterinarian, licensed to practice in this state,
shall be punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code for a period of two, three, or four years.
(b) Notwithstanding the penalty provisions of subdivision (a),
any person who transports for sale any controlled substances
specified in subdivision (a) within this state from one county to
another noncontiguous county shall be punished by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code for three, six, or nine
years.
SEC. 175. Section 11379.5 of the Health and Safety Code
is amended to read:
11379.5. (a) Except as otherwise provided in subdivision (b) and
in Article 7 (commencing with Section 4211) of Chapter 9 of Division
2 of the Business and Professions Code, every person who transports,
imports into this state, sells, furnishes, administers, or gives
away, or offers to transport, import into this state, sell, furnish,
administer, or give away, or attempts to import into this state or
transport phencyclidine or any of its analogs which is specified in
paragraph (21), (22), or (23) of subdivision (d) of Section 11054 or
in paragraph (3) of subdivision (e) of Section 11055, or its
precursors as specified in subparagraph (A) or (B) of paragraph (2)
of subdivision (f) of Section 11055, unless upon the prescription of
a physician, dentist, podiatrist, or veterinarian licensed to
practice in this state, shall be punished by imprisonment in
the state prison pursuant to subdivision (h) of
Section 1170 of the Penal Code for a period of three, four, or
five years.
(b) Notwithstanding the penalty provisions of subdivision (a),
any person who transports for sale any controlled substances
specified in subdivision (a) within this state from one county to
another noncontiguous county shall be punished by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code for three, six, or nine
years.
SEC. 176. Section 11379.6 of the Health and Safety Code
is amended to read:
11379.6. (a) Except as otherwise provided by law, every person
who manufactures, compounds, converts, produces, derives, processes,
or prepares, either directly or indirectly by chemical extraction or
independently by means of chemical synthesis, any controlled
substance specified in Section 11054, 11055, 11056, 11057, or 11058
shall be punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code for three, five, or seven years and by a fine not
exceeding fifty thousand dollars ($50,000).
(b) Except when an enhancement pursuant to Section 11379.7 is
pled and proved, the fact that a person under 16 years of age resided
in a structure in which a violation of this section involving
methamphetamine occurred shall be considered a factor in aggravation
by the sentencing court.
(c) Except as otherwise provided by law, every person who offers
to perform an act which is punishable under subdivision (a) shall be
punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
for three, four, or five years.
(d) All fines collected pursuant to subdivision (a) shall be
transferred to the State Treasury for deposit in the Clandestine Drug
Lab Clean-up Account, as established by Section 5 of Chapter 1295 of
the Statutes of 1987. The transmission to the State Treasury shall
be carried out in the same manner as fines collected for the state by
the county.
SEC. 177. Section 11380.7 of the Health and Safety Code
is amended to read:
11380.7. (a) Notwithstanding any other provision of law, any
person who is convicted of trafficking in heroin, cocaine, cocaine
base, methamphetamine, or phencyclidine (PCP), or of a conspiracy to
commit trafficking in heroin, cocaine, cocaine base, methamphetamine,
or phencyclidine (PCP), in addition to the punishment imposed for
the conviction, shall be imprisoned in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code for an additional one year if the violation occurred
upon the grounds of, or within 1,000 feet of, a drug treatment
center, detoxification facility, or homeless shelter.
(b) (1) The additional punishment provided in this section shall
not be imposed unless the allegation is charged in the accusatory
pleading and admitted by the defendant or found to be true by the
trier of fact.
(2) The additional punishment provided in this section shall not
be imposed if any other additional punishment is imposed pursuant to
Section 11353.1, 11353.5, 11353.6, 11353.7, or 11380.1.
(c) Notwithstanding any other provision of law, the court may
strike the additional punishment provided for in this section if it
determines that there are circumstances in mitigation of the
additional punishment and states on the record its reasons for
striking the additional punishment. In determining whether or not to
strike the additional punishment, the court shall consider the
following factors and any relevant factors in aggravation or
mitigation in Rules 4.421 and 4.423 of the California Rules of Court.
(1) The following factors indicate that the court should exercise
its discretion to strike the additional punishment unless these
factors are outweighed by factors in aggravation:
(A) The defendant is homeless, or is in a homeless shelter or
transitional housing.
(B) The defendant lacks resources for the necessities of life.
(C) The defendant is addicted to or dependent on controlled
substances.
(D) The defendant's motive was merely to maintain a steady supply
of drugs for personal use.
(E) The defendant was recruited or exploited by a more culpable
person to commit the crime.
(2) The following factors indicate that the court should not
exercise discretion to strike the additional punishment unless these
factors are outweighed by factors in mitigation:
(A) The defendant, in committing the crime, preyed on homeless
persons, drug addicts or substance abusers who were seeking
treatment, shelter or transitional services.
(B) The defendant's primary motive was monetary compensation.
(C) The defendant induced others, particularly homeless persons,
drug addicts and substance abusers, to become involved in
trafficking.
(d) For the purposes of this section, the following terms have the
following meanings:
(1) "Detoxification facility" means any premises, place, or
building in which 24-hour residential nonmedical services are
provided to adults who are recovering from problems related to
alcohol, drug, or alcohol and drug misuse or abuse, and who need
alcohol, drug, or alcohol and drug recovery treatment or
detoxification services.
(2) "Drug treatment program" or "drug treatment" has the same
meaning set forth in subdivision (b) of Section 1210 of the Penal
Code.
(3) "Homeless shelter" includes, but is not limited to, emergency
shelter housing, as well as transitional housing, but does not
include domestic violence shelters. "Emergency shelter housing" is
housing with minimal support services for homeless persons in which
residency is limited to six months or less and is not related to the
person's ability to pay. "Transitional housing" means housing with
supportive services, including self-sufficiency development services,
which is exclusively designed and targeted to help recently homeless
persons find permanent housing as soon as reasonably possible,
limits residency to 24 months, and in which rent and service fees are
based on ability to pay.
(4) "Trafficking" means any of the unlawful activities specified
in Sections 11351, 11351.5, 11352, 11353, 11354, 11378, 11379,
11379.6, and 11380. It does not include simple possession or drug
use.
SEC. 178. Section 11381 of the Health and Safety Code
is amended to read:
11381. As used in this article "felony offense" and offense
"punishable as a felony" refer to an offense prior to July 1,
2011, for which the law prescribes imprisonment in the state
prison , or for an
offense on or after July 1, 2011, imprisonment in either the state
prison or pursuant to subdivision (h) of Section 1170 of the Penal
Code , as either an alternative or the sole penalty,
regardless of the sentence the particular defendant received.
SEC. 179. Section 11383 of the Health and Safety Code
is amended to read:
11383. (a) Any person who possesses at the same time any of the
following combinations, a combination product thereof, or possesses
any compound or mixture containing the chemicals listed in the
following combinations, with the intent to manufacture phencyclidine
(PCP) or any of its analogs specified in subdivision (d) of Section
11054 or subdivision (e) of Section 11055, is guilty of a felony and
shall be punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code for two, four, or six years:
(1) Piperidine and cyclohexanone.
(2) Pyrrolidine and cyclohexanone.
(3) Morpholine and cyclohexanone.
(b) Any person who possesses the optical, positional, or geometric
isomer of any of the compounds listed in this section, with the
intent to manufacture these controlled substances is guilty of a
felony and shall be punished by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170 of
the Penal Code for two, four, or six years:
(1) Phencyclidine (PCP).
(2) Any analog of PCP specified in subdivision (d) of Section
11054, or in subdivision (e) of Section 11055.
(c) Any person who possesses any compound or mixture containing
piperidine, cyclohexanone, pyrrolidine, morpholine,
1-phenylcyclohexylamine (PCA), 1-piperidinocyclohexanecarbonitrile
(PCC), or phenylmagnesium bromide (PMB) with the intent to
manufacture phencyclidine, is guilty of a felony and shall be
punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
for two, four, or six years.
(d) Any person who possesses immediate precursors sufficient for
the manufacture of piperidine, cyclohexanone, pyrrolidine,
morpholine, or phenylmagnesium bromide (PMB) with the intent to
manufacture phencyclidine, is guilty of a felony and shall be
punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
for two, four, or six years.
(e) This section does not apply to drug manufacturers licensed by
this state or persons authorized by regulation of the Board of
Pharmacy to possess those substances or combinations of substances.
SEC. 180. Section 11383.5 of the Health and Safety Code
is amended to read:
11383.5. (a) Any person who possesses both methylamine and
phenyl-2-propanone (phenylacetone) at the same time with the intent
to manufacture methamphetamine, or who possesses both ethylamine and
phenyl-2-propanone (phenylacetone) at the same time with the intent
to manufacture N-ethylamphetamine, is guilty of a felony and shall be
punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
for two, four, or six years.
(b) (1) Any person who, with the intent to manufacture
methamphetamine or any of its analogs specified in subdivision (d) of
Section 11055, possesses ephedrine or pseudoephedrine, or any salts,
isomers, or salts of isomers of ephedrine or pseudoephedrine, or who
possesses a substance containing ephedrine or pseudoephedrine, or
any salts, isomers, or salts of isomers of ephedrine or
pseudoephedrine, or who possesses at the same time any of the
following, or a combination product thereof, is guilty of a felony
and shall be punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code for two, four, or six years:
(A) Ephedrine, pseudoephedrine, norpseudoephedrine,
N-methylephedrine, N-ethylephedrine, N-methylpseudoephedrine,
N-ethylpseudoephedrine, or phenylpropanolamine, plus hydriodic acid.
(B) Ephedrine, pseudoephedrine, norpseudoephedrine,
N-methylephedrine, N-ethylephedrine, N-methylpseudoephedrine,
N-ethylpseudoephedrine, or phenylpropanolamine, thionyl chloride and
hydrogen gas.
(C) Ephedrine, pseudoephedrine, norpseudoephedrine,
N-methylephedrine, N-ethylephedrine, N-methylpseudoephedrine,
N-ethylpseudoephedrine, or phenylpropanolamine, plus phosphorus
pentachloride and hydrogen gas.
(D) Ephedrine, pseudoephedrine, norpseudoephedrine,
N-methylephedrine, N-ethylephedrine, N-methylpseudoephedrine,
N-ethylpseudoephedrine, chloroephedrine and chloropseudoephedrine, or
phenylpropanolamine, plus any reducing agent.
(2) Any person who, with the intent to manufacture methamphetamine
or any of its analogs specified in subdivision (d) of Section 11055,
possesses hydriodic acid or a reducing agent or any product
containing hydriodic acid or a reducing agent is guilty of a felony
and shall be punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code for two, four, or six years.
(c) Any person who possesses the optical, positional, or geometric
isomer of any of the compounds listed in this section, with the
intent to manufacture any of the following controlled substances, is
guilty of a felony and shall be punished by imprisonment in
the state prison pursuant to subdivision (h) of
Section 1170 of the Penal Code for two, four, or six years:
(1) Methamphetamine.
(2) Any analog of methamphetamine specified in subdivision (d) of
Section 11055.
(3) N-ethylamphetamine.
(d) Any person who possesses immediate precursors sufficient for
the manufacture of methylamine, ethylamine, phenyl-2-propanone,
ephedrine, pseudoephedrine, norpseudoephedrine, N-methylephedrine,
N-ethylephedrine, phenylpropanolamine, hydriodic acid or a reducing
agent, thionyl chloride, or phosphorus pentachloride, with the intent
to manufacture methamphetamine, is guilty of a felony and shall be
punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
for two, four, or six years.
(e) Any person who possesses essential chemicals sufficient to
manufacture hydriodic acid or a reducing agent, with the intent to
manufacture methamphetamine, is guilty of a felony and shall be
punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
for two, four, or six years.
(f) Any person who possesses any compound or mixture containing
ephedrine, pseudoephedrine, norpseudoephedrine, N-methylephedrine,
N-ethylephedrine, phenylpropanolamine, hydriodic acid or a reducing
agent, thionyl chloride, or phosphorus pentachloride, with the intent
to manufacture methamphetamine, is guilty of a felony and shall be
punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
for two, four, or six years.
(g) For purposes of this section, a "reducing agent" for the
purposes of manufacturing methamphetamine means an agent that causes
reduction to occur by either donating a hydrogen atom to an organic
compound or by removing an oxygen atom from an organic compound.
(h) This section does not apply to drug manufacturers licensed by
this state or persons authorized by regulation of the Board of
Pharmacy to possess those substances or combinations of substances.
SEC. 181. Section 11383.6 of the Health and Safety Code
is amended to read:
11383.6. (a) Any person who possesses at the same time any of the
following combinations, a combination product thereof, or possesses
any compound or mixture containing the chemicals listed in the
following combinations, with the intent to sell, transfer, or
otherwise furnish those chemicals, combinations, or mixtures to
another person with the knowledge that they will be used to
manufacture phencyclidine (PCP) or any of its analogs specified in
subdivision (d) of Section 11054 or subdivision (e) of Section 11055
is guilty of a felony and shall be punished by imprisonment
in the state prison pursuant to subdivision (h) of
Section 1170 of the Penal Code for 16 months, two, or
three years:
(1) Piperidine and cyclohexanone.
(2) Pyrrolidine and cyclohexanone.
(3) Morpholine and cyclohexanone.
(b) Any person who possesses the optical, positional, or geometric
isomer of any of the compounds listed in this section with the
intent to sell, transfer, or otherwise furnish the isomer to another
person with the knowledge that they will be used to manufacture these
controlled substances is guilty of a felony and shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code for 16
months, two, or three years:
(1) Phencyclidine (PCP).
(2) Any analog of PCP specified in subdivision (d) of Section
11054, or in subdivision (e) of Section 11055.
(c) Any person who possesses any compound or mixture containing
piperidine, cyclohexanone, pyrrolidine, morpholine,
1-phenylcyclohexylamine (PCA), 1-piperidinocyclohexanecarbonitrile
(PCC), or phenylmagnesium bromide (PMB) with the intent to sell,
transfer, or otherwise furnish the compound or mixture to another
person with the knowledge that it will be used to manufacture
phencyclidine is guilty of a felony and shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code for 16
months, two, or three years.
(d) Any person who possesses immediate precursors sufficient for
the manufacture of piperidine, cyclohexanone, pyrrolidine,
morpholine, or phenylmagnesium bromide (PMB) with the intent to sell,
transfer or otherwise furnish the immediate precursors to another
person with the knowledge that they will be used to manufacture
phencyclidine is guilty of a felony and shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code for 16
months, two, or three years.
(e) This section does not apply to drug manufacturers licensed by
this state or persons authorized by regulation of the Board of
Pharmacy to possess those substances or combinations of substances.
SEC. 182. Section 11383.7 of the Health and Safety Code
is amended to read:
11383.7. (a) Any person who possesses both methylamine and
phenyl-2-propanone (phenylacetone) at the same time with the intent
to sell, transfer, or otherwise furnish those chemicals to another
person with the knowledge that they will be used to manufacture
methamphetamine, or who possesses both ethylamine and
phenyl-2-propanone (phenylacetone) at the same time with the intent
to sell, transfer, or otherwise furnish those chemicals to another
person with the knowledge that they will be used to manufacture
methamphetamine is guilty of a felony and shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code
for 16 months, two, or three years.
(b) (1) Any person who possesses ephedrine or pseudoephedrine, or
any salts, isomers, or salts of isomers of ephedrine or
pseudoephedrine, or who possesses a substance containing ephedrine or
pseudoephedrine, or any salts, isomers, or salts of isomers of
ephedrine or pseudoephedrine, or who possesses at the same time any
of the following, or a combination product thereof, with the intent
to sell, transfer, or otherwise furnish those chemicals, substances,
or products to another person with the knowledge that they will be
used to manufacture methamphetamine or any of its analogs specified
in subdivision (d) of Section 11055 is guilty of a felony and shall
be punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
for 16 months, two, or three years:
(A) Ephedrine, pseudoephedrine, norpseudoephedrine,
N-methylephedrine, N-ethylephedrine, N-methylpseudoephedrine,
N-ethylpseudoephedrine, or phenylpropanolamine, plus hydriodic acid.
(B) Ephedrine, pseudoephedrine, norpseudoephedrine,
N-methylephedrine, N-ethylephedrine, N-methylpseudoephedrine,
N-ethylpseudoephedrine, or phenylpropanolamine, thionyl chloride and
hydrogen gas.
(C) Ephedrine, pseudoephedrine, norpseudoephedrine,
N-methylephedrine, N-ethylephedrine, N-methylpseudoephedrine,
N-ethylpseudoephedrine, or phenylpropanolamine, plus phosphorus
pentachloride and hydrogen gas.
(D) Ephedrine, pseudoephedrine, norpseudoephedrine,
N-methylephedrine, N-ethylephedrine, N-methylpseudoephedrine,
N-ethylpseudoephedrine, chloroephedrine and chloropseudoephedrine, or
phenylpropanolamine, plus any reducing agent.
(2) Any person who possesses hydriodic acid or a reducing agent or
any product containing hydriodic acid or a reducing agent with the
intent to sell, transfer, or otherwise furnish that chemical,
product, or substance to another person with the knowledge that they
will be used to manufacture methamphetamine or any of its analogs
specified in subdivision (d) of Section 11055 is guilty of a felony
and shall be punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code for 16 months, two, or three years.
(c) Any person who possesses the optical, positional, or geometric
isomer of any of the compounds listed in this section with the
intent to sell, transfer, or otherwise furnish any of the compounds
to another person with the knowledge that they will be used to
manufacture these controlled substances is guilty of a felony and
shall be punished by imprisonment in the state prison
pursuant to subdivision (h) of Secti on
1170 of the Penal Code for 16 months, two, or three years:
(1) Methamphetamine.
(2) Any analog of methamphetamine specified in subdivision (d) of
Section 11055.
(3) N-ethylamphetamine.
(d) Any person who possesses immediate precursors sufficient for
the manufacture of methylamine, ethylamine, phenyl-2-propanone,
ephedrine, pseudoephedrine, norpseudoephedrine, N-methylephedrine,
N-ethylephedrine, phenylpropanolamine, hydriodic acid or a reducing
agent, thionyl chloride, or phosphorus pentachloride, with the intent
to sell, transfer, or otherwise furnish these substances to another
person with the knowledge that they will be used to manufacture
methamphetamine is guilty of a felony and shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code for 16
months, two, or three years.
(e) Any person who possesses essential chemicals sufficient to
manufacture hydriodic acid or a reducing agent with the intent to
sell, transfer, or otherwise furnish those chemicals to another
person with the knowledge that they will be used to manufacture
methamphetamine is guilty of a felony and shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code for 16
months, two, or three years.
(f) Any person who possesses any compound or mixture containing
ephedrine, pseudoephedrine, norpseudoephedrine, N-methylephedrine,
N-ethylephedrine, phenylpropanolamine, hydriodic acid or a reducing
agent, thionyl chloride, or phosphorus pentachloride, with the intent
to sell, transfer, or otherwise furnish that compound or mixture to
another person with the knowledge that they will be used to
manufacture methamphetamine is guilty of a felony and shall be
punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
for 16 months, two, or three years.
(g) For purposes of this section, a "reducing agent" for the
purposes of manufacturing methamphetamine means an agent that causes
reduction to occur by either donating a hydrogen atom to an organic
compound or by removing an oxygen atom from an organic compound.
(h) This section does not apply to drug manufacturers licensed by
this state or persons authorized by regulation of the Board of
Pharmacy to possess those substances or combinations of substances.
SEC. 183. Section 12401 of the Health and Safety Code
is amended to read:
12401. Every person who is found guilty of a felony as specified
in this part is punishable by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170 of
the Penal Code , or in a county jail not exceeding one year, or
by fine not exceeding ten thousand dollars ($10,000), or by both
such fine and imprisonment.
SEC. 184. Section 12700 of the Health and Safety Code
is amended to read:
12700. (a) Except as provided in Section 12702 and subdivision
(b), a person who violates any provision of this part, or any
regulations issued pursuant to this part, is guilty of a misdemeanor,
and upon conviction shall be punished by a fine of not less than
five hundred dollars ($500) or more than one thousand dollars
($1,000), or by imprisonment in the county jail for not exceeding one
year, or by both that fine and imprisonment.
(b) A person who violates any provision of this part, or any
regulations issued pursuant to this part, by possessing dangerous
fireworks shall be subject to the following:
(1) A person who possesses a gross weight, including packaging, of
less than 25 pounds of unaltered dangerous fireworks, as defined in
Section 12505, is guilty of a misdemeanor, and upon conviction shall
be punished by a fine of not less than five hundred dollars ($500) or
more than one thousand dollars ($1,000), or by imprisonment in the
county jail for not exceeding one year, or both that fine and
imprisonment. Upon a second or subsequent conviction, a person shall
be punished by a fine of not less than one thousand dollars ($1,000)
or by imprisonment in a county jail not exceeding one year or by both
that fine and imprisonment.
(2) A person who possesses a gross weight, including packaging, of
not less than 25 pounds or more than 100 pounds of unaltered
dangerous fireworks, as defined in Section 12505, is guilty of a
public offense, and upon conviction shall be punished by imprisonment
in the a county jail for not more than
one year, or by a fine of not less than one thousand dollars
($1,000) or more than five thousand dollars ($5,000), or by both that
fine and imprisonment.
(3) A person who possesses a gross weight, including packaging, of
not less than 100 pounds or more than 5,000 pounds of unaltered
dangerous fireworks, as defined in Section 12505, is guilty of a
public offense, and upon conviction shall be punished by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code or the
a county jail for not more than one year, or by a fine of
not less than five thousand dollars ($5,000) or more than ten
thousand dollars ($10,000), or by both that fine and imprisonment.
(4) A person who possesses a gross weight, including packaging, of
more than 5,000 pounds of unaltered dangerous fireworks, as defined
in Section 12505, is guilty of a public offense, and upon conviction
shall be punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code, or the a county jail
for not more than one year, or by a fine of not less than ten
thousand dollars ($10,000) or more than fifty thousand dollars
($50,000), or by both that fine and imprisonment.
(c) Subdivision (b) shall not apply to a person who holds and is
operating within the scope of a valid license as described in Section
12516 or valid permit as described in Section 12522.
SEC. 185. Section 17061 of the Health and Safety Code
is amended to read:
17061. (a) Any person who violates, or causes another person to
violate, any provision of this part is guilty of a misdemeanor,
punishable by a fine of not more than two thousand dollars ($2,000),
or imprisonment for not more than 180 days, or both, for each
violation of this part, provided that the violation does not cause
personal injury to any person.
(b) Any person who willfully violates, or causes another person
to violate, any provision of this part, provided that the violation
causes personal injury to any person, is punishable by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code for two, three, or four
years, or in a county jail not exceeding one year, or by a fine of
not less than four thousand dollars ($4,000), but not exceeding ten
thousand dollars ($10,000), or by both that fine and
imprisonment for each violation, or each day of a continuing
violation, causing personal injury. This subdivision shall not be
construed to preclude, or in any way limit, the applicability of any
other law in any criminal prosecution.
(c) Any person who violates any provision of this part shall be
liable for a civil penalty of not less than three hundred dollars
($300), nor more than one thousand dollars ($1,000), for each
violation or for each day of a continuing violation. The amount of
the civil penalty may be doubled, to a limit of not more than ten
thousand dollars ($10,000), for each violation or for each day of a
continuing violation if the court determines that the violation was
willful, or if the court finds that the person received notice from
an enforcement agency within the prior three years regarding any
employee housing owned or operated by that person, and the violations
are so extensive and of such a nature that the immediate health and
safety of the residents or the public is endangered or has been
endangered. The enforcement agency, or any person or entity affected
by the violation, may institute or maintain an action in the
appropriate court to collect any civil penalty arising under this
subdivision and may be awarded reasonable costs and attorney's fees
incurred in proving the existence of each violation and the liability
for the civil penalties.
SEC. 186. Section 18124.5 of the Health and Safety Code
is amended to read:
18124.5. Every person who, with intent to defraud, alters,
forges, counterfeits, or falsifies any certificate of title,
registration card, certificate, registration decal, or permit
provided for by this part or any comparable certificate of title,
registration card, certificate, decal, insignia, or label, with
intent to represent it as issued by the department or who alters,
forges, counterfeits, or falsifies with fraudulent intent any
endorsement of transfer on a certificate of title, or who with
fraudulent intent displays or causes or permits to be displayed or
has in his or her possession any blank, incomplete, canceled,
suspended, revoked, altered, forged, counterfeit, or false
certificate of title, registration card, certificate, registration
decal, or permit or who utters, publishes, passes, or attempts to
pass, as true and genuine, any of the above-named false, altered,
forged, or counterfeited matters knowing it to be false, altered,
forged, or counterfeited with intent to prejudice, damage, or defraud
any person, or who, with fraudulent intent, provides false
information regarding an allegedly lost, stolen, damaged, or
otherwise unavailable certificate of ownership, certificate of title,
registration card, or statement of lien, is guilty of a felony and
upon conviction thereof shall be punished by imprisonment in
the state prison pursuant to subdivision (h) of
Section 1170 of the Penal Code, or in the
a county jail for not more than one year.
SEC. 187. Section 25180.7 of the Health and Safety Code
is amended to read:
25180.7. (a) Within the meaning of this section, a "designated
government employee" is any person defined as a "designated employee"
by Government Code Section 82019, as amended.
(b) Any designated government employee who obtains information in
the course of his or her official duties revealing the illegal
discharge or threatened illegal discharge of a hazardous waste within
the geographical area of his or her jurisdiction and who knows that
the discharge or threatened discharge is likely to cause substantial
injury to the public health or safety must, within 72 hours, disclose
that information to the local Board of Supervisors and to the local
health officer. No disclosure of information is required under this
subdivision when otherwise prohibited by law, or when law enforcement
personnel have determined that this disclosure would adversely
affect an ongoing criminal investigation, or when the information is
already general public knowledge within the locality affected by the
discharge or threatened discharge.
(c) Any designated government employee who knowingly and
intentionally fails to disclose information required to be disclosed
under subdivision (b) shall, upon conviction, be punished by
imprisonment in a county jail for not more than one year or by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code . The court
may also impose upon the person a fine of not less than five thousand
dollars ($5000) or more than twenty-five thousand dollars ($25,000).
The felony conviction for violation of this section shall require
forfeiture of government employment within thirty days of conviction.
(d) Any local health officer who receives information pursuant to
subdivision (b) shall take appropriate action to notify local news
media and shall make that information available to the public without
delay.
SEC. 188. Section 25189.5 of the Health and Safety Code
is amended to read:
25189.5. (a) The disposal of any hazardous waste, or the causing
thereof, is prohibited when the disposal is at a facility which does
not have a permit from the department issued pursuant to this
chapter, or at any point which is not authorized according to this
chapter.
(b) Any person who is convicted of knowingly disposing or causing
the disposal of any hazardous waste, or who reasonably should have
known that he or she was disposing or causing the disposal of any
hazardous waste, at a facility which does not have a permit from the
department issued pursuant to this chapter, or at any point which is
not authorized according to this chapter shall, upon conviction, be
punished by imprisonment in a county jail for not more than one year
or by imprisonment in the state prison
pursuant to subdivision (h) of Section
1170 of the Penal Code .
(c) Any person who knowingly transports or causes the
transportation of hazardous waste, or who reasonably should have
known that he or she was causing the transportation of any hazardous
waste, to a facility which does not have a permit from the department
issued pursuant to this chapter, or at any point which is not
authorized according to this chapter, shall, upon conviction, be
punished by imprisonment in a county jail for not more than one year
or by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code .
(d) Any person who knowingly treats or stores any hazardous waste
at a facility which does not have a permit from the department issued
pursuant to this chapter, or at any point which is not authorized
according to this chapter, shall, upon conviction, be punished by
imprisonment in a county jail for not more than one year or by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code .
(e) The court also shall impose upon a person convicted of
violating subdivision (b), (c), or (d), a fine of not less than five
thousand dollars ($5,000) nor more than one hundred thousand dollars
($100,000) for each day of violation, except as further provided in
this subdivision. If the act which violated subdivision (b), (c), or
(d) caused great bodily injury, or caused a substantial probability
that death could result, the person convicted of violating
subdivision (b), (c), or (d) may be punished by imprisonment
in the state prison pursuant to subdivision (h) of
Section 1170 of the Penal Code for one, two, or three years, in
addition and consecutive to the term specified in subdivision (b),
(c), or (d), and may be fined up to two hundred fifty thousand
dollars ($250,000) for each day of violation.
(f) For purposes of this section, except as otherwise provided in
this subdivision, "each day of violation" means each day on which a
violation continues. In any case where a person has disposed or
caused the disposal of any hazardous waste in violation of this
section, each day that the waste remains disposed of in violation of
this section and the person has knowledge thereof is a separate
additional violation, unless the person has filed a report of the
disposal with the department and is complying with any order
concerning the disposal issued by the department, a hearing officer,
or court of competent jurisdiction.
SEC. 189. Section 25189.6 of the Health and Safety Code
is amended to read:
25189.6. (a) Any person who knowingly, or with reckless
disregard for the risk, treats, handles, transports, disposes, or
stores any hazardous waste in a manner which causes any unreasonable
risk of fire, explosion, serious injury, or death is guilty of a
public offense and shall, upon conviction, be punished by a fine of
not less than five thousand dollars ($5,000) nor more than two
hundred fifty thousand dollars ($250,000) for each day of violation,
or by imprisonment in a county jail for not more than one year, or by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code , or by both
the that fine and imprisonment.
(b) Any person who knowingly, at the time the person takes the
actions specified in subdivision (a), places another person in
imminent danger of death or serious bodily injury, is guilty of a
public offense and shall, upon conviction, be punished by a fine of
not less than five thousand dollars ($5,000) nor more than two
hundred fifty thousand dollars ($250,000) for each day of violation,
and by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
for 3, 6, or 9 three, six, or nine
years.
SEC. 190. Section 25189.7 of the Health and Safety Code
is amended to read:
25189.7. (a) The burning or incineration of any hazardous waste,
or the causing thereof, is prohibited when the burning or
incineration is at a facility which does not have a permit from the
department issued pursuant to this chapter, or at any point which is
not authorized according to this chapter.
(b) Any person who is convicted of knowingly burning or
incinerating, or causing the burning or incineration of, any
hazardous waste, or who reasonably should have known that he or she
was burning or incinerating, or causing the burning or incineration
of, any hazardous waste, at a facility which does not have a permit
from the department issued pursuant to this chapter, or at any point
which is not authorized according to this chapter, shall, upon
conviction, be punished by imprisonment in a county jail for not more
than one year or by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code .
(c) The court also shall impose upon a person convicted of
violating subdivision (b) a fine of not less than five thousand
dollars ($5,000) nor more than one hundred thousand dollars
($100,000) for each day of violation, except as otherwise provided in
this subdivision. If the act which violated subdivision (b) caused
great bodily injury or caused a substantial probability that death
could result, the person convicted of violating subdivision (b) may
be punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
for one, two, or three years, in addition and consecutive to
the term specified in subdivision (b), and may be fined up to two
hundred fifty thousand dollars ($250,000) for each day of violation.
SEC. 191. Section 25190 of the Health and Safety Code
is amended to read:
25190. Except as otherwise provided in Sections 25189.5, 25189.6,
25189.7, and 25191, any person who violates any provision of this
chapter, or any permit, rule, regulation, standard, or requirement
issued or adopted pursuant to this chapter, is, upon conviction,
guilty of a misdemeanor and shall be punished by a fine of not more
than one thousand dollars ($1,000) or by imprisonment for up to six
months in the a county jail or by both
that fine and imprisonment.
If the conviction is for a second or subsequent violation, the
person shall, upon conviction, be punished by imprisonment in the
county jail for not more than one year or by imprisonment in
the state prison pursuant to subdivision (h) of
Section 1170 of the Penal Code for 16, 20, or 24 months. The
court shall also impose upon the person a fine of not less than five
thousand dollars ($5,000) or more than twenty-five thousand dollars
($25,000).
SEC. 192. Section 25191 of the Health and Safety Code
is amended to read:
25191. (a) (1) Any person who knowingly does any of the acts
specified in subdivision (b) shall, upon conviction, be punished by a
fine of not less than two thousand dollars ($2,000) or more than
twenty-five thousand dollars ($25,000) for each day of violation, or
by imprisonment in the a county jail
for not more than one year, or by both that fine and imprisonment.
(2) If the conviction is for a second or subsequent violation of
subdivision (b), the person shall be punished by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code for 16, 20, or 24 months,
or in the a county jail for not more
than one year, or by a fine of not less than two thousand dollars
($2,000) or more than fifty thousand dollars ($50,000) for each day
of violation, or by both that fine and imprisonment.
(3) Each day or partial day that a violation occurs is a separate
violation.
(b) A person who does any of the following is subject to the
punishment prescribed in subdivision (a):
(1) Makes any false statement or representation in any
application, label, manifest, record, report, permit, notice to
comply, or other document filed, maintained, or used for the purposes
of compliance with this chapter.
(2) Has in his or her possession any record relating to the
generation, storage, treatment, transportation, disposal, or handling
of hazardous waste required to be maintained pursuant to this
chapter, that has been altered or concealed.
(3) Destroys, alters, or conceals any record relating to the
generation, storage, treatment, transportation, disposal, or handling
of hazardous waste required to be maintained pursuant to this
chapter.
(4) Withholds information regarding a real and substantial danger
to the public health or safety when that information has been
requested by the department, or by a local officer or agency
authorized to enforce this chapter pursuant to subdivision (a) of
Section 25180, and is required to carry out the responsibilities of
the department or the authorized local officer or agency pursuant to
this chapter in response to a real and substantial danger.
(5) Except as otherwise provided in this chapter, engages in
transportation of hazardous waste in violation of Section 25160 or
25161, or subdivision (a) of Section 25163, or in violation of any
regulation adopted by the department pursuant to those provisions,
including, but not limited to, failing to complete or provide the
manifest in the form and manner required by the department.
(6) Except as otherwise provided in this chapter, produces,
receives, stores, or disposes of hazardous waste, or submits
hazardous waste for transportation, in violation of Section 25160 or
25161 or any regulation adopted by the department pursuant to those
sections, including, but not limited to, failing to complete,
provide, or submit the manifest in the form and manner required by
the department.
(7) Transports any waste, for which there is provided a manifest,
if the transportation is in violation of this chapter or the
regulations adopted by the department pursuant thereto.
(8) Violates Section 25162.
(c) (1) The penalties imposed pursuant to subdivision (a) on any
person who commits any of the acts specified in paragraph (5), (7),
or (8) of subdivision (b) shall be imposed only (A) on the owner or
lessee of the vehicle in which the hazardous wastes are unlawfully
transported, carried, or handled or (B) on the person who authorizes
or causes the transporting, carrying, or handling. These penalties
shall not be imposed on the driver of the vehicle, unless the driver
is also the owner or lessee of the vehicle or authorized or caused
the transporting, carrying, or handling.
(2) If any person other than the person producing the hazardous
waste prepares the manifest specified in Section 25160, that other
person is also subject to the penalties imposed on a person who
commits any of the acts specified in paragraph (6) of subdivision
(b).
(d) Any person who knowingly does any of the following acts, each
day or partial day that a violation occurs constituting a separate
violation, shall, upon conviction, be punished by a fine of not more
than five hundred dollars ($500) for each day of violation, or by
imprisonment in the county jail for not to exceed six months, or by
both that fine and imprisonment:
(1) Carries or handles, or authorizes the carrying or handling
of, a hazardous waste without having in the driver's possession the
manifest specified in Section 25160.
(2) Transports, or authorizes the transportation of, hazardous
waste without having in the driver's possession a valid registration
issued by the department pursuant to Section 25163.
(e) Whenever any person is prosecuted for a violation pursuant to
paragraph (5), (6), (7), or (8) of subdivision (b), subdivision (d),
or subdivision (c) of Section 25189.5, the prosecuting attorney may
take appropriate steps to make the owner or lessee of the vehicle in
which the hazardous wastes are unlawfully transported, carried, or
handled, the driver of the vehicle, or any other person who
authorized or directed the loading, maintenance, or operation of the
vehicle, who is reasonably believed to have violated these
provisions, a codefendant. If a codefendant is held solely
responsible and found guilty, the court may dismiss the charge
against the person who was initially so charged.
SEC. 193. Section 25395.13 of the Health and Safety
Code is amended to read:
25395.13. (a) Any private site manager or member of a private
site management team who commits any of the following acts shall be
punished, upon conviction, by a fine of not less than two thousand
dollars ($2,000) or by imprisonment in the county jail for not more
than one year, or both that fine and imprisonment, if the private
site manager or any member of a private site management team does any
of the following:
(1) Knowingly makes any materially false or inaccurate statement
in any application, record, report, certification, plan, design, or
statement that the private site manager or the private site
management team submits to the department.
(2) Knowingly makes any materially false or inaccurate statement
in any record, report, plan, file, log, or register that the private
site management team keeps, or is required to keep, pursuant to any
law.
(3) Knowingly and materially falsifies, tampers with, alters,
destroys, or disturbs any mechanism, recovery, or control system, or
any monitoring device or method that the private site manager or the
private site management team maintains, or that is required to be
maintained pursuant to any law, regulation, or order for the
protection of the public health and safety or the environment.
(4) Knowingly allows or orders any of the private site manager's
or the private site management team's employees, agents, or
contractors to do any of the actions specified in paragraphs (1) to
(3), inclusive.
(b) Any private site manager or member of a site private
management team who knowingly, or with reckless disregard for the
risk, treats, handles, transports, disposes of, or stores any
hazardous substance in a manner that causes any unreasonable risk of
fire, explosion, serious injury, or death, is guilty of a public
offense and shall, upon conviction, be punished by a fine of not less
than five thousand dollars ($5,000) nor more than two hundred fifty
thousand dollars ($250,000) for each day of a violation, by
imprisonment in the county jail for not more than one year, by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code for 16, 24,
or 36 months, or by both that fine and imprisonment.
(c) Any private site manager or member of a private site
management team who knowingly, at the time the manager or member
takes any of the actions specified in subdivision (b), places another
person in imminent danger of death or serious bodily injury, is
guilty of a public offense and shall, upon conviction, be punished by
a fine of not less than five thousand dollars ($5,000) or more than
two hundred fifty thousand dollars ($250,000) for each day of the
violation.
(d) Each day that a violation of subdivision (a) occurs, or
continues to occur, shall be considered a separate offense. A fine
imposed pursuant to subdivision (a) shall not exceed, in the
aggregate, twenty-five thousand dollars ($25,000), and the term of
imprisonment shall not exceed, in the aggregate, one year.
(e) Notwithstanding any other provision of law, all penalties
collected pursuant to this section shall be transferred to the
department for deposit in the trust fund for expenditure by the
department, upon appropriation by the Legislature, to administer and
enforce this article.
SEC. 194. Section 25515 of the Health and Safety Code
is amended to read:
25515. (a) A person or business who violates Section 25507 shall,
upon conviction, be punished by a fine of not more than twenty-five
thousand dollars ($25,000) for each day of violation, by imprisonment
in the a county jail for not more than
one year, or by both the fine and imprisonment. If the conviction is
for a violation committed after a first conviction under this
section, the person shall be punished by a fine of not less than two
thousand dollars ($2,000) or more than fifty thousand dollars
($50,000) per day of violation, by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170 of
the Penal Code for 16, 20, or 24 months or in the
a county jail for not more than one year, or by
both the fine and imprisonment. Furthermore, if the violation results
in, or significantly contributes to, an emergency, including a fire,
to which the county or city is required to respond, the person shall
also be assessed the full cost of the county or city emergency
response, as well as the cost of cleaning up and disposing of the
hazardous materials.
(b) Notwithstanding subdivision (a), a person who knowingly fails
to report, pursuant to Section 25507, an oil spill occurring in
waters of the state, other than marine waters, shall, upon
conviction, be punished by a fine of not more than fifty thousand
dollars ($50,000), by imprisonment in the county jail for not more
than one year, or by both that fine and imprisonment.
(c) Notwithstanding subdivision (a), a person who knowingly makes
a false or misleading report on an oil spill occurring in waters of
the state, other than marine waters, shall, upon conviction, be
punished by a fine of not more than fifty thousand dollars ($50,000),
by imprisonment in the county jail for not more than one year, or by
both that fine and imprisonment.
(d) This section does not preclude prosecution or sentencing under
other provisions of law.
SEC. 195. Section 25541 of the Health and Safety Code
is amended to read:
25541. Any person or stationary source who knowingly makes any
false material statement, representation or certification in any
record, report, or other document filed, maintained, or used for the
purpose of compliance with this article, or destroys, alters, or
conceals any such record, report, or other document filed,
maintained, or used for the purpose of compliance with this article,
shall, upon conviction, be punished by a fine of not more than
twenty-five thousand dollars ($25,000) for each day of violation, or
by imprisonment in the county jail for not more than one year, or by
both the fine and the imprisonment.
If the conviction is for a violation committed after a first
conviction under this section, the person or stationary source shall
be punished by a fine of not less than two thousand dollars ($2,000)
or more than fifty thousand dollars ($50,000) per day of violation,
or by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
for one, two, or three years or in the a
county jail for not more than one year, or both the fine and
imprisonment.
Furthermore, if the violation results in, or significantly
contributes to, an emergency, including a fire, to which the county
or city is required to respond, the person or stationary source shall
also be assessed the full cost of the county or city emergency
response, as well as the cost of cleaning up and disposing of the
acutely hazardous materials.
SEC. 196. Section 42400.3 of the Health and Safety Code
is amended to read:
42400.3. (a) Any person who willfully and intentionally emits an
air contaminant in violation of any provision of this part or any
rule, regulation, permit, or order of the state board or of a
district, pertaining to emission regulations or limitations is guilty
of a misdemeanor and is punishable by a fine of not more than
seventy-five thousand dollars ($75,000), or imprisonment in a county
jail for not more than one year, or by both that fine and
imprisonment.
(b) Any person who willfully and intentionally, or with reckless
disregard for the risk of great bodily injury, as defined by Section
12022.7 of the Penal Code, to, or death of, any person, emits an air
contaminant in violation of Section 41700 that results in any
unreasonable risk of great bodily injury to, or death of, any person,
is guilty of a public offense and is punishable by a fine of not
more than one hundred twenty-five thousand dollars ($125,000), or
imprisonment in a county jail for not more than one year, or by both
that fine and imprisonment. However, if the defendant is a
corporation, the maximum fine may be up to five hundred thousand
dollars ($500,000).
(c) Any person who willfully and intentionally, or with reckless
disregard for the risk of great bodily injury, as defined by Section
12022.7 of the Penal Code, to, or death of, any person emits an air
contaminant in violation of Section 41700 that causes great bodily
injury to, or death of, any person is guilty of a public offense, and
is punishable by a fine of not more than two hundred fifty thousand
dollars ($250,000), or imprisonment in a county jail for not more
than one year, or both that fine and imprisonment, or is punishable
by a fine of not more than two hundred fifty thousand dollars
($250,000), or imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
, or by both that fine and imprisonment. If the defendant is a
corporation, the maximum fine may be up to one million dollars
($1,000,000).
(d) Each day during any portion of which a violation occurs
constitutes a separate offense.
(e) This section does not preclude punishment under Section 189 or
192 of the Penal Code or any other provision of law that provides a
more severe punishment.
(f) For the purposes of this section:
(1) "Great bodily injury" means great bodily injury as defined by
Section 12022.7 of the Penal Code.
(2) "Imprisonment in state prison" means imprisonment in the
state prison for 16 months, or two or three years.
(3)
(2) "Unreasonable risk of great bodily injury or death"
means substantial probability of great bodily injury or death.
SEC. 197. Section 44209 of the Health and Safety Code
is amended to read:
44209. Any person who falsifies any test record or report which
has been submitted to any other person, the department, or the state
board pursuant to this chapter is subject to punishment by a fine of
not less than one thousand dollars ($1,000) or more than five
thousand dollars ($5,000), imprisonment in a county jail for not more
than one year, imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
, or by both that fine and imprisonment.
SEC. 198. Section 100895 of the Health and Safety Code
is amended to read:
100895. (a) Any person who knowingly does any of the following
acts may, upon conviction, be punished by a fine of not more than
twenty-five thousand dollars ($25,000) for each day of violation, by
imprisonment in a county jail not to exceed one year, or by both that
fine and imprisonment:
(1) Makes any false statement or representation in any
application, record, report, or other document submitted, maintained,
or used for the purposes of compliance with this article.
(2) Has in his or her possession any record required to be
maintained pursuant to this article that has been altered or
concealed.
(3) Destroys, alters, or conceals any record required to be
maintained pursuant to this article.
(4) Withholds information regarding an imminent and substantial
danger to the public health or safety when the information has been
requested by the department in writing and is required to carry out
the department's responsibilities pursuant to this article.
(b) A second or subsequent violation of subdivision (a) is
punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
for 16, 20, or 24 months or in a county jail for not more than
one year, by a fine of not less than two thousand dollars ($2,000) or
more than fifty thousand dollars ($50,000) per day of violation, or
by both that imprisonment and fine.
(c) An ELAP certified or NELAP accredited laboratory, upon
suspension, revocation, or withdrawal of its ELAP certification or
NELAP accreditation, shall do all of the following:
(1) Discontinue use of all catalogs, advertising, business
solicitations, proposals, quotations, or their materials that contain
reference to their past certification or accreditation status.
(2) Return its ELAP certificate or its NELAP accreditation to the
department.
(3) Cease all testing of samples for regulatory purposes.
(d) The penalties cited in subdivisions (a) and (b) shall also
apply to NELAP accredited laboratories.
SEC. 199. Section 109335 of the Health and Safety Code
is amended to read:
109335. The failure of any individual, person, firm, association,
or other entity representing himself, or itself, as engaged in the
diagnosis, treatment, alleviation, or cure of cancer to comply with
any of the regulations adopted under this article and Article 1
(commencing with Section 109250) is a misdemeanor. A third, and
subsequent violations, of this section is a felony , punishable
by imprisonment pursuant to subdivision (h) of Section
1170 of the Penal Code .
This article and Article 1 (commencing with Section 109250) shall
not apply to any person who depends exclusively upon prayer for
healing in accordance with the teachings of a bona fide religious
sect, denomination, or organization, nor practitioner thereof.
SEC. 200. Section 115215 of the Health and Safety Code
is amended to read:
115215. (a) Any person who violates this chapter, or rules,
regulations, or orders in effect adopted pursuant to this chapter, is
guilty of a misdemeanor and shall, upon conviction, be punished by a
fine not to exceed one thousand dollars ($1,000) or by imprisonment
in the a county jail for a period not
to exceed 180 days, or by both the fine and imprisonment.
(b) Any person who knowingly disposes or causes the disposal of
any radioactive material regulated by this chapter, or who reasonably
should have known that the person was disposing or causing the
disposal of the material, at a facility within the state that does
not have a license for disposal issued by the department pursuant to
this chapter, or at any point in the state that is not authorized
according to this chapter, or by any other local, state, or federal
agency having authority over radioactive materials, and is in
violation of this chapter, or any regulation or order adopted
pursuant to this chapter, is guilty of
a public offense, and upon conviction, may be
punished as follows:
(1) If the disposal is found to have caused a substantial danger
to the public health or safety, the person may be punished by
imprisonment in the a county jail for
not more than one year or by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170 of
the Penal Code for 16, 24, or 36 months, except as otherwise
provided in paragraph (2). The court may also impose, upon a person
convicted of violating this subdivision, a fine of not more than one
hundred thousand dollars ($100,000) for each day of violation, except
as otherwise provided in paragraph (2).
(2) If the act that violated this subdivision caused great bodily
injury or caused a substantial probability that death could result,
the person convicted may be punished by imprisonment in the
state prison pursuant to subdivision (h) of Section
1170 of the Penal Code for three, five, or seven years and may
be fined not more than two hundred fifty thousand dollars ($250,000)
for each day of violation.
(c) Any person who knowingly transports or causes the
transportation of any radioactive material regulated by this chapter,
or who reasonably should have known that the person was causing the
transportation of the material, to a facility in the state that does
not have a license from the department issued pursuant to this
chapter, to any point in the state that is not authorized by this
chapter, or to any point in the state that is not authorized by any
other local, state, or federal agency having authority over
radioactive materials, and is in violation of this chapter, or any
regulation or order adopted pursuant to this chapter, is guilty of a
public offense and, upon conviction, may be punished as follows:
(1) If the transportation is found to have caused a substantial
danger to the public health or safety, the person may be punished by
imprisonment in the county jail for not more than one year or by
imprisonment in the state prison pursuant to subdivision (h) of
Section 1170 of the Penal Code for 16, 24, or 36 months, except
as otherwise provided in paragraph (2). The court may also impose,
upon a person convicted of violating this subdivision, a fine of not
more than one hundred thousand dollars ($100,000) for each day of
violation, except as provided by paragraph (2).
(2) If the transportation that violated this subdivision caused
great bodily injury or caused a substantial probability that death
could result, the person convicted may be punished by imprisonment in
the state prison pursuant to subdivision (h) of Section 1170 of
the Penal Code for three, five, or seven years and may be
fined not more than two hundred fifty thousand dollars ($250,000) for
each day of violation.
(d) Notwithstanding any other provision of this chapter,
radioactive materials used in medical treatment or result from
medical treatment, that are disposed, stored, handled, or transported
in a manner authorized pursuant to this chapter, are exempt from
subdivisions (b) and (c).
(e) Notwithstanding subdivision (a), any person who violates any
provision of this chapter relating to mammography or regulations
adopted pursuant to those provisions is guilty of a misdemeanor and
shall, upon conviction thereof, be punished by a fine not to exceed
five thousand dollars ($5,000), per day of offense, or by
imprisonment in the county jail not to exceed 180 days, or both the
fine and imprisonment.
SEC. 201. Section 116730 of the Health and Safety Code
is amended to read:
116730. (a) Any person who knowingly does any of the following
acts may, upon conviction, be punished by a fine of not more than
twenty-five thousand dollars ($25,000) for each day of violation, by
imprisonment in a county jail not to exceed one year, or by both that
fine and imprisonment:
(1) Makes any false statement or representation in any
application, record, report, or other document submitted, maintained,
or used for the purposes of compliance with this chapter.
(2) Has in his or her possession any record required to be
maintained pursuant to this chapter that has been altered or
concealed.
(3) Destroys, alters, or conceals any record required to be
maintained pursuant to this chapter.
(4) Withholds information regarding an imminent and substantial
danger to the public health or safety when the information has been
requested by the department in writing and is required to carry out
the department's responsibilities pursuant to this chapter in
response to an imminent and substantial danger.
(5) Violates an order issued by the department pursuant to this
chapter that has a substantial probability of presenting an imminent
danger to the health of persons.
(6) Operates a public water system without a permit issued by the
department pursuant to this chapter.
(b) A second or subsequent violation of subdivision (a) is
punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
for 16, 20, or 24 months or imprisonment in a county jail for
not more than one year, by a fine of not less than two thousand
dollars ($2,000) or more than fifty thousand dollars ($50,000) per
day of violation, or by both that imprisonment and fine.
SEC. 202. Section 116750 of the Health and Safety Code
is amended to read:
116750. (a) Any person who tampers with a public water system is
guilty of a felony and shall be punished by imprisonment in
the state prison pursuant to subdivision (h) of
Section 1170 of the Penal Code for three, four, or five years,
subject to a fine not to exceed thirty thousand dollars ($30,000), or
both.
(b) Any person who tampers with or makes a threat to tamper with
a public water system is guilty of a felony and shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code for 16
months, two, or three years, subject to a fine not to exceed twenty
thousand dollars ($20,000), or both.
(c) For purposes of this section, the term "tamper" means either
of the following:
(1) To introduce a contaminant into a public water system with
the intention of harming persons.
(2) To otherwise interfere with the operation of a public water
system with the intention of harming persons.
SEC. 203. Section 118340 of the Health and Safety Code
is amended to read:
118340. (a) No person shall, transport, store, treat, dispose,
or cause the treatment or disposal of medical waste in a manner not
authorized by his or her permit or registration, this part, or the
regulations adopted pursuant to this part.
(b) Any person who stores, treats, disposes, or causes the
treatment or disposal of medical waste in violation of this part or
the regulations adopted pursuant to this part is guilty of a public
offense as follows:
(1) For a small quantity generator, a first offense is an
infraction and is punishable by a fine of not more than one thousand
dollars ($1,000).
(2) For a person other than a small quantity generator, a first
offense is a misdemeanor punishable by a fine of not less than two
thousand dollars ($2,000), or by up to one year in county jail, or by
both the fine and imprisonment.
(c) A person who is convicted of a second or subsequent violation
of subdivision (a) within three years of the prior conviction shall
be punished by imprisonment in the a
county jail for not more than one year , or by
imprisonment in state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code for one, two,
or three years , or by a fine of not less than five
thousand dollars ($5,000), or more than twenty-five thousand dollars
($25,000), or by both the that fine and
imprisonment. This section shall not apply unless any prior
conviction is charged in the accusatory pleading and admitted by the
defendant or found to be true by the trier of fact. If the defendant
is a corporation that operates medical facilities in more than one
geographic location, this subdivision shall apply only if the offense
involves an adjacent facility involved in the prior conviction.
(d) Any person who knowingly treats or disposes, or causes the
treatment or disposal of, medical waste in violation of this part
shall be punished by imprisonment in the a
county jail for not more than one year , or by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code for one, two,
or three years, or by a fine of not less than five thousand dollars
($5,000), or more than twenty-five thousand dollars ($25,000), or by
both the that fine and imprisonment.
(e) This section does not apply to a person transporting medical
waste who is required to be a registered hazardous waste transporter.
Those persons are subject to penalties for violations pursuant to
Article 8 (commencing with Section 25180) of Chapter 6.5 of Division
20.
SEC. 204. Section 131130 of the Health and Safety Code
is amended to read:
131130. (a) Any person who willfully sells, keeps for sale, or
offers for sale any food, drug, device, or cosmetic knowing, after a
written notice from either (1) a manufacturer, wholesaler,
distributor, or importer, or (2) the department or a local health
officer that the product linked to an outbreak of illness, injury, or
product tampering is being ordered removed from sale by the
department pursuant to Section 131080, shall, upon conviction, be
punished by a fine of not less than two thousand dollars ($2,000) nor
more than ten thousand dollars ($10,000) for each day of violation,
or by imprisonment in the county jail for not more than one year, or
by both a fine and imprisonment.
(b) If a second or subsequent violation is committed after a
previous conviction under this section has become final, the person
shall be punished by a fine of not less than five thousand dollars
($5,000) nor more than twenty-five thousand dollars ($25,000) for
each day of violation, or by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170 of
the Penal Code , or by both a fine and imprisonment.
(c) Notwithstanding any other provision of law, the court may
suspend the minimum fines provided for in this section if it
determines that there are circumstances in mitigation and the court
states on the record its reasons for suspending the minimum fine.
SEC. 205. Section 700 of the Insurance Code is amended
to read:
700. (a) A person shall not transact any class of insurance
business in this state without first being admitted for that class.
Except for the State Compensation Insurance Fund as authorized by
Sections 11770 and 11778 to 11780.5, inclusive, admission is secured
by procuring a certificate of authority from the commissioner. The
certificate shall not be granted until the applicant conforms to the
requirements of this code and of the laws of this state prerequisite
to its issue.
(b) The unlawful transaction of insurance business in this state
in willful violation of the requirement for a certificate of
authority is a public offense punishable by imprisonment in
the state prison pursuant to subdivision (h) of
Section 1170 of the Penal Code , or in a county jail not
exceeding one year, or by fine not exceeding one hundred thousand
dollars ($100,000), or by both that fine and imprisonment, and shall
be enjoined by a court of competent jurisdiction on petition of the
commissioner.
(c) After the issuance of a certificate of authority, the holder
shall continue to comply with the requirements as to its business set
forth in this code and in the other laws of this state, including,
but not limited to, Chapter 5 (commencing with Section 1631), with
regard to employees or contractors who solicit, negotiate, or effect
insurance.
(d) Where a hearing is held under this section the proceedings
shall be conducted in accordance with Chapter 5 (commencing with
Section 11500) of Part 1 of Division 3 of Title 2 of the Government
Code, and the commissioner shall have all the powers granted therein.
(e) The commissioner shall either issue or deny an application for
a certificate of authority within 180 calendar days after the date
of the application.
(f) The commissioner and his or her authorized representative
shall be prohibited from seeking a waiver to extend the 180 calendar
day period specified in subdivision (e), nor shall the applicant be
permitted to waive that period.
SEC. 206. Section 750 of the Insurance Code is amended
to read:
750. (a) Except as provided in Section 750.5, any person acting
individually or through his or her employees or agents, who engages
in the practice of processing, presenting, or negotiating claims,
including claims under policies of insurance, and who offers,
delivers, receives, or accepts any rebate, refund, commission, or
other consideration, whether in the form of money or otherwise, as
compensation or inducement to or from any person for the referral or
procurement of clients, cases, patients, or customers, is guilty of a
crime.
(b) A violation of subdivision (a) is punishable upon a first
conviction by imprisonment in the a
county jail for not more than one year, or by imprisonment
in the state prison pursuant to subdivision (h) of
Section 1170 of the Penal Code , or by a fine not exceeding
fifty thousand dollars ($50,000), or by both that imprisonment and
fine. A second or subsequent conviction is punishable by imprisonment
in the state prison pursuant to subdivisi
on (h) of Section 1170 of the Penal Code or by
that imprisonment in the state prison and a
fine of fifty thousand dollars ($50,000).
(c) Nothing in this section shall prohibit a licensed collection
or lien agency from receiving a commission on the collection of
delinquent debts nor prohibits the agency from paying its employees a
commission for obtaining clients seeking collection on delinquent
debts.
(d) Nothing in this section is intended to limit, restrict, or in
any way apply to, the rebating of commissions by insurance agents or
brokers, as authorized by Proposition 103, enacted by the people at
the November 8, 1988, general election.
SEC. 207. Section 833 of the Insurance Code is amended
to read:
833. Every person who commits any of the acts specified in this
section is guilty of a public offense and punishable by a fine not
exceeding ten thousand dollars ($10,000), or by imprisonment
in the state prison pursuant to subdivision (h) of
Section 1170 of the Penal Code , or in a county jail not
exceeding one year, or by both such that
fine and imprisonment.
(a) Knowingly authorizing, directing, aiding, causing, or
assisting in causing the issuance, execution, or sale of, any
security, in nonconformity with a permit of the commissioner then in
effect and authorizing such issuance, or contrary to the provisions
of this article.
(b) Knowingly making any false statement or representation in any
application to the commissioner, or in any proceeding before him, or
in any examination, audit, or investigation made by him, or by his
authority.
(c) With knowledge of the falsity, causing to be filed in the
office of the commissioner any false statement or representation
concerning an insurer, the property which the insurer then holds or
proposes to acquire, the insurer's officers, the insurer's financial
condition or other affairs, or the insurer's proposed plan of
business.
(d) With knowledge of the falsity of any such statement or
representation, causing any security to be issued, executed, or sold
without first informing the commissioner of the falsity of such
statement in writing.
(e) Directly or indirectly, knowingly causing or assisting in
causing any part of the proceeds from the sale of any security to be
applied to any purpose contrary to the provisions of the permit
authorizing the issuance of such security, or to any purpose in
excess of the amount specified in such permit for such purpose.
(f) Selling a security with knowledge that it has been issued or
executed in violation of any of the provisions of this article.
(g) Causing a writing concerning a security to be issued,
circulated, or published while having knowledge that such matter
contains any statement that is false, misleading, or otherwise likely
to deceive a reader thereof.
(h) In any respect, willfully violating or failing to comply with
any of the provisions of this article.
(i) In any other respect, willfully violating or neglecting to
comply with any part of an order or permit of the commissioner under
the provisions of this article.
(j) Conspiring with one or more other persons to violate any
permit or order issued by the commissioner, or any of the provisions
of this article.
SEC. 208. Section 1043 of the Insurance Code is amended
to read:
1043. In any proceeding under this article, the commissioner, as
conservator or as liquidator, may, subject to the approval of said
court, and subject to such liens as may be necessary mutualize or
reinsure the business of such person, or enter into rehabilitation
agreements. No commissioner who acts as conservator of such person or
who mutualizes, merges or reinsures the business of such person or
who enters into rehabilitation agreements affecting such person, and
no deputy commissioner who has participated in the administration of
the affairs of such person for the commissioner as conservator shall
for a period of two years from and after the effective date of such
mutualization, reinsurance or rehabilitation become an officer or
director of, or serve as an officer or director of, or serve in any
position of gain or profit in, any company formed in whole or in part
of the assets or funds, or any part of the assets or funds of such
mutualized, merged, reinsured or rehabilitated person.
Every person violating this provision is guilty of a public
offense and shall be punished by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170 of
the Penal Code , or in the a
county jail not exceeding one year, or by a fine not exceeding ten
thousand dollars ($10,000), or by both such
that fine and imprisonment.
Such rehabilitation or reinsurance agreements shall provide that,
subsequent to the date thereof and for such period of time as the
commissioner may determine, no investment or reinvestment of the
assets of the person rehabilitated or reinsured shall be made without
first obtaining the written approval of the commissioner.
Every party to such agreement, and every director, officer, agent
and employee of such person, and every other person who knowingly in
violation thereof directs or aids or assists in causing to be made an
investment or reinvestment of any of said assets without first
having obtained the written approval of the commissioner, or who
makes such investment or reinvestment in nonconformity with the
written approval of the commissioner then in effect authorizing such
investment or reinvestment, is guilty of a public offense and shall
be punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
, or in the a county jail or by a
fine not exceeding ten thousand dollars ($10,000), or by both
such that fine and imprisonment.
SEC. 209. Section 1215.10 of the Insurance Code is
amended to read:
1215.10. (a) Any insurer that fails to file a statement, report,
or request for approval required by this article in a timely manner
shall be subject to the late filing fees set forth in Section 924.
(b) Every director or officer of an insurance holding company
system who knowingly violates, participates in, or assents to, or who
knowingly permits any of the officers or agents of the insurer to
engage in transactions or make investments which have not been
properly reported or submitted pursuant to Sections 1215.4 and
1215.5, or which violate this article, shall pay, in their individual
capacity, a civil forfeiture of not more than fifty thousand dollars
($50,000) per violation, after notice and hearing before the
commissioner. In determining the amount of the civil forfeiture, the
commissioner shall take into account the appropriateness of the
forfeiture with respect to the gravity of the violation, the history
of previous violations, and any other matters as justice may require.
(c) Whenever it appears to the commissioner that any insurer
subject to this article or any director, officer, employee, or agent
thereof has engaged in any transaction or entered into a contract
which is subject to Section 1215.5 and which would not have been
approved had approval been requested, the commissioner may order the
insurer to cease and desist immediately any further activity under
that transaction or contract. After notice and hearing the
commissioner may also order the insurer to void any contracts and
restore the status quo if this action is in the best interest of the
policyholders, creditors, or the public.
(d) Whenever it appears to the commissioner that any insurer or
any director, officer, employee or agent thereof has committed a
willful violation of this article, the commissioner may cause
criminal proceedings to be instituted in the county in which the
principal office of the insurer is located, or if such insurer has no
such office in the state then by the Attorney General against such
insurer or the responsible director, officer, employee, or agent
thereof. Any insurer which willfully violates this article shall be
fined not more than ten thousand dollars ($10,000). Any individual
who willfully violates this article shall be fined not more than
three thousand dollars ($3,000) or, if such willful violation
involves the deliberate perpetration of a fraud upon the
commissioner, imprisoned in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal
Code , or both.
(e) Any officer, director, or employee of an insurance holding
company system who willfully and knowingly subscribes to or makes or
causes to be made any materially false statements, reports, or
filings with the intent to deceive the commissioner in the
performance of his or her duties under this article, upon conviction
thereof, shall be fined not more than three thousand dollars ($3,000)
or, if the willful violation of this subdivision involves the
deliberate perpetration of a fraud upon the commissioner, imprisoned
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code , or both that
imprisonment and fine. Any fines imposed shall be paid by the
officer, director, or employee in his or her individual capacity.
SEC. 210. Section 1764.7 of the Insurance Code is
amended to read:
1764.7. Any person who willfully violates Section 1760.5, 1761,
1763, 1764, 1764.1, 1764.2, 1764.3, 1764.4, 1765.1, 1765.2, 1767, or
1780 is guilty of a public offense and punishable by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code , or in a county jail for
not exceeding one year or by fine not exceeding ten thousand dollars
($10,000), or by both.
SEC. 211. Section 1814 of the Insurance Code is amended
to read:
1814. The violation of any foregoing provision of this chapter,
or of any rule of the commissioner made pursuant thereto, is a public
offense, punishable by fine not exceeding ten thousand dollars
($10,000), or by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
, or in the county jail not exceeding one year, or by both
such that fine and imprisonment.
SEC. 212. Section 1871.4 of the Insurance Code is
amended to read:
1871.4. (a) It is unlawful to do any of the following:
(1) Make or cause to be made a knowingly false or fraudulent
material statement or material representation for the purpose of
obtaining or denying any compensation, as defined in Section 3207 of
the Labor Code.
(2) Present or cause to be presented a knowingly false or
fraudulent written or oral material statement in support of, or in
opposition to, a claim for compensation for the purpose of obtaining
or denying any compensation, as defined in Section 3207 of the Labor
Code.
(3) Knowingly assist, abet, conspire with, or solicit a person in
an unlawful act under this section.
(4) Make or cause to be made a knowingly false or fraudulent
statement with regard to entitlement to benefits with the intent to
discourage an injured worker from claiming benefits or pursuing a
claim.
For the purposes of this subdivision, "statement" includes, but is
not limited to, a notice, proof of injury, bill for services,
payment for services, hospital or doctor records, X-ray, test
results, medical-legal expense as defined in Section 4620 of the
Labor Code, other evidence of loss, injury, or expense, or payment.
(5) Make or cause to be made a knowingly false or fraudulent
material statement or material representation for the purpose of
obtaining or denying any of the benefits or reimbursement provided in
the Return-to-Work Program established under Section 139.48 of the
Labor Code.
(6) Make or cause to be made a knowingly false or fraudulent
material statement or material representation for the purpose of
discouraging an employer from claiming any of the benefits or
reimbursement provided in the Return-to-Work Program established
under Section 139.48 of the Labor Code.
(b) Every person who violates subdivision (a) shall be punished by
imprisonment in the a county jail for
one year, or in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code , for two,
three, or five years, or by a fine not exceeding one hundred fifty
thousand dollars ($150,000) or double the value of the fraud,
whichever is greater, or by both that imprisonment and fine.
Restitution shall be ordered, including restitution for any medical
evaluation or treatment services obtained or provided. The court
shall determine the amount of restitution and the person or persons
to whom the restitution shall be paid. A person convicted under this
section may be charged the costs of investigation at the discretion
of the court.
(c) A person who violates subdivision (a) and
who has a prior felony conviction of that subdivision, of former
Section 556, of former Section 1871.1, or of Section 548 or 550 of
the Penal Code, shall receive a two-year enhancement for each prior
conviction in addition to the sentence provided in subdivision (b).
The existence of any fact that would subject a person to a penalty
enhancement shall be alleged in the information or indictment and
either admitted by the defendant in open court, or found to be true
by the jury trying the issue of guilt or by the court where guilt is
established by plea of guilty or nolo contendere or by trial by the
court sitting without a jury.
(d) This section may not be construed to preclude the
applicability of any other provision of criminal law that applies or
may apply to a transaction.
SEC. 213. Section 10192.165 of the Insurance Code is
amended to read:
10192.165. (a) (1) As prescribed in this chapter, the
commissioner shall have the administrative authority to assess
penalties against issuers, brokers, agents, and other entities
engaged in the business of insurance or any other person or entity
for violations of this article.
(2) Upon a showing of a violation of this article in any civil
action, a court may also assess the penalties prescribed in this
chapter.
(3) Whenever the commissioner has reasonable cause to believe or
determines after a public hearing that any issuer, agent, broker, or
other person or entity engaged in the business of insurance, has
violated this article he or she shall make and serve upon the issuer,
broker, or other person or entity a notice of hearing. The notice
shall state the commissioner's intent to assess the administrative
penalties, the time and place of the hearing, and the conduct,
condition, or ground upon which the commissioner is holding the
hearing and assessing the penalties. The hearing shall occur within
30 days after the notice is served. Within 30 days after the hearing
the commissioner shall issue an order specifying the amount of
penalties to be paid. The penalties resulting from the hearing shall
be paid to the Insurance Fund.
(4) The powers vested in the commissioner by this section shall be
additional to any and all powers and remedies vested in the
commissioner by law.
(b) (1) Any broker, agent, or other person or entity engaged in
the business of insurance, other than an issuer, who violates this
article is liable for administrative penalties of no less than two
hundred fifty dollars ($250) for the first violation.
(2) Any broker, agent, other person, or other entity engaged in
the business of insurance, other than an issuer, who engages in
practices prohibited by this chapter a second or subsequent time or
who commits a knowing violation of this article, is liable for
administrative penalties of no less than one thousand dollars
($1,000) and no more than twenty-five thousand dollars ($25,000) for
each violation.
(3) Any issuer who violates this article is liable for
administrative penalties of no less than two thousand five hundred
dollars ($2,500) for the first violation.
(4) Any issuer who violates this article with a frequency as to
indicate a general business practice or commits a knowing violation
of this article, is liable for administrative penalties of no less
than ten thousand dollars ($10,000) and no more than one hundred
thousand dollars ($100,000) for each violation.
(c) (1) Actions for injunctive relief, penalties in the amounts
specified in subdivision (a), damages, restitution, and all other
remedies provided for in law, may be brought in superior court by the
Attorney General, district attorney, or city attorney on behalf of
the people of the State of California.
(2) The court shall award reasonable attorney's fees and costs to
a prevailing plaintiff who establishes a violation of this article.
(d) In addition to any other applicable penalties, the
commissioner may require issuers, agents, brokers, or other persons
or entities violating any provision of this article or regulations
promulgated pursuant to this article, to cease marketing in this
state any Medicare supplement policy or certificate or may require
the issuer, agent, broker, or other person or entity to take such
actions as are necessary to comply with the provisions of this
article, or both.
(e) Any person who knowingly or intentionally violates any
provision of this article is guilty of a public offense punishable by
imprisonment in a county jail not exceeding one year , or
by imprisonment in the state prison pursuant
to subdivision (h) of Section 1170 of the Penal Code, or by a
fine not exceeding ten thousand dollars ($10,000), or by both that
imprisonment and fine.
(f) (1) The requirements and remedies provided by this article are
in addition to any other remedies provided by law.
(2) If any provision of this article or the application thereof to
any person or circumstances is held invalid, that invalidity shall
not affect other provisions or applications of the article which can
be given effect without the invalid provision or application, and to
this end the provisions of this article are severable.
SEC. 214. Section 11161 of the Insurance Code is
amended to read:
11161. Any person violating Section 11160 is guilty of a felony
and punishable by a fine not exceeding ten thousand dollars ($10,000)
or imprisonment in the state prison pursuant
to subdivision (h) of Section 1170 of the Penal Code , or
both.
SEC. 215. Section 11162 of the Insurance Code is
amended to read:
11162. It is a felony , punishable by imprisonment
pursuant to subdivision (h) of Section 1170 of the Penal Code,
for any officer, director, agent or employee of any fraternal
benefit society to, directly or indirectly, for himself or as partner
or agent of others:
(a) Borrow any of the funds of such society.
(b) Become endorser or surety for loans by the society to others.
(c) In any manner be obligor for moneys borrowed or loaned by such
society.
SEC. 216. Section 11163 of the Insurance Code is
amended to read:
11163. It is a felony , punishable by imprisonment
pursuant to subdivision (h) of Section 1170 of the Penal Code,
for any officer, trustee, agent or employee of a fraternal
benefit society to ask, receive, or consent or agree to receive
anything of value for procuring or endeavoring to procure a loan to
any person from the trust funds of, or funds belonging to, a
fraternal benefit society.
SEC. 217. Section 11760 of the Insurance Code is
amended to read:
11760. (a) It is unlawful to make or cause to be made any
knowingly false or fraudulent statement, whether made orally or in
writing, of any fact material to the determination of the premium,
rate, or cost of any policy of workers' compensation insurance, for
the purpose of reducing the premium, rate, or cost of the insurance.
Any person convicted of violating this subdivision shall be punished
by imprisonment in the a county jail
for one year, or in the state prison pursuant
to subdivision (h) of Section 1170 of the Penal Code for two,
three, or five years, or by a fine not exceeding fifty thousand
dollars ($50,000), or double the value of the fraud, whichever is
greater, or by both that imprisonment and fine.
(b) Any person who violates subdivision (a) and who has a prior
felony conviction of the offense set forth in that subdivision shall
receive a two-year enhancement for each prior conviction in addition
to the sentence provided in subdivision (a). The existence of any
fact that would subject a person to a penalty enhancement shall be
alleged in the information or indictment and either admitted by the
defendant in open court, or found to be true by the jury trying the
issue of guilt or by the court where guilt is established by plea of
guilty or nolo contendere or by trial by the court sitting without a
jury.
SEC. 218. Section 11880 of the Insurance Code is
amended to read:
11880. (a) It is unlawful to make or cause to be made any
knowingly false or fraudulent statement, whether made orally or in
writing, of any fact material to the determination of the premium,
rate, or cost of any policy of workers' compensation insurance issued
or administered by the State Compensation Insurance Fund for the
purpose of reducing the premium, rate, or cost of the insurance. Any
person convicted of violating this subdivision shall be punished by
imprisonment in the a county jail for
one year, or in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code for two,
three, or five years, or by a fine not exceeding fifty thousand
dollars ($50,000), or double the value of the fraud, whichever is
greater, or by both that imprisonment and fine.
(b) Any person who violates subdivision (a) and who has a prior
felony conviction of the offense set forth in that subdivision shall
receive a two-year enhancement for each prior conviction in addition
to the sentence provided in subdivision (a). The existence of any
fact that would subject a person to a penalty enhancement shall be
alleged in the information or indictment and either admitted by the
defendant in open court, or found to be true by the jury trying the
issue of guilt or by the court where guilt is established by plea of
guilty or nolo contendere or by trial by the court sitting without a
jury.
SEC. 219. Section 12660 of the Insurance Code is
amended to read:
12660. Any person who in this state engages in the business of
guaranteeing or insuring land values, or who solicits or negotiates
in this state for the purpose of, or in any manner aids, any person
within or without this state to engage in such business, is guilty of
a public offense and punishable by imprisonment in the
state prison pursuant to subdiv ision (h)
of Section 1170 of the Penal Code , or in the
a county jail for not exceeding one year, or by
fine not exceeding ten thousand dollars ($10,000), or by both
such that fine and imprisonment.
SEC. 220. Section 12845 of the Insurance Code is
amended to read:
12845. Any vehicle service contract obligor or administrator that
provides vehicle service contract forms to sellers or purchasers,
directly or indirectly, and fails to comply with Sections 12815,
12830 and 12835, is guilty of a public offense punishable by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code , or by a
fine not exceeding five hundred thousand dollars ($500,000), or both,
and shall be enjoined from further violations by a court of
competent jurisdiction on petition of the commissioner. This section
shall not apply to a seller who is an obligor under vehicle service
contracts it sells. The commissioner may issue a cease and desist
order pursuant to Section 1065.2 to an obligor or administrator who
violates Section 12830 or 12835. The commissioner may issue a cease
and desist order pursuant to Section 12921.8 to an obligor or
administrator in violation of Section 12815.
SEC. 221. Section 227 of the Labor Code is amended to
read:
227. Whenever an employer has agreed with any employee to make
payments to a health or welfare fund, pension fund or vacation plan,
or other similar plan for the benefit of the employees, or a
negotiated industrial promotion fund, or has entered into a
collective bargaining agreement providing for these payments, it
shall be unlawful for that employer willfully or with intent to
defraud to fail to make the payments required by the terms of that
agreement. A violation of any provision of this section where the
amount the employer failed to pay into the fund or funds exceeds five
hundred dollars ($500) shall be punishable by imprisonment
in the state prison pursuant to subdivision (h) of
Section 1170 of the Penal Code , or in a county jail for a
period of not more than one year, by a fine of not more than one
thousand dollars ($1,000), or by both that imprisonment and fine. All
other violations shall be punishable as a misdemeanor.
SEC. 222. Section 6425 of the Labor Code is amended to
read:
6425. (a) Any employer and any employee having direction,
management, control, or custody of any employment, place of
employment, or of any other employee, who willfully violates any
occupational safety or health standard, order, or special order, or
Section 25910 of the Health and Safety Code, and that violation
caused death to any employee, or caused permanent or prolonged
impairment of the body of any employee, is guilty of a public offense
punishable by imprisonment in a county jail for a term not exceeding
one year, or by a fine not exceeding one hundred thousand dollars
($100,000), or by both that imprisonment and fine; or by imprisonment
in the state prison for 16 months, or two or three years, or by a
fine of not more than two hundred fifty thousand dollars ($250,000),
or by both that imprisonment and fine; and in either case, if the
defendant is a corporation or a limited liability company, the fine
may not exceed one million five hundred thousand dollars
($1,500,000).
(b) If the conviction is for a violation committed within seven
years after a conviction under subdivision (b), (c), or (d) of
Section 6423 or subdivision (c) of Section 6430, punishment shall be
by imprisonment in state prison for a term of 16 months, two, or
three years, or by a fine not exceeding two hundred fifty thousand
dollars ($250,000), or by both that fine and imprisonment, but if the
defendant is a corporation or limited liability company, the fine
may not be less than five hundred thousand dollars ($500,000) or more
than two million five hundred thousand dollars ($2,500,000).
(c) If the conviction is for a violation committed within seven
years after a first conviction of the defendent
defendant for any crime involving a violation of
subdivision (a), punishment shall be by imprisonment in the
state prison pursuant to subdivision (h) of Section
1170 of the Penal Code for two, three, or four years, or by a
fine not exceeding two hundred fifty thousand dollars ($250,000), or
by both that fine and imprisonment, but if the defendant is a
corporation or a limited liability company, the fine shall not be
less than one million dollars ($1,000,000) but may not exceed three
million five hundred thousand dollars ($3,500,000).
(d) In determining the amount of fine to be imposed under this
section, the court shall consider all relevant circumstances,
including, but not limited to, the nature, circumstance, extent, and
gravity of the violation, any prior history of violations by the
defendant, the ability of the defendant to pay, and any other matters
the court determines the interests of justice require.
(e) As used in this section, "willfully" has the same definition
as it has in Section 7 of the Penal Code. This subdivision is
intended to be a codification of existing law.
(f) This section does not prohibit a prosecution under Section 192
of the Penal Code.
SEC. 223. Section 7771 of the Labor Code is amended to
read:
7771. Every person having charge of any steam boiler, steam
engine, or other apparatus for generating or employing steam, used in
any manufactory, railroad, vessel, or other mechanical works, who
willfully, or from ignorance or neglect, creates, or allows to be
created, such an undue quantity of steam as to burst or break the
boiler, engine, or apparatus, or to cause any other accident whereby
the death of a human being is caused, is punishable by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code for two, three, or four
years.
SEC. 224. Section 145 of the Military and Veterans Code
is amended to read:
145. A person who, after publication of the proclamation
authorized by Section 143, joins, participates or takes any part in a
rebellion, insurrection, tumult or riot, or who is party to any
conspiracy or combination to resist by force the execution of the
laws or who resists or aids in resisting the execution of process in
any county or city declared to be in a state of insurrection, or who
aids or attempts the rescue or escape of another from lawful custody
or confinement, or who resists or aids in resisting any force ordered
out by the Governor to quell or suppress an insurrection, is
punishable by a fine of not less than one thousand dollars ($1,000),
or by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
for two, three, or four years, or in a county jail for not more than
one year, or by both that fine and imprisonment.
SEC. 225. Section 1318 of the Military and Veterans
Code is amended to read:
1318. Every person who maliciously destroys, cuts, breaks,
mutilates, effaces, or otherwise injures, tears down, or removes any
veterans' memorial constructed or established pursuant to this
division, or constructed or established by any veterans' association,
as defined in subdivision (c) of Section 1260, is guilty of a crime
punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
or by imprisonment in the a
county jail for less than one year.
SEC. 226. Section 1672 of the Military and Veterans
Code is amended to read:
1672. Any person who is guilty of violating Section 1670 or 1671
is punishable as follows:
(a) If the act or failure to act causes the death of any person, a
person violating this section is punishable by death or imprisonment
in the state prison for life without possibility of parole. The
penalty shall be determined pursuant to the provisions of Sections
190.3 and 190.4 of the Penal Code. If the act or failure to act
causes great bodily injury to any person, a person violating this
section is punishable by life imprisonment without possibility of
parole.
(b) If the act or failure to act does not cause the death of, or
great bodily injury to, any person, the person violating this section
is punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
for two, four, or six years, by a fine of not more than ten
thousand dollars ($10,000), or by both that imprisonment and fine.
However, if a person so acts or so fails to act with the intent to
hinder, delay, or interfere with the preparation of the United States
or of any state for defense or for war, or with the prosecution of
war by the United States, or with the rendering of assistance by the
United States to any other nation in connection with that nation's
defense, the person is punishable by a fine of not more than ten
thousand dollars ($10,000), imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code for three, five, or seven years, or by both that
fine and imprisonment.
SEC. 227. Section 1673 of the Military and Veterans
Code is amended to read:
1673. Any person who attempts to commit any of the crimes defined
by this chapter is punishable as provided in Section 664 of the
Penal Code, except that attempts to commit crimes defined by Sections
1670 and 1671 are punishable by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170 of
the Penal Code for two, three or four years or by a fine of not
more than ten thousand dollars ($10,000), or both. In addition to
the acts which constitute an attempt to commit a crime under the law
of this state, the solicitation or incitement of another to commit
any of the crimes defined by this chapter not followed by the
commission of the crime, the collection or assemblage of any
materials with the intent that they are to be used then or at a later
time in the commission of such crime, or the entry, with or without
permission, of a building, enclosure, or other premises of another
with the intent to commit any such crime constitutes an attempt to
commit such crime.
SEC. 228. Section 17 of the Penal Code is amended to
read:
17. (a) A felony is a crime which that
is punishable with death , or by
imprisonment in the state prison, or notwithstanding any other
provision of law, by imprisonment in a county jail for more
than one year. Every other crime or public offense is a misdemeanor
except those offenses that are classified as infractions.
(b) When a crime is punishable, in the discretion of the court,
either by imprisonment in the state prison or
imprisonment in a county jail for more than one year, or by
fine or imprisonment in the county jail, it is a misdemeanor for all
purposes under the following circumstances:
(1) After a judgment imposing a punishment other than imprisonment
in the state prison or imprisonment in a county jail for more
than one year.
(2) When the court, upon committing the defendant to the Youth
Authority, designates the offense to be a misdemeanor.
(3) When the court grants probation to a defendant without
imposition of sentence and at the time of granting probation, or on
application of the defendant or probation officer thereafter, the
court declares the offense to be a misdemeanor.
(4) When the prosecuting attorney files in a court having
jurisdiction over misdemeanor offenses a complaint specifying that
the offense is a misdemeanor, unless the defendant at the time of his
or her arraignment or plea objects to the offense being made a
misdemeanor, in which event the complaint shall be amended to charge
the felony and the case shall proceed on the felony complaint.
(5) When, at or before the preliminary examination or prior to
filing an order pursuant to Section 872, the magistrate determines
that the offense is a misdemeanor, in which event the case shall
proceed as if the defendant had been arraigned on a misdemeanor
complaint.
(c) When a defendant is committed to the Youth Authority for a
crime punishable, in the discretion of the court, either
by imprisonment in the state prison or imprisonment in a county
jail for more than one year, or by fine or imprisonment in the
county jail not exceeding one year , the offense shall,
upon the discharge of the defendant from the Youth Authority,
thereafter be deemed a misdemeanor for all purposes.
(d) A violation of any code section listed in Section 19.8 is an
infraction subject to the procedures described in Sections 19.6 and
19.7 when:
(1) The prosecutor files a complaint charging the offense as an
infraction unless the defendant, at the time he or she is arraigned,
after being informed of his or her rights, elects to have the case
proceed as a misdemeanor, or;
(2) The court, with the consent of the defendant, determines that
the offense is an infraction in which event the case shall proceed as
if the defendant had been arraigned on an infraction complaint.
(e) Nothing in this section authorizes a judge to relieve a
defendant of the duty to register as a sex offender pursuant to
Section 290 if the defendant is charged with an offense for which
registration as a sex offender is required pursuant to Section 290,
and for which the trier of fact has found the defendant guilty.
SEC. 229. Section 17.5 is added to the Penal Code, to read:
17.5. (a) The Legislature finds and declares all of the
following:
(1) The Legislature reaffirms its commitment to reducing
recidivism among criminal offenders.
(2) Despite the dramatic increase in corrections spending over the
past two decades, national reincarceration rates for people released
from prison remain unchanged or have worsened. National data show
that about 40 percent of released individuals are reincarcerated
within three years. In California, the recidivism rate for persons
who have served time in prison is even greater than the national
average.
(3) Criminal justice policies that rely on building and operating
more prisons to address community safety concerns are not
sustainable, and will not result in improved public safety.
(4) California must reinvest its criminal justice resources to
support community-based corrections programs and evidence-based
practices that will achieve improved public safety returns on this
state's substantial investment in its criminal justice system.
(5) Realigning low-level felony offenders who do not have prior
convictions for serious, violent, or sex offenses to locally run
community-based corrections programs, which are strengthened through
community-based punishment, evidence-based practices, improved
supervision strategies, and enhanced secured capacity, will improve
public safety outcomes among adult felons and facilitate their
reintegration back into society.
(6) Community-based corrections programs require a partnership
between local public safety entities and the county to provide and
expand the use of community-based punishment for low-level offender
populations. Each county's Local Community Corrections Partnership,
as established in paragraph (2) of subdivision (b) of Section 1230,
should play a critical role in developing programs and ensuring
appropriate outcomes for low-level offenders.
(7) Fiscal concerns and programs should align to promote a justice
reinvestment strategy that fits each county. "Justice reinvestment"
is a data-driven approach to reduce corrections and related criminal
justice spending and reinvest savings in strategies designed to
increase public safety. The purpose of justice reinvestment is to
manage and allocate criminal justice populations more
cost-effectively, generating savings that can be reinvested in
evidence-based strategies that increase public safety while holding
offenders accountable.
(8) "Community-based punishment" means evidenced based
correctional sanctions and programming other than jail incarceration
alone or traditional routine probation supervision. Intermediate
sanctions may be provided by local public safety entities directly or
through community-based public or private correctional service
providers, and include, but are not limited to, the following:
(A) Short-term flash incarceration in jail for a period of not
more than 7 days.
(B) Intensive community supervision.
(C)
Home detention with electronic monitoring or GPS monitoring.
(D) Mandatory community service.
(E) Restorative justice programs such as mandatory victim
restitution and victim-offender reconciliation.
(F) Work, training, or education in a furlough program pursuant to
Section 1208.
(G) Work, in lieu of confinement, in a work release program
pursuant to Section 4024.2.
(H) Day reporting.
(I) Mandatory residential or nonresidential substance abuse
treatment programs.
(J) Mandatory random drug testing.
(K) Mother-infant care programs.
(L) Community-based residential programs offering structure,
supervision, drug treatment, alcohol treatment, literacy programming,
employment counseling, psychological counseling, mental health
treatment, or any combination of these and other interventions.
(9) "Evidence-based practices" refers to supervision policies,
procedures, programs, and practices demonstrated by scientific
research to reduce recidivism among individuals under probation,
parole, or post release supervision.
(b) The provisions of this act are not intended to alleviate state
prison overcrowding.
SEC. 230. Section 18 of the Penal Code is amended to
read:
18. (a) Except in cases where a different
punishment is prescribed by any law of this state, every offense
declared to be a felony , or to be punishable by
imprisonment in a state prison, is punishable by
imprisonment in any of the state prisons for 16
months, or two or three years ; provided, however, every
as provided in subdivision (h) of Section 1170.
(b) Every offense which is
prescribed by any law of the state to be a felony punishable by
imprisonment in any of the state prisons or by a
fine, but without an alternate sentence to the county jail for a
period not exceeding one year , may be punishable by
imprisonment in the county jail not exceeding one year or by a fine,
or by both.
SEC. 231. Section 19.2 of the Penal Code is amended to
read:
19.2. In no case shall any person sentenced to confinement in a
county or city jail, or in a county or joint county penal farm, road
camp, work camp, or other county adult detention facility, or
committed to the sheriff for placement in any county adult detention
facility, on conviction of a misdemeanor, or as a condition of
probation upon conviction of either a felony or a misdemeanor, or
upon commitment for civil contempt, or upon default in the payment of
a fine upon conviction of either a felony or a misdemeanor, or for
any reason except upon conviction of a crime that
specifies a felony punishment pursuant to subdivision (h) of Section
1170 or a conviction of more than one offense when
consecutive sentences have been imposed, be committed for a period in
excess of one year; provided, however, that the time allowed on
parole shall not be considered as a part of the period of
confinement.
SEC. 232. Section 33 of the Penal Code is amended to
read:
33. Except in cases where a different punishment is prescribed,
an accessory is punishable by a fine not exceeding five thousand
dollars ($5,000), or by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 , or
in a county jail not exceeding one year, or by both such fine and
imprisonment.
SEC. 233. Section 38 of the Penal Code is amended to
read:
38. Misprision of treason is the knowledge and concealment of
treason, without otherwise assenting to or participating in the
crime. It is punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 .
SEC. 234. Section 67.5 of the Penal Code is amended to
read:
67.5. (a) Every person who gives or offers as a bribe to any
ministerial officer, employee, or appointee of the State of
California, county or city therein, or political subdivision thereof,
any thing the theft of which would be petty theft is guilty of a
misdemeanor.
(b) If the theft of the thing given or offered would be grand
theft the offense is a felony punishable by imprisonment
pursuant to subdivision (h) of Section 1170 .
SEC. 235. Section 69 of the Penal Code is amended to
read:
69. Every person who attempts, by means of any threat or
violence, to deter or prevent an executive officer from performing
any duty imposed upon such officer by law, or who knowingly resists,
by the use of force or violence, such officer, in the performance of
his duty, is punishable by a fine not exceeding ten thousand dollars
($10,000), or by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 , or in a
county jail not exceeding one year, or by both such fine and
imprisonment.
SEC. 236. Section 71 of the Penal Code is amended to
read:
71. (a) Every person who, with intent to
cause, attempts to cause, or causes, any officer or employee of any
public or private educational institution or any public officer or
employee to do, or refrain from doing, any act in the performance of
his duties, by means of a threat, directly communicated to such
person, to inflict an unlawful injury upon any person or property,
and it reasonably appears to the recipient of the threat that such
threat could be carried out, is guilty of a public offense punishable
as follows:
(1) Upon a first conviction, such person is punishable by a fine
not exceeding ten thousand dollars ($10,000), or by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 , or in a county jail not exceeding one
year, or by both such that fine and
imprisonment.
(2) If such the person has been
previously convicted of a violation of this section, such previous
conviction shall be charged in the accusatory pleading, and if
such that previous conviction is found
to be true by the jury, upon a jury trial, or by the court, upon a
court trial, or is admitted by the defendant, he or she is
punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 .
As
(b) As used in this section,
"directly communicated" includes, but is not limited to, a
communication to the recipient of the threat by telephone, telegraph,
or letter.
SEC. 237. Section 72 of the Penal Code is amended to
read:
72. Every person who, with intent to defraud, presents for
allowance or for payment to any state board or officer, or to any
county, city, or district board or officer, authorized to allow or
pay the same if genuine, any false or fraudulent claim, bill,
account, voucher, or writing, is punishable either by imprisonment in
the county jail for a period of not more than one year, by a fine of
not exceeding one thousand dollars ($1,000), or by both
such that imprisonment and fine, or by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 , by a fine of not exceeding
ten thousand dollars ($10,000), or by both such imprisonment and
fine.
As used in this section "officer" includes a "carrier," as defined
in subdivision (a) of Section 14124.70 of the Welfare and
Institutions Code, authorized to act as an agent for a state board or
officer or a county, city, or district board or officer, as the case
may be.
SEC. 238. Section 72.5 of the Penal Code is amended to
read:
72.5. (a) Every person who, knowing a claim seeks public funds
for reimbursement of costs incurred in attending a political function
organized to support or oppose any political party or political
candidate, presents such a claim for allowance or for payment to any
state board or officer, or to any county, city, or district board or
officer authorized to allow or pay such claims, is punishable either
by imprisonment in the county jail for a period of not more than one
year, by a fine of not exceeding one thousand dollars ($1,000), or by
both such imprisonment and fine, or by imprisonment in the
state prison pursuant to subdivision (h) of
Section 1170 , by a fine of not exceeding ten thousand dollars
($10,000), or by both such imprisonment and fine.
(b) Every person who, knowing a claim seeks public funds for
reimbursement of costs incurred to gain admittance to a political
function expressly organized to support or oppose any ballot measure,
presents such a claim for allowance or for payment to any state
board or officer, or to any county, city, or district board or
officer authorized to allow or pay such those
claims is punishable either by imprisonment in the county jail
for a period of not more than one year, by a fine of not exceeding
one thousand dollars ($1,000), or by both such
that imprisonment and fine, or by imprisonment in
the state prison pursuant to subdivision (h) of
Section 1170 , by a fine of not exceeding ten thousand dollars
($10,000), or by both such that
imprisonment and fine.
SEC. 239. Section 76 of the Penal Code is amended to
read:
76. (a) Every person who knowingly and willingly threatens the
life of, or threatens serious bodily harm to, any elected public
official, county public defender, county clerk, exempt appointee of
the Governor, judge, or Deputy Commissioner of the Board of Prison
Terms, or the staff, immediate family, or immediate family of the
staff of any elected public official, county public defender, county
clerk, exempt appointee of the Governor, judge, or Deputy
Commissioner of the Board of Prison Terms, with the specific intent
that the statement is to be taken as a threat, and the apparent
ability to carry out that threat by any means, is guilty of a public
offense, punishable as follows:
(1) Upon a first conviction, the offense is punishable by a fine
not exceeding five thousand dollars ($5,000), or by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 , or in a county jail not exceeding one
year, or by both that fine and imprisonment.
(2) If the person has been convicted previously of violating this
section, the previous conviction shall be charged in the accusatory
pleading, and if the previous conviction is found to be true by the
jury upon a jury trial, or by the court upon a court trial, or is
admitted by the defendant, the offense is punishable by imprisonment
in the state prison pursuant to
subdivision (h) of Section 1170 .
(b) Any law enforcement agency that has knowledge of a violation
of this section involving a constitutional officer of the state, a
Member of the Legislature, or a member of the judiciary shall
immediately report that information to the Department of the
California Highway Patrol.
(c) For purposes of this section, the following definitions shall
apply:
(1) "Apparent ability to carry out that threat" includes the
ability to fulfill the threat at some future date when the person
making the threat is an incarcerated prisoner with a stated release
date.
(2) "Serious bodily harm" includes serious physical injury or
serious traumatic condition.
(3) "Immediate family" means a spouse, parent, or child, or anyone
who has regularly resided in the household for the past six months.
(4) "Staff of a judge" means court officers and employees,
including commissioners, referees, and retired judges sitting on
assignment.
(5) "Threat" means a verbal or written threat or a threat implied
by a pattern of conduct or a combination of verbal or written
statements and conduct made with the intent and the apparent ability
to carry out the threat so as to cause the person who is the target
of the threat to reasonably fear for his or her safety or the safety
of his or her immediate family.
(d) As for threats against staff or immediate family of staff, the
threat must relate directly to the official duties of the staff of
the elected public official, county public defender, county clerk,
exempt appointee of the Governor, judge, or Deputy Commissioner of
the Board of Prison Terms in order to constitute a public offense
under this section.
(e) A threat must relate directly to the official duties of a
Deputy Commissioner of the Board of Prison Terms in order to
constitute a public offense under this section.
SEC. 240. Section 95 of the Penal Code is amended to
read:
95. Every person who corruptly attempts to influence a juror, or
any person summoned or drawn as a juror, or chosen as an arbitrator
or umpire, or appointed a referee, in respect to his or her verdict
in, or decision of, any cause or proceeding, pending, or about to be
brought before him or her, is punishable by a fine not exceeding ten
thousand dollars ($10,000), or by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170
, if it is by means of any of the following:
(a) Any oral or written communication with him or her except in
the regular course of proceedings.
(b) Any book, paper, or instrument exhibited, otherwise than in
the regular course of proceedings.
(c) Any threat, intimidation, persuasion, or entreaty.
(d) Any promise, or assurance of any pecuniary or other advantage.
SEC. 241. Section 95.1 of the Penal Code is amended to
read:
95.1. Every person who threatens a juror with respect to a
criminal proceeding in which a verdict has been rendered and who has
the intent and apparent ability to carry out the threat so as to
cause the target of the threat to reasonably fear for his or her
safety or the safety of his or her immediate family, is guilty of a
public offense and shall be punished by imprisonment in a county jail
for not more than one year, or by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170
, or by a fine not exceeding ten thousand dollars ($10,000), or
by both that imprisonment and fine.
SEC. 242. Section 96 of the Penal Code is amended to
read:
96. Every juror, or person drawn or summoned as a juror, or
chosen arbitrator or umpire, or appointed referee, who either:
One--Makes any promise or agreement to give a verdict or decision
for or against any party; or,
Two--Willfully and corruptly permits any communication to be made
to him, or receives any book, paper, instrument, or information
relating to any cause or matter pending before him, except according
to the regular course of proceedings,
is punishable by fine not exceeding ten thousand dollars ($10,000),
or by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 .
SEC. 243. Section 99 of the Penal Code is amended to
read:
99. The Superintendent of State Printing shall not, during his
continuance in office, have any interest, either directly or
indirectly, in any contract in any way connected with his office as
Superintendent of State Printing; nor shall he, during said period,
be interested, either directly or indirectly, in any state printing,
binding, engraving, lithographing, or other state work of any kind
connected with his said office; nor shall he, directly or indirectly,
be interested in any contract for furnishing paper, or other
printing stock or material, to or for use in his said office; and any
violations of these provisions shall subject him, on conviction
before a court of competent jurisdiction, to imprisonment in
the state prison pursuant to subdivision (h) of
Section 1170 and to a fine of not less than one thousand
dollars ($1,000) nor more than ten thousand dollars ($10,000), or by
both such that fine and imprisonment.
SEC. 244. Section 107 of the Penal Code is amended to
read:
107. Every prisoner charged with or convicted of a felony who is
an inmate of any public training school or reformatory or county
hospital who escapes or attempts to escape from such public training
school or reformatory or county hospital is guilty of a felony and is
punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 , or by a fine
not exceeding ten thousand dollars ($10,000), or by both
such that fine and imprisonment.
SEC. 245. Section 109 of the Penal Code is amended to
read:
109. Any person who willfully assists any inmate of any public
training school or reformatory to escape, or in an attempt to escape
from such that public training school
or reformatory is punishable by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170
, and fine not exceeding ten thousand dollars ($10,000).
SEC. 246. Section 113 of the Penal Code is amended to
read:
113. Any person who manufactures, distributes or sells false
documents to conceal the true citizenship or resident alien status of
another person is guilty of a felony, and shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 for five years or by a fine of
seventy-five thousand dollars ($75,000).
SEC. 247. Section 114 of the Penal Code is amended to
read:
114. Any person who uses false documents to conceal his or her
true citizenship or resident alien status is guilty of a felony, and
shall be punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for
five years or by a fine of twenty-five thousand dollars ($25,000).
SEC. 248. Section 115.1 of the Penal Code is amended to
read:
115.1. (a) The Legislature finds and declares that the voters of
California are entitled to accurate representations in materials that
are directed to them in efforts to influence how they vote.
(b) No person shall publish or cause to be published, with intent
to deceive, any campaign advertisement containing a signature that
the person knows to be unauthorized.
(c) For purposes of this section, "campaign advertisement" means
any communication directed to voters by means of a mass mailing as
defined in Section 82041.5 of the Government Code, a paid television,
radio, or newspaper advertisement, an outdoor advertisement, or any
other printed matter, if the expenditures for that communication are
required to be reported by Chapter 4 (commencing with Section 84100)
of Title 9 of the Government Code.
(d) For purposes of this section, an authorization to use a
signature shall be oral or written.
(e) Nothing in this section shall be construed to prohibit a
person from publishing or causing to be published a reproduction of
all or part of a document containing an actual or authorized
signature, provided that the signature so reproduced shall not, with
the intent to deceive, be incorporated into another document in a
manner that falsely suggests that the person whose signature is
reproduced has signed the other document.
(f) Any knowing or willful violation of this section is a public
offense punishable by imprisonment in the state prison or
in a county jail not exceeding 6 months, or
pursuant to subdivision (h) of Section 1170 , or by a fine not
to exceed fifty thousand dollars ($50,000), or by both that fine and
imprisonment.
(g) As used in this section, "signature" means either of the
following:
(1) A handwritten or mechanical signature, or a copy thereof.
(2) Any representation of a person's name, including, but not
limited to, a printed or typewritten representation, that serves the
same purpose as a handwritten or mechanical signature.
SEC. 249. Section 126 of the Penal Code is amended to
read:
126. Perjury is punishable by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170
for two, three or four years.
SEC. 250. Section 136.7 of the Penal Code is amended to
read:
136.7. Every person imprisoned in a county jail or the state
prison who has been convicted of a sexual offense, including, but not
limited to, a violation of Section 243.4, 261, 261.5, 262, 264.1,
266, 266a, 266b, 266c, 266f, 285, 286, 288, 288a, or 289, who
knowingly reveals the name and address of any witness or victim to
that offense to any other prisoner with the intent that the other
prisoner will intimidate or harass the witness or victim through the
initiation of unauthorized correspondence with the witness or victim,
is guilty of a public offense, punishable by imprisonment in the
county jail not to exceed one year, or by imprisonment in
the state prison pursuant to subdivision (h) of
Section 1170 .
Nothing in this section shall prevent the interviewing of
witnesses.
SEC. 251. Section 137 of the Penal Code is amended to
read:
137. (a) Every person who gives or offers, or promises to give,
to any witness, person about to be called as a witness, or person
about to give material information pertaining to a crime to a law
enforcement official, any bribe, upon any understanding or agreement
that the testimony of such witness or information given by such
person shall be thereby influenced is guilty of a felony.
(b) Every person who attempts by force or threat of force or by
the use of fraud to induce any person to give false testimony or
withhold true testimony or to give false material information
pertaining to a crime to, or withhold true material information
pertaining to a crime from, a law enforcement official is guilty of a
felony, punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for
two, three, or four years.
As used in this subdivision, "threat of force" means a credible
threat of unlawful injury to any person or damage to the property of
another which is communicated to a person for the purpose of inducing
him to give false testimony or withhold true testimony or to give
false material information pertaining to a crime to, or to withhold
true material information pertaining to a crime from, a law
enforcement official.
(c) Every person who knowingly induces another person to give
false testimony or withhold true testimony not privileged by law or
to give false material information pertaining to a crime to, or to
withhold true material information pertaining to a crime from, a law
enforcement official is guilty of a misdemeanor.
(d) At the arraignment, on a showing of cause to believe this
section may be violated, the court, on motion of a party, shall
admonish the person who there is cause to believe may violate this
section and shall announce the penalties and other provisions of this
section.
(e) As used in this section "law enforcement official" includes
any district attorney, deputy district attorney, city attorney,
deputy city attorney, the Attorney General or any deputy attorney
general, or any peace officer included in Chapter 4.5 (commencing
with Section 830) of Title 3 of Part 2.
(f) The provisions of subdivision (c) shall not apply to an
attorney advising a client or to a person advising a member of his or
her family.
SEC. 252. Section 139 of the Penal Code, as amended by
Section 1 of Chapter 80 of the Statutes of 1990, is amended to read:
139. (a) Except as provided in Sections 71 and 136.1, any person
who has been convicted of any felony offense specified in Section
12021.1 who willfully and maliciously communicates to a witness to,
or a victim of, the crime for which the person was convicted, a
credible threat to use force or violence upon that person or that
person's immediate family, shall be punished by imprisonment in the
county jail not exceeding one year or by imprisonment in the
state prison pursuant to subdivision (h) of Section
1170 for two, three, or four years.
(b) Any person who is convicted of violating subdivision (a) who
subsequently is convicted of making a credible threat, as defined in
subdivision (c), which constitutes a threat against the life of, or a
threat to cause great bodily injury to, a person described in
subdivision (a), shall be sentenced to consecutive terms of
imprisonment as prescribed in Section 1170.13.
(c) As used in this section, "a credible threat" is a threat made
with the intent and the apparent ability to carry out the threat so
as to cause the target of the threat to reasonably fear for his or
her safety or the safety of his or her immediate family.
(d) The present incarceration of the person making the threat
shall not be a bar to prosecution under this section.
(e) As used in this section, "malice," "witness," and "victim"
have the meanings given in Section 136.
SEC. 253. Section 139 of the Penal Code, as amended by
Section 43 of Chapter 178 of the Statutes of 2010, is amended to
read:
139. (a) Except as provided in Sections 71 and 136.1, any person
who has been convicted of any felony offense specified in Chapter 3
(commencing with Section 29900) of Division 9 of Title 4 of Part 6
who willfully and maliciously communicates to a witness to, or a
victim of, the crime for which the person was convicted, a credible
threat to use force or violence upon that person or that person's
immediate family, shall be punished by imprisonment in the county
jail not exceeding one year or by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170
for two, three, or four years.
(b) Any person who is convicted of violating subdivision (a) who
subsequently is convicted of making a credible threat, as defined in
subdivision (c), which constitutes a threat against the life of, or a
threat to cause great bodily injury to, a person described in
subdivision (a), shall be sentenced to consecutive terms of
imprisonment as prescribed in Section 1170.13.
(c) As used in this section, "a credible threat" is a threat made
with the intent and the apparent ability to carry out the threat so
as to cause the target of the threat to reasonably fear for his or
her safety or the safety of his or her immediate family.
(d) The present incarceration of the person making the threat
shall not be a bar to prosecution under this section.
(e) As used in this section, "malice," "witness," and "victim"
have the meanings given in Section 136.
SEC. 254. Section 140 of the Penal Code is amended to
read:
140. (a) Except as provided in Section 139, every person who
willfully uses force or threatens to use force or violence upon the
person of a witness to, or a victim of, a crime or any other person,
or to take, damage, or destroy any property of any witness, victim,
or any other person,
because the witness, victim, or other person has provided any
assistance or information to a law enforcement officer, or to a
public prosecutor in a criminal proceeding or juvenile court
proceeding, shall be punished by imprisonment in the county jail not
exceeding one year, or by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170
for two, three, or four years.
(b) A person who is punished under another provision of law for an
act described in subdivision (a) shall not receive an additional
term of imprisonment under this section.
SEC. 255. Section 142 of the Penal Code is amended to
read:
142. (a) Any peace officer who has the authority to receive or
arrest a person charged with a criminal offense and willfully refuses
to receive or arrest that person shall be punished by a fine not
exceeding ten thousand dollars ($10,000), or by imprisonment in
the state prison, or in a county jail not
exceeding one year, or pursuant to subdivision (h) of
Section 1170, or by both that fine and imprisonment.
(b) Notwithstanding subdivision (a), the sheriff may determine
whether any jail, institution, or facility under his or her direction
shall be designated as a reception, holding, or confinement
facility, or shall be used for several of those purposes, and may
designate the class of prisoners for which any facility shall be
used.
(c) This section shall not apply to arrests made pursuant to
Section 837.
SEC. 256. Section 146a of the Penal Code is amended to
read:
146a. (a) Any person who falsely represents himself or herself to
be a deputy or clerk in any state department and who, in that
assumed character, does any of the following is guilty of a
misdemeanor punishable by imprisonment in a county jail not exceeding
six months, by a fine not exceeding two thousand five hundred
dollars ($2,500), or both the fine and imprisonment:
(1) Arrests, detains, or threatens to arrest or detain any person.
(2) Otherwise intimidates any person.
(3) Searches any person, building, or other property of any
person.
(4) Obtains money, property, or other thing of value.
(b) Any person who falsely represents himself or herself to be a
public officer, investigator, or inspector in any state department
and who, in that assumed character, does any of the following shall
be punished by imprisonment in a county jail not exceeding one year,
by a fine not exceeding two thousand five hundred dollars ($2,500),
or by both that fine and imprisonment, or by imprisonment in
the state prison pursuant to subdivision (h) of
Section 1170 :
(1) Arrests, detains, or threatens to arrest or detain any person.
(2) Otherwise intimidates any person.
(3) Searches any person, building, or other property of any
person.
(4) Obtains money, property, or other thing of value.
SEC. 257. Section 146e of the Penal Code is amended to
read:
146e. (a) Every person who maliciously, and with the intent to
obstruct justice or the due administration of the laws, or with the
intent or threat to inflict imminent physical harm in retaliation for
the due administration of the laws, publishes, disseminates, or
otherwise discloses the residence address or telephone number of any
peace officer, nonsworn police dispatcher, employee of a city police
department or county sheriff's office, or public safety official, or
that of the spouse or children of these persons who reside with them,
while designating the peace officer, nonsworn police dispatcher,
employee of a city police department or county sheriff's office, or
public safety official, or relative of these persons as such, without
the authorization of the employing agency, is guilty of a
misdemeanor.
(b) A violation of subdivision (a) with regard to any peace
officer, employee of a city police department or county sheriff's
office, or public safety official, or the spouse or children of these
persons, that results in bodily injury to the peace officer,
employee of the city police department or county sheriff's office, or
public safety official, or the spouse or children of these persons,
is a felony punishable by imprisonment pursuant to
subdivision (h) of Section 1170 .
(c) For purposes of this section, "public safety official" is
defined in Section 6254.24 of the Government Code.
SEC. 258. Section 148 of the Penal Code is amended to
read:
148. (a) (1) Every person who willfully resists, delays, or
obstructs any public officer, peace officer, or an emergency medical
technician, as defined in Division 2.5 (commencing with Section 1797)
of the Health and Safety Code, in the discharge or attempt to
discharge any duty of his or her office or employment, when no other
punishment is prescribed, shall be punished by a fine not exceeding
one thousand dollars ($1,000), or by imprisonment in a county jail
not to exceed one year, or by both that fine and imprisonment.
(2) Except as provided by subdivision (d) of Section 653t, every
person who knowingly and maliciously interrupts, disrupts, impedes,
or otherwise interferes with the transmission of a communication over
a public safety radio frequency shall be punished by a fine not
exceeding one thousand dollars ($1,000), imprisonment in a county
jail not exceeding one year, or by both that fine and imprisonment.
(b) Every person who, during the commission of any offense
described in subdivision (a), removes or takes any weapon, other than
a firearm, from the person of, or immediate presence of, a public
officer or peace officer shall be punished by imprisonment in a
county jail not to exceed one year or in the state prison
pursuant to subdivision (h) of Section 1170 .
(c) Every person who, during the commission of any offense
described in subdivision (a), removes or takes a firearm from the
person of, or immediate presence of, a public officer or peace
officer shall be punished by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170
.
(d) Except as provided in subdivision (c) and notwithstanding
subdivision (a) of Section 489, every person who removes or takes
without intent to permanently deprive, or who attempts to remove or
take a firearm from the person of, or immediate presence of, a public
officer or peace officer, while the officer is engaged in the
performance of his or her lawful duties, shall be punished by
imprisonment in a county jail not to exceed one year or in
the state prison pursuant to subdivision (h) of
Section 1170 .
In order to prove a violation of this subdivision, the prosecution
shall establish that the defendant had the specific intent to remove
or take the firearm by demonstrating that any of the following
direct, but ineffectual, acts occurred:
(1) The officer's holster strap was unfastened by the defendant.
(2) The firearm was partially removed from the officer's holster
by the defendant.
(3) The firearm safety was released by the defendant.
(4) An independent witness corroborates that the defendant stated
that he or she intended to remove the firearm and the defendant
actually touched the firearm.
(5) An independent witness corroborates that the defendant
actually had his or her hand on the firearm and tried to take the
firearm away from the officer who was holding it.
(6) The defendant's fingerprint was found on the firearm or
holster.
(7) Physical evidence authenticated by a scientifically verifiable
procedure established that the defendant touched the firearm.
(8) In the course of any struggle, the officer's firearm fell and
the defendant attempted to pick it up.
(e) A person shall not be convicted of a violation of subdivision
(a) in addition to a conviction of a violation of subdivision (b),
(c), or (d) when the resistance, delay, or obstruction, and the
removal or taking of the weapon or firearm or attempt thereof, was
committed against the same public officer, peace officer, or
emergency medical technician. A person may be convicted of multiple
violations of this section if more than one public officer, peace
officer, or emergency medical technician are victims.
(f) This section shall not apply if the public officer, peace
officer, or emergency medical technician is disarmed while engaged in
a criminal act.
SEC. 259. Section 148.1 of the Penal Code is amended to
read:
148.1. (a) Any person who reports to any peace officer listed in
Section 830.1 or 830.2, or subdivision (a) of Section 830.33,
employee of a fire department or fire service, district attorney,
newspaper, radio station, television station, deputy district
attorney, employees of the Department of Justice, employees of an
airline, employees of an airport, employees of a railroad or busline,
an employee of a telephone company, occupants of a building or a
news reporter in the employ of a newspaper or radio or television
station, that a bomb or other explosive has been or will be placed or
secreted in any public or private place, knowing that the report is
false, is guilty of a crime punishable by imprisonment in
the state prison, or imprisonment in the a
county jail not to exceed one year , or pursuant to
subdivision (h) of Section 1170 .
(b) Any person who reports to any other peace officer defined in
Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 that a
bomb or other explosive has been or will be placed or secreted in
any public or private place, knowing that the report is false, is
guilty of a crime punishable by imprisonment in the state
prison or in the a county jail not to exceed one
year or pursuant to subdivision (h) of Section 1170
if (1) the false information is given while the peace officer
is engaged in the performance of his or her duties as a peace officer
and (2) the person providing the false information knows or should
have known that the person receiving the information is a peace
officer.
(c) Any person who maliciously informs any other person that a
bomb or other explosive has been or will be placed or secreted in any
public or private place, knowing that the information is false, is
guilty of a crime punishable by imprisonment in the state
prison, or imprisonment in the a county jail not
to exceed one year , or pursuant to subdivision (h)
of Section 1170 .
(d) Any person who maliciously gives, mails, sends, or causes to
be sent any false or facsimile bomb to another person, or places,
causes to be placed, or maliciously possesses any false or facsimile
bomb, with the intent to cause another to fear for his or her
personal safety or the safety of others, is guilty of a crime
punishable by imprisonment in the state prison, or
imprisonment in the a county jail not to exceed
one year , or pursuant to subdivision (h)
of Section 1170 .
SEC. 260. Section 148.3 of the Penal Code is amended to
read:
148.3. (a) Any individual who reports, or causes any report to be
made, to any city, county, city and county, or state department,
district, agency, division, commission, or board, that an "emergency"
exists, knowing that the report is false, is guilty of a misdemeanor
and upon conviction thereof shall be punishable by imprisonment in
the a county jail for a period not
exceeding one year, or by a fine not exceeding one thousand dollars
($1,000), or by both that imprisonment and fine.
(b) Any individual who reports, or causes any report to be made,
to any city, county, city and county, or state department, district,
agency, division, commission, or board, that an "emergency" exists,
and who knows that the report is false, and who knows or should know
that the response to the report is likely to cause death or great
bodily injury, and great bodily injury or death is sustained by any
person as a result of the false report, is guilty of a felony and
upon conviction thereof shall be punishable by imprisonment
in the state prison pursuant to subdivision (h) of
Section 1170 , or by a fine of not more than ten thousand
dollars ($10,000), or by both that imprisonment and fine.
(c) "Emergency" as used in this section means any condition that
results in, or could result in, the response of a public official in
an authorized emergency vehicle, aircraft, or vessel, any condition
that jeopardizes or could jeopardize public safety and results in, or
could result in, the evacuation of any area, building, structure,
vehicle, or of any other place that any individual may enter, or any
situation that results in or could result in activation of the
Emergency Alert System pursuant to Section 8594 of the Government
Code. An activation or possible activation of the Emergency Alert
System pursuant to Section 8594 of the Government Code shall not
constitute an "emergency" for purposes of this section if it occurs
as the result of a report made or caused to be made by a parent,
guardian, or lawful custodian of a child that is based on a good
faith belief that the child is missing.
SEC. 261. Section 148.4 of the Penal Code is amended to
read:
148.4. (a) Any person who does any of the following is guilty of
a misdemeanor and upon conviction is punishable by imprisonment in a
county jail, not exceeding one year, or by a fine, not exceeding one
thousand dollars ($1,000), or by both that fine and imprisonment:
(1) Willfully and maliciously tampers with, molests, injures, or
breaks any fire protection equipment, fire protection installation,
fire alarm apparatus, wire, or signal.
(2) Willfully and maliciously sends, gives, transmits, or sounds
any false alarm of fire, by means of any fire alarm system or signal
or by any other means or methods.
(b) Any person who willfully and maliciously sends, gives,
transmits, or sounds any false alarm of fire, by means of any fire
alarm system or signal, or by any other means or methods, is guilty
of a felony and upon conviction is punishable by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 or by a fine of not less than five hundred
dollars ($500) nor more than ten thousand dollars ($10,000), or by
both that fine and imprisonment, if any person sustains as a result
thereof, any of the following:
(1) Great bodily injury.
(2) Death.
SEC. 262. Section 148.10 of the Penal Code is amended
to read:
148.10. (a) Every person who willfully resists a peace officer in
the discharge or attempt to discharge any duty of his or her office
or employment and whose willful resistance proximately causes death
or serious bodily injury to a peace officer shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Sec tion 1170 for two, three, or
four years, or by a fine of not less than one thousand dollars
($1,000) or more than ten thousand dollars ($10,000), or by both that
fine and imprisonment, or by imprisonment in a county jail for not
more than one year, or by a fine of not more than one thousand
dollars ($1,000), or by both that fine and imprisonment.
(b) For purposes of subdivision (a), the following facts shall be
found by the trier of fact:
(1) That the peace officer's action was reasonable based on the
facts or circumstances confronting the officer at the time.
(2) That the detention and arrest was lawful and there existed
probable cause or reasonable cause to detain.
(3) That the person who willfully resisted any peace officer knew
or reasonably should have known that the other person was a peace
officer engaged in the performance of his or her duties.
(c) This section does not apply to conduct that occurs during
labor picketing, demonstrations, or disturbing the peace.
(d) For purposes of this section, "serious bodily injury" is
defined in paragraph (4) of subdivision (f) of Section 243.
SEC. 263. Section 149 of the Penal Code is amended to
read:
149. Every public officer who, under color of authority, without
lawful necessity, assaults or beats any person, is punishable by a
fine not exceeding ten thousand dollars ($10,000), or by imprisonment
in the state prison, or in a county jail not
exceeding one year, or pursuant to subdivision (h) of Section
1170, or by both such that fine
and imprisonment.
SEC. 264. Section 153 of the Penal Code is amended to
read:
153. Every person who, having knowledge of the actual commission
of a crime, takes money or property of another, or any gratuity or
reward, or any engagement, or promise thereof, upon any agreement or
understanding to compound or conceal such
that crime, or to abstain from any prosecution thereof, or to
withhold any evidence thereof, except in the cases provided for by
law, in which crimes may be compromised by leave of court, is
punishable as follows:
1. By imprisonment in the state prison, or in a
county jail not exceeding one year, or pursuant to
subdivision (h) of Section 1170, where the crime was punishable
by death or imprisonment in the state prison for life;
2. By imprisonment in the state prison, or in the
a county jail not exceeding six months, or
pursuant to subdivision (h) of Section 1170, where
the crime was punishable by imprisonment in the state prison for any
other term than for life;
3. By imprisonment in the a county
jail not exceeding six months, or by fine not exceeding one thousand
dollars ($1,000), where the crime was a misdemeanor.
SEC. 265. Section 156 of the Penal Code is amended to
read:
156. Every person who fraudulently produces an infant, falsely
pretending it to have been born of any parent whose child would be
entitled to inherit any real estate or to receive a share of any
personal estate, with intent to intercept the inheritance of any such
real estate, or the distribution of any such personal estate from
any person lawfully entitled thereto, is punishable by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 for two, three or four years.
SEC. 266. Section 157 of the Penal Code is amended to
read:
157. Every person to whom an infant has been confided for
nursing, education, or any other purpose, who, with intent to deceive
any parent or guardian of such that
child, substitutes or produces to such that
parent or guardian another child in the place of the one so
confided, is punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for
two, three or four years.
SEC. 267. Section 168 of the Penal Code is amended to
read:
168. (a) Every district attorney, clerk, judge, or peace officer
who, except by issuing or in executing a search warrant or warrant of
arrest for a felony, willfully discloses the fact of the warrant
prior to execution for the purpose of preventing the search or
seizure of property or the arrest of any person shall be punished by
imprisonment in the state prison or in a county
jail for not exceeding one year or pursuant to
subdivision (h) of Section 1170 .
(b) This section shall not prohibit the following:
(1) A disclosure made by a district attorney or the Attorney
General for the sole purpose of securing voluntary compliance with
the warrant.
(2) Upon the return of an indictment and the issuance of an arrest
warrant, a disclosure of the existence of the indictment and arrest
warrant by a district attorney or the Attorney General to assist in
the apprehension of a defendant.
(3) The disclosure of an arrest warrant pursuant to paragraph (1)
of subdivision (a) of Section 14201.6.
SEC. 268. Section 171c of the Penal Code is amended to
read:
171c. (a) (1) Any person who brings a loaded firearm into, or
possesses a loaded firearm within, the State Capitol, any legislative
office, any office of the Governor or other constitutional officer,
or any hearing room in which any committee of the Senate or Assembly
is conducting a hearing, or upon the grounds of the State Capitol,
which is bounded by 10th, L, 15th, and N Streets in the City of
Sacramento, shall be punished by imprisonment in a county jail for a
period of not more than one year, a fine of not more than one
thousand dollars ($1,000), or both such imprisonment and fine, or by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 .
(2) Any person who brings or possesses, within the State Capitol,
any legislative office, any hearing room in which any committee of
the Senate or Assembly is conducting a hearing, the Legislative
Office Building at 1020 N Street in the City of Sacramento, or upon
the grounds of the State Capitol, which is bounded by 10th, L, 15th,
and N Streets in the City of Sacramento, any of the following, is
guilty of a misdemeanor punishable by imprisonment in a county jail
for a period not to exceed one year, or by a fine not exceeding one
thousand dollars ($1,000), or by both that fine and imprisonment, if
the area is posted with a statement providing reasonable notice that
prosecution may result from possession of any of these items:
(A) Any firearm.
(B) Any deadly weapon described in Section 653k or 12020.
(C) 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.
(D) Any unauthorized tear gas weapon.
(E) Any stun gun, as defined in Section 244.5.
(F) 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.
(G) Any ammunition as defined in Section 12316.
(H) Any explosive as defined in Section 12000 of the Health and
Safety Code.
(b) Subdivision (a) 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 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, and who has permission granted by the Chief Sergeants at
Arms of the State Assembly and the State Senate to possess a
concealed weapon upon the premises described in subdivision (a).
(3) A person who has permission granted by the Chief Sergeants at
Arms of the State Assembly and the State Senate to possess a weapon
upon the premises described in subdivision (a).
(c) (1) Nothing in this section shall preclude prosecution under
Sections 12021 and 12021.1, Section 8100 or 8103 of the Welfare and
Institutions Code, or any other law with a penalty greater than is
set forth in this section.
(2) 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 punishable in different ways by different
provisions of law shall not be punished under more than one
provision.
SEC. 269. Section 171d of the Penal Code, as amended by
Section 497 of Chapter 538 of the Statutes of 2006, is amended to
read:
171d. 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
California, any person summoned by that officer to assist in making
arrests or preserving the peace while he or she is actually engaged
in assisting the officer, a member of the military forces of this
state or of the United States engaged in the performance of his or
her duties, 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, the Governor or a member of his or her immediate
family or a person acting with his or her permission with respect to
the Governor's Mansion or any other residence of the Governor, any
other constitutional officer or a member of his or her immediate
family or a person acting with his or her permission with respect to
the officer's residence, or a Member of the Legislature or a member
of his or her immediate family or a person acting with his or her
permission with respect to the Member's residence, shall be punished
by imprisonment in a county jail for not more than one year, by fine
of not more than one thousand dollars ($1,000), or by both the fine
and imprisonment, or by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 , if
he or she does any of the following:
(a) Brings a loaded firearm into, or possesses a loaded firearm
within, the Governor's Mansion, or any other residence of the
Governor, the residence of any other constitutional officer, or the
residence of any Member of the Legislature.
(b) Brings a loaded firearm upon, or possesses a loaded firearm
upon, the grounds of the Governor's Mansion or any other residence of
the Governor, the residence of any other constitutional officer, or
the residence of any Member of the Legislature.
SEC. 270. Section 171d of the Penal Code, as amended by
Section 47 of Chapter 178 of the Statutes of 2010, is amended to
read:
171d. 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
California, any person summoned by that officer to assist in making
arrests or preserving the peace while he or she is actually engaged
in assisting the officer, a member of the military forces of this
state or of the United States engaged in the performance of his or
her duties, a person holding a valid license to carry the firearm
pursuant to Chapter 4 (commencing with Section 26150) of Division 5
of Title 4 of Part 6, the Governor or a member of his or her
immediate family or a person acting with his or her permission with
respect to the Governor'
s Mansion or any other residence of the Governor, any other
constitutional officer or a member of his or her immediate family or
a person acting with his or her permission with respect to the
officer's residence, or a Member of the Legislature or a member of
his or her immediate family or a person acting with his or her
permission with respect to the Member's residence, shall be punished
by imprisonment in a county jail for not more than one year, by fine
of not more than one thousand dollars ($1,000), or by both the fine
and imprisonment, or by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 , if
he or she does any of the following:
(a) Brings a loaded firearm into, or possesses a loaded firearm
within, the Governor's Mansion, or any other residence of the
Governor, the residence of any other constitutional officer, or the
residence of any Member of the Legislature.
(b) Brings a loaded firearm upon, or possesses a loaded firearm
upon, the grounds of the Governor's Mansion or any other residence of
the Governor, the residence of any other constitutional officer, or
the residence of any Member of the Legislature.
SEC. 271. Section 181 of the Penal Code is amended to
read:
181. Every person who holds, or attempts to hold, any person in
involuntary servitude, or assumes, or attempts to assume, rights of
ownership over any person, or who sells, or attempts to sell, any
person to another, or receives money or anything of value, in
consideration of placing any person in the custody, or under the
power or control of another, or who buys, or attempts to buy, any
person, or pays money, or delivers anything of value, to another, in
consideration of having any person placed in his or her
custody, or under his or her power or control, or who
knowingly aids or assists in any manner any one thus offending, is
punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for two, three
or four years.
SEC. 272. Section 182 of the Penal Code is amended to
read:
182. (a) If two or more persons conspire:
(1) To commit any crime.
(2) Falsely and maliciously to indict another for any crime, or to
procure another to be charged or arrested for any crime.
(3) Falsely to move or maintain any suit, action, or proceeding.
(4) To cheat and defraud any person of any property, by any means
which are in themselves criminal, or to obtain money or property by
false pretenses or by false promises with fraudulent intent not to
perform those promises.
(5) To commit any act injurious to the public health, to public
morals, or to pervert or obstruct justice, or the due administration
of the laws.
(6) To commit any crime against the person of the President or
Vice President of the United States, the Governor of any state or
territory, any United States justice or judge, or the secretary of
any of the executive departments of the United States.
They are punishable as follows:
When they conspire to commit any crime against the person of any
official specified in paragraph (6), they are guilty of a felony and
are punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for five,
seven, or nine years.
When they conspire to commit any other felony, they shall be
punishable in the same manner and to the same extent as is provided
for the punishment of that felony. If the felony is one for which
different punishments are prescribed for different degrees, the jury
or court which finds the defendant guilty thereof shall determine the
degree of the felony the defendant conspired to commit. If the
degree is not so determined, the punishment for conspiracy to commit
the felony shall be that prescribed for the lesser degree, except in
the case of conspiracy to commit murder, in which case the punishment
shall be that prescribed for murder in the first degree.
If the felony is conspiracy to commit two or more felonies which
have different punishments and the commission of those felonies
constitute but one offense of conspiracy, the penalty shall be that
prescribed for the felony which has the greater maximum term.
When they conspire to do an act described in paragraph (4), they
shall be punishable by imprisonment in the state prison, or
by imprisonment in the a county jail for not
more than one year, or by imprisonment pursuant to
subdivision (h) of Section 1170, or by a fine not exceeding ten
thousand dollars ($10,000), or by both that imprisonment and fine.
When they conspire to do any of the other acts described in this
section, they shall be punishable by imprisonment in the
a county jail for not more than one year, or
in the state prison pursuant to subdivision
(h) of Section 1170 , or by a fine not exceeding ten thousand
dollars ($10,000), or by both that imprisonment and fine. When they
receive a felony conviction for conspiring to commit identity theft,
as defined in Section 530.5, the court may impose a fine of up to
twenty-five thousand dollars ($25,000).
All cases of conspiracy may be prosecuted and tried in the
superior court of any county in which any overt act tending to effect
the conspiracy shall be done.
(b) Upon a trial for conspiracy, in a case where an overt act is
necessary to constitute the offense, the defendant cannot be
convicted unless one or more overt acts are expressly alleged in the
indictment or information, nor unless one of the acts alleged is
proved; but other overt acts not alleged may be given in evidence.
SEC. 273. Section 186.10 of the Penal Code is amended
to read:
186.10. (a) Any person who conducts or attempts to conduct a
transaction or more than one transaction within a seven-day period
involving a monetary instrument or instruments of a total value
exceeding five thousand dollars ($5,000), or a total value exceeding
twenty-five thousand dollars ($25,000) within a 30-day period,
through one or more financial institutions (1) with the specific
intent to promote, manage, establish, carry on, or facilitate the
promotion, management, establishment, or carrying on of any criminal
activity, or (2) knowing that the monetary instrument represents the
proceeds of, or is derived directly or indirectly from the proceeds
of, criminal activity, is guilty of the crime of money laundering.
The aggregation periods do not create an obligation for financial
institutions to record, report, create, or implement tracking systems
or otherwise monitor transactions involving monetary instruments in
any time period. In consideration of the constitutional right to
counsel afforded by the Sixth Amendment to the United States
Constitution and Section 15 of Article I of the California
Constitution, when a case involves an attorney who accepts a fee for
representing a client in a criminal investigation or proceeding, the
prosecution shall additionally be required to prove that the monetary
instrument was accepted by the attorney with the intent to disguise
or aid in disguising the source of the funds or the nature of the
criminal activity.
A violation of this section shall be punished by imprisonment in a
county jail for not more than one year or in the state
prison pursuant to subdivision (h) of Section 1170
, by a fine of not more than two hundred fifty thousand dollars
($250,000) or twice the value of the property transacted, whichever
is greater, or by both that imprisonment and fine. However, for a
second or subsequent conviction for a violation of this section, the
maximum fine that may be imposed is five hundred thousand dollars
($500,000) or five times the value of the property transacted,
whichever is greater.
(b) Notwithstanding any other law, for purposes of this section,
each individual transaction conducted in excess of five thousand
dollars ($5,000), each series of transactions conducted within a
seven-day period that total in excess of five thousand dollars
($5,000), or each series of transactions conducted within a 30-day
period that total in excess of twenty-five thousand dollars
($25,000), shall constitute a separate, punishable offense.
(c) (1) Any person who is punished under subdivision (a) by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 shall also be subject to an
additional term of imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 as
follows:
(A) If the value of the transaction or transactions exceeds fifty
thousand dollars ($50,000) but is less than one hundred fifty
thousand dollars ($150,000), the court, in addition to and
consecutive to the felony punishment otherwise imposed pursuant to
this section, shall impose an additional term of imprisonment of one
year.
(B) If the value of the transaction or transactions exceeds one
hundred fifty thousand dollars ($150,000) but is less than one
million dollars ($1,000,000), the court, in addition to and
consecutive to the felony punishment otherwise imposed pursuant to
this section, shall impose an additional term of imprisonment of two
years.
(C) If the value of the transaction or transactions exceeds one
million dollars ($1,000,000), but is less than two million five
hundred thousand dollars ($2,500,000), the court, in addition to and
consecutive to the felony punishment otherwise imposed pursuant to
this section, shall impose an additional term of imprisonment of
three years.
(D) If the value of the transaction or transactions exceeds two
million five hundred thousand dollars ($2,500,000), the court, in
addition to and consecutive to the felony punishment otherwise
prescribed by this section, shall impose an additional term of
imprisonment of four years.
(2) (A) An additional term of imprisonment as provided for in this
subdivision shall not be imposed unless the facts of a transaction
or transactions, or attempted transaction or transactions, of a value
described in paragraph (1), are charged in the accusatory pleading,
and are either admitted to by the defendant or are found to be true
by the trier of fact.
(B) An additional term of imprisonment as provided for in this
subdivision may be imposed with respect to an accusatory pleading
charging multiple violations of this section, regardless of whether
any single violation charged in that pleading involves a transaction
or attempted transaction of a value covered by paragraph (1), if the
violations charged in that pleading arise from a common scheme or
plan and the aggregate value of the alleged transactions or attempted
transactions is of a value covered by paragraph (1).
(d) All pleadings under this section shall remain subject to the
rules of joinder and severance stated in Section 954.
SEC. 275. Section 186.22 of the Penal Code, as amended
by Section 1 of Chapter 256 of the Statutes of 2010, is amended to
read:
186.22. (a) Any person who actively participates in any criminal
street gang with knowledge that its members engage in or have engaged
in a pattern of criminal gang activity, and who willfully promotes,
furthers, or assists in any felonious criminal conduct by members of
that gang, shall be punished by imprisonment in a county jail for a
period not to exceed one year, or by imprisonment in the
state prison pursuant to subdivision (h) of Section
1170 for 16 months, or two or three years.
(b) (1) Except as provided in paragraphs (4) and (5), any person
who is convicted of a felony committed for the benefit of, at the
direction of, or in association with any criminal street gang, with
the specific intent to promote, further, or assist in any criminal
conduct by gang members, shall, upon conviction of that felony, in
addition and consecutive to the punishment prescribed for the felony
or attempted felony of which he or she has been convicted, be
punished as follows:
(A) Except as provided in subparagraphs (B) and (C), the person
shall be punished by an additional term pursuant to subdivision
(h) of Section 1170 of two, three, or four years at the court's
discretion.
(B) If the felony is a serious felony, as defined in subdivision
(c) of Section 1192.7, the person shall be punished by an additional
term of five years in the state prison .
(C) If the felony is a violent felony, as defined in subdivision
(c) of Section 667.5, the person shall be punished by an additional
term of 10 years in the state prison .
(2) If the underlying felony described in paragraph (1) is
committed on the grounds of, or within 1,000 feet of, a public or
private elementary, vocational, junior high, or high school, during
hours in which the facility is open for classes or school-related
programs or when minors are using the facility, that fact shall be a
circumstance in aggravation of the crime in imposing a term under
paragraph (1).
(3) The court shall select the sentence enhancement which, in the
court's discretion, best serves the interests of justice and shall
state the reasons for its choice on the record at the time of the
sentencing in accordance with the provisions of subdivision (d) of
Section 1170.1.
(4) Any person who is convicted of a felony enumerated in this
paragraph committed for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific intent
to promote, further, or assist in any criminal conduct by gang
members, shall, upon conviction of that felony, be sentenced to an
indeterminate term of life imprisonment with a minimum term of the
indeterminate sentence calculated as the greater of:
(A) The term determined by the court pursuant to Section 1170 for
the underlying conviction, including any enhancement applicable under
Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or
any period prescribed by Section 3046, if the felony is any of the
offenses enumerated in subparagraph (B) or (C) of this paragraph.
(B) Imprisonment in the state prison for 15 years, if the felony
is a home invasion robbery, in violation of subparagraph (A) of
paragraph (1) of subdivision (a) of Section 213; carjacking, as
defined in Section 215; a felony violation of Section 246; or a
violation of Section 12022.55.
(C) Imprisonment in the state prison for seven years, if the
felony is extortion, as defined in Section 519; or threats to victims
and witnesses, as defined in Section 136.1.
(5) Except as provided in paragraph (4), any person who violates
this subdivision in the commission of a felony punishable by
imprisonment in the state prison for life shall not be paroled until
a minimum of 15 calendar years have been served.
(c) If the court grants probation or suspends the execution of
sentence imposed upon the defendant for a violation of subdivision
(a), or in cases involving a true finding of the enhancement
enumerated in subdivision (b), the court shall require that the
defendant serve a minimum of 180 days in a county jail as a condition
thereof.
(d) Any person who is convicted of a public offense punishable as
a felony or a misdemeanor, which is committed for the benefit of, at
the direction of, or in association with any criminal street gang,
with the specific intent to promote, further, or assist in any
criminal conduct by gang members, shall be punished by imprisonment
in the county jail not to exceed one year, or by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 for one, two, or three years, provided that
any person sentenced to imprisonment in the county jail not to
exceed one year shall be imprisoned for a period not
to exceed one year, but of not less than 180
days, and shall not be eligible for release upon completion of
sentence, parole, or any other basis, until he or she has served 180
days. If the court grants probation or suspends the execution of
sentence imposed upon the defendant, it shall require as a condition
thereof that the defendant serve 180 days in a county jail.
(e) As used in this chapter, "pattern of criminal gang activity"
means the commission of, attempted commission of, conspiracy to
commit, or solicitation of, sustained juvenile petition for, or
conviction of two or more of the following offenses, provided at
least one of these offenses occurred after the effective date of this
chapter and the last of those offenses occurred within three years
after a prior offense, and the offenses were committed on separate
occasions, or by two or more persons:
(1) Assault with a deadly weapon or by means of force likely to
produce great bodily injury, as defined in Section 245.
(2) Robbery, as defined in Chapter 4 (commencing with Section 211)
of Title 8 of Part 1.
(3) Unlawful homicide or manslaughter, as defined in Chapter 1
(commencing with Section 187) of Title 8 of Part 1.
(4) The sale, possession for sale, transportation, manufacture,
offer for sale, or offer to manufacture controlled substances as
defined in Sections 11054, 11055, 11056, 11057, and 11058 of the
Health and Safety Code.
(5) Shooting at an inhabited dwelling or occupied motor vehicle,
as defined in Section 246.
(6) Discharging or permitting the discharge of a firearm from a
motor vehicle, as defined in subdivisions (a) and (b) of Section
12034.
(7) Arson, as defined in Chapter 1 (commencing with Section 450)
of Title 13.
(8) The intimidation of witnesses and victims, as defined in
Section 136.1.
(9) Grand theft, as defined in subdivision (a) or (c) of Section
487.
(10) Grand theft of any firearm, vehicle, trailer, or vessel.
(11) Burglary, as defined in Section 459.
(12) Rape, as defined in Section 261.
(13) Looting, as defined in Section 463.
(14) Money laundering, as defined in Section 186.10.
(15) Kidnapping, as defined in Section 207.
(16) Mayhem, as defined in Section 203.
(17) Aggravated mayhem, as defined in Section 205.
(18) Torture, as defined in Section 206.
(19) Felony extortion, as defined in Sections 518 and 520.
(20) Felony vandalism, as defined in paragraph (1) of subdivision
(b) of Section 594.
(21) Carjacking, as defined in Section 215.
(22) The sale, delivery, or transfer of a firearm, as defined in
Section 12072.
(23) Possession of a pistol, revolver, or other firearm capable of
being concealed upon the person in violation of paragraph (1) of
subdivision (a) of Section 12101.
(24) Threats to commit crimes resulting in death or great bodily
injury, as defined in Section 422.
(25) Theft and unlawful taking or driving of a vehicle, as defined
in Section 10851 of the Vehicle Code.
(26) Felony theft of an access card or account information, as
defined in Section 484e.
(27) Counterfeiting, designing, using, or attempting to use an
access card, as defined in Section 484f.
(28) Felony fraudulent use of an access card or account
information, as defined in Section 484g.
(29) Unlawful use of personal identifying information to obtain
credit, goods, services, or medical information, as defined in
Section 530.5.
(30) Wrongfully obtaining Department of Motor Vehicles
documentation, as defined in Section 529.7.
(31) Prohibited possession of a firearm in violation of Section
12021.
(32) Carrying a concealed firearm in violation of Section 12025.
(33) Carrying a loaded firearm in violation of Section 12031.
(f) As used in this chapter, "criminal street gang" means any
ongoing organization, association, or group of three or more persons,
whether formal or informal, having as one of its primary activities
the commission of one or more of the criminal acts enumerated in
paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of
subdivision (e), having a common name or common identifying sign or
symbol, and whose members individually or collectively engage in or
have engaged in a pattern of criminal gang activity.
(g) Notwithstanding any other law, the court may strike the
additional punishment for the enhancements provided in this section
or refuse to impose the minimum jail sentence for misdemeanors in an
unusual case where the interests of justice would best be served, if
the court specifies on the record and enters into the minutes the
circumstances indicating that the interests of justice would best be
served by that disposition.
(h) Notwithstanding any other provision of law, for each person
committed to the Division of Juvenile Facilities for a conviction
pursuant to subdivision (a) or (b) of this section, the offense shall
be deemed one for which the state shall pay the rate of 100 percent
of the per capita institutional cost of the Division of Juvenile
Facilities, pursuant to Section 912.5 of the Welfare and Institutions
Code.
(i) In order to secure a conviction or sustain a juvenile
petition, pursuant to subdivision (a) it is not necessary for the
prosecution to prove that the person devotes all, or a substantial
part, of his or her time or efforts to the criminal street gang, nor
is it necessary to prove that the person is a member of the criminal
street gang. Active participation in the criminal street gang is all
that is required.
(j) A pattern of gang activity may be shown by the commission of
one or more of the offenses enumerated in paragraphs (26) to (30),
inclusive, of subdivision (e), and the commission of one or more of
the offenses enumerated in paragraphs (1) to (25), inclusive, or (31)
to (33), inclusive, of subdivision (e). A pattern of gang activity
cannot be established solely by proof of commission of offenses
enumerated in paragraphs (26) to (30), inclusive, of subdivision (e),
alone.
(k) This section shall remain in effect only until January 1,
2012, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2012, deletes or extends
that date.
SEC. 276. Section 186.22 of the Penal Code, as amended
by Section 2 of Chapter 256 of the Statutes of 2010, is amended to
read:
186.22. (a) Any person who actively participates in any criminal
street gang with knowledge that its members engage in or have engaged
in a pattern of criminal gang activity, and who willfully promotes,
furthers, or assists in any felonious criminal conduct by members of
that gang, shall be punished by imprisonment in a county jail for a
period not to exceed one year, or by imprisonment in the
state prison pursuant to subdivision (h) of Section
1170 for 16 months, or two or three years.
(b) (1) Except as provided in paragraphs (4) and (5), any person
who is convicted of a felony committed for the benefit of, at the
direction of, or in association with any criminal street gang, with
the specific intent to promote, further, or assist in any criminal
conduct by gang members, shall, upon conviction of that felony, in
addition and consecutive to the punishment prescribed for the felony
or attempted felony of which he or she has been convicted, be
punished as follows:
(A) Except as provided in subparagraphs (B) and (C), the person
shall be punished by an additional term pursuant to subdivision
(h) of Section 1170 of two, three, or four years at the court's
discretion.
(B) If the felony is a serious felony, as defined in subdivision
(c) of Section 1192.7, the person shall be punished by an additional
term of five years in the state prison .
(C) If the felony is a violent felony, as defined in subdivision
(c) of Section 667.5, the person shall be punished by an additional
term of 10 years in the state prison .
(2) If the underlying felony described in paragraph (1) is
committed on the grounds of, or within 1,000 feet of, a public or
private elementary, vocational, junior high, or high school, during
hours in which the facility is open for classes or school-related
programs or when minors are using the facility, that fact shall be a
circumstance in aggravation of the crime in imposing a term under
paragraph (1).
(3) The court shall order the imposition of the middle term of the
sentence enhancement, unless there are circumstances in aggravation
or mitigation. The court shall state the reasons for its choice of
sentencing enhancements on the record at the time of the sentencing.
(4) Any person who is convicted of a felony enumerated in this
paragraph committed for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific intent
to promote, further, or assist in any criminal conduct by gang
members, shall, upon conviction of that felony, be sentenced to an
indeterminate term of life imprisonment with a minimum term of the
indeterminate sentence calculated as the greater of:
(A) The term determined by the court pursuant to Section 1170 for
the underlying conviction, including any enhancement applicable under
Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or
any period prescribed by Section 3046, if the felony is any of the
offenses enumerated in subparagraph (B) or (C) of this paragraph.
(B) Imprisonment in the state prison for 15 years, if the felony
is a home invasion robbery, in violation of subparagraph (A) of
paragraph (1) of subdivision (a) of Section 213; carjacking, as
defined in Section 215; a felony violation of Section 246; or a
violation of Section 12022.55.
(C) Imprisonment in the state prison for seven years, if the
felony is extortion, as defined in Section 519; or threats to victims
and witnesses, as defined in Section 136.1.
(5) Except as provided in paragraph (4), any person who violates
this subdivision in the commission of a felony punishable by
imprisonment in the state prison for life shall not be paroled until
a minimum of 15 calendar years have been served.
(c) If the court grants probation or suspends the execution of
sentence imposed upon the defendant for a violation of subdivision
(a), or in cases involving a true finding of the enhancement
enumerated in subdivision (b), the court shall require that the
defendant serve a minimum of 180 days in a county jail as a condition
thereof.
(d) Any person who is convicted of a public offense punishable as
a felony or a misdemeanor, which is committed for the benefit of, at
the direction of, or in association with any criminal street gang,
with the specific intent to promote, further, or assist in any
criminal conduct by gang members, shall be punished by imprisonment
in the county jail not to exceed one year, or by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 for one, two, or three years, provided that
any person sentenced to
imprisonment in the county jail not exceeding one year
shall be imprisoned for a period not to exceed one year, but
of not less than 180 days, and shall not be
eligible for release upon completion of sentence, parole, or any
other basis, until he or she has served 180 days. If the court grants
probation or suspends the execution of sentence imposed upon the
defendant, it shall require as a condition thereof that the defendant
serve 180 days in a county jail.
(e) As used in this chapter, "pattern of criminal gang activity"
means the commission of, attempted commission of, conspiracy to
commit, or solicitation of, sustained juvenile petition for, or
conviction of two or more of the following offenses, provided at
least one of these offenses occurred after the effective date of this
chapter and the last of those offenses occurred within three years
after a prior offense, and the offenses were committed on separate
occasions, or by two or more persons:
(1) Assault with a deadly weapon or by means of force likely to
produce great bodily injury, as defined in Section 245.
(2) Robbery, as defined in Chapter 4 (commencing with Section 211)
of Title 8 of Part 1.
(3) Unlawful homicide or manslaughter, as defined in Chapter 1
(commencing with Section 187) of Title 8 of Part 1.
(4) The sale, possession for sale, transportation, manufacture,
offer for sale, or offer to manufacture controlled substances as
defined in Sections 11054, 11055, 11056, 11057, and 11058 of the
Health and Safety Code.
(5) Shooting at an inhabited dwelling or occupied motor vehicle,
as defined in Section 246.
(6) Discharging or permitting the discharge of a firearm from a
motor vehicle, as defined in subdivisions (a) and (b) of Section
12034.
(7) Arson, as defined in Chapter 1 (commencing with Section 450)
of Title 13.
(8) The intimidation of witnesses and victims, as defined in
Section 136.1.
(9) Grand theft, as defined in subdivision (a) or (c) of Section
487.
(10) Grand theft of any firearm, vehicle, trailer, or vessel.
(11) Burglary, as defined in Section 459.
(12) Rape, as defined in Section 261.
(13) Looting, as defined in Section 463.
(14) Money laundering, as defined in Section 186.10.
(15) Kidnapping, as defined in Section 207.
(16) Mayhem, as defined in Section 203.
(17) Aggravated mayhem, as defined in Section 205.
(18) Torture, as defined in Section 206.
(19) Felony extortion, as defined in Sections 518 and 520.
(20) Felony vandalism, as defined in paragraph (1) of subdivision
(b) of Section 594.
(21) Carjacking, as defined in Section 215.
(22) The sale, delivery, or transfer of a firearm, as defined in
Section 12072.
(23) Possession of a pistol, revolver, or other firearm capable of
being concealed upon the person in violation of paragraph (1) of
subdivision (a) of Section 12101.
(24) Threats to commit crimes resulting in death or great bodily
injury, as defined in Section 422.
(25) Theft and unlawful taking or driving of a vehicle, as defined
in Section 10851 of the Vehicle Code.
(26) Felony theft of an access card or account information, as
defined in Section 484e.
(27) Counterfeiting, designing, using, or attempting to use an
access card, as defined in Section 484f.
(28) Felony fraudulent use of an access card or account
information, as defined in Section 484g.
(29) Unlawful use of personal identifying information to obtain
credit, goods, services, or medical information, as defined in
Section 530.5.
(30) Wrongfully obtaining Department of Motor Vehicles
documentation, as defined in Section 529.7.
(31) Prohibited possession of a firearm in violation of Section
12021.
(32) Carrying a concealed firearm in violation of Section 12025.
(33) Carrying a loaded firearm in violation of Section 12031.
(f) As used in this chapter, "criminal street gang" means any
ongoing organization, association, or group of three or more persons,
whether formal or informal, having as one of its primary activities
the commission of one or more of the criminal acts enumerated in
paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of
subdivision (e), having a common name or common identifying sign or
symbol, and whose members individually or collectively engage in or
have engaged in a pattern of criminal gang activity.
(g) Notwithstanding any other law, the court may strike the
additional punishment for the enhancements provided in this section
or refuse to impose the minimum jail sentence for misdemeanors in an
unusual case where the interests of justice would best be served, if
the court specifies on the record and enters into the minutes the
circumstances indicating that the interests of justice would best be
served by that disposition.
(h) Notwithstanding any other provision of law, for each person
committed to the Division of Juvenile Facilities for a conviction
pursuant to subdivision (a) or (b) of this section, the offense shall
be deemed one for which the state shall pay the rate of 100 percent
of the per capita institutional cost of the Division of Juvenile
Facilities, pursuant to Section 912.5 of the Welfare and Institutions
Code.
(i) In order to secure a conviction or sustain a juvenile
petition, pursuant to subdivision (a) it is not necessary for the
prosecution to prove that the person devotes all, or a substantial
part, of his or her time or efforts to the criminal street gang, nor
is it necessary to prove that the person is a member of the criminal
street gang. Active participation in the criminal street gang is all
that is required.
(j) A pattern of gang activity may be shown by the commission of
one or more of the offenses enumerated in paragraphs (26) to (30),
inclusive, of subdivision (e), and the commission of one or more of
the offenses enumerated in paragraphs (1) to (25), inclusive, or (31)
to (33), inclusive, of subdivision (e). A pattern of gang activity
cannot be established solely by proof of commission of offenses
enumerated in paragraphs (26) to (30), inclusive, of subdivision (e),
alone.
(k) This section shall become operative on January 1, 2012.
SEC. 277. Section 186.26 of the Penal Code is amended
to read:
186.26. (a) Any person who solicits or recruits another to
actively participate in a criminal street gang, as defined in
subdivision (f) of Section 186.22, with the intent that the person
solicited or recruited participate in a pattern of criminal street
gang activity, as defined in subdivision (e) of Section 186.22, or
with the intent that the person solicited or recruited promote,
further, or assist in any felonious conduct by members of the
criminal street gang, shall be punished by imprisonment in
the state prison pursuant to subdivision (h) of
Section 1170 for 16 months, or two or three years.
(b) Any person who threatens another person with physical violence
on two or more separate occasions within any 30-day period with the
intent to coerce, induce, or solicit any person to actively
participate in a criminal street gang, as defined in subdivision (f)
of Section 186.22, shall be punished by imprisonment in the
state prison pursuant to subdivision (h) of Section
1170 for two, three, or four years.
(c) Any person who uses physical violence to coerce, induce, or
solicit another person to actively participate in any criminal street
gang, as defined in subdivision (f) of Section 186.22, or to prevent
the person from leaving a criminal street gang, shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 for three, four, or five years.
(d) If the person solicited, recruited, coerced, or threatened
pursuant to subdivision (a), (b), or (c) is a minor, an additional
term pursuant to subdivision (h) of Section 1170 of three
years shall be imposed in addition and consecutive to the penalty
prescribed for a violation of any of these subdivisions.
(e) Nothing in this section shall be construed to limit
prosecution under any other provision of law.
SEC. 278. Section 186.28 of the Penal Code is amended
to read:
186.28. (a) Any person, corporation, or firm who shall knowingly
supply, sell, or give possession or control of any firearm to another
shall be punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 , or
in a county jail for a term not exceeding one year, or by a fine not
exceeding one thousand dollars ($1,000), or by both that fine and
imprisonment if all of the following apply:
(1) The person, corporation, or firm has actual knowledge that the
person will use the firearm to commit a felony described in
subdivision (e) of Section 186.22, while actively participating in
any criminal street gang, as defined in subdivision (f) of Section
186.22, the members of which engage in a pattern of criminal
activity, as defined in subdivision (e) of Section 186.22.
(2) The firearm is used to commit the felony.
(3) A conviction for the felony violation under subdivision (e) of
Section 186.22 has first been obtained of the person to whom the
firearm was supplied, sold, or given possession or control pursuant
to this section.
(b) This section shall only be applicable where the person is not
convicted as a principal to the felony offense committed by the
person to whom the firearm was supplied, sold, or given possession or
control pursuant to this section.
SEC. 279. Section 186.33 of the Penal Code, as amended
by Section 3 of Chapter 256 of the Statutes of 2010, is amended to
read:
186.33. (a) Any person required to register pursuant to Section
186.30 who knowingly violates any of its provisions is guilty of a
misdemeanor.
(b) (1) Any person who knowingly fails to register pursuant to
Section 186.30 and is subsequently convicted of, or any person for
whom a petition is subsequently sustained for a violation of, any of
the offenses specified in Section 186.30, shall be punished by an
additional term of imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for
16 months, or two, or three years. The court shall select the
sentence enhancement which, in the court's discretion, best serves
the interests of justice and shall state the reasons for its choice
on the record at the time of sentencing in accordance with the
provisions of subdivision (d) of Section 1170.1.
(2) The existence of any fact bringing a person under this
subdivision shall be alleged in the information, indictment, or
petition, and be either admitted by the defendant or minor in open
court, or found to be true or not true by the trier of fact.
(c) This section shall remain in effect only until January 1,
2012, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2012, deletes or extends
that date.
SEC. 280. Section 186.33 of the Penal Code, as amended
by Section 4 of Chapter 256 of the Statutes of 2010, is amended to
read:
186.33. (a) Any person required to register pursuant to Section
186.30 who knowingly violates any of its provisions is guilty of a
misdemeanor.
(b) (1) Any person who knowingly fails to register pursuant to
Section 186.30 and is subsequently convicted of, or any person for
whom a petition is subsequently sustained for a violation of, any of
the offenses specified in Section 186.30, shall be punished by an
additional term of imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for
16 months, or two, or three years. The court shall order imposition
of the middle term unless there are circumstances in aggravation or
mitigation. The court shall state its reasons for the enhancement
choice on the record at the time of sentencing.
(2) The existence of any fact bringing a person under this
subdivision shall be alleged in the information, indictment, or
petition, and be either admitted by the defendant or minor in open
court, or found to be true or not true by the trier of fact.
(c) This section shall become operative on January 1, 2012.
SEC. 281. Section 191.5 of the Penal Code is amended to
read:
191.5. (a) Gross vehicular manslaughter while intoxicated is the
unlawful killing of a human being without malice aforethought, in the
driving of a vehicle, where the driving was in violation of Section
23140, 23152, or 23153 of the Vehicle Code, and the killing was
either the proximate result of the commission of an unlawful act, not
amounting to a felony, and with gross negligence, or the proximate
result of the commission of a lawful act that might produce death, in
an unlawful manner, and with gross negligence.
(b) Vehicular manslaughter while intoxicated is the unlawful
killing of a human being without malice aforethought, in the driving
of a vehicle, where the driving was in violation of Section 23140,
23152, or 23153 of the Vehicle Code, and the killing was either the
proximate result of the commission of an unlawful act, not amounting
to a felony, but without gross negligence, or the proximate result of
the commission of a lawful act that might produce death, in an
unlawful manner, but without gross negligence.
(c) (1) Except as provided in subdivision (d), gross vehicular
manslaughter while intoxicated in violation of subdivision (a) is
punishable by imprisonment in the state prison for 4, 6, or 10 years.
(2) Vehicular manslaughter while intoxicated in violation of
subdivision (b) is punishable by imprisonment in a county jail for
not more than one year or by imprisonment in the state prison
pursuant to subdivision (h) of Section
1170 for 16 months or 2 or 4 years.
(d) A person convicted of violating subdivision (a) who has one or
more prior convictions of this section or of paragraph (1) of
subdivision (c) of Section 192, subdivision (a) or (b) of Section
192.5 of this code, or of violating Section 23152 punishable under
Sections 23540, 23542, 23546, 23548, 23550, or 23552 of, or convicted
of Section 23153 of, the Vehicle Code, shall be punished by
imprisonment in the state prison for a term of 15 years to life.
Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of
Part 3 shall apply to reduce the term imposed pursuant to this
subdivision.
(e) This section shall not be construed as prohibiting or
precluding a charge of murder under Section 188 upon facts exhibiting
wantonness and a conscious disregard for life to support a finding
of implied malice, or upon facts showing malice consistent with the
holding of the California Supreme Court in People v. Watson, 30 Cal.
3d 290.
(f) This section shall not be construed as making any homicide in
the driving of a vehicle or the operation of a vessel punishable
which is not a proximate result of the commission of an unlawful act,
not amounting to felony, or of the commission of a lawful act which
might produce death, in an unlawful manner.
(g) For the penalties in subdivision (d) to apply, the existence
of any fact required under subdivision (d) shall be alleged in the
information or indictment and either admitted by the defendant in
open court or found to be true by the trier of fact.
SEC. 282. Section 193 of the Penal Code is amended to
read:
193. (a) Voluntary manslaughter is punishable by imprisonment in
the state prison for 3, 6, or 11 years.
(b) Involuntary manslaughter is punishable by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 for two, three, or four years.
(c) Vehicular manslaughter is punishable as follows:
(1) A violation of paragraph (1) of subdivision (c) of Section 192
is punishable either by imprisonment in the county jail for not more
than one year or by imprisonment in the state prison for two, four,
or six years.
(2) A violation of paragraph (2) of subdivision (c) of Section 192
is punishable by imprisonment in the county jail for not more than
one year.
(3) A violation of paragraph (3) of subdivision (c) of Section 192
is punishable by imprisonment in the state prison for 4, 6, or 10
years.
SEC. 283. Section 193.5 of the Penal Code is amended to
read:
193.5. Manslaughter committed during the operation of a vessel is
punishable as follows:
(a) A violation of subdivision (a) of Section 192.5 is punishable
by imprisonment in the state prison for 4, 6, or ten years.
(b) A violation of subdivision (b) of Section 192.5 is punishable
by imprisonment in a county jail for not more than one year or by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 for 16 months or 2 or 4 years.
(c) A violation of subdivision (c) of Section 192.5 is punishable
either by imprisonment in the county jail for not more than one year
or by imprisonment in the state prison for two, four, or six years.
(d) A violation of subdivision (d) of Section 192.5 is punishable
by imprisonment in the county jail for not more than one year.
SEC. 284. Section 210.5 of the Penal Code is amended to
read:
210.5. Every person who commits the offense of false
imprisonment, as defined in Section 236, against a person for
purposes of protection from arrest, which substantially increases the
risk of harm to the victim, or for purposes of using the person as a
shield is punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for
three, five, or eight years.
SEC. 285. Section 217.1 of the Penal Code is amended to
read:
217.1. (a) Except as provided in subdivision (b), every person
who commits any assault upon the President or Vice President of the
United States, the Governor of any state or territory, any justice,
judge, or former judge of any local, state, or federal court of
record, any commissioner, referee, or other subordinate judicial
officer of any court of record, the secretary or director of any
executive agency or department of the United States or any state or
territory, or any other official of the United States or any state or
territory holding elective office, any mayor, city council member,
county supervisor, sheriff, district attorney, prosecutor or
assistant prosecutor of any local, state, or federal prosecutor's
office, a former prosecutor or assistant prosecutor of any local,
state, or federal prosecutor's office, public defender or assistant
public defender of any local, state, or federal public defender's
office, a former public defender or assistant public defender of any
local, state, or federal public defender's office, the chief of
police of any municipal police department, any peace officer, any
juror in any local, state, or federal court of record, or the
immediate family of any of these officials, in retaliation for or to
prevent the performance of the victim's official duties, shall be
punished by imprisonment in the county jail not exceeding one year or
by imprisonment in the state prison pursuant
to subdivision (h) of Section 1170 .
(b) Notwithstanding subdivision (a), every person who attempts to
commit murder against any person listed in subdivision (a) in
retaliation for or to prevent the performance of the victim's
official duties, shall be confined in the state prison for a term of
15 years to life. The provisions of Article 2.5 (commencing with
Section 2930) of Chapter 7 of Title 1 of Part 3 shall apply to reduce
any minimum term of 15 years in a state prison imposed pursuant to
this section, but that person shall not otherwise be released on
parole prior to such that time.
(c) For the purposes of this section, the following words have the
following meanings:
(1) "Immediate family" means spouse, child, stepchild, brother,
stepbrother, sister, stepsister, mother, stepmother, father, or
stepfather.
(2) "Peace officer" means any person specified in subdivision (a)
of Section 830.1 or Section 830.5.
SEC. 286. Section 218.1 of the Penal Code is amended to
read:
218.1. Any person who unlawfully and with gross negligence places
or causes to be placed any obstruction upon or near the track of any
railroad that proximately results in either the damaging or
derailing of any passenger, freight, or other train, or injures a
rail passenger or employee, shall be punished by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 for two, three, or four years, or by
imprisonment in a county jail for not more than one year, or by a
fine not to exceed two thousand five hundred dollars ($2,500), or by
both that imprisonment and fine.
SEC. 287. Section 219.1 of the Penal Code is amended to
read:
219.1. Every person who unlawfully throws, hurls or projects at a
vehicle operated by a common carrier, while such vehicle is either
in motion or stationary, any rock, stone, brick, bottle, piece of
wood or metal or any other missile of any kind or character, or does
any unlawful act, with the intention of wrecking such vehicle and
doing bodily harm, and thus wrecks the same and causes bodily harm,
is guilty of a felony and punishable by imprisonment in the
state prison pursuant to subdivision (h) of Section
1170 for two, four, or six years.
SEC. 287.5. Section 222 of the Penal Code is amended to
read:
222. Every person guilty of administering to another any
chloroform, ether, laudanum, or any controlled substance,
anaesthetic, or intoxicating agent, with intent thereby to enable or
assist himself or herself or any other person to commit a felony, is
guilty of a felony punishable by imprisonment in the state
prison for 16 months, or two or three years .
SEC. 288. Section 237 of the Penal Code is amended to
read:
237. (a) False imprisonment is punishable by a fine not exceeding
one thousand dollars ($1,000), or by imprisonment in the county jail
for not more than one year, or by both that fine and imprisonment.
If the false imprisonment be effected by violence, menace, fraud, or
deceit, it shall be punishable by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170
.
(b) False imprisonment of an elder or dependent adult by use of
violence, menace, fraud, or deceit shall be punishable as described
in subdivision (f) of Section 368.
SEC. 289. Section 241.1 of the Penal Code is amended to
read:
241.1. When an assault is committed against the person of a
custodial officer as defined in Section 831 or 831.5, and the person
committing the offense knows or reasonably should know that
such the victim is such a
custodial officer engaged in the performance of his or her
duties, the offense shall be punished by imprisonment in the county
jail not exceeding one year or by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170
.
SEC. 290. Section 241.4 of the Penal Code is amended to
read:
241.4. An assault is punishable by fine not exceeding one
thousand dollars ($1,000), or by imprisonment in the county jail not
exceeding six months, or by both. When the assault is committed
against the person of a peace officer engaged in the performance of
his or her duties as a member of a police department of a school
district pursuant to Section 38000 of the Education Code, and the
person committing the offense knows or reasonably should know that
the victim is a peace officer engaged in the performance of his or
her duties, the offense shall be punished by imprisonment in the
county jail not exceeding one year or by imprisonment in the
state prison pursuant to subdivision (h) of Section
1170 .
SEC. 291. Section 241.7 of the Penal Code is amended to
read:
241.7. Any person who is a party to a civil or criminal action in
which a jury has been selected to try the case and who, while the
legal action is pending or after the conclusion of the trial, commits
an assault against any juror or alternate juror who was selected and
sworn in that legal action, shall be punished by a fine not to
exceed two thousand dollars ($2,000), or by imprisonment in the
county jail not exceeding one year, or by both such fine and
imprisonment, or by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 .
SEC. 292. Section 243 of the Penal Code is amended to
read:
243. (a) A battery is punishable by a fine not exceeding two
thousand dollars ($2,000), or by imprisonment in a county jail not
exceeding six months, or by both that fine and imprisonment.
(b) When a battery is committed against the person of a peace
officer, custodial officer, firefighter, emergency medical
technician, lifeguard, process server, traffic officer, code
enforcement officer, or animal control officer engaged in the
performance of his or her duties, whether on or off duty, including
when the peace officer is in a police uniform and is concurrently
performing the duties required of him or her as a peace officer while
also employed in a private capacity as a part-time or casual private
security guard or patrolman, or a nonsworn employee of a probation
department engaged in the performance of his or her duties, whether
on or off duty, or a physician or nurse engaged in rendering
emergency medical care outside a hospital, clinic, or other health
care facility, and the person committing the offense knows or
reasonably should know that the victim is a peace officer, custodial
officer, firefighter, emergency medical technician, lifeguard,
process server, traffic officer, code enforcement officer, or animal
control officer engaged in the performance of his or her duties,
nonsworn employee of a probation department, or a physician or nurse
engaged in rendering emergency medical care, the battery is
punishable by a fine not exceeding two thousand dollars ($2,000), or
by imprisonment in a county jail not exceeding one year, or by both
that fine and imprisonment.
(c) (1) When a battery is committed against a custodial officer,
firefighter, emergency medical technician, lifeguard, process server,
traffic officer, or animal control officer engaged in the
performance of his or her duties, whether on or off duty, or a
nonsworn employee of a probation department engaged in the
performance of his or her duties, whether on or off duty, or a
physician or nurse engaged in rendering emergency medical care
outside a hospital, clinic, or other health care facility, and the
person committing
the offense knows or reasonably should know that the victim is a
nonsworn employee of a probation department, custodial officer,
firefighter, emergency medical technician, lifeguard, process server,
traffic officer, or animal control officer engaged in the
performance of his or her duties, or a physician or nurse engaged in
rendering emergency medical care, and an injury is inflicted on that
victim, the battery is punishable by a fine of not more than two
thousand dollars ($2,000), by imprisonment in a county jail not
exceeding one year, or by both that fine and imprisonment, or by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 for 16 months, or two or three
years.
(2) When the battery specified in paragraph (1) is committed
against a peace officer engaged in the performance of his or her
duties, whether on or off duty, including when the peace officer is
in a police uniform and is concurrently performing the duties
required of him or her as a peace officer while also employed in a
private capacity as a part-time or casual private security guard or
patrolman and the person committing the offense knows or reasonably
should know that the victim is a peace officer engaged in the
performance of his or her duties, the battery is punishable by a fine
of not more than ten thousand dollars ($10,000), or by imprisonment
in a county jail not exceeding one year or in the state
prison pursuant to subdivision (h) of Section 1170
for 16 months, or two or three years, or by both that fine and
imprisonment.
(d) When a battery is committed against any person and serious
bodily injury is inflicted on the person, the battery is punishable
by imprisonment in a county jail not exceeding one year or
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 for two, three, or four years.
(e) (1) When a battery is committed against a spouse, a person
with whom the defendant is cohabiting, a person who is the parent of
the defendant's child, former spouse, fiancé, or fiancée, or a person
with whom the defendant currently has, or has previously had, a
dating or engagement relationship, the battery is punishable by a
fine not exceeding two thousand dollars ($2,000), or by imprisonment
in a county jail for a period of not more than one year, or by both
that fine and imprisonment. If probation is granted, or the execution
or imposition of the sentence is suspended, it shall be a condition
thereof that the defendant participate in, for no less than one year,
and successfully complete, a batterer's treatment program, as
defined in Section 1203.097, or if none is available, another
appropriate counseling program designated by the court. However, this
provision shall not be construed as requiring a city, a county, or a
city and county to provide a new program or higher level of service
as contemplated by Section 6 of Article XIII B of the California
Constitution.
(2) Upon conviction of a violation of this subdivision, if
probation is granted, the conditions of probation may include, in
lieu of a fine, one or both of the following requirements:
(A) That the defendant make payments to a battered women's
shelter, up to a maximum of five thousand dollars ($5,000).
(B) 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.
For any order to pay a fine, make payments to a battered women's
shelter, or pay restitution as a condition of probation under this
subdivision, 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.
(3) Upon conviction of a violation of this subdivision, if
probation is granted or the execution or imposition of the sentence
is suspended and the person has been previously convicted of a
violation of this subdivision and sentenced under paragraph (1), the
person shall be imprisoned for not less than 48 hours in addition to
the conditions in paragraph (1). However, the court, upon a showing
of good cause, may elect not to impose the mandatory minimum
imprisonment as required by this subdivision and may, under these
circumstances, grant probation or order the suspension of the
execution or imposition of the sentence.
(4) The Legislature finds and declares that these specified crimes
merit special consideration when imposing a sentence so as to
display society's condemnation for these crimes of violence upon
victims with whom a close relationship has been formed.
(f) As used in this section:
(1) "Peace officer" means any person defined in Chapter 4.5
(commencing with Section 830) of Title 3 of Part 2.
(2) "Emergency medical technician" means a person who is either an
EMT-I, EMT-II, or EMT-P (paramedic), and possesses a valid
certificate or license in accordance with the standards of Division
2.5 (commencing with Section 1797) of the Health and Safety Code.
(3) "Nurse" means a person who meets the standards of Division 2.5
(commencing with Section 1797) of the Health and Safety Code.
(4) "Serious bodily injury" means a serious impairment of physical
condition, including, but not limited to, the following: loss of
consciousness; concussion; bone fracture; protracted loss or
impairment of function of any bodily member or organ; a wound
requiring extensive suturing; and serious disfigurement.
(5) "Injury" means any physical injury which requires professional
medical treatment.
(6) "Custodial officer" means any person who has the
responsibilities and duties described in Section 831 and who is
employed by a law enforcement agency of any city or county or who
performs those duties as a volunteer.
(7) "Lifeguard" means a person defined in paragraph (5) of
subdivision (c) of Section 241.
(8) "Traffic officer" means any person employed by a city, county,
or city and county to monitor and enforce state laws and local
ordinances relating to parking and the operation of vehicles.
(9) "Animal control officer" means any person employed by a city,
county, or city and county for purposes of enforcing animal control
laws or regulations.
(10) "Dating relationship" means frequent, intimate associations
primarily characterized by the expectation of affectional or sexual
involvement independent of financial considerations.
(11) (A) "Code enforcement officer" means any person who is not
described in Chapter 4.5 (commencing with Section 830) of Title 3 of
Part 2 and who is employed by any governmental subdivision, public or
quasi-public corporation, public agency, public service corporation,
any town, city, county, or municipal corporation, whether
incorporated or chartered, who has enforcement authority for health,
safety, and welfare requirements, and whose duties include
enforcement of any statute, rules, regulations, or standards, and who
is authorized to issue citations, or file formal complaints.
(B) "Code enforcement officer" also includes any person who is
employed by the Department of Housing and Community Development who
has enforcement authority for health, safety, and welfare
requirements pursuant to the Employee Housing Act (Part 1 (commencing
with Section 17000) of Division 13 of the Health and Safety Code);
the State Housing Law (Part 1.5 (commencing with Section 17910) of
Division 13 of the Health and Safety Code); the
Mobilehomes-Manufactured Housing Act (Part 2 (commencing with Section
18000) of Division 13 of the Health and Safety Code); the Mobilehome
Parks Act (Part 2.1 (commencing with Section 18200) of Division 13
of the Health and Safety Code); and the Special Occupancy Parks Act
(Part 2.3 (commencing with Section 18860) of Division 13 of the
Health and Safety Code).
(g) It is the intent of the Legislature by amendments to this
section at the 1981-82 and 1983-84 Regular Sessions to abrogate the
holdings in cases such as People v. Corey, 21 Cal. 3d 738, and
Cervantez v. J.C. Penney Co., 24 Cal. 3d 579, and to reinstate prior
judicial interpretations of this section as they relate to criminal
sanctions for battery on peace officers who are employed, on a
part-time or casual basis, while wearing a police uniform as private
security guards or patrolmen and to allow the exercise of peace
officer powers concurrently with that employment.
SEC. 293. Section 243.1 of the Penal Code is amended to
read:
243.1. When a battery is committed against the person of a
custodial officer as defined in Section 831 of the Penal Code, and
the person committing the offense knows or reasonably should know
that the victim is a custodial officer engaged in the performance of
his or her duties, and the custodial officer is engaged in the
performance of his or her duties, the offense shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 .
SEC. 294. Section 243.6 of the Penal Code is amended to
read:
243.6. When a battery is committed against a school employee
engaged in the performance of his or her duties, or in retaliation
for an act performed in the course of his or her duties, whether on
or off campus, during the schoolday or at any other time, and the
person committing the offense knows or reasonably should know that
the victim is a school employee, the battery is punishable by
imprisonment in a county jail not exceeding one year, or by a fine
not exceeding two thousand dollars ($2,000), or by both the fine and
imprisonment. However, if an injury is inflicted on the victim, the
battery shall be punishable by imprisonment in a county jail for not
more than one year, or by a fine of not more than two thousand
dollars ($2,000), or by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for
16 months, or two or three years.
For purposes of this section, "school employee" has the same
meaning as defined in subdivision (d) of Section 245.5.
This section shall not apply to conduct arising during the course
of an otherwise lawful labor dispute.
SEC. 296. Section 244.5 of the Penal Code, as amended
by Section 1 of Chapter 556 of the Statutes of 2008, is amended to
read:
244.5. (a) As used in this section, "stun gun" means any item,
except a less lethal weapon, as defined in Section 12601, used or
intended to be used as either an offensive or defensive weapon that
is capable of temporarily immobilizing a person by the infliction of
an electrical charge.
(b) Every person who commits an assault upon the person of another
with a stun gun or less lethal weapon, as defined in Section 12601,
shall be punished by imprisonment in a county jail for a term not
exceeding one year, or by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170
for 16 months, two, or three years.
(c) Every person who commits an assault upon the person of a peace
officer or firefighter with a stun gun or less lethal weapon, as
defined in Section 12601, who knows or reasonably should know that
the person is a peace officer or firefighter engaged in the
performance of his or her duties, when the peace officer or
firefighter is engaged in the performance of his or her duties, shall
be punished by imprisonment in the county jail for a term not
exceeding one year, or by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for
two, three, or four years.
(d) This section shall not be construed to preclude or in any way
limit the applicability of Section 245 in any criminal prosecution.
SEC. 297. Section 244.5 of the Penal Code, as amended
by Section 52 of Chapter 178 of the Statutes of 2010, is amended to
read:
244.5. (a) As used in this section, "stun gun" means any item,
except a less lethal weapon, as defined in Section 16780, used or
intended to be used as either an offensive or defensive weapon that
is capable of temporarily immobilizing a person by the infliction of
an electrical charge.
(b) Every person who commits an assault upon the person of another
with a stun gun or less lethal weapon, as defined in Section 16780,
shall be punished by imprisonment in a county jail for a term not
exceeding one year, or by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for
16 months, two, or three years.
(c) Every person who commits an assault upon the person of a peace
officer or firefighter with a stun gun or less lethal weapon, as
defined in Section 16780, who knows or reasonably should know that
the person is a peace officer or firefighter engaged in the
performance of his or her duties, when the peace officer or
firefighter is engaged in the performance of his or her duties, shall
be punished by imprisonment in the county jail for a term not
exceeding one year, or by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for
two, three, or four years.
(d) This section shall not be construed to preclude or in any way
limit the applicability of Section 245 in any criminal prosecution.
SEC. 298. Section 245 of the Penal Code, as amended by
Section 53 of Chapter 178 of the Statutes of 2010, is amended to
read:
245. (a) (1) Any person who commits an assault upon the person of
another with a deadly weapon or instrument other than a firearm or
by any means of force likely to produce great bodily injury shall be
punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for two, three, or
four years, or in a county jail for not exceeding one year, or by a
fine not exceeding ten thousand dollars ($10,000), or by both the
fine and imprisonment.
(2) Any person who commits an assault upon the person of another
with a firearm shall be punished by imprisonment in the state prison
for two, three, or four years, or in a county jail for not less than
six months and not exceeding one year, or by both a fine not
exceeding ten thousand dollars ($10,000) and imprisonment.
(3) Any person who commits an assault upon the person of another
with a machinegun, as defined in Section 16880, or an assault weapon,
as defined in Section 30510 or 30515, or a .50 BMG rifle, as defined
in Section 30530, shall be punished by imprisonment in the state
prison for 4, 8, or 12 years.
(b) Any person who commits an assault upon the person of another
with a semiautomatic firearm shall be punished by imprisonment in the
state prison for three, six, or nine years.
(c) Any 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 peace officer or
firefighter, and who knows or reasonably should know that the victim
is a peace officer or firefighter engaged in the performance of his
or her duties, when the peace officer or firefighter 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.
(d) (1) Any person who commits an assault with a firearm upon the
person of a peace officer or firefighter, and who knows or reasonably
should know that the victim is a peace officer or firefighter
engaged in the performance of his or her duties, when the peace
officer or firefighter 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.
(2) Any person who commits an assault upon the person of a peace
officer or firefighter with a semiautomatic firearm and who knows or
reasonably should know that the victim is a peace officer or
firefighter engaged in the performance of his or her duties, when the
peace officer or firefighter is engaged in the performance of his or
her duties, shall be punished by imprisonment in the state prison
for five, seven, or nine years.
(3) Any person who commits an assault with a machinegun, as
defined in Section 16880, or an assault weapon, as defined in Section
30510 or 30515, or a .50 BMG rifle, as defined in Section 30530,
upon the person of a peace officer or firefighter, and who knows or
reasonably should know that the victim is a peace officer or
firefighter engaged in the performance of his or her duties, shall be
punished by imprisonment in the state prison for 6, 9, or 12 years.
(e) When a person is convicted of a violation of this section in a
case involving use of a deadly weapon or instrument or firearm, and
the weapon or instrument or firearm is owned by that person, the
court shall order that the weapon or instrument or firearm be deemed
a nuisance, and it shall be confiscated and disposed of in the manner
provided by Sections 18000 and 18005.
(f) As used in this section, "peace officer" refers to any person
designated as a peace officer in Chapter 4.5 (commencing with Section
830) of Title 3 of Part 2.
SEC. 299. Section 245.6 of the Penal Code is amended to
read:
245.6. (a) It shall be unlawful to engage in hazing, as defined
in this section.
(b) "Hazing" means any method of initiation or preinitiation into
a student organization or student body, whether or not the
organization or body is officially recognized by an educational
institution, which is likely to cause serious bodily injury to any
former, current, or prospective student of any school, community
college, college, university, or other educational institution in
this state. The term "hazing" does not include customary athletic
events or school-sanctioned events.
(c) A violation of this section that does not result in serious
bodily injury is a misdemeanor, punishable by a fine of not less than
one hundred dollars ($100), nor more than five thousand dollars
($5,000), or imprisonment in the county jail for not more than one
year, or both.
(d) Any person who personally engages in hazing that results in
death or serious bodily injury as defined in paragraph (4) of
subdivision (f) of Section 243 of the Penal Code, is guilty of either
a misdemeanor or a felony, and shall be punished by imprisonment in
county jail not exceeding one year, or by imprisonment in
the state prison pursuant to subdivision (h) of
Section 1170 .
(e) The person against whom the hazing is directed may commence a
civil action for injury or damages. The action may be brought against
any participants in the hazing, or any organization to which the
student is seeking membership whose agents, directors, trustees,
managers, or officers authorized, requested, commanded, participated
in, or ratified the hazing.
(f) Prosecution under this section shall not prohibit prosecution
under any other provision of law.
SEC. 300. Section 246.3 of the Penal Code is amended to
read:
246.3. (a) Except as otherwise authorized by law, any person who
willfully discharges a firearm in a grossly negligent manner which
could result in injury or death to a person is guilty of a public
offense and shall be punished by imprisonment in a county jail not
exceeding one year, or by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 .
(b) Except as otherwise authorized by law, any person who
willfully discharges a BB device in a grossly negligent manner which
could result in injury or death to a person is guilty of a public
offense and shall be punished by imprisonment in a county jail not
exceeding one year.
(c) As used in this section, "BB device" means any instrument that
expels a projectile, such as a BB or a pellet, through the force of
air pressure, gas pressure, or spring action.
SEC. 301. Section 247.5 of the Penal Code is amended to
read:
247.5. Any person who willfully and maliciously discharges a
laser at an aircraft, whether in motion or in flight, while occupied,
is guilty of a violation of this section, which shall be punishable
as either a misdemeanor by imprisonment in the county jail for not
more than one year or by a fine of one thousand dollars ($1,000), or
a felony by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for 16 months, two
years, or three years, or by a fine of two thousand dollars ($2,000).
This section does not apply to the conduct of laser development
activity by or on behalf of the United States Armed Forces.
As used in this section, "aircraft" means any contrivance intended
for and capable of transporting persons through the airspace.
As used in this section, "laser" means a device that utilizes the
natural oscillations of atoms or molecules between energy levels for
generating coherent electromagnetic radiation in the ultraviolet,
visible, or infrared region of the spectrum, and when discharged
exceeds one milliwatt continuous wave.
SEC. 302. Section 261.5 of the Penal Code is amended to
read:
261.5. (a) Unlawful sexual intercourse is an act of sexual
intercourse accomplished with a person who is not the spouse of the
perpetrator, if the person is a minor. For the purposes of this
section, a "minor" is a person under the age of 18 years and an
"adult" is a person who is at least 18 years of age.
(b) Any person who engages in an act of unlawful sexual
intercourse with a minor who is not more than three years older or
three years younger than the perpetrator, is guilty of a misdemeanor.
(c) Any person who engages in an act of unlawful sexual
intercourse with a minor who is more than three years younger than
the perpetrator is guilty of either a misdemeanor or a felony, and
shall be punished by imprisonment in a county jail not exceeding one
year, or by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 .
(d) Any person 21 years of age or older who engages in an act of
unlawful sexual intercourse with a minor who is under 16 years of age
is guilty of either a misdemeanor or a felony, and shall be punished
by imprisonment in a county jail not exceeding one year, or by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 for two, three, or four years.
(e) (1) Notwithstanding any other provision of this section, an
adult who engages in an act of sexual intercourse with a minor in
violation of this section may be liable for civil penalties in the
following amounts:
(A) An adult who engages in an act of unlawful sexual intercourse
with a minor less than two years younger than the adult is liable for
a civil penalty not to exceed two thousand dollars ($2,000).
(B) An adult who engages in an act of unlawful sexual intercourse
with a minor at least two years younger than the adult is liable for
a civil penalty not to exceed five thousand dollars ($5,000).
(C) An adult who engages in an act of unlawful sexual intercourse
with a minor at least three years younger than the adult is liable
for a civil penalty not to exceed ten thousand dollars ($10,000).
(D) An adult over the age of 21 years who engages in an act of
unlawful sexual intercourse with a minor under 16 years of age is
liable for a civil penalty not to exceed twenty-five thousand dollars
($25,000).
(2) The district attorney may bring actions to recover civil
penalties pursuant to this subdivision. From the amounts collected
for each case, an amount equal to the costs of pursuing the action
shall be deposited with the treasurer of the county in which the
judgment was entered, and the remainder shall be deposited in the
Underage Pregnancy Prevention Fund, which is hereby created in the
State Treasury. Amounts deposited in the Underage Pregnancy
Prevention Fund may be used only for the purpose of preventing
underage pregnancy upon appropriation by the Legislature.
(3) In addition to any punishment imposed under this section, the
judge may assess a fine not to exceed seventy dollars ($70) against
any person who violates this section with the proceeds of this fine
to be used in accordance with Section 1463.23. The court shall,
however, take into consideration the defendant's ability to pay, and
no defendant shall be denied probation because of his or her
inability to pay the fine permitted under this subdivision.
SEC. 303. Section 265 of the Penal Code is amended to
read:
265. Every person who takes any woman unlawfully, against her
will, and by force, menace or duress, compels her to marry him, or to
marry any other person, or to be defiled, is punishable by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 .
SEC. 304. Section 266b of the Penal Code is amended to
read:
266b. Every person who takes any other person unlawfully, and
against his or her will, and by force, menace, or duress, compels him
or her to live with such person in an illicit relation, against his
or her consent, or to so live with any other person, is punishable by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 .
SEC. 304.5. Section 266e of the Penal Code is amended
to read:
266e. Every person who purchases, or pays any money or other
valuable thing for, any person for the purpose of prostitution as
defined in subdivision (b) of Section 647, or for the purpose of
placing such person, for immoral purposes, in any house or place
against his or her will, is guilty of a felony punishable by
imprisonment in the state prison for 16 months, or 2 or 3 years
.
SEC. 304.7. Section 266f of the Penal Code is amended
to read:
266f. Every person who sells any person or receives any money or
other valuable thing for or on account of his or her placing in
custody, for immoral purposes, any person, whether with or without
his or her consent, is guilty of a felony punishable by
imprisonment in the state prison for 16 months, or 2 or 3 years
.
SEC. 305. Section 266g of the Penal Code is
amended to read:
266g. Every man who, by force, intimidation, threats, persuasion,
promises, or any other means, places or leaves, or procures any
other person or persons to place or leave, his wife in a house of
prostitution, or connives at or consents to, or permits, the placing
or leaving of his wife in a house of prostitution, or allows or
permits her to remain therein, is guilty of a felony and punishable
by imprisonment in the state prison pursuant
to subdivision (h) of Section 1170 for two, three or four
years; and in all prosecutions under this section a wife is a
competent witness against her husband.
SEC. 306. Section 271 of the Penal Code is amended to
read:
271. Every parent of any child under the age of 14 years, and
every person to whom any such child has been confided for nurture, or
education, who deserts such child in any place whatever with intent
to abandon it, is punishable by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170
or in the county jail not exceeding one year or by fine not
exceeding one thousand dollars ($1,000) or by both.
SEC. 307. Section 271a of the Penal Code is amended to
read:
271a. Every person who knowingly and willfully abandons, or who,
having ability so to do, fails or refuses to maintain his or her
minor child under the age of 14 years, or who falsely, knowing the
same to be false, represents to any manager, officer or agent of any
orphan asylum or charitable institution for the care of orphans, that
any child for whose admission into such that
asylum or institution application has been made is an orphan,
is punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 , or in the
county jail not exceeding one year, or by fine not exceeding one
thousand dollars ($1,000), or by both.
SEC. 308. Section 273.4 of the Penal Code is amended to
read:
273.4. (a) If the act constituting a felony violation of
subdivision (a) of Section 273a was female genital mutilation, as
defined in subdivision (b), the defendant shall be punished by an
additional term of imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for
one year, in addition and consecutive to the punishment prescribed by
Section 273a.
(b) "Female genital mutilation" means the excision or infibulation
of the labia majora, labia minora, clitoris, or vulva, performed for
nonmedical purposes.
(c) Nothing in this section shall preclude prosecution under
Section 203, 205, or 206 or any other provision of law.
SEC. 309. Section 273.6 of the Penal Code, as amended
by Section 2 of Chapter 566 of the Statutes of 2009, 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 pursuant to subdivision (h) of
Section 1170 .
(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
pursuant to subdivision (h) of Section 1170 .
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 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. 310. Section 273.6 of the Penal Code, as amended
by Section 55 of Chapter 178 of the Statutes of 2010, 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 pursuant to subdivision (h) of
Section 1170 .
(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
pursuant to subdivision (h) of Section 1170 .
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 of
the Code of Civil Procedure, or Section 15657.03 of the Welfare and
Institutions Code, shall be punished under Section 29825.
(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. 311. Section 273.65 of the Penal Code is amended
to read:
273.65. (a) Any intentional and knowing violation of a protective
order issued pursuant to Section 213.5, 304, or 362.4 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 the fine and
imprisonment.
(b) In the event of a violation of subdivision (a) which 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 the fine and imprisonment. However, if the person is imprisoned
in a county jail for at least 48 hours, the court may, in the
interests 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) An order enjoining any party from molesting, attacking,
striking, threatening, sexually assaulting, battering, harassing,
contacting repeatedly by mail with the intent to harass, or
disturbing the peace of the other party, or other named family and
household members.
(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 which the
court determined was necessary to effectuate the order under
subdivision (a).
(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 pursuant to subdivision (h) of
Section 1170 .
(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) which results in physical injury to the same 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
pursuant to subdivision (h) of Section 1170 .
However, if the person is imprisoned in a county jail for at least 30
days, the court may, in the interests 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 issued pursuant to
subdivisions (a), (b), (d), and (e).
(g) The court may order a person convicted under this section to
undergo counseling, and, if appropriate, to complete a batterer's
treatment program.
(h) If probation is granted upon conviction of a violation of
subdivision (a), (b), or (c), 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, 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.
SEC. 312. Section 273d of the Penal Code is amended to
read:
273d. (a) Any person who willfully inflicts upon a child any
cruel or inhuman corporal punishment or an injury resulting in a
traumatic condition is guilty of a felony and shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 for two, four, or six years, or
in a county jail for not more than one year, by a fine of up to six
thousand dollars ($6,000), or by both that imprisonment and fine.
(b) Any person who is found guilty of violating subdivision (a)
shall receive a four-year enhancement for a prior conviction of that
offense provided that no additional term shall be imposed under this
subdivision for any prison term served prior to a period of 10 years
in which the defendant remained free of both prison custody
and the commission of an offense that results in a felony
conviction and prison custody or custody for more than one year
in a county jail .
(c) If a person is convicted of violating this section and
probation is granted, the court shall require the following minimum
conditions of probation:
(1) A mandatory minimum period of probation of 36 months.
(2) A criminal court protective order protecting the victim from
further acts of violence or threats, and, if appropriate, residence
exclusion or stay-away conditions.
(3) (A) Successful completion of no less than one year of a child
abuser's treatment counseling program. The defendant shall be ordered
to begin participation in the program immediately upon the grant of
probation. The counseling program shall meet the criteria specified
in Section 273.1. The defendant shall produce documentation of
program enrollment to the court within 30 days of enrollment, along
with quarterly progress reports.
(B) The terms of probation for offenders shall not be lifted until
all reasonable fees due to the counseling program have been paid in
full, but in no case shall probation be extended beyond the term
provided in subdivision (a) of Section 1203.1. If the court finds
that the defendant does not have the ability to pay the fees based on
the defendant's changed circumstances, the court may reduce or waive
the fees.
(4) If the offense was committed while the defendant was under the
influence of drugs or alcohol, the defendant shall abstain from the
use of drugs or alcohol during the period of probation and shall be
subject to random drug testing by his or her probation officer.
(5) The court may waive any of the above minimum conditions of
probation upon a finding that the condition would not be in the best
interests of justice. The court shall state on the record its reasons
for any waiver.
SEC. 313. Section 278 of the Penal Code is amended to
read:
278. Every person, not having a right to custody, who maliciously
takes, entices away, keeps, withholds, or conceals any child with
the intent to detain or conceal that child from a lawful custodian
shall be punished by imprisonment in a county jail not exceeding one
year, a fine not exceeding one thousand dollars ($1,000), or both
that fine and imprisonment, or by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170
for two, three, or four years, a fine not exceeding ten
thousand dollars ($10,000), or both that fine and imprisonment.
SEC. 314. Section 278.5 of the Penal Code is amended to
read:
278.5. (a) Every person who takes, entices away, keeps,
withholds, or conceals a child and maliciously deprives a lawful
custodian of a right to custody, or a person of a right to
visitation, shall be punished by imprisonment in a county jail not
exceeding one year, a fine not exceeding one thousand dollars
($1,000), or both that fine and imprisonment, or by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 for 16 months, or two or three years, a
fine not exceeding ten thousand dollars ($10,000), or both that fine
and imprisonment.
(b) Nothing contained in this section limits the court's contempt
power.
(c) A custody order obtained after the taking, enticing away,
keeping, withholding, or concealing of a child does not constitute a
defense to a crime charged under this section.
SEC. 315. Section 280 of the Penal Code is amended to
read:
280. Every person who willfully causes or permits the removal or
concealment of any child in violation of Section 8713, 8803, or 8910
of the Family Code shall be punished as follows:
(a) By imprisonment in a county jail for not more than one year if
the child is concealed within the county in which the adoption
proceeding is pending or in which the child has been placed for
adoption, or is removed from that county to a place within this
state.
(b) By imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 , or by
imprisonment in a county jail for not more than one year, if the
child is removed from that county to a place outside of this state.
SEC. 316. Section 284 of the Penal Code is amended to
read:
284. Every person who knowingly and willfully marries the husband
or wife of another, in any case in which such husband or wife would
be punishable under the provisions of this chapter, is punishable by
fine not less than five thousand dollars ($5,000), or by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 .
SEC. 317. Section 288.2 of the Penal Code is amended to
read:
288.2. (a) Every person who, with knowledge that a person is a
minor, or who fails to exercise reasonable care in ascertaining the
true age of a minor, knowingly distributes, sends, causes to be sent,
exhibits, or offers to distribute or exhibit by any means,
including, but not limited to, live or recorded telephone messages,
any harmful matter, as defined in Section 313, to a minor with the
intent of arousing, appealing to, or gratifying the lust or passions
or sexual desires of that person or of a minor, and with the intent
or for the purpose of seducing a minor, is guilty of a public offense
and shall be punished by imprisonment in
the state prison pursuant to
subdivision (h) of Section 1170 or in a county jail.
A person convicted of a second and any subsequent conviction for a
violation of this section is guilty of a felony.
(b) Every person who, with knowledge that a person is a minor,
knowingly distributes, sends, causes to be sent, exhibits, or offers
to distribute or exhibit by electronic mail, the Internet, as defined
in Section 17538 of the Business and Professions Code, or a
commercial online service, any harmful matter, as defined in Section
313, to a minor with the intent of arousing, appealing to, or
gratifying the lust or passions or sexual desires of that person or
of a minor, and with the intent, or for the purpose of seducing a
minor, is guilty of a public offense and shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 or in a county jail.
A person convicted of a second and any subsequent conviction for a
violation of this section is guilty of a felony punishable by
imprisonment pursuant to subdivision (h) of Section 1170 .
(c) It shall be a defense to any prosecution under this section
that a parent or guardian committed the act charged in aid of
legitimate sex education.
(d) It shall be a defense in any prosecution under this section
that the act charged was committed in aid of legitimate scientific or
educational purposes.
(e) It does not constitute a violation of this section for a
telephone corporation, as defined in Section 234 of the Public
Utilities Code, a cable television company franchised pursuant to
Section 53066 of the Government Code, or any of its affiliates, an
Internet service provider, or commercial online service provider, to
carry, broadcast, or transmit messages described in this section or
perform related activities in providing telephone, cable television,
Internet, or commercial online services.
SEC. 318. Section 290.018 of the Penal Code is amended
to read:
290.018. (a) Any person who is required to register under the Act
based on a misdemeanor conviction or juvenile adjudication who
willfully violates any requirement of the Act is guilty of a
misdemeanor punishable by imprisonment in a county jail not exceeding
one year.
(b) Except as provided in subdivisions (f), (h), and (j), any
person who is required to register under the Act based on a felony
conviction or juvenile adjudication who willfully violates any
requirement of the Act or who has a prior conviction or juvenile
adjudication for the offense of failing to register under the Act and
who subsequently and willfully violates any requirement of the Act
is guilty of a felony and shall be punished by imprisonment
in the state prison pursuant to subdivision (h) of
Section 1170 for 16 months, or two or three years.
(c) If probation is granted or if the imposition or execution of
sentence is suspended, it shall be a condition of the probation or
suspension that the person serve at least 90 days in a county jail.
The penalty described in subdivision (b) or this subdivision shall
apply whether or not the person has been released on parole or has
been discharged from parole.
(d) Any person determined to be a mentally disordered sex offender
or who has been found guilty in the guilt phase of trial for an
offense for which registration is required under the Act, but who has
been found not guilty by reason of insanity in the sanity phase of
the trial, or who has had a petition sustained in a juvenile
adjudication for an offense for which registration is required
pursuant to Section 290.008, but who has been found not guilty by
reason of insanity, who willfully violates any requirement of the Act
is guilty of a misdemeanor and shall be punished by imprisonment in
a county jail not exceeding one year. For any second or subsequent
willful violation of any requirement of the Act, the person is guilty
of a felony and shall be punished by imprisonment in the
state prison pursuant to subdivision (h) of Section
1170 for 16 months, or two or three years.
(e) If, after discharge from parole, the person is convicted of a
felony or suffers a juvenile adjudication as specified in this act,
he or she shall be required to complete parole of at least one year,
in addition to any other punishment imposed under this section. A
person convicted of a felony as specified in this section may be
granted probation only in the unusual case where the interests of
justice would best be served. When probation is granted under this
act, the court shall specify on the record and shall enter into the
minutes the circumstances indicating that the interests of justice
would best be served by the disposition.
(f) Any person who has ever been adjudicated a sexually violent
predator, as defined in Section 6600 of the Welfare and Institutions
Code, and who fails to verify his or her registration every 90 days
as required pursuant to subdivision (b) of Section 290.012, shall be
punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 , or in a county
jail not exceeding one year.
(g) Except as otherwise provided in subdivision (f), any person
who is required to register or reregister pursuant to Section 290.011
and willfully fails to comply with the requirement that he or she
reregister no less than every 30 days is guilty of a misdemeanor and
shall be punished by imprisonment in a county jail for at least 30
days, but not exceeding six months. A person who willfully fails to
comply with the requirement that he or she reregister no less than
every 30 days shall not be charged with this violation more often
than once for a failure to register in any period of 90 days. Any
person who willfully commits a third or subsequent violation of the
requirements of Section 290.011 that he or she reregister no less
than every 30 days shall be punished in accordance with either
subdivision (a) or (b).
(h) Any person who fails to provide proof of residence as required
by paragraph (5) of subdivision (a) of Section 290.015, regardless
of the offense upon which the duty to register is based, is guilty of
a misdemeanor punishable by imprisonment in a county jail not
exceeding six months.
(i) Any person who is required to register under the Act who
willfully violates any requirement of the Act is guilty of a
continuing offense as to each requirement he or she violated.
(j) In addition to any other penalty imposed under this section,
the failure to provide information required on registration and
reregistration forms of the Department of Justice, or the provision
of false information, is a crime punishable by imprisonment in a
county jail for a period not exceeding one year. Nothing in this
subdivision shall be construed to limit or prevent prosecution under
any applicable provision of law.
(k) Whenever any person is released on parole or probation and is
required to register under the Act but fails to do so within the time
prescribed, the parole authority or the court, as the case may be,
shall order the parole or probation of the person revoked. For
purposes of this subdivision, "parole authority" has the same meaning
as described in Section 3000.
SEC. 319. Section 290.4 of the Penal Code is amended to
read:
290.4. (a) The department shall operate a service through which
members of the public may provide a list of at least six persons on a
form approved by the Department of Justice and inquire whether any
of those persons is required to register as a sex offender and is
subject to public notification. The Department of Justice shall
respond with information on any person as to whom information may be
available to the public via the Internet Web site as provided in
Section 290.46, to the extent that information may be disclosed
pursuant to Section 290.46. The Department of Justice may establish a
fee for requests, including all actual and reasonable costs
associated with the service.
(b) The income from the operation of the service specified in
subdivision (a) shall be deposited in the Sexual Predator Public
Information Account within the Department of Justice for the purpose
of the implementation of this section by the Department of Justice.
The moneys in the account shall consist of income from the
operation of the service authorized by subdivision (a), and any other
funds made available to the account by the Legislature. Moneys in
the account shall be available to the Department of Justice upon
appropriation by the Legislature for the purpose specified in
subdivision (a).
(c) (1) Any person who uses information disclosed pursuant to this
section to commit a felony shall be punished, in addition and
consecutive to, any other punishment, by a five-year term of
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 .
(2) Any person who, without authorization, uses information
disclosed pursuant to this section to commit a misdemeanor shall be
subject to, in addition to any other penalty or fine imposed, a fine
of not less than five hundred dollars ($500) and not more than one
thousand dollars ($1,000).
(d) (1) A person is authorized to use information disclosed
pursuant to this section only to protect a person at risk.
(2) Except as authorized under paragraph (1) or any other
provision of law, use of any information that is disclosed pursuant
to this section for purposes relating to any of the following is
prohibited:
(A) Health insurance.
(B) Insurance.
(C) Loans.
(D) Credit.
(E) Employment.
(F) Education, scholarships, or fellowships.
(G) Housing or accommodations.
(H) Benefits, privileges, or services provided by any business
establishment.
(3) This section shall not affect authorized access to, or use of,
information pursuant to, among other provisions, Sections 11105 and
11105.3 of this code, Section 226.55 of the Civil Code, Sections
777.5 and 14409.2 of the Financial Code, Sections 1522.01 and
1596.871 of the Health and Safety Code, and Section 432.7 of the
Labor Code.
(4) (A) Any use of information disclosed pursuant to this section
for purposes other than those provided by paragraph (1) or in
violation of paragraph (2) shall make the user liable for the actual
damages, and any amount that may be determined by a jury or a court
sitting without a jury, not exceeding three times the amount of
actual damage, and not less than two hundred fifty dollars ($250),
and attorney's fees, exemplary damages, or a civil penalty not
exceeding twenty-five thousand dollars ($25,000).
(B) Whenever there is reasonable cause to believe that any person
or group of persons is engaged in a pattern or practice of misuse of
the service specified in subdivision (a), in violation of paragraph
(2), the Attorney General, any district attorney, or city attorney,
or any person aggrieved by the misuse of the service is authorized to
bring a civil action in the appropriate court requesting preventive
relief, including an application for a permanent or temporary
injunction, restraining order, or other order against the person or
group of persons responsible for the pattern or practice of misuse.
The foregoing remedies shall be independent of any other remedies or
procedures that may be available to an aggrieved party under other
provisions of law, including Part 2 (commencing with Section 43) of
Division 1 of the Civil Code.
(e) The Department of Justice and its employees shall be immune
from liability for good faith conduct under this section.
(f) The public notification provisions of this section are
applicable to every person described in subdivision (a), without
regard to when his or her crimes were committed or his or her duty to
register pursuant to Section 290 arose, and to every offense subject
to public notification pursuant to Section 290.46, regardless of
when it was committed.
SEC. 320. Section 290.45 of the Penal Code is amended
to read:
290.45. (a) (1) Notwithstanding any other provision of law, and
except as provided in paragraph (2), any designated law enforcement
entity may provide information to the public about a person required
to register as a sex offender pursuant to Section 290, by whatever
means the entity deems appropriate, when necessary to ensure the
public safety based upon information available to the entity
concerning that specific person.
(2) The law enforcement entity shall include, with the disclosure,
a statement that the purpose of the release of information is to
allow members of the public to protect themselves and their children
from sex offenders.
(3) Community notification by way of an Internet Web site shall be
governed by Section 290.46, and a designated law enforcement entity
may not post on an Internet Web site any information identifying an
individual as a person required to register as a sex offender except
as provided in that section unless there is a warrant outstanding for
that person's arrest.
(b) Information that may be provided pursuant to subdivision (a)
may include, but is not limited to, the offender's name, known
aliases, gender, race, physical description, photograph, date of
birth, address, which shall be verified prior to publication,
description and license plate number of the offender's vehicles or
vehicles the offender is known to drive, type of victim targeted by
the offender, relevant parole or probation conditions, crimes
resulting in classification under this section, and date of release
from confinement, but excluding information that would identify the
victim.
(c) (1) The designated law enforcement entity may authorize
persons and entities who receive the information pursuant to this
section to disclose information to additional persons only if the
entity determines that disclosure to the additional persons will
enhance the public safety and identifies the appropriate scope of
further disclosure. A law enforcement entity may not authorize any
disclosure of this information by its placement on an Internet Web
site.
(2) A person who receives information from a law enforcement
entity pursuant to paragraph (1) may disclose that information only
in the manner and to the extent authorized by the law enforcement
entity.
(d) (1) A designated law enforcement entity and its employees
shall be immune from liability for good faith conduct under this
section.
(2) Any public or private educational institution, day care
facility, or any child care custodian described in Section 11165.7,
or any employee of a public or private educational institution or day
care facility which in good faith disseminates information as
authorized pursuant to subdivision (c) shall be immune from civil
liability.
(e) (1) Any person who uses information disclosed pursuant to this
section to commit a felony shall be punished, in addition and
consecutive to any other punishment, by a five-year term of
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 .
(2) Any person who uses information disclosed pursuant to this
section to commit a misdemeanor shall be subject to, in addition to
any other penalty or fine imposed, a fine of not less than five
hundred dollars ($500) and not more than one thousand dollars
($1,000).
(f) For purposes of this section, "designated law enforcement
entity" means the Department of Justice, every district attorney, the
Department of Corrections, the Department of the Youth Authority,
and every state or local agency expressly authorized by statute to
investigate or prosecute law violators.
(g) The public notification provisions of this section are
applicable to every person required to register pursuant to Section
290, without regard to when his or her crimes were committed or his
or her duty to register pursuant to Section 290 arose, and to every
offense described in Section 290, regardless of when it was
committed.
SEC. 321. Section 290.46 of the Penal Code is amended to
read:
290.46. (a) (1) On or before the dates specified in this section,
the Department of Justice shall make available information
concerning persons who are required to register pursuant to Section
290 to the public via an Internet Web site as specified in this
section. The department shall update the Internet Web site on an
ongoing basis. All information identifying the victim by name, birth
date, address, or relationship to the registrant shall be excluded
from the Internet Web site. The name or address of the person's
employer and the listed person's criminal history other than the
specific crimes for which the person is required to register shall
not be included on the Internet Web site. The Internet Web site shall
be translated into languages other than English as determined by the
department.
(2) (A) On or before July 1, 2010, the Department of Justice shall
make available to the public, via an Internet Web site as specified
in this section, as to any person described in subdivision (b), (c),
or (d), the following information:
(i) The year of conviction of his or her most recent offense
requiring registration pursuant to Section 290.
(ii) The year he or she was released from incarceration for that
offense.
(iii) Whether he or she was subsequently incarcerated for any
other felony, if that fact is reported to the department. If the
department has no information about a subsequent incarceration for
any felony, that fact shall be noted on the Internet Web site.
However, no year of conviction shall be made available to the
public unless the department also is able to make available the
corresponding year of release of incarceration for that offense, and
the required notation regarding any subsequent felony.
(B) (i) Any state facility that releases from incarceration a
person who was incarcerated because of a crime for which he or she is
required to register as a sex offender pursuant to Section 290
shall, within 30 days of release, provide the year of release for his
or her most recent offense requiring registration to the Department
of Justice in a manner and format approved by the department.
(ii) Any state facility that releases a person who is required to
register pursuant to Section 290 from incarceration whose
incarceration was for a felony committed subsequently to the offense
for which he or she is required to register shall, within 30 days of
release, advise the Department of Justice of that fact.
(iii) Any state facility that, prior to January 1, 2007, released
from incarceration a person who was incarcerated because of a crime
for which he or she is required to register as a sex offender
pursuant to Section 290 shall provide the year of release for his or
her most recent offense requiring registration to the Department of
Justice in a manner and format approved by the department. The
information provided by the Department of Corrections and
Rehabilitation shall be limited to information that is currently
maintained in an electronic format.
(iv) Any state facility that, prior to January 1, 2007, released a
person who is required to register pursuant to Section 290 from
incarceration whose incarceration was for a felony committed
subsequently to the offense for which he or she is required to
register shall advise the Department of Justice of that fact in a
manner and format approved by the department. The information
provided by the Department of Corrections and Rehabilitation shall be
limited to information that is currently maintained in an electronic
format.
(3) The State Department of Mental Health shall provide to the
Department of Justice Sex Offender Tracking Program the names of all
persons committed to its custody pursuant to Article 4 (commencing
with Section 6600) of Chapter 2 of Part 2 of Division 6 of the
Welfare and Institutions Code, within 30 days of commitment, and
shall provide the names of all of those persons released from its
custody within five working days of release.
(b) (1) On or before July 1, 2005, with respect to a person who
has been convicted of the commission or the attempted commission of
any of the offenses listed in, or who is described in, paragraph (2),
the Department of Justice shall make available to the public via the
Internet Web site his or her name and known aliases, a photograph, a
physical description, including gender and race, date of birth,
criminal history, prior adjudication as a sexually violent predator,
the address at which the person resides, and any other information
that the Department of Justice deems relevant, but not the
information excluded pursuant to subdivision (a). On or before
January 1, 2013, the department shall make available to the public
via the Internet Web site his or her static SARATSO score and
information on an elevated risk level based on the SARATSO future
violence tool.
(2) This subdivision shall apply to the following offenses and
offenders:
(A) Section 187 committed in the perpetration, or an attempt to
perpetrate, rape or any act punishable under Section 286, 288, 288a,
or 289.
(B) Section 207 committed with intent to violate Section 261, 286,
288, 288a, or 289.
(C) Section 209 committed with intent to violate Section 261, 286,
288, 288a, or 289.
(D) Paragraph (2) or (6) of subdivision (a) of Section 261.
(E) Section 264.1.
(F) Section 269.
(G) Subdivision (c) or (d) of Section 286.
(H) Subdivision (a), (b), or (c) of Section 288, provided that the
offense is a felony.
(I) Subdivision (c) or (d) of Section 288a.
(J) Section 288.3, provided that the offense is a felony.
(K) Section 288.4, provided that the offense is a felony.
(L) Section 288.5.
(M) Subdivision (a) or (j) of Section 289.
(N) Section 288.7.
(O) Any person who has ever been adjudicated a sexually violent
predator, as defined in Section 6600 of the Welfare and Institutions
Code.
(P) A felony violation of Section 311.1.
(Q) A felony violation of subdivision (b), (c), or (d) of Section
311.2.
(R) A felony violation of Section 311.3.
(S) A felony violation of subdivision (a), (b), or (c) of Section
311.4.
(T) Section 311.10.
(U) A felony violation of Section 311.11.
(c) (1) On or before July 1, 2005, with respect to a person who
has been convicted of the commission or the attempted commission of
any of the offenses listed in paragraph (2), the Department of
Justice shall make available to the public via the Internet Web site
his or her name and known aliases, a photograph, a physical
description, including gender and race, date of birth, criminal
history, the community of residence and ZIP Code in which the person
resides or the county in which the person is registered as a
transient, and any other information that the Department of Justice
deems relevant, but not the information excluded pursuant to
subdivision (a). On or before July 1, 2006, the Department of Justice
shall determine whether any person convicted of an offense listed in
paragraph (2) also has one or more prior or subsequent convictions
of an offense listed in subdivision (c) of Section 290, and, for
those persons, the Department of Justice shall make available to the
public via the Internet Web site the address at which the person
resides. However, the address at which the person resides shall not
be disclosed until a determination is made that the person is, by
virtue of his or her additional prior or subsequent conviction of an
offense listed in subdivision (c) of Section 290, subject to this
subdivision.
(2) This subdivision shall apply to the following offenses:
(A) Section 220, except assault to commit mayhem.
(B) Paragraph (1), (3), or (4) of subdivision (a) of Section 261.
(C) Paragraph (2) of subdivision (b), or subdivision (f), (g), or
(i), of Section 286.
(D) Paragraph (2) of subdivision (b), or subdivision (f), (g), or
(i), of Section 288a.
(E) Subdivision (b), (d), (e), or (i) of Section 289.
(d) (1) On or before July 1, 2005, with respect to a person who
has been convicted of the commission or the attempted commission of
any of the offenses listed in, or who is described in, this
subdivision, the Department of Justice shall make available to the
public via the Internet Web site his or her name and known aliases, a
photograph, a physical description, including gender and race, date
of birth, criminal history, the community of residence and ZIP Code
in which the person resides or the county in which the person is
registered as a transient, and any other information that the
Department of Justice deems relevant, but not the information
excluded pursuant to subdivision (a) or the address at which the
person resides.
(2) This subdivision shall apply to the following offenses and
offenders:
(A) Subdivision (a) of Section 243.4, provided that the offense is
a felony.
(B) Section 266, provided that the offense is a felony.
(C) Section 266c, provided that the offense is a felony.
(D) Section 266j.
(E) Section 267.
(F) Subdivision (c) of Section 288, provided that the offense is a
misdemeanor.
(G) Section 288.3, provided that the offense is a misdemeanor.
(H) Section 288.4, provided that the offense is a misdemeanor.
(I) Section 626.81.
(J) Section 647.6.
(K) Section 653c.
(L) Any person required to register pursuant to Section 290 based
upon an out-of-state conviction, unless that person is excluded from
the Internet Web site pursuant to subdivision (e). However, if the
Department of Justice has determined that the out-of-state crime, if
committed or attempted in this state, would have been punishable in
this state as a crime described in subdivision (c) of Section 290,
the person shall be placed on the Internet Web site as provided in
subdivision (b) or (c), as applicable to the crime.
(e) (1) If a person has been convicted of the commission or the
attempted commission of any of the offenses listed in this
subdivision, and he or she has been convicted of no other offense
listed in subdivision (b), (c), or (d) other than those listed in
this subdivision, that person may file an application with the
Department of Justice, on a form approved by the department, for
exclusion from the Internet Web site. If the department determines
that the person meets the requirements of this subdivision, the
department shall grant the exclusion and no information concerning
the person shall be made available via the Internet Web site
described in this section. He or she bears the burden of proving the
facts that make him or her eligible for exclusion from the Internet
Web site. However, a person who has filed for or been granted an
exclusion from the Internet Web site is not relieved of his or her
duty to register as a sex offender pursuant to Section 290 nor from
any otherwise applicable provision of law.
(2) This subdivision shall apply to the following offenses:
(A) A felony violation of subdivision (a) of Section 243.4.
(B) Section 647.6, if the offense is a misdemeanor.
(C) A felony violation of Section 311.1, subdivision (b), (c), or
(d) of Section 311.2, or Section 311.3, 311.4, 311.10, or 311.11 if
the person submits to the department a certified copy of a probation
report filed in court that clearly states that all victims involved
in the commission of the offense were at least 16 years of age or
older at the time of the commission of the offense.
(D) (i) An offense for which the offender successfully completed
probation, provided that the offender submits to the department a
certified copy of a probation report, presentencing report, report
prepared pursuant to Section 288.1, or other official court document
that clearly demonstrates that the offender was the victim's parent,
stepparent, sibling, or grandparent and that the crime did not
involve either oral copulation or penetration of the vagina or rectum
of either the victim or the offender by the penis of the other or by
any foreign object.
(ii) An offense for which the offender is on probation at the time
of his or her application, provided that the offender submits to the
department a certified copy of a probation report, presentencing
report, report prepared pursuant to Section 288.1, or other official
court document that clearly demonstrates that the offender was the
victim's parent, stepparent, sibling, or grandparent and that the
crime did not involve either oral copulation or penetration of the
vagina or rectum of either the victim or the offender by the penis of
the other or by any foreign object.
(iii) If, subsequent to his or her application, the offender
commits a violation of probation resulting in his or her
incarceration in county jail or state prison, his or her exclusion,
or application for exclusion, from the Internet Web site shall be
terminated.
(iv) For the purposes of this subparagraph, "successfully
completed probation" means that during the period of probation the
offender neither received additional county jail or state prison time
for a violation of probation nor was convicted of another offense
resulting in a sentence to county jail or state prison.
(3) If the department determines that a person who was granted an
exclusion under a former version of this subdivision would not
qualify for an exclusion under the current version of this
subdivision, the department shall rescind the exclusion, make a
reasonable effort to provide notification to the person that the
exclusion has been rescinded, and, no sooner than 30 days after
notification is attempted, make information about the offender
available to the public on the Internet Web site as provided in this
section.
(4) Effective January 1, 2012, no person shall be excluded
pursuant to this subdivision unless the offender has submitted to
the department documentation sufficient for the department to
determine that he or she has a SARATSO risk level of low or
moderate-low.
(f) The Department of Justice shall make a reasonable effort to
provide notification to persons who have been convicted of the
commission or attempted commission of an offense specified in
subdivision (b), (c), or (d), that on or before July 1, 2005, the
department is required to make information about specified sex
offenders available to the public via an Internet Web site as
specified in this section. The Department of Justice shall also make
a reasonable effort to provide notice that some offenders are
eligible to apply for exclusion from the Internet Web site.
(g) (1) A designated law enforcement entity, as defined in
subdivision (f) of Section 290.45, may make available information
concerning persons who are required to register pursuant to Section
290 to the public via an Internet Web site as specified in paragraph
(2).
(2) The law enforcement entity may make available by way of an
Internet Web site the information described in subdivision (c) if it
determines that the public disclosure of the information about a
specific offender by way of the entity's Internet Web site is
necessary to ensure the public safety based upon information
available to the entity concerning that specific offender.
(3) The information that may be provided pursuant to this
subdivision may include the information specified in subdivision (b)
of Section 290.45. However, that offender's address may not be
disclosed unless he or she is a person whose address is on the
Department of Justice's Internet Web site pursuant to subdivision (b)
or (c).
(h) For purposes of this section, "offense" includes the statutory
predecessors of that offense, or any offense committed in another
jurisdiction that, if committed or attempted to be committed in this
state, would have been punishable in this state as an offense listed
in subdivision (c) of Section 290.
(i) Notwithstanding Section 6254.5 of the Government Code,
disclosure of information pursuant to this section is not a waiver of
exemptions under Chapter 3.5 (commencing with Section 6250) of Title
1 of Division 7 of the Government Code and does not affect other
statutory restrictions on disclosure in other situations.
(j) (1) Any person who uses information disclosed pursuant to this
section to commit a misdemeanor shall be subject to, in addition to
any other penalty or fine imposed, a fine of not less than ten
thousand dollars ($10,000) and not more than fifty thousand dollars
($50,000).
(2) Any person who uses information disclosed pursuant to this
section to commit a felony shall be punished, in addition and
consecutive to any other punishment, by a five-year term of
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 .
(k) Any person who is required to register pursuant to Section 290
who enters an Internet Web site established pursuant to this section
shall be punished by a fine not exceeding one thousand dollars
($1,000), imprisonment in a county jail for a period not to exceed
six months, or by both that fine and imprisonment.
(l) (1) A person is authorized to use information disclosed
pursuant to this section only to protect a person at risk.
(2) Except as authorized under paragraph (1) or any other
provision of law, use of any information that is disclosed pursuant
to this section for purposes relating to any of the following is
prohibited:
(A) Health insurance.
(B) Insurance.
(C) Loans.
(D) Credit.
(E) Employment.
(F) Education, scholarships, or fellowships.
(G) Housing or accommodations.
(H) Benefits, privileges, or services provided by any business
establishment.
(3) This section shall not affect authorized access to, or use of,
information pursuant to, among other provisions, Sections 11105 and
11105.3, Section 8808 of the Family Code, Sections 777.5 and 14409.2
of the Financial Code, Sections 1522.01 and 1596.871 of the Health
and Safety Code, and Section 432.7 of the Labor Code.
(4) (A) Any use of information disclosed pursuant to this section
for purposes other than those provided by paragraph (1) or in
violation of paragraph (2) shall make the user liable for the actual
damages, and any amount that may be determined by a jury or a court
sitting without a jury, not exceeding three times the amount of
actual damage, and not less than two hundred fifty dollars ($250),
and attorney's fees, exemplary damages, or a civil penalty not
exceeding twenty-five thousand dollars ($25,000).
(B) Whenever there is reasonable cause to believe that any person
or group of persons is engaged in a pattern or practice of misuse of
the information available via an Internet Web site established
pursuant to this section in violation of paragraph (2), the Attorney
General, any district attorney, or city attorney, or any person
aggrieved by the misuse is authorized to bring a civil action in the
appropriate court requesting preventive relief, including an
application for a permanent or temporary injunction, restraining
order, or other order against the person or group of persons
responsible for the pattern or practice of misuse. The foregoing
remedies shall be independent of any other remedies or procedures
that may be available to an aggrieved party under other provisions of
law, including Part 2 (commencing with Section 43) of Division 1 of
the Civil Code.
(m) The public notification provisions of this section are
applicable to every person described in this section, without regard
to when his or her crimes were committed or his or her duty to
register pursuant to Section 290 arose, and to every offense
described in this section, regardless of when it was committed.
(n) A designated law enforcement entity and its employees shall be
immune from liability for good faith conduct under this section.
(o) The Attorney General, in collaboration with local law
enforcement and others knowledgeable about sex offenders, shall
develop strategies to assist members of the public in understanding
and using publicly available information about registered sex
offenders to further public safety. These strategies may include, but
are not limited to, a hotline for community inquiries, neighborhood
and business guidelines for how to respond to information posted on
this Internet Web site, and any other resource that promotes public
education about these offenders.
SEC. 322. Section 298.2 of the Penal Code is amended to
read:
298.2. (a) Any person who is required to submit a specimen sample
or print impression pursuant to this chapter who engages or attempts
to engage in any of the following acts is guilty of a felony
punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for two,
three, or four years:
(1) Knowingly facilitates the collection of a wrongfully
attributed blood specimen, buccal swab sample, or thumb or palm print
impression, with the intent that a government agent or employee be
deceived as to the origin of a DNA profile or as to any
identification information associated with a specimen, sample, or
print impression required for submission pursuant to this chapter.
(2) Knowingly tampers with any specimen, sample, print, or the
collection container for any specimen or sample, with the intent that
any government agent or employee be deceived as to the identity of
the person to whom the specimen, sample, or print relates.
SEC. 323. Section 299.5 of the Penal Code is amended to
read:
299.5. (a) All DNA and forensic identification profiles and other
identification information retained by the Department of Justice
pursuant to this chapter are exempt from any law requiring disclosure
of information to the public and shall be confidential except as
otherwise provided in this chapter.
(b) All evidence and forensic samples containing biological
material retained by the Department of Justice DNA Laboratory or
other state law enforcement agency are exempt from any law requiring
disclosure of information to the public or the return of biological
specimens, samples, or print impressions.
(c) Non-DNA forensic identification information may be filed with
the offender's file maintained by the Sex Registration Unit of the
Department of Justice or in other computerized data bank or database
systems maintained by the Department of Justice.
(d) The DNA and other forensic identification information retained
by the Department of Justice pursuant to this chapter shall not be
included in the state summary criminal history information. However,
nothing in this chapter precludes law enforcement personnel from
entering into a person's criminal history information or offender
file maintained by the Department of Justice, the fact that the
specimens, samples, and print impressions required by this chapter
have or have not been collected from that person.
(e) The fact that the blood specimens, saliva or buccal swab
samples, and print impressions required by this chapter have been
received by the DNA Laboratory of the Department of Justice shall be
included in the state summary criminal history information as soon as
administratively practicable.
The full palm prints of each hand shall be filed and maintained by
the Automated Latent Print Section of the Bureau of Criminal
Identification and Information of the Department of Justice, and may
be included in the state summary criminal history information.
(f) DNA samples and DNA profiles and other forensic identification
information shall be released only to law enforcement agencies,
including, but not limited to, parole officers of the Department of
Corrections, hearing officers of the parole authority, probation
officers, the Attorney General's office, district attorneys' offices,
and prosecuting city attorneys' offices, unless otherwise
specifically authorized by this chapter. Dissemination of DNA
specimens, samples, and DNA profiles and other forensic
identification information to law enforcement agencies and district
attorneys' offices outside this state shall be performed in
conformity with the provisions of this chapter.
(g) A defendant's DNA and other forensic identification
information developed pursuant to this chapter shall be available to
his or her defense counsel upon court order made pursuant to Chapter
10 (commencing with Section 1054) of Title 6 of Part 2.
(h) Except as provided in subdivision (g) and in order to protect
the confidentiality and privacy of database and data bank
information, the Department of Justice and local public DNA
laboratories shall not otherwise be compelled in a criminal or civil
proceeding to provide any DNA profile or forensic identification
database or data bank information or its computer database program
software or structures to any person or party seeking such records or
information whether by subpoena or discovery, or other procedural
device or inquiry.
(i) (1) (A) Any person who knowingly uses an offender specimen,
sample, or DNA profile collected pursuant to this chapter for other
than criminal identification or exclusion purposes, or for other than
the identification of missing persons, or who knowingly discloses
DNA or other forensic identification information developed pursuant
to this section to an unauthorized individual or agency, for other
than criminal identification or exclusion purposes, or for the
identification of missing persons, in violation of this chapter,
shall be punished by imprisonment in a county jail not exceeding one
year or by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 .
(B) Any person who, for the purpose of financial gain, knowingly
uses a specimen, sample, or DNA profile collected pursuant to this
chapter for other than criminal identification or exclusion purposes
or for the identification of missing persons or who, for the purpose
of financial gain, knowingly discloses DNA or other forensic
identification information developed pursuant to this section to an
unauthorized individual or agency, for other than criminal
identification or exclusion purposes or for other than the
identification of missing persons, in violation of this chapter,
shall, in addition to the penalty provided in subparagraph (A), be
punished by a criminal fine in an amount three times that of any
financial gain received or ten thousand dollars ($10,000), whichever
is greater.
(2) (A) If any employee of the Department of Justice knowingly
uses a specimen, sample, or DNA profile collected pursuant to this
chapter for other than criminal identification or exclusion purposes,
or knowingly discloses DNA or other forensic identification
information developed pursuant to this section to an unauthorized
individual or agency, for other than criminal identification or
exclusion purposes or for other than the identification of missing
persons, in violation of this chapter, the department shall be liable
in civil damages to the donor of the DNA identification information
in the amount of five thousand dollars ($5,000) for each violation,
plus attorney's fees and costs. In the event of multiple disclosures,
the total damages available to the donor of the DNA is limited to
fifty thousand dollars ($50,000) plus attorney's fees and costs.
(B) (i) Notwithstanding any other law, this shall be the sole and
exclusive remedy against the Department of Justice and its employees
available to the donor of the DNA.
(ii) The Department of Justice employee disclosing DNA
identification information in violation of this chapter shall be
absolutely immune from civil liability under this or any other law.
(3) It is not a violation of this section for a law enforcement
agency in its discretion to publicly disclose the fact of a DNA
profile match, or the name of the person identified by the DNA match
when this match is the basis of law enforcement's investigation,
arrest, or prosecution of a particular person, or the identification
of a missing or abducted person.
(j) It is not a violation of this chapter to furnish DNA or other
forensic identification information of the defendant to his or her
defense counsel for criminal defense purposes in compliance with
discovery.
(k) It is not a violation of this section for law enforcement to
release DNA and other forensic identification information developed
pursuant to this chapter to a jury or grand jury, or in a document
filed with a court or administrative agency, or as part of a judicial
or administrative proceeding, or for this information to become part
of the public transcript or record of proceedings when, in the
discretion of law enforcement, disclosure is necessary because the
DNA information pertains to the basis for law enforcement's
identification, arrest, investigation, prosecution, or exclusion of a
particular person related to the case.
( l ) It is not a violation of this section to include
information obtained from a file in a transcript or record of a
judicial proceeding, or in any other public record when the inclusion
of the information in the public record is authorized by a court,
statute, or decisional law.
(m) It is not a violation of this section for the DNA Laboratory
of the Department of Justice, or an organization retained as an agent
of the Department of Justice, or a local public laboratory to use
anonymous records or criminal history information obtained pursuant
to this chapter for training, research, statistical analysis of
populations, or quality assurance or quality control.
(n) The Department of Justice shall make public the methodology
and procedures to be used in its DNA program prior to the
commencement of DNA testing in its laboratories. The Department of
Justice shall review and consider on an ongoing basis the findings
and results of any peer review and validation studies submitted to
the department by members of the relevant scientific community
experienced in the use of DNA technology. This material shall be
available to criminal defense counsel upon court order made pursuant
to Chapter 10 (commencing with Section 1054) of Title 6 of Part 2.
(o) In order to maintain the computer system security of the
Department of Justice DNA and Forensic Identification Database and
Data Bank Program, the computer software and database structures used
by the DNA Laboratory of the Department of Justice to implement this
chapter are confidential.
SEC. 324. Section 311.9 of the Penal Code is amended to
read:
311.9. (a) Every person who violates subdivision (a) of Section
311.2 or Section 311.5 is punishable by fine of not more than one
thousand dollars ($1,000) plus five dollars ($5) for each additional
unit of material coming within the provisions of this chapter, which
is involved in the offense, not to exceed ten thousand dollars
($10,000), or by imprisonment in the county jail for not more than
six months plus one day for each additional unit of material coming
within the provisions of this chapter, and which is involved in the
offense, not to exceed a total of 360 days in the county jail, or by
both that fine and imprisonment. If that person has previously been
convicted of any offense in this chapter, or of a violation of
Section 313.1, a violation of subdivision (a) of Section 311.2 or
Section 311.5 is punishable as a felony by imprisonment pursuant
to subdivision (h) of Section 1 170 .
(b) Every person who violates subdivision (a) of Section 311.4 is
punishable by fine of not more than two thousand dollars ($2,000) or
by imprisonment in the county jail for not more than one year, or by
both that fine and imprisonment, or by imprisonment in the
state prison pursuant to subdivision (h) of Section
1170 . If that person has been previously convicted of a
violation of former Section 311.3 or Section 311.4 he or she is
punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 .
(c) Every person who violates Section 311.7 is punishable by fine
of not more than one thousand dollars ($1,000) or by imprisonment in
the county jail for not more than six months, or by both that fine
and imprisonment. For a second and subsequent offense he or she shall
be punished by a fine of not more than two thousand dollars
($2,000), or by imprisonment in the county jail for not more than one
year, or by both that fine and imprisonment. If the person has been
twice convicted of a violation of this chapter, a violation of
Section 311.7 is punishable as a felony by imprisonment pursuant
to subdivision (h) of Section 1170 .
SEC. 325. Section 313.4 of the Penal Code is amended to
read:
313.4. Every person who violates Section 313.1, other than
subdivision (e), is punishable by fine of not more than two thousand
dollars ($2,000), by imprisonment in the county jail for not more
than one year, or by both that fine and imprisonment. However, if the
person has been previously convicted of a violation of Section
313.1, other than subdivision (e), or of any section of Chapter 7.5
(commencing with Section 311) of Title 9 of Part 1 of this code, the
person shall be punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 .
SEC. 326. Section 337.3 of the Penal Code is amended to
read:
337.3. Any person who in the commission of touting falsely uses
the name of any official of the California Horse Racing Board, its
inspectors or attachés, or of any official of any race track
association, or the names of any owner, trainer, jockey or other
person licensed by the California Horse Racing Board as the source of
any information or purported information is guilty of a felony and
is punishable by a fine of not more than five thousand dollars
($5,000) or by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 , or by both
such that fine and imprisonment.
SEC. 327. Section 337.7 of the Penal Code is amended to
read:
337.7. Any person other than the lawful holder thereof who has in
his possession any credential or license issued by the California
Horse Racing Board to licensees and any person who has a forged or
simulated credential or license of said board in his possession, and
who uses such credential or license for the purpose of
misrepresentation, fraud or touting is guilty of a felony and shall
be punished by a fine of five thousand dollars ($5,000) or by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 , or by both such
that fine and imprisonment. If he or she
has previously been convicted of any offense under this
chapter, he or she shall be imprisoned pursuant to
subdivision (h) of Section 1170 .
SEC. 328. Section 337b of the Penal Code is amended to
read:
337b. Any person who gives, or offers or promises to give, or
attempts to give or offer, any money, bribe, or thing of value, to
any participant or player, or to any prospective participant or
player, in any sporting event, contest, or exhibition of any kind
whatsoever, except a wrestling exhibition as defined in Section 18626
of the Business and Professions Code, and specifically including,
but without being limited to, such sporting events, contests, and
exhibitions as baseball, football, basketball, boxing, horseracing,
and wrestling matches, with the intention or understanding or
agreement that such participant or player or such prospective
participant or player shall not use his or her best efforts to win
such sporting event, contest, or exhibition, or shall so conduct
himself or herself in such sporting event, contest, or exhibition
that any other player, participant or team of players or participants
shall thereby be assisted or enabled to win such sporting event,
contest, or exhibition, or shall so conduct himself or herself in
such sporting event, contest, or exhibition as to limit his or her or
his or her team's margin of victory in such sporting event, contest,
or exhibition, is guilty of a felony, and shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 , or by a fine not exceeding
five thousand dollars ($5,000), or by both such
that fine and imprisonment.
SEC. 329. Section 337c of the Penal Code is amended to
read:
337c. Any person who accepts, or attempts to accept, or offers to
accept, or agrees to accept, any money, bribe or thing of value,
with the intention or understanding or agreement that he or she will
not use his or her best efforts to win any sporting event, contest,
or exhibition of any kind whatsoever, except a wrestling exhibition
as defined in Section 18626 of the Business and Professions Code, and
specifically including, but without being limited to, such sporting
events, contests, or exhibitions as baseball, football, basketball,
boxing, horseracing, and wrestling matches, in which he or she is
playing or participating or is about to play or participate in, or
will so conduct himself or herself in such sporting event, contest,
or exhibition that any other player or participant or team of players
or participants shall thereby be assisted or enabled to win such
sporting event, contest, or exhibition, or will so conduct himself or
herself in such sporting event, contest, or exhibition as to limit
his or her or his or her team's margin of victory in such sporting
event, contest, or exhibition, is guilty of a felony, and shall be
punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 , or by a fine not
exceeding five thousand dollars ($5,000), or by both such
that fine and imprisonment.
SEC. 330. Section 337d of the Penal Code is amended to
read:
337d. Any person who gives, offers to give, promises to give, or
attempts to give, any money, bribe, or thing of value to any person
who is umpiring, managing, directing, refereeing, supervising,
judging, presiding, or officiating at, or who is about to umpire,
manage, direct, referee, supervise, judge, preside, or officiate at
any sporting event, contest, or exhibition of any kind whatsoever,
including, but not limited to, sporting events, contests, and
exhibitions such as baseball, football, boxing, horse racing, and
wrestling matches, with the intention or agreement or understanding
that the person shall corruptly or dishonestly umpire, manage,
direct, referee, supervise, judge, preside, or officiate at, any
sporting event, contest, or exhibition, or the players or
participants thereof, with the intention or purpose that the result
of the sporting event, contest, or exhibition will be affected or
influenced thereby, is guilty of a felony and shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 or by a fine of not more than
ten thousand dollars ($10,000), or by imprisonment and fine. A second
offense of this section is a felony and shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 or by a fine of not more than
fifteen thousand dollars ($15,000), or by both that
imprisonment and fine.
SEC. 331. Section 337e of the Penal Code is amended to
read:
337e. Any person who as umpire, manager, director, referee,
supervisor, judge, presiding officer or official receives or agrees
to receive, or attempts to receive any money, bribe or thing of
value, with the understanding or agreement that such umpire, manager,
director, referee, supervisor, judge, presiding officer, or official
shall corruptly conduct himself or shall corruptly umpire, manage,
direct, referee, supervise, judge, preside, or officiate at, any
sporting event, contest, or exhibition of any kind whatsoever, and
specifically including, but without being limited to, such sporting
events, contests, and exhibitions as baseball, football, boxing,
horseracing, and wrestling matches, or any player or participant
thereof, with the intention or purpose that the result of the
sporting event, contest, or exhibition will be affected or influenced
thereby, is guilty of a felony and shall be punished by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 , or by a fine not exceeding five thousand
dollars ($5,000), or by both such that
fine and imprisonment.
SEC. 332. Section 337f of the Penal Code
is amended to read:
337f. (a) Any person who does any of the following is punishable
by a fine not exceeding five thousand dollars ($5,000), or by
imprisonment in the state prison or in a county
jail not exceeding one year, or by imprisonment pursuant to
subdivision (h) of Section 1170, or by both that fine and
imprisonment:
(1) Influences, or induces, or conspires with, any owner, trainer,
jockey, groom, or other person associated with or interested in any
stable, horse, or race in which a horse participates, to affect the
result of that race by stimulating or depressing a horse through the
administration of any drug to that horse, or by the use of any
electrical device or any electrical equipment or by any mechanical or
other device not generally accepted as regulation racing equipment,
or so stimulates or depresses a horse.
(2) Knowingly enters any horse in any race within a period of 24
hours after any drug has been administered to that horse for the
purpose of increasing or retarding the speed of that horse.
(3) Willfully or unjustifiably enters or races any horse in any
running or trotting race under any name or designation other than the
name or designation assigned to that horse by and registered with
the Jockey Club or the United States Trotting Association or
willfully sets on foot, instigates, engages in or in any way furthers
any act by which any horse is entered or raced in any running or
trotting race under any name or designation other than the name or
designation duly assigned by and registered with the Jockey Club or
the United States Trotting Association.
(b) For purposes of this section, the term "drug" includes all
substances recognized as having the power of stimulating or
depressing the central nervous system, respiration, or blood pressure
of an animal, such as narcotics, hypnotics, benzedrine or its
derivatives, but shall not include recognized vitamins or
supplemental feeds approved by or in compliance with the rules and
regulations or policies of the California Horse Racing Board.
SEC. 333. Section 350 of the Penal Code is amended to
read:
350. (a) Any person who willfully manufactures, intentionally
sells, or knowingly possesses for sale any counterfeit mark
registered with the Secretary of State or registered on the Principal
Register of the United States Patent and Trademark Office, shall,
upon conviction, be punishable as follows:
(1) When the offense involves less than 1,000 of the articles
described in this subdivision, with a total retail or fair market
value less than that required for grand theft as defined in Section
487, and if the person is an individual, he or she shall be punished
by a fine of not more than ten thousand dollars ($10,000), or by
imprisonment in a county jail for not more than one year, or by both
that fine and imprisonment; or, if the person is a business entity,
by a fine of not more than two hundred thousand dollars ($200,000).
(2) When the offense involves 1,000 or more of the articles
described in this subdivision, or has a total retail or fair market
value equal to or greater than that required for grand theft as
defined in Section 487, and if the person is an individual, he or she
shall be punished by imprisonment in a county jail not to exceed one
year, or in the state prison pursuant to
subdivision (h) of Section 1170 for 16 months, or two or three
years, or by a fine not to exceed five hundred thousand dollars
($500,000), or by both that imprisonment and fine; or, if the person
is a business entity, by a fine not to exceed one million dollars
($1,000,000).
(b) Any person who has been convicted of a violation of either
paragraph (1) or (2) of subdivision (a) shall, upon a subsequent
conviction of paragraph (1) of subdivision (a), if the person is an
individual, be punished by a fine of not more than one hundred
thousand dollars ($100,000), or by imprisonment in a county jail for
not more than one year, or in the state prison
pursuant to subdivision (h) of Section 1170 for 16 months,
or two or three years, or by both that fine and imprisonment; or, if
the person is a business entity, by a fine of not more than four
hundred thousand dollars ($400,000).
(c) Any person who has been convicted of a violation of
subdivision (a) and who, by virtue of the conduct that was the basis
of the conviction, has directly and foreseeably caused death or great
bodily injury to another through reliance on the counterfeited item
for its intended purpose shall, if the person is an individual, be
punished by a fine of not more than one hundred thousand dollars
($100,000), or by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for two,
three, or four years, or by both that fine and imprisonment; or, if
the person is a business entity, by a fine of not more than four
hundred thousand dollars ($400,000).
(d) (1) Except as provided in paragraph (2), in any action brought
under this section resulting in a conviction or a plea of nolo
contendere, the court shall order the forfeiture and destruction of
all of those marks and of all goods, articles, or other matter
bearing the marks, and the forfeiture and destruction or other
disposition of all means of making the marks, and any and all
electrical, mechanical, or other devices for manufacturing,
reproducing, transporting, or assembling these marks, that were used
in connection with, or were part of, any violation of this section.
(2) Upon request of any law enforcement agency and consent from
the specific registrants, the court may consider a motion to have the
items described in paragraph (1), not including recordings or
audiovisual works as defined in Section 653w, donated to a nonprofit
organization for the purpose of distributing the goods to persons
living in poverty at no charge to the persons served by the
organization.
(3) Forfeiture of the proceeds of the crime shall be subject to
Chapter 9 (commencing with Section 186) of Title 7 of Part 1.
However, no vehicle shall be forfeited under this section that may be
lawfully driven on the highway with a class 3 or 4 license, as
prescribed in Section 12804 of the Vehicle Code, and that is any of
the following:
(A) A community property asset of a person other than the
defendant.
(B) The sole class 3 or 4 vehicle available to the immediate
family of that person or of the defendant.
(C) Reasonably necessary to be retained by the defendant for the
purpose of lawfully earning a living, or for any other reasonable and
lawful purpose.
(e) For the purposes of this section, the following definitions
shall apply:
(1) When counterfeited but unassembled components of computer
software packages are recovered, including, but not limited to,
counterfeited computer diskettes, instruction manuals, or licensing
envelopes, the number of "articles" shall be equivalent to the number
of completed computer software packages that could have been made
from those components.
(2) "Business entity" includes, but is not limited to, a
corporation, limited liability company, or partnership. "Business
entity" does not include a sole proprietorship.
(3) "Counterfeit mark" means a spurious mark that is identical
with, or confusingly similar to, a registered mark and is used, or
intended to be used, on or in connection with the same type of goods
or services for which the genuine mark is registered. It is not
necessary for the mark to be displayed on the outside of an article
for there to be a violation. For articles containing digitally stored
information, it shall be sufficient to constitute a violation if the
counterfeit mark appears on a video display when the information is
retrieved from the article. The term "spurious mark" includes genuine
marks used on or in connection with spurious articles and includes
identical articles containing identical marks, where the goods or
marks were reproduced without authorization of, or in excess of any
authorization granted by, the registrant. When counterfeited but
unassembled components of any articles described under subdivision
(a) are recovered, including, but not limited to, labels, patches,
fabric, stickers, wrappers, badges, emblems, medallions, charms,
boxes, containers, cans, cases, hangtags, documentation, or
packaging, or any other components of any type or nature that are
designed, marketed, or otherwise intended to be used on or in
connection with any articles described under subdivision (a), the
number of "articles" shall be equivalent to the number of completed
articles that could have been made from those components.
(4) "Knowingly possess" means that the person possessing an
article knew or had reason to believe that it was spurious, or that
it was used on or in connection with spurious articles, or that it
was reproduced without authorization of, or in excess of any
authorization granted by, the registrant.
(5) Notwithstanding Section 7, "person" includes, but is not
limited to, a business entity.
(6) "Registrant" means any person to whom the registration of a
mark is issued and that person's legal representatives, successors,
or assigns.
(7) "Sale" includes resale.
(8) "Value" has the following meanings:
(A) When counterfeit items of computer software are manufactured
or possessed for sale, the "value" of those items shall be equivalent
to the retail price or fair market price of the true items that are
counterfeited.
(B) When counterfeited but unassembled components of computer
software packages or any other articles described under subdivision
(a) are recovered, including, but not limited to, counterfeited
digital disks, instruction manuals, licensing envelopes, labels,
patches, fabric, stickers, wrappers, badges, emblems, medallions,
charms, boxes, containers, cans, cases, hangtags, documentation, or
packaging, or any other components of any type or nature that are
designed, marketed, or otherwise intended to be used on or in
connection with any articles described under subdivision (a), the
"value" of those components shall be equivalent to the retail price
or fair market value of the number of completed computer software
packages or other completed articles described under subdivision (a)
that could have been made from those components.
(C) "Retail or fair market value" of a counterfeit article means a
value equivalent to the retail price or fair market value, as of the
last day of the charged crime, of a completed similar genuine
article containing a genuine mark.
(f) This section shall not be enforced against any party who has
adopted and lawfully used the same or confusingly similar mark in the
rendition of like services or the manufacture or sale of like goods
in this state from a date prior to the earliest effective date of
registration of the service mark or trademark either with the
Secretary of State or on the Principle Register of the United States
Patent and Trademark Office.
(g) An owner, officer, employee, or agent who provides, rents,
leases, licenses, or sells real property upon which a violation of
subdivision (a) occurs shall not be subject to a criminal penalty
pursuant to this section, unless he or she sells, or possesses for
sale, articles bearing a counterfeit mark in violation of this
section. This subdivision shall not be construed to abrogate or limit
any civil rights or remedies for a trademark violation.
(h) This section shall not be enforced against any party who
engages in fair uses of a mark, as specified in Section 14247 of the
Business and Professions Code.
(i) When a person is convicted of an offense under this section,
the court shall order the person to pay restitution to the trademark
owner and any other victim of the offense pursuant to Section 1202.4.
SEC. 334. Section 367f of the Penal Code is amended to
read:
367f. (a) Except as provided in subdivisions (d) and (e), it
shall be unlawful for any person to knowingly acquire, receive, sell,
promote the transfer of, or otherwise transfer any human organ, for
purposes of transplantation, for valuable consideration.
(b) Except as provided in subdivisions (d), (e), and (f), it shall
be unlawful to remove or transplant any human organ with the
knowledge that the organ has been acquired or will be transferred or
sold for valuable consideration in violation of subdivision (a).
(c) For purposes of this section, the following definitions apply:
(1) "Human organ" includes, but is not limited to, a human kidney,
liver, heart, lung, pancreas, or any other human organ or
nonrenewable or nonregenerative tissue except plasma and sperm.
(2) "Valuable consideration" means financial gain or advantage,
but does not include the reasonable costs associated with the
removal, storage, transportation, and transplantation of a human
organ, or reimbursement for those services, or the expenses of
travel, housing, and lost wages incurred by the donor of a human
organ in connection with the donation of the organ.
(d) No act respecting the nonsale donation of organs or other
nonsale conduct pursuant to or in the furtherance of the purposes of
the Uniform Anatomical Gift Act, Chapter 3.5 (commencing with Section
7150) Part 1 of Division 7 of the Health and Safety Code, including
acts pursuant to anatomical gifts offered under Section 12811 of the
Vehicle Code, shall be made unlawful by this section.
(e) This section shall not apply to the person from whom the organ
is removed, nor to the person who receives the transplant, or those
persons' next-of-kin who assisted in obtaining the organ for purposes
of transplantations.
(f) A licensed physician and surgeon who transplants a human organ
in violation of subdivision (b) shall not be criminally liable under
that subdivision if the act is performed under emergency and
life-threatening conditions.
(g) Any person who violates subdivision (a) or (b) shall be
punished by a fine not to exceed fifty thousand dollars ($50,000), or
by imprisonment in the state prison pursuant
to subdivision (h) of Section 1170 for three, four, or five
years, or by both that fine and imprisonment .
SEC. 335. Section 367g of the Penal Code is amended to
read:
367g. (a) It shall be unlawful for anyone to knowingly use sperm,
ova, or embryos in assisted reproduction technology, for any purpose
other than that indicated by the sperm, ova, or embryo provider's
signature on a written consent form.
(b) It shall be unlawful for anyone to knowingly implant sperm,
ova, or embryos, through the use of assisted reproduction technology,
into a recipient who is not the sperm, ova, or embryo provider,
without the signed written consent of the sperm, ova, or embryo
provider and recipient.
(c) Any person who violates this section shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 for three, four, or five years,
by a fine not to exceed fifty thousand dollars ($50,000), or by both
that fine and imprisonment.
(d) Written consent, for the purposes of this section, shall not
be required of men who donate sperm to a licensed tissue bank.
SEC. 336. Section 368 of the Penal Code is amended to
read:
368. (a) The Legislature finds and declares that crimes against
elders and dependent adults are deserving of special consideration
and protection, not unlike the special protections provided for minor
children, because elders and dependent adults may be confused, on
various medications, mentally or physically impaired, or incompetent,
and therefore less able to protect themselves, to understand or
report criminal conduct, or to testify in court proceedings on their
own behalf.
(b) (1) Any person who knows or reasonably should know that a
person is an elder or dependent adult and who, under circumstances or
conditions likely to produce great bodily harm or death, willfully
causes or permits any elder or dependent adult to suffer, or inflicts
thereon unjustifiable physical pain or mental suffering, or having
the care or custody of any elder or dependent adult, willfully causes
or permits the person or health of the elder or dependent adult to
be injured, or willfully causes or permits the elder or dependent
adult to be placed in a situation in which his or her person or
health is endangered, is punishable by imprisonment in a county jail
not exceeding one year, or by a fine not to exceed six thousand
dollars ($6,000), or by both that fine and imprisonment, or by
imprisonment in the state prison for two, three, or four years.
(2) If in the commission of an offense described in paragraph (1),
the victim suffers great bodily injury, as defined in Section
12022.7, the defendant shall receive an additional term in the state
prison as follows:
(A) Three years if the victim is under 70 years of age.
(B) Five years if the victim is 70 years of age or older.
(3) If in the commission of an offense described in paragraph (1),
the defendant proximately causes the death of the victim, the
defendant shall receive an additional term in the state prison as
follows:
(A) Five years if the victim is under 70 years of age.
(B) Seven years if the victim is 70 years of age or older.
(c) Any person who knows or reasonably should know that a person
is an elder or dependent adult and who, under circumstances or
conditions other than those likely to produce great bodily harm or
death, willfully causes or permits any elder or dependent adult to
suffer, or inflicts thereon unjustifiable physical pain or mental
suffering, or having the care or custody of any elder or dependent
adult, willfully causes or permits the person or health of the elder
or dependent adult to be injured or willfully causes or permits the
elder or dependent adult to be placed in a situation in which his or
her person or health may be endangered, is guilty of a misdemeanor. A
second or subsequent violation of this subdivision is punishable by
a fine not to exceed two thousand dollars ($2,000), or by
imprisonment in a county jail not to exceed one year, or by both that
fine and imprisonment.
(d) Any person who is not a caretaker who violates any provision
of law proscribing theft, embezzlement, forgery, or fraud, or who
violates Section 530.5 proscribing identity theft, with respect to
the property or personal identifying information of an elder or a
dependent adult, and who knows or reasonably should know that the
victim is an elder or a dependent adult, is punishable by
imprisonment in a county jail not exceeding one year, or in
the state prison pursuant to subdivision (h) of
Section 1170 for two, three, or four years, when the moneys,
labor, goods, services, or real or personal property taken or
obtained is of a value exceeding nine hundred fifty dollars ($950);
and by a fine not exceeding one thousand dollars ($1,000), by
imprisonment in a county jail not exceeding one year, or by both that
fine and imprisonment, when the moneys, labor, goods, services, or
real or personal property taken or obtained is of a value not
exceeding nine hundred fifty dollars ($950).
(e) Any caretaker of an elder or a dependent adult who violates
any provision of law proscribing theft, embezzlement, forgery, or
fraud, or who violates Section 530.5 proscribing identity theft, with
respect to the property or personal identifying information of that
elder or dependent adult, is punishable by imprisonment in a county
jail not exceeding one year, or in the state prison
pursuant to subdivision (h) of Section 1170 for
two, three, or four years when the moneys, labor, goods, services, or
real or personal property taken or obtained is of a value exceeding
nine hundred fifty dollars ($950), and by a fine not exceeding one
thousand dollars ($1,000), by imprisonment in a county jail not
exceeding one year, or by both that fine and imprisonment, when the
moneys, labor, goods, services, or real or personal property taken or
obtained is of a value not exceeding nine hundred fifty dollars
($950).
(f) Any person who commits the false imprisonment of an elder or a
dependent adult by the use of violence, menace, fraud, or deceit is
punishable by imprisonment in the state prison
pursuant to subdivision (h) of Sectio n 1170
for two, three, or four years.
(g) As used in this section, "elder" means any person who is 65
years of age or older.
(h) As used in this section, "dependent adult" means any person
who is between the ages of 18 and 64, who has physical or mental
limitations which restrict his or her ability to carry out normal
activities or to protect his or her rights, including, but not
limited to, persons who have physical or developmental disabilities
or whose physical or mental abilities have diminished because of age.
"Dependent adult" includes any person between the ages of 18 and 64
who is admitted as an inpatient to a 24-hour health facility, as
defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety
Code.
(i) As used in this section, "caretaker" means any person who has
the care, custody, or control of, or who stands in a position of
trust with, an elder or a dependent adult.
(j) Nothing in this section shall preclude prosecution under both
this section and Section 187 or 12022.7 or any other provision of
law. However, a person shall not receive an additional term of
imprisonment under both paragraphs (2) and (3) of subdivision (b) for
any single offense, nor shall a person receive an additional term of
imprisonment under both Section 12022.7 and paragraph (2) or (3) of
subdivision (b) for any single offense.
(k) In any case in which a person is convicted of violating these
provisions, the court may require him or her to receive appropriate
counseling as a condition of probation. Any defendant ordered to be
placed in a counseling program shall be responsible for paying the
expense of his or her participation in the counseling program as
determined by the court. The court shall take into consideration the
ability of the defendant to pay, and no defendant shall be denied
probation because of his or her inability to pay.
SEC. 337. Section 374.2 of the Penal Code is amended to
read:
374.2. (a) It is unlawful for any person to maliciously
discharge, dump, release, place, drop, pour, or otherwise deposit, or
to maliciously cause to be discharged, dumped, released, placed,
dropped, poured, or otherwise deposited, any substance capable of
causing substantial damage or harm to the operation of a public sewer
sanitary facility, or to deposit in commercial quantities any other
substance, into a manhole, cleanout, or other sanitary sewer
facility, not intended for use as a point of deposit for sewage,
which is connected to a public sanitary sewer system, without
possessing a written authorization therefor granted by the public
entity which is charged with the administration of the use of the
affected public sanitary sewer system or the affected portion of the
public sanitary sewer system.
As used in this section, "maliciously" means an intent to do a
wrongful act.
(b) For the purposes of this section "person" means an individual,
trust, firm, partnership, joint stock company, limited liability
company, or corporation, and "deposited in commercial quantities"
refers to any substance deposited or otherwise discharged in any
amount greater than for normal domestic sewer use.
(c) Lack of specific knowledge that the facility into which the
prohibited discharge or release occurred is connected to a public
sanitary sewer system shall not constitute a defense to a violation
charged under this section.
(d) Any person who violates this section shall be punished by
imprisonment in the county jail for not more than one year, or by a
fine of up to twenty-five thousand dollars ($25,000), or by both a
fine and imprisonment. If the conviction is for a second or
subsequent violation, the person shall be punished by imprisonment in
the county jail for not more than one year, or imprisonment
in the state prison pursuant to subdivision (h) of
Section 1170 for 16, 20, or 24 months, and by a fine of not
less than five thousand dollars ($5,000) or more than twenty-five
thousand dollars ($25,000).
SEC. 338. Section 374.8 of the Penal Code is amended to
read:
374.8. (a) In any prosecution under this section, proof of the
elements of the offense shall not be dependent upon the requirements
of Title 22 of the California Code of Regulations.
(b) Any person who knowingly causes any hazardous substance to be
deposited into or upon any road, street, highway, alley, or railroad
right-of-way, or upon the land of another, without the permission of
the owner, or into the waters of this state is punishable by
imprisonment in the county jail for not more than one year or by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 for a term of 16
months, two years, or three years, or by a fine of not less than
fifty dollars ($50) nor more than ten thousand dollars ($10,000), or
by both the fine and imprisonment, unless the deposit occurred as a
result of an emergency that the person promptly reported to the
appropriate regulatory authority.
(c) For purposes of this section, "hazardous substance" means
either of the following:
(1) Any material that, because of its quantity, concentration, or
physical or chemical characteristics, poses a significant present or
potential hazard to human health and safety or to the environment if
released into the environment, including, but not limited to,
hazardous waste and any material that the administering agency or a
handler, as defined in Chapter 6.91 (commencing with Section 25410)
of Division 20 of the Health and Safety Code, has a reasonable basis
for believing would be injurious to the health and safety of persons
or harmful to the environment if released into the environment.
(2) Any substance or chemical product for which one of the
following applies:
(A) The manufacturer or producer is required to prepare a MSDS, as
defined in Section 6374 of the Labor Code, for the substance or
product pursuant to the Hazardous Substances Information Training Act
(Chapter 2.5 (commencing with Section 6360) of Part 1 of Division 5
of the Labor Code) or pursuant to any applicable federal law or
regulation.
(B) The substance is described as a radioactive material in
Chapter 1 of Title 10 of the Code of Federal Regulations maintained
and updated by the nuclear Regulatory Commission.
(C) The
substance is designated by the Secretary of Transportation in Chapter
27 (commencing with Section 1801) of the appendix to Title 49 of the
United States Code and taxed as a radioactive substance or material.
(D) The materials listed in subdivision (b) of Section 6382 of the
Labor Code.
SEC. 339. Section 375 of the Penal Code is amended to
read:
375. (a) It shall be unlawful to throw, drop, pour, deposit,
release, discharge or expose, or to attempt to throw, drop, pour,
deposit, release, discharge or expose in, upon or about any theater,
restaurant, place of business, place of amusement or any place of
public assemblage, any liquid, gaseous or solid substance or matter
of any kind which is injurious to person or property, or is nauseous,
sickening, irritating or offensive to any of the senses.
(b) It shall be unlawful to manufacture or prepare, or to possess
any liquid, gaseous, or solid substance or matter of any kind which
is injurious to person or property, or is nauseous, sickening,
irritating or offensive, to any of the senses with intent to throw,
drop, pour, deposit, release, discharge or expose the same in, upon
or about any theater, restaurant, place of business, place of
amusement, or any other place of public assemblage.
(c) Any person violating any of the provisions hereof shall be
punished by imprisonment in the county jail for not less than three
months and not more than one year, or by a fine of not less than five
hundred dollars ($500) and not more than two thousand dollars
($2,000), or by both such that fine and
imprisonment.
(d) Any person who, in violating any of the provisions of
subdivision (a), willfully employs or uses any liquid, gaseous or
solid substance which may produce serious illness or permanent injury
through being vaporized or otherwise dispersed in the air or who, in
violating any of the provisions of subdivision (a), willfully
employs or uses any tear gas, mustard gas or any of the combinations
or compounds thereof, or willfully employs or uses acid or
explosives, shall be guilty of a felony and shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 .
SEC. 340. Section 382.5 of the Penal Code is amended to
read:
382.5. Every person who sells, dispenses, administers or
prescribes dinitrophenol for any purpose shall be guilty of a felony,
punishable by a fine not less than one thousand dollars ($1,000) nor
more than ten thousand dollars ($10,000), or by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 , or by both such
that fine and imprisonment.
This section shall not apply to dinitrophenol manufactured or sold
as an economic poison registered under the provision of Section
12811 of the Food and Agricultural Code nor to sales for use in
manufacturing or for scientific purposes, and not for human
consumption.
SEC. 341. Section 382.6 of the Penal Code is amended to
read:
382.6. Every person who sells, dispenses, administers or
prescribes preparations containing diphenylamine,
paraphenylenediamine, or paratoluylenediamine, or a derivative of any
such chemicals, to be used as eyebrow and eyelash dye, shall be
guilty of a felony, punishable by a fine not less than one thousand
dollars ($1,000) nor more than ten thousand dollars ($10,000), or by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 , or by both such
that fine and imprisonment.
SEC. 342. Section 386 of the Penal Code is amended to
read:
386. (a) Any person who willfully or maliciously constructs or
maintains a fire-protection system in any structure with the intent
to install a fire protection system which is known to be inoperable
or to impair the effective operation of a system, so as to threaten
the safety of any occupant or user of the structure in the event of a
fire, shall be subject to imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for
two, three, or four years.
(b) A violation of subdivision (a) which proximately results in
great bodily injury or death is a felony punishable by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 for five, six, or seven years.
(c) As used in this section, "fire-protection system" includes,
but is not limited to, an automatic fire sprinkler system, standpipe
system, automatic fixed fire extinguishing system, and fire alarm
system.
(d) For purposes of this section, the following definitions shall
control:
(1) "Automatic fire sprinkler system" means an integrated system
of underground and overhead piping designed in accordance with fire
protection engineering standards. The portion of the sprinkler system
above ground is a network of specially sized or hydraulically
designed piping installed in a building, structure, or area,
generally overhead, and to which sprinklers are attached in a
systematic pattern. The valve controlling each system riser is
located in the system riser or its supply piping. Each sprinkler
system riser includes a device for activating an alarm when the
system is in operation. The system is normally activated by heat from
a fire, and it discharges water over the fire area.
(2) "Standpipe system" means an arrangement of piping, valves, and
hose connectors and allied equipment installed in a building or
structure with the hose connectors located in a manner that water can
be discharged in streams or spray patterns through attached hose and
nozzles. The purpose of the system is to extinguish a fire, thereby
protecting a building or structure and its contents and occupants.
This system relies upon connections to water supply systems or pumps,
tanks, and other equipment necessary to provide an adequate supply
of water to the hose connectors.
(3) "Automatic fixed fire extinguishing system" means either of
the following:
(A) An engineered fixed extinguishing system which is custom
designed for a particular hazard, using components which are approved
or listed only for their broad performance characteristics.
Components may be arranged into a variety of configurations. These
systems shall include, but not be limited to, dry chemical systems,
carbon dioxide systems, halogenated agent systems, steam systems,
high expansion foam systems, foam extinguishing systems, and liquid
agent systems.
(B) A pre-engineered fixed extinguishing system is a system where
the number of components and their configurations are included in the
description of the system's approval and listing. These systems
include, but are not limited to, dry chemical systems, carbon dioxide
systems, halogenated agent systems, and liquid agent systems.
(4) "Fire alarm system" means a control unit and a combination of
electrical interconnected devices designed and intended to cause an
alarm or warning of fire in a building or structure by either manual
or automatic activation, or by both, and includes the systems
installed throughout any building or portion thereof.
(5) "Structure" means any building, whether private, commercial,
or public, or any bridge, tunnel, or powerplant.
SEC. 343. Section 387 of the Penal Code is amended to
read:
387. (a) Any corporation, limited liability company, or person
who is a manager with respect to a product, facility, equipment,
process, place of employment, or business practice, is guilty of a
public offense punishable by imprisonment in the county jail for a
term not exceeding one year, or by a fine not exceeding ten thousand
dollars ($10,000), or by both that fine and imprisonment; or by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 for 16 months, two, or three
years, or by a fine not exceeding twenty-five thousand dollars
($25,000); or by both that fine and imprisonment, but if the
defendant is a corporation or a limited liability company the fine
shall not exceed one million dollars ($1,000,000), if that
corporation, limited liability company, or person does all of the
following:
(1) Has actual knowledge of a serious concealed danger that is
subject to the regulatory authority of an appropriate agency and is
associated with that product or a component of that product or
business practice.
(2) Knowingly fails during the period ending 15 days after the
actual knowledge is acquired, or if there is imminent risk of great
bodily harm or death, immediately, to do both of the following:
(A) Inform the Division of Occupational Safety and Health in the
Department of Industrial Relations in writing, unless the
corporation, limited liability company, or manager has actual
knowledge that the division has been so informed.
Where the concealed danger reported pursuant to this paragraph is
subject to the regulatory authority of an agency other than the
Division of Occupational Safety and Health in the Department of
Industrial Relations, it shall be the responsibility of the Division
of Occupational Safety and Health in the Department of Industrial
Relations, within 24 hours of receipt of the information, to
telephonically notify the appropriate government agency of the
hazard, and promptly forward any written notification received.
(B) Warn its affected employees in writing, unless the
corporation, limited liability company, or manager has actual
knowledge that the employees have been so warned.
The requirement for disclosure is not applicable if the hazard is
abated within the time prescribed for reporting, unless the
appropriate regulatory agency nonetheless requires disclosure by
regulation.
Where the Division of Occupational Safety and Health in the
Department of Industrial Relations was not notified, but the
corporation, limited liability company, or manager reasonably and in
good faith believed that they were complying with the notification
requirements of this section by notifying another government agency,
as listed in paragraph (8) of subdivision (d), no penalties shall
apply.
(b) As used in this section:
(1) "Manager" means a person having both of the following:
(A) Management authority in or as a business entity.
(B) Significant responsibility for any aspect of a business that
includes actual authority for the safety of a product or business
practice or for the conduct of research or testing in connection with
a product or business practice.
(2) "Product" means an article of trade or commerce or other item
of merchandise that is a tangible or an intangible good, and includes
services.
(3) "Actual knowledge," used with respect to a serious concealed
danger, means has information that would convince a reasonable person
in the circumstances in which the manager is situated that the
serious concealed danger exists.
(4) "Serious concealed danger," used with respect to a product or
business practice, means that the normal or reasonably foreseeable
use of, or the exposure of an individual to, the product or business
practice creates a substantial probability of death, great bodily
harm, or serious exposure to an individual, and the danger is not
readily apparent to an individual who is likely to be exposed.
(5) "Great bodily harm" means a significant or substantial
physical injury.
(6) "Serious exposure" means any exposure to a hazardous
substance, when the exposure occurs as a result of an incident or
exposure over time and to a degree or in an amount sufficient to
create a substantial probability that death or great bodily harm in
the future would result from the exposure.
(7) "Warn its affected employees" means give sufficient
description of the serious concealed danger to all individuals
working for or in the business entity who are likely to be subject to
the serious concealed danger in the course of that work to make
those individuals aware of that danger.
(8) "Appropriate government agency" means an agency on the
following list that has regulatory authority with respect to the
product or business practice and serious concealed dangers of the
sort discovered:
(A) The Division of Occupational Safety and Health in the
Department of Industrial Relations.
(B) State Department of Health Services.
(C) Department of Agriculture.
(D) County departments of health.
(E) The United States Food and Drug Administration.
(F) The United States Environmental Protection Agency.
(G) The National Highway Traffic Safety Administration.
(H) The Federal Occupation Safety and Health Administration.
(I) The Nuclear Regulatory Commission.
(J) The Consumer Product Safety Commission.
(K) The Federal Aviation Administration.
(L) The Federal Mine Safety and Health Review Commission.
(c) Notification received pursuant to this section shall not be
used against any manager in any criminal case, except a prosecution
for perjury or for giving a false statement.
(d) No person who is a manager of a limited liability company
shall be personally liable for acts or omissions for which the
limited liability company is liable under subdivision (a) solely by
reason of being a manager of the limited liability company. A person
who is a manager of a limited liability company may be held liable
under subdivision (a) if that person is also a "manager" within the
meaning of paragraph (1) of subdivision (b).
SEC. 344. Section 399.5 of the Penal Code is amended to
read:
399.5. (a) Any person owning or having custody or control of a
dog trained to fight, attack, or kill is guilty of a felony or a
misdemeanor, punishable by imprisonment in the state prison
for two, three, or four years, or in a county jail not to
exceed one year, or imprisonment pursuant to subdivision (h) of
Section 1170 for two, three, or four years, or by a
fine not exceeding ten thousand dollars ($10,000), or by both the
fine and imprisonment, if, as a result of that person's failure to
exercise ordinary care, the dog bites a human being, on two separate
occasions or on one occasion causing substantial physical injury. No
person shall be criminally liable under this section, however, unless
he or she knew or reasonably should have known of the vicious or
dangerous nature of the dog, or if the victim failed to take all the
precautions that a reasonable person would ordinarily take in the
same situation.
(b) Following the conviction of an individual for a violation of
this section, the court shall hold a hearing to determine whether
conditions of the treatment or confinement of the dog or other
circumstances existing at the time of the bite or bites have changed
so as to remove the danger to other persons presented by the animal.
The court, after hearing, may make any order it deems appropriate to
prevent the recurrence of such an incident, including, but not
limited to, the removal of the animal from the area or its
destruction if necessary.
(c) Nothing in this section shall authorize the bringing of an
action pursuant to subdivision (a) based on a bite or bites inflicted
upon a trespasser, upon a person who has provoked the dog or
contributed to his or her own injuries, or by a dog used in military
or police work if the bite or bites occurred while the dog was
actually performing in that capacity. As used in this subdivision,
"provocation" includes, but is not limited to, situations where a dog
held on a leash by its owner or custodian reacts in a protective
manner to a person or persons who approach the owner or custodian in
a threatening manner.
(d) Nothing in this section shall be construed to affect the
liability of the owner of a dog under Section 399 or any other
provision of law.
(e) This section shall not apply to a veterinarian or an on-duty
animal control officer while in the performance of his or her duties,
or to a peace officer, as defined in Chapter 4.5 (commencing with
Section 830) of Title 3 of Part 2, if he or she is assigned to a
canine unit.
SEC. 345. Section 404.6 of the Penal Code is amended to
read:
404.6. (a) Every person who with the intent to cause a riot does
an act or engages in conduct that urges a riot, or urges others to
commit acts of force or violence, or the burning or destroying of
property, and at a time and place and under circumstances that
produce a clear and present and immediate danger of acts of force or
violence or the burning or destroying of property, is guilty of
incitement to riot.
(b) Incitement to riot is punishable by a fine not exceeding one
thousand dollars ($1,000), or by imprisonment in a county jail not
exceeding one year, or by both that fine and imprisonment.
(c) Every person who incites any riot in the state prison or a
county jail that results in serious bodily injury, shall be punished
by either imprisonment in a county jail for not more than one year,
or imprisonment in the state prison pursuant
to subdivision (h) of Section 1170 .
(d) The existence of any fact that would bring a person under
subdivision (c) shall be alleged in the complaint, information, or
indictment and either admitted by the defendant in open court, or
found to be true by the jury trying the issue of guilt, by the court
where guilt is established by a plea of guilty or nolo contendere, or
by trial by the court sitting without a jury.
SEC. 346. Section 405b of the Penal Code is amended to
read:
405b. Every person who participates in any lynching is punishable
by imprisonment in the state prison pursuant
to subdivision (h) of Section 1170 for two, three or four
years.
SEC. 347. Section 417 of the Penal Code is amended to
read:
417. (a) (1) Every person who, except in self-defense, in the
presence of any other person, draws or exhibits any deadly weapon
whatsoever, other than a firearm, in a rude, angry, or threatening
manner, or who in any manner, unlawfully uses a deadly weapon other
than a firearm in any fight or quarrel is guilty of a misdemeanor,
punishable by imprisonment in a county jail for not less than 30
days.
(2) Every person who, except in self-defense, in the presence of
any other person, draws or exhibits any firearm, whether loaded or
unloaded, in a rude, angry, or threatening manner, or who in any
manner, unlawfully uses a firearm in any fight or quarrel is
punishable as follows:
(A) If the violation occurs in a public place and the firearm is a
pistol, revolver, or other firearm capable of being concealed upon
the person, by imprisonment in a county jail for not less than three
months and not more than one year, by a fine not to exceed one
thousand dollars ($1,000), or by both that fine and imprisonment.
(B) In all cases other than that set forth in subparagraph (A), a
misdemeanor, punishable by imprisonment in a county jail for not less
than three months.
(b) Every person who, except in self-defense, in the presence of
any other person, draws or exhibits any loaded firearm in a rude,
angry, or threatening manner, or who, in any manner, unlawfully uses
any loaded firearm in any fight or quarrel upon the grounds of any
day care center, as defined in Section 1596.76 of the Health and
Safety Code, or any facility where programs, including day care
programs or recreational programs, are being conducted for persons
under 18 years of age, including programs conducted by a nonprofit
organization, during the hours in which the center or facility is
open for use, shall be punished by imprisonment in the state prison
for 16 months, or two or three years, or by imprisonment in a county
jail for not less than three months, nor more than one year.
(c) Every person who, in the immediate presence of a peace
officer, draws or exhibits any firearm, whether loaded or unloaded,
in a rude, angry, or threatening manner, and who knows, or reasonably
should know, by the officer's uniformed appearance or other action
of identification by the officer, that he or she is a peace officer
engaged in the performance of his or her duties, and that peace
officer is engaged in the performance of his or her duties, shall be
punished by imprisonment in a county jail for not less than nine
months and not to exceed one year, or in the state prison for 16
months, or two or three years .
(d) Except where a different penalty applies, every person who
violates this section when the other person is in the process of
cleaning up graffiti or vandalism is guilty of a misdemeanor,
punishable by imprisonment in a county jail for not less than three
months nor more than one year.
(e) As used in this section, "peace officer" means any person
designated as a peace officer pursuant to Chapter 4.5 (commencing
with Section 830) of Title 3 of Part 2.
(f) As used in this section, "public place" means any of the
following:
(1) A public place in an incorporated city.
(2) A public street in an incorporated city.
(3) A public street in an unincorporated area.
SEC. 348. Section 417.3 of the Penal Code is amended to
read:
417.3. Every person who, except in self-defense, in the presence
of any other person who is an occupant of a motor vehicle proceeding
on a public street or highway, draws or exhibits any firearm, whether
loaded or unloaded, in a threatening manner against another person
in such a way as to cause a reasonable person apprehension or fear of
bodily harm is guilty of a felony punishable by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 for 16 months or two or three years or by
imprisonment for 16 months or two or three years and a three thousand
dollar ($3,000) fine.
Nothing in this section shall preclude or prohibit prosecution
under any other statute.
SEC. 349. Section 417.6 of the Penal Code, as amended
by Section 2 of Chapter 478 of the Statutes of 2000, is amended to
read:
417.6. (a) If, in the commission of a violation of Section 417 or
417.8, serious bodily injury is intentionally inflicted by the
person drawing or exhibiting the firearm or deadly weapon, the
offense shall be punished by imprisonment in the county jail not
exceeding one year or by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 .
(b) As used in this section, "serious bodily injury" means a
serious impairment of physical condition, including, but not limited
to, the following: loss of consciousness; concussion; bone fracture;
protracted loss or impairment of function of any bodily member or
organ; a wound requiring extensive suturing; and serious
disfigurement.
(c) When a person is convicted of a violation of Section 417 or
417.8 and the deadly weapon or firearm used by the person is owned by
that person, the court shall order that the weapon or firearm be
deemed a nuisance and disposed of in the manner provided by Section
12028.
SEC. 350. Section 417.6 of the Penal Code, as amended
by Section 57 of Chapter 178 of the Statutes of 2010, is amended to
read:
417.6. (a) If, in the commission of a violation of Section 417 or
417.8, serious bodily injury is intentionally inflicted by the
person drawing or exhibiting the firearm or deadly weapon, the
offense shall be punished by imprisonment in the county jail not
exceeding one year or by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 .
(b) As used in this section, "serious bodily injury" means a
serious impairment of physical condition, including, but not limited
to, the following: loss of consciousness; concussion; bone fracture;
protracted loss or impairment of function of any bodily member or
organ; a wound requiring extensive suturing; and serious
disfigurement.
(c) When a person is convicted of a violation of Section 417 or
417.8 and the deadly weapon or firearm used by the person is owned by
that person, the court shall order that the weapon or firearm be
deemed a nuisance and disposed of in the manner provided by Sections
18000 and 18005.
SEC. 351. Section 422 of the Penal Code is amended to
read:
422. Any person who willfully threatens to commit a crime which
will result in death or great bodily injury to another person, with
the specific intent that the statement, made verbally, in writing, or
by means of an electronic communication device, is to be taken as a
threat, even if there is no intent of actually carrying it out,
which, on its face and under the circumstances in which it is made,
is so unequivocal, unconditional, immediate, and specific as to
convey to the person threatened, a gravity of purpose and an
immediate prospect of execution of the threat, and thereby causes
that person reasonably to be in sustained fear for his or her own
safety or for his or her immediate family's safety, shall be punished
by imprisonment in the county jail not to exceed one year, or by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 .
For the purposes of this section, "immediate family" means any
spouse, whether by marriage or not, parent, child, any person related
by consanguinity or affinity within the second degree, or any other
person who regularly resides in the household, or who, within the
prior six months, regularly resided in the household.
"Electronic communication device" includes, but is not limited to,
telephones, cellular telephones, computers, video recorders, fax
machines, or pagers. "Electronic communication" has the same meaning
as the term defined in Subsection 12 of Section 2510 of Title 18 of
the United States Code.
SEC. 352. Section 422.7 of the Penal Code is amended to
read:
422.7. Except in the case of a person punished under Section
422.6, any hate crime that is not made punishable by imprisonment in
the state prison shall be punishable by imprisonment in the
state prison or in a county jail not to exceed one year,
or by imprisonment pursuant to subdivision (h) of Section 1170,
or by a fine not to exceed ten thousand dollars ($10,000), or
by both that imprisonment and fine, if the crime is committed against
the person or property of another for the purpose of intimidating or
interfering with that other person's free exercise or enjoyment of
any right secured to him or her by the Constitution or laws of this
state or by the Constitution or laws of the United States under any
of the following circumstances, which shall be charged in the
accusatory pleading:
(a) The crime against the person of another either includes the
present ability to commit a violent injury or causes actual
physical injury.
(b) The crime against property causes damage in excess of nine
hundred fifty dollars ($950).
(c) The person charged with a crime under this section has been
convicted previously of a violation of subdivision (a) or (b) of
Section 422.6, or has been convicted previously of a conspiracy to
commit a crime described in subdivision (a) or (b) of Section 422.6.
SEC. 353. Section 453 of the Penal Code is amended to
read:
453. (a) Every person who possesses, manufactures, or disposes of
any flammable, or combustible material or substance, or any
incendiary device in an arrangement or preparation, with intent to
willfully and maliciously use this material, substance, or device to
set fire to or burn any structure, forest land, or property, shall be
punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 , or in a county
jail, not exceeding one year.
(b) For the purposes of this section:
(1) "Disposes of" means to give, give away, loan, offer, offer for
sale, sell, or transfer.
(2) "Incendiary device" means a device that is constructed or
designed to start an incendiary fire by remote, delayed, or instant
means, but no device commercially manufactured primarily for the
purpose of illumination shall be deemed to be an incendiary device
for the purposes of this section.
(3) "Incendiary fire" means a fire that is deliberately ignited
under circumstances in which a person knows that the fire should not
be ignited.
(c) Subdivision (a) does not prohibit the authorized use or
possession of any material, substance or device described therein by
a member of the armed forces of the United States or by firemen,
police officers, peace officers, or law enforcement officers
authorized by the properly constituted authorities; nor does that
subdivision prohibit the use or possession of any material, substance
or device described therein when used solely for scientific research
or educational purposes, or for disposal of brush under permit as
provided for in Section 4494 of the Public Resources Code, or for any
other lawful burning. Subdivision (a) does not prohibit the
manufacture or disposal of an incendiary device for the parties or
purposes described in this subdivision.
SEC. 354. Section 455 of the Penal Code is amended to
read:
455. Any person who willfully and maliciously attempts to set
fire to or attempts to burn or to aid, counsel or procure the burning
of any structure, forest land or property, or who commits any act
preliminary thereto, or in furtherance thereof, is punishable by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 for 16 months, two or three
years.
The placing or distributing of any flammable, explosive or
combustible material or substance, or any device in or about any
structure, forest land or property in an arrangement or preparation
with intent to eventually willfully and maliciously set fire to or
burn same, or to procure the setting fire to or burning of the same
shall, for the purposes of this act constitute an attempt to burn
such structure, forest land or property.
SEC. 355. Section 461 of the Penal Code is amended to
read:
461. Burglary is punishable as follows:
(a) Burglary in the first degree: by imprisonment in the state
prison for two, four, or six years.
(b) Burglary in the second degree: by imprisonment in the county
jail not exceeding one year or in the state prison
imprisonment pursuant to subdivision (h) of Section 1170
.
SEC. 356. Section 463 of the Penal Code is amended to
read:
463. (a) Every person who violates Section 459, punishable as a
second-degree burglary pursuant to subdivision (b) of Section 461,
during and within an affected county in a "state of emergency" or a
"local emergency" resulting from an earthquake, fire, flood, riot, or
other natural or manmade disaster shall be guilty of the crime of
looting, punishable by imprisonment in a county jail for one year or
in the state prison pursuant to subdivision
(h) of Section 1170 . Any person convicted under this
subdivision who is eligible for probation and who is granted
probation shall, as a condition thereof, be confined in a county jail
for at least 180 days, except that the court may, in the case where
the interest of justice would best be served, reduce or eliminate
that mandatory jail sentence, if the court specifies on the record
and enters into the minutes the circumstances indicating that the
interest of justice would best be served by that disposition. In
addition to whatever custody is ordered, the court, in its
discretion, may require any person granted probation following
conviction under this subdivision to serve up to 240 hours of
community service in any program deemed appropriate by the court,
including any program created to rebuild the community.
For purposes of this section, the fact that the structure entered
has been damaged by the earthquake, fire, flood, or other natural or
manmade disaster shall not, in and of itself, preclude conviction.
(b) Every person who commits the crime of grand theft, as defined
in Section 487, except grand theft of a firearm, during and within an
affected county in a "state of emergency" or a "local emergency"
resulting from an earthquake, fire, flood, riot, or other natural or
unnatural disaster shall be guilty of the crime of looting,
punishable by imprisonment in a county jail for one year or
in the state prison pursuant to subdivision (h) of
Section 1170 . Every person who commits the crime of grand
theft of a firearm, as defined in Section 487, during and within an
affected county in a "state of emergency" or a "local emergency"
resulting from an earthquake, fire, flood, riot, or other natural or
unnatural disaster shall be guilty of the crime of looting,
punishable by imprisonment in the state prison, as set forth in
subdivision (a) of Section 489. Any person convicted under this
subdivision who is eligible for probation and who is granted
probation shall, as a condition thereof, be confined in a county jail
for at least 180 days, except that the court may, in the case where
the interest of justice would best be served, reduce or eliminate
that mandatory jail sentence, if the court specifies on the record
and enters into the minutes the circumstances indicating that the
interest of justice would best be served by that disposition. In
addition to whatever custody is ordered, the court, in its
discretion, may require any person granted probation following
conviction under this subdivision to serve up to 160 hours of
community service in any program deemed appropriate by the court,
including any program created to rebuild the community.
(c) Every person who commits the crime of petty theft, as defined
in Section 488, during and within an affected county in a "state of
emergency" or a "local emergency" resulting from an earthquake, fire,
flood, riot, or other natural or manmade disaster shall be guilty of
a misdemeanor, punishable by imprisonment in a county jail for six
months. Any person convicted under this subdivision who is eligible
for probation and who is granted probation shall, as a condition
thereof, be confined in a county jail for at least 90 days, except
that the court may, in the case where the interest of justice would
best be served, reduce or eliminate that mandatory minimum jail
sentence, if the court specifies on the record and enters into the
minutes the circumstances indicating that the interest of justice
would best be served by that disposition. In addition to whatever
custody is ordered, the court, in its discretion, may require any
person granted probation following conviction under this subdivision
to serve up to 80 hours of community service in any program deemed
appropriate by the court, including any program created to rebuild
the community.
(d) (1) For purposes of this section, "state of emergency" means
conditions which, by reason of their magnitude, are, or are likely to
be, beyond the control of the services, personnel, equipment, and
facilities of any single county, city and county, or city and require
the combined forces of a mutual aid region or regions to combat.
(2) For purposes of this section, "local emergency" means
conditions which, by reason of their magnitude, are, or are likely to
be, beyond the control of the services, personnel, equipment, and
facilities of any single county, city and county, or city and require
the combined forces of a mutual aid region or regions to combat.
(3) For purposes of this section, a "state of emergency" shall
exist from the time of the proclamation of the condition of the
emergency until terminated pursuant to Section 8629 of the Government
Code. For purposes of this section only, a "local emergency" shall
exist from the time of the proclamation of the condition of the
emergency by the local governing body until terminated pursuant to
Section 8630 of the Government Code.
(4) Consensual entry into a commercial structure with the intent
to commit a violation of Section 470, 476, 476a, 484f, or 484g of the
Penal Code, shall not be charged as a violation under this section.
SEC. 357. Section 464 of the Penal Code is amended to
read:
464. Any person who, with intent to commit crime, enters, either
by day or by night, any building, whether inhabited or not, and opens
or attempts to open any vault, safe, or other secure place by use of
acetylene torch or electric arc, burning bar, thermal lance, oxygen
lance, or any other similar device capable of burning through steel,
concrete, or any other solid substance, or by use of nitroglycerine,
dynamite, gunpowder, or any other explosive, is guilty of a felony
and, upon conviction, shall be punished by imprisonment in
the state prison pursuant to subdivision (h) of
Section 1170 for a term of three, five, or seven years.
SEC. 358. Section 470a of the Penal Code is amended to
read:
470a. Every person who alters, falsifies, forges, duplicates or
in any manner reproduces or counterfeits any driver's license or
identification card issued by a governmental agency with the intent
that such driver's license or identification card be used to
facilitate the commission of any forgery, is punishable by
imprisonment in the state prison, or by imprisonment in the
a county jail for not more than one year ,
or by imprisonment pursuant to subdivision (h) of Section 1170
.
SEC. 359. Section 470b of the Penal Code is amended to
read:
470b. Every person who displays or causes or permits to be
displayed or has in his or her possession any driver's
license or identification card of the type enumerated in Section 470a
with the intent that such the driver's
license or identification card be used to facilitate the commission
of any forgery, is punishable by imprisonment in the state
prison, or by imprisonment in the a county jail
for not more than one year , or by imprisonment pursuant to
subdivision (h) of Section 1170 .
SEC. 360. Section 473 of the Penal Code is amended to
read:
473. Forgery is punishable by imprisonment in the state
prison, or by imprisonment in the a county jail
for not more than one year , or by imprisonment pursuant to
subdivision (h) of Section 1170 .
SEC. 361. Section 474 of the Penal Code is amended to
read:
474. Every person who knowingly and willfully sends by telegraph
or telephone to any person a false or forged message, purporting to
be from a telegraph or telephone office, or from any other person, or
who willfully delivers or causes to be delivered to any person any
such message falsely purporting to have been received by telegraph or
telephone, or who furnishes, or conspires to furnish, or causes to
be furnished to any agent, operator, or employee, to be sent by
telegraph or telephone, or to be delivered, any such message, knowing
the same to be false or forged, with the intent to deceive, injure,
or defraud another, is punishable by imprisonment in the
state prison, or in the a county jail not
exceeding one year, or by imprisonment pursuant to subdivision
(h) of Section 1170, or by a fine not exceeding ten thousand
dollars ($10,000), or by both such that
fine and imprisonment.
SEC. 362. Section 478 of the Penal Code is amended to
read:
478. Counterfeiting is punishable by imprisonment in the
state prison pursuant to subdivision (h) of Section
1170 for two, three or four years.
SEC. 363. Section 479 of the Penal Code is amended to
read:
479. Every person who has in his possession, or receives for any
other person, any counterfeit gold or silver coin of the species
current in this state, or any counterfeit gold dust, gold or silver
bullion or bars, lumps, pieces or nuggets, with the intention to
sell, utter, put off or pass the same, or permits, causes or procures
the same to be sold, uttered or passed, with intention to defraud
any person, knowing the same to be counterfeit, is punishable by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 for two, three or four years.
SEC. 364. Section 480 of the Penal Code is amended to
read:
480. (a) Every person who makes, or knowingly has in his or her
possession any die, plate, or any apparatus, paper, metal, machine,
or other thing whatever, made use of in counterfeiting coin current
in this state, or in counterfeiting gold dust, gold or silver bars,
bullion, lumps, pieces, or nuggets, or in counterfeiting bank notes
or bills, is punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for
two, three, or four years; and all dies, plates, apparatus, papers,
metals, or machines intended for the purpose aforesaid, must be
destroyed.
(b) (1) If the counterfeiting apparatus or machine used to violate
this section is a computer, computer system, or computer network,
the apparatus or machine shall be disposed of pursuant to Section
502.01.
(2) For the purposes of this section, "computer system" and
"computer network" have the same meaning as that specified in Section
502. The terms "computer, computer system, or computer network"
include any software or data residing on the computer, computer
system, or computer network used in a violation of this section.
SEC. 365. Section 481 of the Penal Code is amended to
read:
481. Every person who counterfeits, forges, or alters any ticket,
check, order, coupon, receipt for fare, or pass, issued by any
railroad or steamship company, or by any lessee or manager thereof,
designed to entitle the holder to ride in the cars or vessels of such
company, or who utters, publishes, or puts into circulation, any
such counterfeit or altered ticket, check, or order, coupon, receipt
for fare, or pass, with intent to defraud any such railroad or
steamship company, or any lessee thereof, or any other person, is
punishable by imprisonment in the state prison, or in the
a county jail, not exceeding one year, or by
imprisonment pursuant to subdivision (h) of Section
1170, or by fine not exceeding one thousand dollars, or by both
such that imprisonment and fine.
SEC. 366. Section 483.5 of the Penal Code is amended to
read:
483.5. (a) No deceptive identification document shall be
manufactured, sold, offered for sale, furnished, offered to be
furnished, transported, offered to be transported, or imported or
offered to be imported into this state unless there is diagonally
across the face of the document, in not less than 14-point type and
printed conspicuously on the document in permanent ink, the following
statement:
NOT A GOVERNMENT DOCUMENT
and, also printed conspicuously on the document, the name of the
manufacturer.
(b) No document-making device may be possessed with the intent
that the device will be used to manufacture, alter, or authenticate a
deceptive identification document.
(c) As used in this section, "deceptive identification document"
means any document not issued by a governmental agency of this state,
another state, the federal government, a foreign government, a
political subdivision of a foreign government, an international
government, or an international quasi-governmental organization,
which purports to be, or which might deceive an ordinary reasonable
person into believing that it is, a document issued by such an
agency, including, but not limited to, a driver's license,
identification card, birth certificate, passport, or social security
card.
(d) As used in this section, "document-making device" includes,
but is not limited to, an implement, tool, equipment, impression,
laminate, card, template, computer file, computer disk, electronic
device, hologram, laminate machine or computer hardware or software.
(e) Any person who violates or proposes to violate this section
may be enjoined by any court of competent jurisdiction. Actions for
injunction under this section may be prosecuted by the Attorney
General, any district attorney, or any city attorney prosecuting on
behalf of the people of the State of California under Section 41803.5
of the Government Code in this state in the name of the people of
the State of California upon their own complaint or upon the
complaint of any person.
(f) Any person who violates the provisions of subdivision (a) who
knows or reasonably should know that the deceptive identification
document will be used for fraudulent purposes is guilty of a crime,
and upon conviction therefor, shall be punished by imprisonment in
the a county jail not to exceed one
year, or by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 . Any person who
violates the provisions of subdivision (b) is guilty of a misdemeanor
punishable by imprisonment in a county jail not exceeding one year,
or by a fine not exceeding one thousand dollars ($1,000), or by both
imprisonment and a fine. Any document-making device may be seized by
law enforcement and shall be forfeited to law enforcement or
destroyed by order of the court upon a finding that the device was
intended to be used to manufacture, alter, or authenticate a
deceptive identification document. The court may make such a finding
in the absence of a defendant for whom a bench warrant has been
issued by the court.
SEC. 367. Section 484b of the Penal Code is amended to
read:
484b. Any person who receives money for the purpose of obtaining
or paying for services, labor, materials or equipment and willfully
fails to apply such money for such purpose by either willfully
failing to complete the improvements for which funds were provided or
willfully failing to pay for services, labor, materials or equipment
provided incident to such construction, and wrongfully diverts the
funds to a use other than that for which the funds were received,
shall be guilty of a public offense and shall be punishable by a fine
not exceeding ten thousand dollars ($10,000), or by imprisonment in
the state prison, or in a county jail not
exceeding one year, or by imprisonment pursuant to
subdivision (h) of Section 1170, or by both that fine and that
imprisonment if the amount diverted is in excess of two thousand
three hundred fifty dollars ($2,350). If the amount diverted is less
than or equal to two thousand three hundred fifty dollars ($2,350),
the person shall be guilty of a misdemeanor.
SEC. 368. Section 484i of the Penal Code is amended to
read:
484i. (a) Every person who possesses an incomplete access card,
with intent to complete it without the consent of the issuer, is
guilty of a misdemeanor.
(b) Every person who, with the intent to defraud, makes, alters,
varies, changes, or modifies access card account information on any
part of an access card, including information encoded in a magnetic
stripe or other medium on the access card not directly readable by
the human eye, or who authorizes or consents to alteration, variance,
change, or modification of access card account information by
another, in a manner that causes transactions initiated by that
access card to be charged or billed to a person other than the
cardholder to whom the access card was issued, is guilty of forgery.
(c) Every person who designs, makes, possesses, or traffics in
card making equipment or incomplete access cards with the intent that
the equipment or cards be used to make counterfeit access cards, is
punishable by imprisonment in a county jail for not more than one
year, or by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 .
SEC. 369. Section 487b of the Penal Code is amended to
read:
487b. Every person who converts real estate of the value of two
hundred fifty dollars ($250) or more into personal property by
severance from the realty of another, and with felonious intent to do
so, steals, takes, and carries away that property is guilty of grand
theft and is punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 .
SEC. 370. Section 487d of the Penal Code is amended to
read:
487d. Every person who feloniously steals, takes, and carries
away, or attempts to take, steal, and carry from any mining claim,
tunnel, sluice, undercurrent, riffle box, or sulfurate machine,
another's gold dust, amalgam, or quicksilver is guilty of grand theft
and is punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 .
SEC. 371. Section 489 of the Penal Code is amended to
read:
489. Grand theft is punishable as follows:
(a) When the grand theft involves the theft of a firearm, by
imprisonment in the state prison for 16 months, 2, or 3 years.
(b) In all other cases, by imprisonment in a county jail not
exceeding one year or in the state prison
pursuant to subdivision (h) of Section 1170 .
SEC. 372. Section 496 of the Penal Code is amended to
read:
496. (a) Every person who buys or receives any property that has
been stolen or that has been obtained in any manner constituting
theft or extortion, knowing the property to be so stolen or obtained,
or who conceals, sells, withholds, or aids in concealing, selling,
or withholding any property from the owner, knowing the property to
be so stolen or obtained, shall be punished by imprisonment in
a state prison, or in a county jail for not more
than one year , or imprisonment pursuant to subdivision (h) of
Section 1170 . However, if the district attorney or the grand
jury determines that this action would be in the interests of
justice, the district attorney or the grand jury, as the case may be,
may, if the value of the property does not exceed nine hundred fifty
dollars ($950), specify in the accusatory pleading that the offense
shall be a misdemeanor, punishable only by imprisonment in a county
jail not exceeding one year.
A principal in the actual theft of the property may be convicted
pursuant to this section. However, no person may be convicted both
pursuant to this section and of the theft of the same property.
(b) Every swap meet vendor, as defined in Section 21661 of the
Business and Professions Code, and every person whose principal
business is dealing in, or collecting, merchandise or personal
property, and every agent, employee, or representative of that
person, who buys or receives any property of a value in excess of
nine hundred fifty dollars ($950) that has been stolen or obtained in
any manner constituting theft or extortion, under circumstances that
should cause the person, agent, employee, or representative to make
reasonable inquiry to ascertain that the person from whom the
property was bought or received had the legal right to sell or
deliver it, without making a reasonable inquiry, shall be punished by
imprisonment in a state prison, or in a county
jail for not more than one year , or imprisonment pursuant to
subdivision (h) of Section 1170 .
Every swap meet vendor, as defined in Section 21661 of the
Business and Professions Code, and every person whose principal
business is dealing in, or collecting, merchandise or personal
property, and every agent, employee, or representative of that
person, who buys or receives any property of a value of nine hundred
fifty dollars ($950) or less that has been stolen or obtained in any
manner constituting theft or extortion, under circumstances that
should cause the person, agent, employee, or representative to make
reasonable inquiry to ascertain that the person from whom the
property was bought or received had the legal right to sell or
deliver it, without making a reasonable inquiry, shall be guilty of a
misdemeanor.
(c) Any person who has been injured by a violation of subdivision
(a) or (b) may bring an action for three times the amount of actual
damages, if any, sustained by the plaintiff, costs of suit, and
reasonable attorney's fees.
(d) Notwithstanding Section 664, any attempt to commit any act
prohibited by this section, except an offense specified in the
accusatory pleading as a misdemeanor, is punishable by imprisonment
in the state prison, or in a county jail for not
more than one year , or by imprisonment pursuant to subdivision
(h) of Section 1170 .
SEC. 373. Section 496a of the Penal Code is amended to
read:
496a. (a) Every person who, being a dealer in or collector of
junk, metals or secondhand materials, or the agent, employee, or
representative of such dealer or collector, buys or receives any
wire, cable, copper, lead, solder, mercury, iron or brass which he
or she knows or reasonably should know is ordinarily used
by or ordinarily belongs to a railroad or other transportation,
telephone, telegraph, gas, water or electric light company or county,
city, city and county or other political subdivision of this state
engaged in furnishing public utility service without using due
diligence to ascertain that the person selling or delivering the same
has a legal right to do so, is guilty of criminally receiving
such that property, and is punishable,
by imprisonment in a state prison, or in a county
jail for not more than one year, or by imprisonment pursuant to
subdivision (h) of Section 1170, or by a fine of
not more than two hundred fifty
dollars ($250), or by both such that
fine and imprisonment.
(b) Any person buying or receiving material pursuant to
subdivision (a) shall obtain evidence of his or her
identity from the seller including, but not limited to, such
that person's full name, signature, address,
driver's license number, vehicle license number, and the license
number of the vehicle delivering the material.
The record of the transaction shall include an appropriate
description of the material purchased and such record shall be
maintained pursuant to Section 21607 of the Business and Professions
Code.
SEC. 374. Section 496d of the Penal Code is amended to
read:
496d. (a) Every person who buys or receives any motor vehicle, as
defined in Section 415 of the Vehicle Code, any trailer, as defined
in Section 630 of the Vehicle Code, any special construction
equipment, as defined in Section 565 of the Vehicle Code, or any
vessel, as defined in Section 21 of the Harbors and Navigation Code,
that has been stolen or that has been obtained in any manner
constituting theft or extortion, knowing the property to be stolen or
obtained, or who conceals, sells, withholds, or aids in concealing,
selling, or withholding any motor vehicle, trailer, special
construction equipment, or vessel from the owner, knowing the
property to be so stolen or obtained, shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 for 16 months or two or three
years or a fine of not more than ten thousand dollars ($10,000), or
both, or by imprisonment in a county jail not to exceed one year or a
fine of not more than one thousand dollars ($1,000), or both.
(b) For the purposes of this section, the terms "special
construction equipment" and "vessel" are limited to motorized
vehicles and vessels.
SEC. 375. Section 499c of the Penal Code is amended to
read:
499c. (a) As used in this section:
(1) "Access" means to approach, a way or means of approaching,
nearing, admittance to, including to instruct, communicate with,
store information in, or retrieve information from a computer system
or computer network.
(2) "Article" means any object, material, device, or substance or
copy thereof, including any writing, record, recording, drawing,
sample, specimen, prototype, model, photograph, micro-organism,
blueprint, map, or tangible representation of a computer program or
information, including both human and computer readable information
and information while in transit.
(3) "Benefit" means gain or advantage, or anything regarded by the
beneficiary as gain or advantage, including benefit to any other
person or entity in whose welfare he or she is interested.
(4) "Computer system" means a machine or collection of machines,
one or more of which contain computer programs and information, that
performs functions, including, but not limited to, logic, arithmetic,
information storage and retrieval, communications, and control.
(5) "Computer network" means an interconnection of two or more
computer systems.
(6) "Computer program" means an ordered set of instructions or
statements, and related information that, when automatically executed
in actual or modified form in a computer system, causes it to
perform specified functions.
(7) "Copy" means any facsimile, replica, photograph or other
reproduction of an article, and any note, drawing or sketch made of
or from an article.
(8) "Representing" means describing, depicting, containing,
constituting, reflecting or recording.
(9) "Trade secret" means information, including a formula,
pattern, compilation, program, device, method, technique, or process,
that:
(A) Derives independent economic value, actual or potential, from
not being generally known to the public or to other persons who can
obtain economic value from its disclosure or use; and
(B) Is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
(b) Every person is guilty of theft who, with intent to deprive or
withhold the control of a trade secret from its owner, or with an
intent to appropriate a trade secret to his or her own use or to the
use of another, does any of the following:
(1) Steals, takes, carries away, or uses without authorization, a
trade secret.
(2) Fraudulently appropriates any article representing a trade
secret entrusted to him or her.
(3) Having unlawfully obtained access to the article, without
authority makes or causes to be made a copy of any article
representing a trade secret.
(4) Having obtained access to the article through a relationship
of trust and confidence, without authority and in breach of the
obligations created by that relationship, makes or causes to be made,
directly from and in the presence of the article, a copy of any
article representing a trade secret.
(c) Every person who promises, offers or gives, or conspires to
promise or offer to give, to any present or former agent, employee or
servant of another, a benefit as an inducement, bribe or reward for
conveying, delivering or otherwise making available an article
representing a trade secret owned by his or her present or former
principal, employer or master, to any person not authorized by the
owner to receive or acquire the trade secret and every present or
former agent, employee, or servant, who solicits, accepts, receives
or takes a benefit as an inducement, bribe or reward for conveying,
delivering or otherwise making available an article representing a
trade secret owned by his or her present or former principal,
employer or master, to any person not authorized by the owner to
receive or acquire the trade secret, shall be punished by
imprisonment in the state prison, or in a county
jail not exceeding one year, or by imprisonment pursuant to
subdivision (h) of Section 1170, or by a fine not exceeding
five thousand dollars ($5,000), or by both that fine and
imprisonment.
(d) In a prosecution for a violation of this section, it shall be
no defense that the person returned or intended to return the
article.
SEC. 376. Section 499d of the Penal Code is amended to
read:
499d. Any person who operates or takes an aircraft not his own,
without the consent of the owner thereof, and with intent to either
permanently or temporarily deprive the owner thereof of his title to
or possession of such vehicle, whether with or without intent to
steal the same, or any person who is a party or accessory to or an
accomplice in any operation or unauthorized taking or stealing is
guilty of a felony, and upon conviction thereof shall be punished by
imprisonment in the state prison, or in the a
county jail for not more than one year or by imprisonment
pursuant to subdivision (h) of Section 1170, or by
a fine of not more than ten thousand dollars ($10,000) or by both
such that fine and imprisonment.
SEC. 377. Section 500 of the Penal Code is amended to
read:
500. (a) Any person who receives money for the actual or
purported purpose of transmitting the same or its equivalent to
foreign countries as specified in Section 1800.5 of the Financial
Code who fails to do at least one of the following acts unless
otherwise instructed by the customer is guilty of a misdemeanor or
felony as set forth in subdivision (b):
(1) Forward the money as represented to the customer within 10
days of receipt of the funds.
(2) Give instructions within 10 days of receipt of the customer's
funds, committing equivalent funds to the person designated by the
customer.
(3) Refund to the customer any money not forwarded as represented
within 10 days of the customer's written request for a refund
pursuant to subdivision (a) of Section 1810.5 of the Financial Code.
(b) (1) If the total value of the funds received from the customer
is less than nine hundred fifty dollars ($950), the offense set
forth in subdivision (a) is punishable by imprisonment in a county
jail not exceeding one year or by a fine not exceeding one thousand
dollars ($1,000), or by both that imprisonment and fine.
(2) If the total value of the money received from the customer is
nine hundred fifty dollars ($950) or more, or if the total value of
all moneys received by the person from different customers is nine
hundred fifty dollars ($950) or more, and the receipts were part of a
common scheme or plan, the offense set forth in subdivision (a) is
punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for 16 months,
2, or 3 years, by a fine not exceeding ten thousand dollars
($10,000), or by both that imprisonment and fine.
SEC. 378. Section 502 of the Penal Code is amended to
read:
502. (a) It is the intent of the Legislature in enacting this
section to expand the degree of protection afforded to individuals,
businesses, and governmental agencies from tampering, interference,
damage, and unauthorized access to lawfully created computer data and
computer systems. The Legislature finds and declares that the
proliferation of computer technology has resulted in a concomitant
proliferation of computer crime and other forms of unauthorized
access to computers, computer systems, and computer data.
The Legislature further finds and declares that protection of the
integrity of all types and forms of lawfully created computers,
computer systems, and computer data is vital to the protection of the
privacy of individuals as well as to the well-being of financial
institutions, business concerns, governmental agencies, and others
within this state that lawfully utilize those computers, computer
systems, and data.
(b) For the purposes of this section, the following terms have the
following meanings:
(1) "Access" means to gain entry to, instruct, or communicate with
the logical, arithmetical, or memory function resources of a
computer, computer system, or computer network.
(2) "Computer network" means any system that provides
communications between one or more computer systems and input/output
devices including, but not limited to, display terminals and printers
connected by telecommunication facilities.
(3) "Computer program or software" means a set of instructions or
statements, and related data, that when executed in actual or
modified form, cause a computer, computer system, or computer network
to perform specified functions.
(4) "Computer services" includes, but is not limited to, computer
time, data processing, or storage functions, or other uses of a
computer, computer system, or computer network.
(5) "Computer system" means a device or collection of devices,
including support devices and excluding calculators that are not
programmable and capable of being used in conjunction with external
files, one or more of which contain computer programs, electronic
instructions, input data, and output data, that performs functions
including, but not limited to, logic, arithmetic, data storage and
retrieval, communication, and control.
(6) "Data" means a representation of information, knowledge,
facts, concepts, computer software, computer programs or
instructions. Data may be in any form, in storage media, or as stored
in the memory of the computer or in transit or presented on a
display device.
(7) "Supporting documentation" includes, but is not limited to,
all information, in any form, pertaining to the design, construction,
classification, implementation, use, or modification of a computer,
computer system, computer network, computer program, or computer
software, which information is not generally available to the public
and is necessary for the operation of a computer, computer system,
computer network, computer program, or computer software.
(8) "Injury" means any alteration, deletion, damage, or
destruction of a computer system, computer network, computer program,
or data caused by the access, or the denial of access to legitimate
users of a computer system, network, or program.
(9) "Victim expenditure" means any expenditure reasonably and
necessarily incurred by the owner or lessee to verify that a computer
system, computer network, computer program, or data was or was not
altered, deleted, damaged, or destroyed by the access.
(10) "Computer contaminant" means any set of computer instructions
that are designed to modify, damage, destroy, record, or transmit
information within a computer, computer system, or computer network
without the intent or permission of the owner of the information.
They include, but are not limited to, a group of computer
instructions commonly called viruses or worms, that are
self-replicating or self-propagating and are designed to contaminate
other computer programs or computer data, consume computer resources,
modify, destroy, record, or transmit data, or in some other fashion
usurp the normal operation of the computer, computer system, or
computer network.
(11) "Internet domain name" means a globally unique, hierarchical
reference to an Internet host or service, assigned through
centralized Internet naming authorities, comprising a series of
character strings separated by periods, with the rightmost character
string specifying the top of the hierarchy.
(c) Except as provided in subdivision (h), any person who commits
any of the following acts is guilty of a public offense:
(1) Knowingly accesses and without permission alters, damages,
deletes, destroys, or otherwise uses any data, computer, computer
system, or computer network in order to either (A) devise or execute
any scheme or artifice to defraud, deceive, or extort, or (B)
wrongfully control or obtain money, property, or data.
(2) Knowingly accesses and without permission takes, copies, or
makes use of any data from a computer, computer system, or computer
network, or takes or copies any supporting documentation, whether
existing or residing internal or external to a computer, computer
system, or computer network.
(3) Knowingly and without permission uses or causes to be used
computer services.
(4) Knowingly accesses and without permission adds, alters,
damages, deletes, or destroys any data, computer software, or
computer programs which reside or exist internal or external to a
computer, computer system, or computer network.
(5) Knowingly and without permission disrupts or causes the
disruption of computer services or denies or causes the denial of
computer services to an authorized user of a computer, computer
system, or computer network.
(6) Knowingly and without permission provides or assists in
providing a means of accessing a computer, computer system, or
computer network in violation of this section.
(7) Knowingly and without permission accesses or causes to be
accessed any computer, computer system, or computer network.
(8) Knowingly introduces any computer contaminant into any
computer, computer system, or computer network.
(9) Knowingly and without permission uses the Internet domain name
of another individual, corporation, or entity in connection with the
sending of one or more electronic mail messages, and thereby damages
or causes damage to a computer, computer system, or computer
network.
(d) (1) Any person who violates any of the provisions of paragraph
(1), (2), (4), or (5) of subdivision (c) is punishable by a fine not
exceeding ten thousand dollars ($10,000), or by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 for 16 months, or two or three years, or by
both that fine and imprisonment, or by a fine not exceeding five
thousand dollars ($5,000), or by imprisonment in a county jail not
exceeding one year, or by both that fine and imprisonment.
(2) Any person who violates paragraph (3) of subdivision (c) is
punishable as follows:
(A) For the first violation that does not result in injury, and
where the value of the computer services used does not exceed nine
hundred fifty dollars ($950), by a fine not exceeding five thousand
dollars ($5,000), or by imprisonment in a county jail not exceeding
one year, or by both that fine and imprisonment.
(B) For any violation that results in a victim expenditure in an
amount greater than five thousand dollars ($5,000) or in an injury,
or if the value of the computer services used exceeds nine hundred
fifty dollars ($950), or for any second or subsequent violation, by a
fine not exceeding ten thousand dollars ($10,000), or by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 for 16 months, or two or three
years, or by both that fine and imprisonment, or by a fine not
exceeding five thousand dollars ($5,000), or by imprisonment in a
county jail not exceeding one year, or by both that fine and
imprisonment.
(3) Any person who violates paragraph (6) or (7) of subdivision
(c) is punishable as follows:
(A) For a first violation that does not result in injury, an
infraction punishable by a fine not exceeding one thousand dollars
($1,000).
(B) For any violation that results in a victim expenditure in an
amount not greater than five thousand dollars ($5,000), or for a
second or subsequent violation, by a fine not exceeding five thousand
dollars ($5,000), or by imprisonment in a county jail not exceeding
one year, or by both that fine and imprisonment.
(C) For any violation that results in a victim expenditure in an
amount greater than five thousand dollars ($5,000), by a fine not
exceeding ten thousand dollars ($10,000), or by imprisonment
in the state prison pursuant to subdivision (h) of
Section 1170 for 16 months, or two or three years, or by both
that fine and imprisonment, or by a fine not exceeding five thousand
dollars ($5,000), or by imprisonment in a county jail not exceeding
one year, or by both that fine and imprisonment.
(4) Any person who violates paragraph (8) of subdivision (c) is
punishable as follows:
(A) For a first violation that does not result in injury, a
misdemeanor punishable by a fine not exceeding five thousand dollars
($5,000), or by imprisonment in a county jail not exceeding one year,
or by both that fine and imprisonment.
(B) For any violation that results in injury, or for a second or
subsequent violation, by a fine not exceeding ten thousand dollars
($10,000), or by imprisonment in a county jail not exceeding one
year, or in the state prison by imprisonment
pursuant to subdivision (h) of Section 1170 , or by both that
fine and imprisonment.
(5) Any person who violates paragraph (9) of subdivision (c) is
punishable as follows:
(A) For a first violation that does not result in injury, an
infraction punishable by a fine not one thousand dollars.
(B) For any violation that results in injury, or for a second or
subsequent violation, by a fine not exceeding five thousand dollars
($5,000), or by imprisonment in a county jail not exceeding one year,
or by both that fine and imprisonment.
(e) (1) In addition to any other civil remedy available, the owner
or lessee of the computer, computer system, computer network,
computer program, or data who suffers damage or loss by reason of a
violation of any of the provisions of subdivision (c) may bring a
civil action against the violator for compensatory damages and
injunctive relief or other equitable relief. Compensatory damages
shall include any expenditure reasonably and necessarily incurred by
the owner or lessee to verify that a computer system, computer
network, computer program, or data was or was not altered, damaged,
or deleted by the access. For the purposes of actions authorized by
this subdivision, the conduct of an unemancipated minor shall be
imputed to the parent or legal guardian having control or custody of
the minor, pursuant to the provisions of Section 1714.1 of the Civil
Code.
(2) In any action brought pursuant to this subdivision the court
may award reasonable attorney's fees.
(3) A community college, state university, or academic institution
accredited in this state is required to include computer-related
crimes as a specific violation of college or university student
conduct policies and regulations that may subject a student to
disciplinary sanctions up to and including dismissal from the
academic institution. This paragraph shall not apply to the
University of California unless the Board of Regents adopts a
resolution to that effect.
(4) In any action brought pursuant to this subdivision for a
willful violation of the provisions of subdivision (c), where it is
proved by clear and convincing evidence that a defendant has been
guilty of oppression, fraud, or malice as defined in subdivision (c)
of Section 3294 of the Civil Code, the court may additionally award
punitive or exemplary damages.
(5) No action may be brought pursuant to this subdivision unless
it is initiated within three years of the date of the act complained
of, or the date of the discovery of the damage, whichever is later.
(f) This section shall not be construed to preclude the
applicability of any other provision of the criminal law of this
state which applies or may apply to any transaction, nor shall it
make illegal any employee labor relations activities that are within
the scope and protection of state or federal labor laws.
(g) Any computer, computer system, computer network, or any
software or data, owned by the defendant, that is used during the
commission of any public offense described in subdivision (c) or any
computer, owned by the defendant, which is used as a repository for
the storage of software or data illegally obtained in violation of
subdivision (c) shall be subject to forfeiture, as specified in
Section 502.01.
(h) (1) Subdivision (c) does not apply to punish any acts which
are committed by a person within the scope of his or her lawful
employment. For purposes of this section, a person acts within the
scope of his or her employment when he or she performs acts which are
reasonably necessary to the performance of his or her work
assignment.
(2) Paragraph (3) of subdivision (c) does not apply to penalize
any acts committed by a person acting outside of his or her lawful
employment, provided that the employee's activities do not cause an
injury, as defined in paragraph (8) of subdivision (b), to the
employer or another, or provided that the value of supplies or
computer services, as defined in paragraph (4) of subdivision (b),
which are used does not exceed an accumulated total of two hundred
fifty dollars ($250).
(i) No activity exempted from prosecution under paragraph (2) of
subdivision (h) which incidentally violates paragraph (2), (4), or
(7) of subdivision (c) shall be prosecuted under those paragraphs.
(j) For purposes of bringing a civil or a criminal action under
this section, a person who causes, by any means, the access of a
computer, computer system, or computer network in one jurisdiction
from another jurisdiction is deemed to have personally accessed the
computer, computer system, or computer network in each jurisdiction.
(k) In determining the terms and conditions applicable to a person
convicted of a violation of this section the court shall consider
the following:
(1) The court shall consider prohibitions on access to and use of
computers.
(2) Except as otherwise required by law, the court shall consider
alternate sentencing, including community service, if the defendant
shows remorse and recognition of the wrongdoing, and an inclination
not to repeat the offense.
SEC. 379. Section 506b of the Penal Code is amended to
read:
506b. Any person who violates Section 2985.3 or 2985.4 of the
Civil Code, relating to real property sales contracts, is guilty of a
public offense punishable by a fine not exceeding ten thousand
dollars ($10,000), or by imprisonment in the state prison,
or in a the county jail not exceeding one year,
or by imprisonment pursuant to subdivision (h) of Section 1170,
or by both such that fine and
imprisonment.
SEC. 380. Section 520 of the Penal Code is amended to
read:
520. Every person who extorts any money or other property from
another, under circumstances not amounting to robbery or carjacking,
by means of force, or any threat, such as is mentioned in Section
519, shall be punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for
two, three or four years.
SEC. 381. Section 529 of the Penal Code is amended to
read:
529. (a) Every person who falsely personates
another in either his or her private or official
capacity, and in such that assumed
character either does any of the following,
is punishable pursuant to subdivision (b) :
1.
(1) Becomes bail or surety for any party in any
proceeding whatever, before any court or officer authorized to take
such that bail or surety ;
.
2.
(2) Verifies, publishes, acknowledges, or proves, in
the name of another person, any written instrument, with intent that
the same may be recorded, delivered, or used as true ; or,
.
3.
(3) Does any other act whereby, if done by the person
falsely personated, he might, in any event, become liable to any suit
or prosecution, or to pay any sum of money, or to incur any charge,
forfeiture, or penalty, or whereby any benefit might accrue to the
party personating, or to any other person ; .
Is punishable by
(b) By a fine not exceeding ten
thousand dollars ($10,000), or by imprisonment in the state
prison, or in a county jail not exceeding one year, or
imprisonment pursuant to subdivision (h) of Section 1170,
or by both such that fine and
imprisonment.
SEC. 382. Section 529a of the Penal Code is amended to
read:
529a. Every person who manufactures, produces, sells, offers, or
transfers to another any document purporting to be either a
certificate of birth or certificate of baptism, knowing such document
to be false or counterfeit and with the intent to deceive, is guilty
of a crime, and upon conviction therefor, shall be punished by
imprisonment in the a county jail not
to exceed one year, or by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 .
Every person who offers, displays, or has in his or her possession
any false or counterfeit certificate of birth or certificate of
baptism, or any genuine certificate of birth which describes a person
then living or deceased, with intent to represent himself or herself
as another or to conceal his
or her true identity, is guilty of a crime, and upon conviction
therefor, shall be punished by imprisonment in the county jail not
to exceed one year.
SEC. 383. Section 530.5 of the Penal Code is amended to
read:
530.5. (a) Every person who willfully obtains personal
identifying information, as defined in subdivision (b) of Section
530.55, of another person, and uses that information for any unlawful
purpose, including to obtain, or attempt to obtain, credit, goods,
services, real property, or medical information without the consent
of that person, is guilty of a public offense, and upon conviction
therefor, shall be punished by a fine, by imprisonment in a county
jail not to exceed one year, or by both a fine and imprisonment, or
by imprisonment in the state prison pursuant
to subdivision (h) of Section 1170 .
(b) In any case in which a person willfully obtains personal
identifying information of another person, uses that information to
commit a crime in addition to a violation of subdivision (a), and is
convicted of that crime, the court records shall reflect that the
person whose identity was falsely used to commit the crime did not
commit the crime.
(c) (1) Every person who, with the intent to defraud, acquires or
retains possession of the personal identifying information, as
defined in subdivision (b) of Section 530.55, of another person is
guilty of a public offense, and upon conviction therefor, shall be
punished by a fine, by imprisonment in a county jail not to exceed
one year, or by both a fine and imprisonment.
(2) Every person who, with the intent to defraud, acquires or
retains possession of the personal identifying information, as
defined in subdivision (b) of Section 530.55, of another person, and
who has previously been convicted of a violation of this section,
upon conviction therefor shall be punished by a fine, by imprisonment
in a county jail not to exceed one year, or by both a fine and
imprisonment, or by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 .
(3) Every person who, with the intent to defraud, acquires or
retains possession of the personal identifying information, as
defined in subdivision (b) of Section 530.55, of 10 or more other
persons is guilty of a public offense, and upon conviction therefor,
shall be punished by a fine, by imprisonment in a county jail not to
exceed one year, or by both a fine and imprisonment, or by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 .
(d) (1) Every person who, with the intent to defraud, sells,
transfers, or conveys the personal identifying information, as
defined in subdivision (b) of Section 530.55, of another person is
guilty of a public offense, and upon conviction therefor, shall be
punished by a fine, by imprisonment in a county jail not to exceed
one year, or by both a fine and imprisonment, or by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 .
(2) Every person who, with actual knowledge that the personal
identifying information, as defined in subdivision (b) of Section
530.55, of a specific person will be used to commit a violation of
subdivision (a), sells, transfers, or conveys that same personal
identifying information is guilty of a public offense, and upon
conviction therefor, shall be punished by a fine, by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 , or by both a fine and imprisonment.
(e) Every person who commits mail theft, as defined in Section
1708 of Title 18 of the United States Code, is guilty of a public
offense, and upon conviction therefor shall be punished by a fine, by
imprisonment in a county jail not to exceed one year, or by both a
fine and imprisonment. Prosecution under this subdivision shall not
limit or preclude prosecution under any other provision of law,
including, but not limited to, subdivisions (a) to (c), inclusive, of
this section.
(f) An interactive computer service or access software provider,
as defined in subsection (f) of Section 230 of Title 47 of the United
States Code, shall not be liable under this section unless the
service or provider acquires, transfers, sells, conveys, or retains
possession of personal information with the intent to defraud.
SEC. 384. Section 532a of the Penal Code is amended to
read:
532a. (1) Any person who shall knowingly make or cause to be
made, either directly or indirectly or through any agency whatsoever,
any false statement in writing, with intent that it shall be relied
upon, respecting the financial condition, or means or ability to pay,
of himself or herself , or any other person, firm or
corporation, in whom he or she is interested, or for whom
he or she is acting, for the purpose of procuring in any
form whatsoever, either the delivery of personal property, the
payment of cash, the making of a loan or credit, the extension of a
credit, the execution of a contract of guaranty or suretyship, the
discount of an account receivable, or the making, acceptance,
discount, sale or indorsement of a bill of exchange, or promissory
note, for the benefit of either himself or herself or of
such that person, firm or corporation
shall be guilty of a public offense.
(2) Any person who knowing that a false statement in writing has
been made, respecting the financial condition or means or ability to
pay, of himself or herself , or a person, firm
or corporation in which he or she is interested, or for
whom he or she is acting, procures, upon the faith
thereof, for the benefit either of himself or herself , or
of such that person, firm or
corporation, either or any of the things of benefit mentioned in the
first subdivision of this section shall be guilty of a public
offense.
(3) Any person who knowing that a statement in writing has been
made, respecting the financial condition or means or ability to pay
of himself or herself or a person, firm or corporation, in
which he or she is interested, or for whom he or she
is acting, represents on a later day in writing that the
statement theretofore made, if then again made on said day, would be
then true, when in fact, said statement if then made would be false,
and procures upon the faith thereof, for the benefit either of
himself or herself or of such that
person, firm or corporation either or any of the things of
benefit mentioned in the first subdivision of this section shall be
guilty of a public offense.
(4) Any person committing a public offense under subdivision (1),
(2), or (3) shall be guilty of a misdemeanor, punishable by a fine of
not more than one thousand dollars ($1,000), or by imprisonment in
the county jail for not more than six months, or by both
such that fine and imprisonment. Any person who
violates the provisions of subdivision (1), (2), or (3), by using a
fictitious name, social security number, business name, or business
address, or by falsely representing himself or herself to be another
person or another business, is guilty of a felony and is punishable
by a fine not exceeding five thousand dollars ($5,000) or by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 , or by both such
that fine and imprisonment, or by a fine not
exceeding two thousand five hundred dollars ($2,500) or by
imprisonment in the county jail not exceeding one year, or by both
such fine and imprisonment.
(5) This section shall not be construed to preclude the
applicability of any other provision of the criminal law of this
state which applies or may apply to any transaction.
SEC. 385. Section 532f of the Penal Code is amended to
read:
532f. (a) A person commits mortgage fraud if, with the intent to
defraud, the person does any of the following:
(1) Deliberately makes any misstatement, misrepresentation, or
omission during the mortgage lending process with the intention that
it be relied on by a mortgage lender, borrower, or any other party to
the mortgage lending process.
(2) Deliberately uses or facilitates the use of any misstatement,
misrepresentation, or omission, knowing the same to contain a
misstatement, misrepresentation, or omission, during the mortgage
lending process with the intention that it be relied on by a mortgage
lender, borrower, or any other party to the mortgage lending
process.
(3) Receives any proceeds or any other funds in connection with a
mortgage loan closing that the person knew resulted from a violation
of paragraph (1) or (2) of this subdivision.
(4) Files or causes to be filed with the recorder of any county in
connection with a mortgage loan transaction any document the person
knows to contain a deliberate misstatement, misrepresentation, or
omission.
(b) An offense involving mortgage fraud shall not be based solely
on information lawfully disclosed pursuant to federal disclosure
laws, regulations, or interpretations related to the mortgage lending
process.
(c) (1) Notwithstanding any other provision of law, an order for
the production of any or all relevant records possessed by a real
estate recordholder in whatever form and however stored may be issued
by a judge upon a written ex parte application made under penalty of
perjury by a peace officer stating that there are reasonable grounds
to believe that the records sought are relevant and material to an
ongoing investigation of a felony fraud violation.
(2) The ex parte application shall specify with particularity the
records to be produced, which shall relate to a party or parties in
the criminal investigation.
(3) Relevant records may include, but are not limited to, purchase
contracts, loan applications, settlement statements, closing
statements, escrow instructions, payoff demands, disbursement
reports, or checks.
(4) The ex parte application and any subsequent judicial order may
be ordered sealed by the court upon a sufficient showing that it is
necessary for the effective continuation of the investigation.
(5) The records ordered to be produced shall be provided to the
peace officer applicant or his or her designee within a reasonable
time period after service of the order upon the real estate
recordholder.
(d) (1) Nothing in this section shall preclude the real estate
recordholder from notifying a customer of the receipt of the order
for production of records, unless a court orders the real estate
recordholder to withhold notification to the customer upon a finding
that this notice would impede the investigation.
(2) If a court has made an order to withhold notification to the
customer under this subdivision, the peace officer who or law
enforcement agency that obtained the records 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.
(e) (1) Nothing in this section shall preclude the real estate
recordholder from voluntarily disclosing information or providing
records to law enforcement upon request.
(2) This section shall not preclude a real estate recordholder, in
its discretion, from initiating contact with, and thereafter
communicating with and disclosing records to, appropriate state or
local agencies concerning a suspected violation of any law.
(f) No real estate recordholder, or any officer, employee, or
agent of the real estate recordholder, shall be liable to any person
for either of the following:
(1) Disclosing information in response to an order pursuant to
this section.
(2) Complying with an order under this section not to disclose to
the customer the order, or the dissemination of information pursuant
to the order.
(g) Any records required to be produced pursuant to this section
shall be accompanied by an affidavit of a custodian of records of the
real estate recordholder or other qualified witness which states, or
includes in substance, all of the following:
(1) The affiant is the duly authorized custodian of the records or
other qualified witness and has authority to certify the records.
(2) The identity of the records.
(3) A description of the mode of preparation of the records.
(4) The records were prepared by the personnel of the business in
the regular course of business at or near the time of an act,
condition, or event.
(5) Any copies of records described in the order are true copies.
(h) A person who violates this section is guilty of a public
offense punishable by imprisonment in the state prison or in
a county jail for not more than one year or by
imprisonment pursuant to subdivision (h) of Section 1170 .
(i) For the purposes of this section, the following terms shall
have the following meanings:
(1) "Person" means any individual, partnership, firm, association,
corporation, limited liability company, or other legal entity.
(2) "Mortgage lending process" means the process through which a
person seeks or obtains a mortgage loan, including, but not limited
to, solicitation, application, origination, negotiation of terms,
third-party provider services, underwriting, signing and closing, and
funding of the loan.
(3) "Mortgage loan" means a loan or agreement to extend credit to
a person that is secured by a deed of trust or other document
representing a security interest or lien upon any interest in real
property, including the renewal or refinancing of the loan.
(4) "Real estate recordholder" means any person, licensed or
unlicensed, that meets any of the following conditions:
(A) Is a title insurer that engages in the "business of title
insurance" as defined by Section 12340.3 of the Insurance Code, an
underwritten title company, or an escrow company.
(B) Functions as a broker or salesperson by engaging in any of the
type of acts set forth in Sections 10131, 10131.1, 10131.2, 10131.3,
10131.4, and 10131.6 of the Business and Professions Code.
(C) Engages in the making or servicing of loans secured by real
property.
(j) Fraud involving a mortgage loan may only be prosecuted under
this section when the value of the alleged fraud meets the threshold
for grand theft as set out in subdivision (a) of Section 487.
SEC. 386. Section 533 of the Penal Code is amended to
read:
533. Every person who, after once selling, bartering, or
disposing of any tract of land or town lot, or after executing any
bond or agreement for the sale of any land or town lot, again
willfully and with intent to defraud previous or subsequent
purchasers, sells, barters, or disposes of the same tract of land or
town lot, or any part thereof, or willfully and with intent to
defraud previous or subsequent purchasers, executes any bond or
agreement to sell, barter, or dispose of the same land or lot, or any
part thereof, to any other person for a valuable consideration, is
punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 .
SEC. 387. Section 535 of the Penal Code is amended to
read:
535. Every person who obtains any money or property from another,
or obtains the signature of another to any written instrument, the
false making of which would be forgery, by means of any false or
fraudulent sale of property or pretended property, by auction, or by
any of the practices known as mock auctions, is punishable by
imprisonment in the state prison, or in the a
county jail not exceeding one year, or by imprisonment
pursuant to subdivision (h) of Section 1170, or by a fine not
exceeding two thousand dollars ($2,000), or by both such
that fine and imprisonment, and, in addition, is
disqualified for a period of three years from acting as an
auctioneer in this state.
SEC. 388. Section 537e of the Penal Code is amended to
read:
537e. (a) Any person who knowingly buys, sells, receives,
disposes of, conceals, or has in his or her possession any personal
property from which the manufacturer's serial number, identification
number, electronic serial number, or any other distinguishing number
or identification mark has been removed, defaced, covered, altered,
or destroyed, is guilty of a public offense, punishable as follows:
(1) If the value of the property does not exceed nine hundred
fifty dollars ($950), by imprisonment in a county jail not exceeding
six months.
(2) If the value of the property exceeds nine hundred fifty
dollars ($950), by imprisonment in a county jail not exceeding one
year.
(3) If the property is an integrated computer chip or panel of a
value of nine hundred fifty dollars ($950) or more, by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 for 16 months, or 2 or 3 years or by
imprisonment in a county jail not exceeding one year.
(b) For purposes of this subdivision, "personal property"
includes, but is not limited to, the following:
(1) Any television, radio, recorder, phonograph, telephone, piano,
or any other musical instrument or sound equipment.
(2) Any washing machine, sewing machine, vacuum cleaner, or other
household appliance or furnishings.
(3) Any typewriter, adding machine, dictaphone, or any other
office equipment or furnishings.
(4) Any computer, printed circuit, integrated chip or panel, or
other part of a computer.
(5) Any tool or similar device, including any technical or
scientific equipment.
(6) Any bicycle, exercise equipment, or any other entertainment or
recreational equipment.
(7) Any electrical or mechanical equipment, contrivance, material,
or piece of apparatus or equipment.
(8) Any clock, watch, watch case, or watch movement.
(9) Any vehicle or vessel, or any component part thereof.
(c) When property described in subdivision (a) comes into the
custody of a peace officer it shall become subject to the provision
of Chapter 12 (commencing with Section 1407) of Title 10 of Part 2,
relating to the disposal of stolen or embezzled property. Property
subject to this section shall be considered stolen or embezzled
property for the purposes of that chapter, and prior to being
disposed of, shall have an identification mark imbedded or engraved
in, or permanently affixed to it.
(d) This section does not apply to those cases or instances where
any of the changes or alterations enumerated in subdivision (a) have
been customarily made or done as an established practice in the
ordinary and regular conduct of business, by the original
manufacturer, or by his or her duly appointed direct representative,
or under specific authorization from the original manufacturer.
SEC. 389. Section 538.5 of the Penal Code is amended to
read:
538.5. Every person who transmits or causes to be transmitted by
means of wire, radio or television communication any words, sounds,
writings, signs, signals, or pictures for the purpose of furthering
or executing a scheme or artifice to obtain, from a public utility,
confidential, privileged, or proprietary information, trade secrets,
trade lists, customer records, billing records, customer credit data,
or accounting data by means of false or fraudulent pretenses,
representations, personations, or promises is guilty of an offense
punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 , or by
imprisonment in the county jail not exceeding one year.
SEC. 390. Section 548 of the Penal Code is amended to
read:
548. (a) Every person who willfully injures, destroys, secretes,
abandons, or disposes of any property which at the time is insured
against loss or damage by theft, or embezzlement, or any casualty
with intent to defraud or prejudice the insurer, whether the property
is the property or in the possession of such
that person or any other person, is punishable by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 for two, three, or five years and by a fine
not exceeding fifty thousand dollars ($50,000).
For purposes of this section, "casualty" does not include fire.
(b) Any person who violates subdivision (a) and who has a prior
conviction of the offense set forth in that subdivision, in Section
550 of this code, or in former Section 556 or former Section 1871.1
of the Insurance Code, shall receive a two-year enhancement for each
prior conviction in addition to the sentence provided under
subdivision (a). The existence of any fact which would subject a
person to a penalty enhancement shall be alleged in the information
or indictment and either admitted by the defendant in open court, or
found to be true by the jury trying the issue of guilt or by the
court where guilt is established by plea of guilty or nolo contendere
or by trial by the court sitting without a jury.
SEC. 391. Section 549 of the Penal Code is amended to
read:
549. Any firm, corporation, partnership, or association, or any
person acting in his or her individual capacity, or in his or her
capacity as a public or private employee, who solicits, accepts, or
refers any business to or from any individual or entity with the
knowledge that, or with reckless disregard for whether, the
individual or entity for or from whom the solicitation or referral is
made, or the individual or entity who is solicited or referred,
intends to violate Section 550 of this code or Section 1871.4 of the
Insurance Code is guilty of a crime, punishable upon a first
conviction by imprisonment in the county jail for not more than one
year or by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for 16 months, two
years, or three years, or by a fine not exceeding fifty thousand
dollars ($50,000) or double the amount of the fraud, whichever is
greater, or by both that imprisonment and fine. A second or
subsequent conviction is punishable by imprisonment in the
state prison pursuant to subdivision (h) of Section
1170 or by that imprisonment in the state
prison and a fine of fifty thousand dollars ($50,000).
Restitution shall be ordered, including restitution for any medical
evaluation or treatment services obtained or provided. The court
shall determine the amount of restitution and the person or persons
to whom the restitution shall be paid.
SEC. 392. Section 550 of the Penal Code is amended to
read:
550. (a) It is unlawful to do any of the following, or to aid,
abet, solicit, or conspire with any person to do any of the
following:
(1) Knowingly present or cause to be presented any false or
fraudulent claim for the payment of a loss or injury, including
payment of a loss or injury under a contract of insurance.
(2) Knowingly present multiple claims for the same loss or injury,
including presentation of multiple claims to more than one insurer,
with an intent to defraud.
(3) Knowingly cause or participate in a vehicular collision, or
any other vehicular accident, for the purpose of presenting any false
or fraudulent claim.
(4) Knowingly present a false or fraudulent claim for the payments
of a loss for theft, destruction, damage, or conversion of a motor
vehicle, a motor vehicle part, or contents of a motor vehicle.
(5) Knowingly prepare, make, or subscribe any writing, with the
intent to present or use it, or to allow it to be presented, in
support of any false or fraudulent claim.
(6) Knowingly make or cause to be made any false or fraudulent
claim for payment of a health care benefit.
(7) Knowingly submit a claim for a health care benefit that was
not used by, or on behalf of, the claimant.
(8) Knowingly present multiple claims for payment of the same
health care benefit with an intent to defraud.
(9) Knowingly present for payment any undercharges for health care
benefits on behalf of a specific claimant unless any known
overcharges for health care benefits for that claimant are presented
for reconciliation at that same time.
(10) For purposes of paragraphs (6) to (9), inclusive, a claim or
a claim for payment of a health care benefit also means a claim or
claim for payment submitted by or on the behalf of a provider of any
workers' compensation health benefits under the Labor Code.
(b) It is unlawful to do, or to knowingly assist or conspire with
any person to do, any of the following:
(1) Present or cause to be presented any written or oral statement
as part of, or in support of or opposition to, a claim for payment
or other benefit pursuant to an insurance policy, knowing that the
statement contains any false or misleading information concerning any
material fact.
(2) Prepare or make any written or oral statement that is intended
to be presented to any insurer or any insurance claimant in
connection with, or in support of or opposition to, any claim or
payment or other benefit pursuant to an insurance policy, knowing
that the statement contains any false or misleading information
concerning any material fact.
(3) Conceal, or knowingly fail to disclose the occurrence of, an
event that affects any person's initial or continued right or
entitlement to any insurance benefit or payment, or the amount of any
benefit or payment to which the person is entitled.
(4) Prepare or make any written or oral statement, intended to be
presented to any insurer or producer for the purpose of obtaining a
motor vehicle insurance policy, that the person to be the insured
resides or is domiciled in this state when, in fact, that person
resides or is domiciled in a state other than this state.
(c) (1) Every person who violates paragraph (1), (2), (3), (4), or
(5) of subdivision (a) is guilty of a felony punishable by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 for two, three, or five years,
and by a fine not exceeding fifty thousand dollars ($50,000), or
double the amount of the fraud, whichever is greater.
(2) Every person who violates paragraph (6), (7), (8), or (9) of
subdivision (a) is guilty of a public offense.
(A) When the claim or amount at issue exceeds nine hundred fifty
dollars ($950), the offense is punishable by imprisonment in
the state prison pursuant to subdivision (h) of
Section 1170 for two, three, or five years, or by a fine not
exceeding fifty thousand dollars ($50,000) or double the amount of
the fraud, whichever is greater, or by both that imprisonment and
fine, or by imprisonment in a county jail not to exceed one year, by
a fine of not more than ten thousand dollars ($10,000), or by both
that imprisonment and fine.
(B) When the claim or amount at issue is nine hundred fifty
dollars ($950) or less, the offense is punishable by imprisonment in
a county jail not to exceed six months, or by a fine of not more than
one thousand dollars ($1,000), or by both that imprisonment and
fine, unless the aggregate amount of the claims or amount at issue
exceeds nine hundred fifty dollars ($950) in any 12-consecutive-month
period, in which case the claims or amounts may be charged as in
subparagraph (A).
(3) Every person who violates paragraph (1), (2), (3), or (4) of
subdivision (b) shall be punished by imprisonment in the
state prison pursuant to subdivision (h) of Section
1170 for two, three, or five years, or by a fine not exceeding
fifty thousand dollars ($50,000) or double the amount of the fraud,
whichever is greater, or by both that imprisonment and fine, or by
imprisonment in a county jail not to exceed one year, or by a fine of
not more than ten thousand dollars ($10,000), or by both that
imprisonment and fine.
(4) Restitution shall be ordered for a person convicted of
violating this section, including restitution for any medical
evaluation or treatment services obtained or provided. The court
shall determine the amount of restitution and the person or persons
to whom the restitution shall be paid.
(d) Notwithstanding any other provision of law, probation shall
not be granted to, nor shall the execution or imposition of a
sentence be suspended for, any adult person convicted of felony
violations of this section who previously has been convicted of
felony violations of this section or Section 548, or of Section
1871.4 of the Insurance Code, or former Section 556 of the Insurance
Code, or former Section 1871.1 of the Insurance Code as an adult
under charges separately brought and tried two or more times. The
existence of any fact that would make a person ineligible for
probation under this subdivision shall be alleged in the information
or indictment, and either admitted by the defendant in an open court,
or found to be true by the jury trying the issue of guilt or by the
court where guilt is established by plea of guilty or nolo contendere
or by trial by the court sitting without a jury.
Except when the existence of the fact was not admitted or found to
be true or the court finds that a prior felony conviction was
invalid, the court shall not strike or dismiss any prior felony
convictions alleged in the information or indictment.
This subdivision does not prohibit the adjournment of criminal
proceedings pursuant to Division 3 (commencing with Section 3000) or
Division 6 (commencing with Section 6000) of the Welfare and
Institutions Code.
(e) Except as otherwise provided in subdivision (f), any person
who violates subdivision (a) or (b) and who has a prior felony
conviction of an offense set forth in either subdivision (a) or (b),
in Section 548, in Section 1871.4 of the Insurance Code, in former
Section 556 of the Insurance Code, or in former Section 1871.1 of the
Insurance Code shall receive a two-year enhancement for each prior
felony conviction in addition to the sentence provided in subdivision
(c). The existence of any fact that would subject a person to a
penalty enhancement shall be alleged in the information or indictment
and either admitted by the defendant in open court, or found to be
true by the jury trying the issue of guilt or by the court where
guilt is established by plea of guilty or nolo contendere or by trial
by the court sitting without a jury. Any person who violates this
section shall be subject to appropriate orders of restitution
pursuant to Section 13967 of the Government Code.
(f) Any person who violates paragraph (3) of subdivision (a) and
who has two prior felony convictions for a violation of paragraph (3)
of subdivision (a) shall receive a five-year enhancement in addition
to the sentence provided in subdivision (c). The existence of any
fact that would subject a person to a penalty enhancement shall be
alleged in the information or indictment and either admitted by the
defendant in open court, or found to be true by the jury trying the
issue of guilt or by the court where guilt is established by plea of
guilty or nolo contendere or by trial by the court sitting without a
jury.
(g) Except as otherwise provided in Section 12022.7, any person
who violates paragraph (3) of subdivision (a) shall receive a
two-year enhancement for each person other than an accomplice who
suffers serious bodily injury resulting from the vehicular collision
or accident in a violation of paragraph (3) of subdivision (a).
(h) This section shall not be construed to preclude the
applicability of any other provision of criminal law or equitable
remedy that applies or may apply to any act committed or alleged to
have been committed by a person.
(i) Any fine imposed pursuant to this section shall be doubled if
the offense was committed in connection with any claim pursuant to
any automobile insurance policy in an auto insurance fraud crisis
area designated by the Insurance Commissioner pursuant to Article 4.6
(commencing with Section 1874.90) of Chapter 12 of Part 2 of
Division 1 of the Insurance Code.
SEC. 393. Section 551 of the Penal Code is amended to
read:
551. (a) It is unlawful for any automotive repair dealer,
contractor, or employees or agents thereof to offer to any insurance
agent, broker, or adjuster any fee, commission, profit sharing, or
other form of direct or indirect consideration for referring an
insured to an automotive repair dealer or its employees or agents for
vehicle repairs covered under a policyholder's automobile physical
damage or automobile collision coverage, or to a contractor or its
employees or agents for repairs to or replacement of a structure
covered by a residential or commercial insurance policy.
(b) Except in cases in which the amount of the repair or
replacement claim has been determined by the insurer and the repair
or replacement services are performed in accordance with that
determination or in accordance with provided estimates that are
accepted by the insurer, it is unlawful for any automotive repair
dealer, contractor, or employees or agents thereof to knowingly offer
or give any discount intended to offset a deductible required by a
policy of insurance covering repairs to or replacement of a motor
vehicle or residential or commercial structure. This subdivision does
not prohibit an advertisement for repair or replacement services at
a discount as long as the amount of the repair or replacement claim
has been determined by the insurer and the repair or replacement
services are performed in accordance with that determination or in
accordance with provided estimates that are accepted by the insurer.
(c) A violation of this section is a public offense. Where the
amount at issue exceeds nine hundred fifty dollars ($950), the
offense is punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for
16 months, or 2 or 3 years, by a fine of not more than ten thousand
dollars ($10,000), or by both that imprisonment and fine; or by
imprisonment in a county jail not to exceed one year, by a fine of
not more than one thousand dollars ($1,000), or by both that
imprisonment and fine. In all other cases, the offense is punishable
by imprisonment in a county jail not to exceed six months, by a fine
of not more than one thousand dollars ($1,000), or by both that
imprisonment and fine.
(d) Every person who, having been convicted of subdivision (a) or
(b), or Section 7027.3 or former Section 9884.75 of the Business and
Professions Code and having served a term therefor in any penal
institution or having been imprisoned therein as a condition of
probation for that offense, is subsequently convicted of subdivision
(a) or (b), upon a subsequent conviction of one of those offenses,
shall be punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for
16 months, or 2 or 3 years, by a fine of not more than ten thousand
dollars ($10,000), or by both that imprisonment and fine; or by
imprisonment in a county jail not to exceed one year, by a fine of
not more than one thousand dollars ($1,000), or by both that
imprisonment and fine.
(e) For purposes of this section:
(1) "Automotive repair dealer" means a person who, for
compensation, engages in the business of repairing or diagnosing
malfunctions of motor vehicles.
(2) "Contractor" has the same meaning as set forth in Section 7026
of the Business and Professions Code.
SEC. 394. Section 560 of the Penal Code is amended to
read:
560. Any bailee, as defined in Section 7102 of the Uniform
Commercial Code, who issues or aids in issuing a document of title,
or any person who secures the issue by a bailee of a document of
title, or any person who negotiates or transfers for value a document
of title knowing that the goods for which such
that document is issued have not been actually received by
such that bailee or are not under his
or her control at the time of issuing
such that receipt shall be guilty of a crime and
upon conviction shall be punished for each offense by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 or by a fine not exceeding ten thousand
dollars ($10,000) or by both that fine and imprisonment .
SEC. 395. Section 560.4 of the Penal Code is amended to
read:
560.4. Any bailee, as defined in Section 7102 of the Uniform
Commercial Code, who issues or aids in issuing a duplicate or
additional negotiable document of title for goods knowing that a
former negotiable document of title for the same goods or any part of
them is outstanding and uncanceled without plainly placing upon the
face thereof the word "duplicate," except in cases of bills in a set
and documents issued as substitutes for lost, stolen or destroyed
documents, shall be guilty of a crime and upon conviction shall be
punished for each offense by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170
or by a fine not exceeding ten thousand dollars ($10,000) or by
both that fine and imprisonment .
SEC. 396. Section 566 of the Penal Code is amended to
read:
566. It is a felony, punishable by a fine not exceeding one
thousand five hundred dollars ($1,500), or by imprisonment
pursuant to subdivision (h) of Section 1170 , or both, for an
unauthorized person to possess or use, or to obliterate or destroy
the brand registration upon, containers (including milk cases),
cabinets, or other dairy equipment, which have a value in excess of
nine hundred fifty dollars ($950), when the containers, cabinets, or
other dairy equipment are marked with a brand that is registered
pursuant to Chapter 10 (commencing with Section 34501) of Part 1 of
Division 15 of the Food and Agricultural Code. "Unauthorized person"
shall have the meaning of that term as defined in Section 34564 of
the Food and Agricultural Code.
SEC. 397. Section 570 of the Penal Code is amended to
read:
570. An act of unlawful subleasing of a motor vehicle, as defined
in Section 571, shall be punishable by imprisonment in the
state prison or in the a county jail for not
more than one year, or by imprisonment pursuant to subdivision
(h) of Section 1170, or by a fine of not more than ten thousand
dollars ($10,000), or by both that fine and imprisonment.
SEC. 398. Section 577 of the Penal Code is amended to
read:
577. Every person, being the master, owner or agent of any
vessel, or officer or agent of any railroad, express or
transportation company, or otherwise being or representing any
carrier, who delivers any bill of lading, receipt or other voucher,
by which it appears that any merchandise of any description has been
shipped on board any vessel, or delivered to any railroad, express or
transportation company or other carrier, unless the same has been so
shipped or delivered, and is at the time actually under the control
of such carrier or the master, owner or agent of such vessel, or of
some officer or agent of such that
company, to be forwarded as expressed in such
that bill of lading, receipt or voucher, is punishable by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 , or by a fine not exceeding
one thousand dollars ($1,000), or both.
SEC. 399. Section 578 of the Penal Code is amended to
read:
578. Every person carrying on the business of a warehouseman,
wharfinger, or other depositary of property, who issues any receipt,
bill of lading, or other voucher for any merchandise of any
description, which has not been actually received upon the premises
of such that person, and is not under
his or her actual control at the time of issuing such
instrument, whether such that
instrument is issued to a person as being the owner of such
that merchandise or as security for any
indebtedness, is punishable by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170
, or by a fine not exceeding one thousand dollars ($1,000), or
both.
SEC. 400. Section 580 of the Penal Code is amended to
read:
580. Every person mentioned in this chapter, who issues any
second or duplicate receipt or voucher, of a kind specified therein,
at a time while any former receipt or voucher for the merchandise
specified in such that second receipt
is outstanding and uncanceled, without writing across the face of the
same the word "Duplicate," in a plain and legible manner, is
punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 , or by a fine
not exceeding one thousand dollars ($1,000), or both.
SEC. 401. Section 581 of the Penal Code is amended to
read:
581. Every person mentioned in this chapter, who sells,
hypothecates, or pledges any merchandise for which any bill of
lading, receipt, or voucher has been issued by him or her ,
without the consent in writing thereto of the person holding
such that bill, receipt, or voucher, is
punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 ,
or by a fine not exceeding one thousand dollars ($1,000), or both.
SEC. 402. Section 587 of the Penal Code is amended to
read:
587. Every person who maliciously , does
either of the following is punishable by imprisonment
pursuant to subdivision (h) of Section 1170, or imprisonment in a
county jail not exceeding one year :
1.
(a) Removes, displaces, injures, or destroys any part
of any railroad, whether for steam or horse cars, or any track of any
railroad, or any branch or branchway, switch, turnout, bridge,
viaduct, culvert, embankment, station house, or other structure or
fixture, or any part thereof, attached to or connected with any
railroad ; or, .
2.
(b) Places any obstruction upon the rails or track of
any railroad, or of any switch, branch, branchway, or turnout
connected with any railroad ; .
Is punishable by imprisonment in the state prison, or in the
county jail not exceeding one year.
SEC. 403. Section 587.1 of the Penal Code is amended to
read:
587.1. (a) Every person who maliciously moves or causes to be
moved, without authorization, any locomotive, is guilty of a
misdemeanor punishable by imprisonment in the county jail not
exceeding one year.
(b) Every person who maliciously moves or causes to be moved,
without authorization, any locomotive, when the moving creates a
substantial likelihood of causing personal injury or death to
another, is guilty of a public offense punishable by imprisonment in
the state prison, or in the a county
jail not exceeding one year or by imprisonment pursuant to
subdivision (h) of Section 1170 .
SEC. 404. Section 591 of the Penal Code is amended to
read:
591. A person who unlawfully and maliciously takes down, removes,
injures, or obstructs any line of telegraph, telephone, or cable
television, or any other line used to conduct electricity, or any
part thereof, or appurtenances or apparatus connected therewith, or
severs any wire thereof, or makes any unauthorized connection with
any line, other than a telegraph, telephone, or cable television
line, used to conduct electricity, or any part thereof, or
appurtenances or apparatus connected therewith, is punishable by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 , or by a fine not exceeding
five hundred dollars ($500), or imprisonment in the county jail not
exceeding one year.
SEC. 405. Section 593 of the Penal Code is amended to
read:
593. Every person who unlawfully and maliciously takes down,
removes, injures, interferes with, or obstructs any line erected or
maintained by proper authority for the purpose of transmitting
electricity for light, heat, or power, or any part thereof, or any
insulator or crossarm, appurtenance or apparatus connected therewith,
or severs or in any way interferes with any wire, cable, or current
thereof, is punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 , or
by fine not exceeding one thousand dollars ($1,000), or imprisonment
in the county jail not exceeding one year.
SEC. 406. Section 594 of the Penal Code is amended to
read:
594. (a) Every person who maliciously commits any of the
following acts with respect to any real or personal property not his
or her own, in cases other than those specified by state law, is
guilty of vandalism:
(1) Defaces with graffiti or other inscribed material.
(2) Damages.
(3) Destroys.
Whenever a person violates this subdivision with respect to real
property, vehicles, signs, fixtures, furnishings, or property
belonging to any public entity, as defined by Section 811.2 of the
Government Code, or the federal government, it shall be a permissive
inference that the person neither owned the property nor had the
permission of the owner to deface, damage, or destroy the property.
(b) (1) If the amount of defacement, damage, or destruction is
four hundred dollars ($400) or more, vandalism is punishable by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 or in a county jail not
exceeding one year, or by a fine of not more than ten thousand
dollars ($10,000), or if the amount of defacement, damage, or
destruction is ten thousand dollars ($10,000) or more, by a fine of
not more than fifty thousand dollars ($50,000), or by both that fine
and imprisonment.
(2) (A) If the amount of defacement, damage, or destruction is
less than four hundred dollars ($400), vandalism is punishable by
imprisonment in a county jail not exceeding one year, or by a fine of
not more than one thousand dollars ($1,000), or by both that fine
and imprisonment.
(B) If the amount of defacement, damage, or destruction is less
than four hundred dollars ($400), and the defendant has been
previously convicted of vandalism or affixing graffiti or other
inscribed material under Section 594, 594.3, 594.4, 640.5, 640.6, or
640.7, vandalism is punishable by imprisonment in a county jail for
not more than one year, or by a fine of not more than five thousand
dollars ($5,000), or by both that fine and imprisonment.
(c) Upon conviction of any person under this section for acts of
vandalism consisting of defacing property with graffiti or other
inscribed materials, the court shall, when appropriate and feasible,
in addition to any punishment imposed under subdivision (b), order
the defendant to clean up, repair, or replace the damaged property
himself or herself, or order the defendant, and his or her parents or
guardians if the defendant is a minor, to keep the damaged property
or another specified property in the community free of graffiti for
up to one year. Participation of a parent or guardian is not required
under this subdivision if the court deems this participation to be
detrimental to the defendant, or if the parent or guardian is a
single parent who must care for young children. If the court finds
that graffiti cleanup is inappropriate, the court shall consider
other types of community service, where feasible.
(d) If a minor is personally unable to pay a fine levied for acts
prohibited by this section, the parent of that minor shall be liable
for payment of the fine. A court may waive payment of the fine, or
any part thereof, by the parent upon a finding of good cause.
(e) As used in this section, the term "graffiti or other inscribed
material" includes any unauthorized inscription, word, figure, mark,
or design, that is written, marked, etched, scratched, drawn, or
painted on real or personal property.
(f) The court may order any person ordered to perform community
service or graffiti removal pursuant to paragraph (1) of subdivision
(c) to undergo counseling.
(g) This section shall become operative on January 1, 2002.
SEC. 407. Section 594.3 of the Penal Code is amended to
read:
594.3. (a) Any person who knowingly commits any act of vandalism
to a church, synagogue, mosque, temple, building owned and occupied
by a religious educational institution, or other place primarily used
as a place of worship where religious services are regularly
conducted or a cemetery is guilty of a crime punishable by
imprisonment in the state prison or by imprisonment in the
a county jail for not exceeding one year or
imprisonment pursuant to subdivision (h) of Section 1170 .
(b) Any person who knowingly commits any act of vandalism to a
church, synagogue, mosque, temple, building owned and occupied by a
religious educational institution, or other place primarily used as a
place of worship where religious services are regularly conducted or
a cemetery, which is shown to have been a hate crime and to have
been committed for the purpose of intimidating and deterring persons
from freely exercising their religious beliefs, is guilty of a felony
punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 .
(c) For purposes of this section, "hate crime" has the same
meaning as Section 422.55.
SEC. 408. Section 594.35 of the Penal Code is amended
to read:
594.35. Every person is guilty of a crime and punishable by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 or by imprisonment in a county
jail for not exceeding one year, who maliciously does any of the
following:
(a) Destroys, cuts, mutilates, effaces, or otherwise injures,
tears down, or removes any tomb, monument, memorial, or marker in a
cemetery, or any gate, door, fence, wall, post or railing, or any
inclosure for the protection of a cemetery or mortuary or any
property in a cemetery or mortuary.
(b) Obliterates any grave, vault, niche, or crypt.
(c) Destroys, cuts, breaks or injures any mortuary building or any
building, statuary, or ornamentation within the limits of a
cemetery.
(d) Disturbs, obstructs, detains or interferes with any person
carrying or accompanying human remains to a cemetery or funeral
establishment, or engaged in a funeral service, or an interment.
SEC. 409. Section 594.4 of the Penal Code is amended to
read:
594.4. (a) Any person who willfully and maliciously injects into
or throws upon, or otherwise defaces, damages, destroys, or
contaminates, any structure with butyric acid, or any other similar
noxious or caustic chemical or substance, is guilty of a public
offense, punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 or
in a county jail not exceeding 6 months , by a fine as
specified in subdivision (b), or by both that imprisonment and fine.
(b) (1) If the amount of the defacement, damage, destruction, or
contamination is fifty thousand dollars ($50,000) or more, by a fine
of not more than fifty thousand dollars ($50,000).
(2) If the amount of the defacement, damage, destruction, or
contamination is five thousand dollars ($5,000) or more, but less
than fifty thousand dollars ($50,000), by a fine of not more than ten
thousand dollars ($10,000).
(3) If the amount of defacement, damage, destruction, or
contamination is nine hundred fifty dollars ($950) or more, but less
than five thousand dollars ($5,000), by a fine of not more than five
thousand dollars ($5,000).
(4) If the amount of the defacement, damage, destruction, or
contamination is less than nine hundred fifty dollars ($950), by a
fine of not more than one thousand dollars ($1,000).
(c) For purposes of this section, "structure" includes any house
or other building being used at the time of the offense for a
dwelling or for commercial purposes.
SEC. 410. Section 597 of the Penal Code is amended to
read:
597. (a) Except as provided in subdivision (c) of this section or
Section 599c, every person who maliciously and intentionally maims,
mutilates, tortures, or wounds a living animal, or maliciously and
intentionally kills an animal, is guilty of an offense punishable by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 , or by a fine of not more than
twenty thousand dollars ($20,000), or by both the fine and
imprisonment, or , alternatively, by imprisonment
in a county jail for not more than one year, or by a fine of not more
than twenty thousand dollars ($20,000), or by both the
that fine and imprisonment.
(b) Except as otherwise provided in subdivision (a) or (c), every
person who overdrives, overloads, drives when overloaded, overworks,
tortures, torments, deprives of necessary sustenance, drink, or
shelter, cruelly beats, mutilates, or cruelly kills any animal, or
causes or procures any animal to be so overdriven, overloaded, driven
when overloaded, overworked, tortured, tormented, deprived of
necessary sustenance, drink, shelter, or to be cruelly beaten,
mutilated, or cruelly killed; and whoever, having the charge or
custody of any animal, either as owner or otherwise, subjects any
animal to needless suffering, or inflicts unnecessary cruelty upon
the animal, or in any manner abuses any animal, or fails to provide
the animal with proper food, drink, or shelter or protection from the
weather, or who drives,
rides, or otherwise uses the animal when unfit for labor, is, for
every such offense, guilty of a crime punishable as a misdemeanor or
as a felony or alternatively punishable as a misdemeanor or
a felony by imprisonment pursuant to subdivision (h)
of Section 1170, or by that imprisonment and by a fine of not
more than twenty thousand dollars ($20,000).
(c) Every person who maliciously and intentionally maims,
mutilates, or tortures any mammal, bird, reptile, amphibian, or fish
as described in subdivision (d), is guilty of an offense punishable
by imprisonment in the state prison pursuant
to subdivision (h) of Section 11 70 , or by a fine
of not more than twenty thousand dollars ($20,000), or by both the
fine and imprisonment, or , alternatively, by
imprisonment in the county jail for not more than one year, or
by a fine of not more than twenty thousand dollars ($20,000),
or by both the that fine and
imprisonment.
(d) Subdivision (c) applies to any mammal, bird, reptile,
amphibian, or fish which is a creature described as follows:
(1) Endangered species or threatened species as described in
Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish
and Game Code.
(2) Fully protected birds described in Section 3511 of the Fish
and Game Code.
(3) Fully protected mammals described in Chapter 8 (commencing
with Section 4700) of Part 3 of Division 4 of the Fish and Game Code.
(4) Fully protected reptiles and amphibians described in Chapter 2
(commencing with Section 5050) of Division 5 of the Fish and Game
Code.
(5) Fully protected fish as described in Section 5515 of the Fish
and Game Code.
This subdivision does not supersede or affect any provisions of
law relating to taking of the described species, including, but not
limited to, Section 12008 of the Fish and Game Code.
(e) For the purposes of subdivision (c), each act of malicious and
intentional maiming, mutilating, or torturing a separate specimen of
a creature described in subdivision (d) is a separate offense. If
any person is charged with a violation of subdivision (c), the
proceedings shall be subject to Section 12157 of the Fish and Game
Code.
(f) (1) Upon the conviction of a person charged with a violation
of this section by causing or permitting an act of cruelty, as
defined in Section 599b, all animals lawfully seized and impounded
with respect to the violation by a peace officer, officer of a humane
society, or officer of a pound or animal regulation department of a
public agency shall be adjudged by the court to be forfeited and
shall thereupon be awarded to the impounding officer for proper
disposition. A person convicted of a violation of this section by
causing or permitting an act of cruelty, as defined in Section 599b,
shall be liable to the impounding officer for all costs of
impoundment from the time of seizure to the time of proper
disposition.
(2) Mandatory seizure or impoundment shall not apply to animals in
properly conducted scientific experiments or investigations
performed under the authority of the faculty of a regularly
incorporated medical college or university of this state.
(g) Notwithstanding any other provision of law, if a defendant is
granted probation for a conviction under this section, the court
shall order the defendant to pay for, and successfully complete,
counseling, as determined by the court, designed to evaluate and
treat behavior or conduct disorders. If the court finds that the
defendant is financially unable to pay for that counseling, the court
may develop a sliding fee schedule based upon the defendant's
ability to pay. An indigent defendant may negotiate a deferred
payment schedule, but shall pay a nominal fee if the defendant has
the ability to pay the nominal fee. County mental health departments
or Medi-Cal shall be responsible for the costs of counseling required
by this section only for those persons who meet the medical
necessity criteria for mental health managed care pursuant to Section
1830.205 of Title 7 of the California Code of Regulations or the
targeted population criteria specified in Section 5600.3 of the
Welfare and Institutions Code. The counseling specified in this
subdivision shall be in addition to any other terms and conditions of
probation, including any term of imprisonment and any fine. This
provision specifies a mandatory additional term of probation and is
not to be utilized as an alternative in lieu of imprisonment
in the state prison pursuant to subdivision (h) of
Section 1170 or county jail when such a sentence is otherwise
appropriate. If the court does not order custody as a condition of
probation for a conviction under this section, the court shall
specify on the court record the reason or reasons for not ordering
custody. This subdivision shall not apply to cases involving police
dogs or horses as described in Section 600.
SEC. 411. Section 597.5 of the Penal Code is amended to
read:
597.5. (a) Any person who does any of the following is guilty of
a felony and is punishable by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170
for 16 months, or two or three years, or by a fine not to
exceed fifty thousand dollars ($50,000), or by both that fine and
imprisonment:
(1) Owns, possesses, keeps, or trains any dog, with the intent
that the dog shall be engaged in an exhibition of fighting with
another dog.
(2) For amusement or gain, causes any dog to fight with another
dog, or causes any dogs to injure each other.
(3) Permits any act in violation of paragraph (1) or (2) to be
done on any premises under his or her charge or control, or aids or
abets that act.
(b) Any person who is knowingly present, as a spectator, at any
place, building, or tenement where preparations are being made for an
exhibition of the fighting of dogs, with the intent to be present at
those preparations, or is knowingly present at that exhibition or at
any other fighting or injuring as described in paragraph (2) of
subdivision (a), with the intent to be present at that exhibition,
fighting, or injuring, is guilty of an offense punishable by
imprisonment in a county jail not to exceed one year, or by a fine
not to exceed five thousand dollars ($5,000), or by both that
imprisonment and fine.
(c) Nothing in this section shall prohibit any of the following:
(1) The use of dogs in the management of livestock, as defined by
Section 14205 of the Food and Agricultural Code, by the owner of the
livestock or his or her employees or agents or other persons in
lawful custody thereof.
(2) The use of dogs in hunting as permitted by the Fish and Game
Code, including, but not limited to, Sections 4002 and 4756, and by
the rules and regulations of the Fish and Game Commission.
(3) The training of dogs or the use of equipment in the training
of dogs for any purpose not prohibited by law.
SEC. 412. Section 598c of the Penal Code is amended to
read:
598c. (a) Notwithstanding any other provision of law, it is
unlawful for any person to possess, to import into or export from the
state, or to sell, buy, give away, hold, or accept any horse with
the intent of killing, or having another kill, that horse, if that
person knows or should have known that any part of that horse will be
used for human consumption.
(b) For purposes of this section, "horse"
"horse" means any equine, including any horse, pony, burro, or
mule.
(c) Violation of this section is a felony punishable by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 for 16 months, or two or three
years.
(d) It is not the intent of this section to affect any commonly
accepted commercial, noncommercial, recreational, or sporting
activity that relates to horses.
(e) It is not the intent of this section to affect any existing
law that relates to horse taxation or zoning.
SEC. 413. Section 598d of the Penal Code is amended to
read:
598d. (a) Notwithstanding any other provision of law, horsemeat
may not be offered for sale for human consumption. No restaurant,
cafe, or other public eating place may offer horsemeat for human
consumption.
(b) Violation of this section is a misdemeanor punishable by a
fine of not more than one thousand dollars ($1,000), or by
confinement in jail for not less than 30 days nor more than two
years, or by both that fine and confinement.
(c) A second or subsequent offense under this section is
punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for not less
than two years nor more than five years.
SEC. 414. Section 600 of the Penal Code is amended to
read:
600. (a) Any person who willfully and maliciously and with no
legal justification strikes, beats, kicks, cuts, stabs, shoots with a
firearm, administers any poison or other harmful or stupefying
substance to, or throws, hurls, or projects at, or places any rock,
object, or other substance which is used in such a manner as to be
capable of producing injury and likely to produce injury, on or in
the path of, any horse being used by, or any dog under the
supervision of, any peace officer in the discharge or attempted
discharge of his or her duties, is guilty of a public offense. If the
injury inflicted is a serious injury, as defined in subdivision (c),
the person shall be punished by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170
for 16 months, two or three years, or in a county jail for not
exceeding one year, or by a fine not exceeding two thousand dollars
($2,000), or by both a fine and imprisonment. If the injury inflicted
is not a serious injury, the person shall be punished by
imprisonment in the county jail for not exceeding one year, or by a
fine not exceeding one thousand dollars ($1,000), or by both a fine
and imprisonment.
(b) Any person who willfully and maliciously and with no legal
justification interferes with or obstructs any horse or dog being
used by any peace officer in the discharge or attempted discharge of
his or her duties by frightening, teasing, agitating, harassing, or
hindering the horse or dog shall be punished by imprisonment in a
county jail for not exceeding one year, or by a fine not exceeding
one thousand dollars ($1,000), or by both a fine and imprisonment.
(c) Any person who, in violation of this section, and with intent
to inflict such that injury or death,
personally causes the death, destruction, or serious physical injury
including bone fracture, loss or impairment of function of any bodily
member, wounds requiring extensive suturing, or serious crippling,
of any horse or dog, shall, upon conviction of a felony under this
section, in addition and consecutive to the punishment prescribed for
the felony, be punished by an additional term of imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 for one year.
(d) Any person who, in violation of this section, and with the
intent to inflict such that injury,
personally causes great bodily injury, as defined in Section 12022.7,
to any person not an accomplice, shall, upon conviction of a felony
under this section, in addition and consecutive to the punishment
prescribed for the felony, be punished by an additional term of
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 for two years unless the
conduct described in this subdivision is an element of any other
offense of which the person is convicted or receives an enhancement
under Section 12022.7.
(e) In any case in which a defendant is convicted of a violation
of this section, the defendant shall be ordered to make restitution
to the agency owning the animal and employing the peace officer for
any veterinary bills, replacement costs of the animal if it is
disabled or killed, and the salary of the peace officer for the
period of time his or her services are lost to the agency.
SEC. 415. Section 601 of the Penal Code is amended to
read:
601. (a) Any person is guilty of trespass who makes a credible
threat to cause serious bodily injury, as defined in subdivision (a)
of Section 417.6, to another person with the intent to place that
other person in reasonable fear for his or her safety, or the safety
of his or her immediate family, as defined in subdivision (l) of
Section 646.9, and who does any of the following:
(1) Within 30 days of the threat, unlawfully enters into the
residence or real property contiguous to the residence of the person
threatened without lawful purpose, and with the intent to execute the
threat against the target of the threat.
(2) Within 30 days of the threat, knowing that the place is the
threatened person's workplace, unlawfully enters into the workplace
of the person threatened and carries out an act or acts to locate the
threatened person within the workplace premises without lawful
purpose, and with the intent to execute the threat against the target
of the threat.
(b) Subdivision (a) shall not apply if the residence, real
property, or workplace described in paragraph (1) or (2) that is
entered is the residence, real property, or workplace of the person
making the threat.
(c) This section shall not apply to any person who is engaged in
labor union activities which are permitted to be carried out on the
property by the California Agricultural Labor Relations Act, Part 3.5
(commencing with Section 1140) of Division 2 of the Labor Code, or
by the National Labor Relations Act.
(d) A violation of this section shall be punishable by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 , or by imprisonment in a
county jail not exceeding one year, or by a fine not exceeding two
thousand dollars ($2,000), or by both a that
fine and imprisonment.
SEC. 416. Section 610 of the Penal Code is amended to
read:
610. Every person who unlawfully masks, alters, or removes any
light or signal, or willfully exhibits any light or signal, with
intent to bring any vessel into danger, is punishable by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 .
SEC. 417. Section 617 of the Penal Code is amended to
read:
617. Every person who maliciously mutilates, tears, defaces,
obliterates, or destroys any written instrument, the property of
another, the false making of which would be forgery, is punishable by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 .
SEC. 418. Section 620 of the Penal Code is amended to
read:
620. Every person who willfully alters the purport, effect, or
meaning of a telegraphic or telephonic message to the injury of
another, is punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 , or
in the a county jail not exceeding one
year, or by fine not exceeding ten thousand dollars ($10,000), or by
both such that fine and imprisonment.
SEC. 419. Section 621 of the Penal Code is amended to
read:
621. Every person who maliciously destroys, cuts, breaks,
mutilates, effaces, or otherwise injures, tears down, or removes any
law enforcement memorial or firefighter's memorial is guilty of a
crime punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 or by
imprisonment in the a county jail for
less than one year.
SEC. 420. Section 625b of the Penal Code is amended to
read:
625b. (a) Every person who willfully injures or tampers with any
aircraft or the contents or parts thereof, or removes any part of or
from an aircraft without the consent of the owner, and every person
who, with intent to commit any malicious mischief, injury or other
crime, climbs into or upon an aircraft or attempts to manipulate any
of the controls, starting mechanism, brakes or other mechanism or
device of an aircraft while it is at rest and unattended or who sets
in motion any aircraft while it is at rest and unattended, is guilty
of a misdemeanor and upon conviction shall be punished by
imprisonment for not more than six months or by a fine of not more
than one thousand dollars ($1,000), or by both such
that fine and imprisonment.
(b) Every person who willfully and maliciously damages, injures,
or destroys any aircraft, or the contents or any part thereof, in
such a manner as to render the aircraft unsafe for those flight
operations for which it is designed and equipped is punishable by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 , or by imprisonment in a
county jail not exceeding one year, or by a fine not exceeding ten
thousand dollars ($10,000), or by both such fine and imprisonment.
SEC. 421. Section 626.9 of the Penal Code, as amended
by Section 146 of Chapter 83 of the Statutes of 1999, is amended to
read:
626.9. (a) This section shall be known, and may be cited, as the
Gun-Free School Zone Act of 1995.
(b) Any person who possesses a firearm in a place that the person
knows, or reasonably should know, is a school zone, as defined in
paragraph (1) of subdivision (e), unless it is with the written
permission of the school district superintendent, his or her
designee, or equivalent school authority, shall be punished as
specified in subdivision (f).
(c) Subdivision (b) does not apply to the possession of a firearm
under any of the following circumstances:
(1) Within a place of residence or place of business or on private
property, if the place of residence, place of business, or private
property is not part of the school grounds and the possession of the
firearm is otherwise lawful.
(2) When the firearm is an unloaded pistol, revolver, or other
firearm capable of being concealed on the person and is in a locked
container or within the locked trunk of a motor vehicle.
This section does not prohibit or limit the otherwise lawful
transportation of any other firearm, other than a pistol, revolver,
or other firearm capable of being concealed on the person, in
accordance with state law.
(3) When the person possessing the firearm reasonably believes
that he or she is in grave danger because of circumstances forming
the basis of a current restraining order issued by a court against
another person or persons who has or have been found to pose a threat
to his or her life or safety. This subdivision may not apply when
the circumstances involve a mutual restraining order issued pursuant
to Division 10 (commencing with Section 6200) of the Family Code
absent a factual finding of a specific threat to the person's life or
safety. Upon a trial for violating subdivision (b), the trier of a
fact shall determine whether the defendant was acting out of a
reasonable belief that he or she was in grave danger.
(4) When the person is exempt from the prohibition against
carrying a concealed firearm pursuant to subdivision (b), (d), (e),
or (h) of Section 12027.
(d) Except as provided in subdivision (b), it shall be unlawful
for any person, with reckless disregard for the safety of another, to
discharge, or attempt to discharge, a firearm in a school zone, as
defined in paragraph (1) of subdivision (e).
The prohibition contained in this subdivision does not apply to
the discharge of a firearm to the extent that the conditions of
paragraph (1) of subdivision (c) are satisfied.
(e) As used in this section, the following definitions shall
apply:
(1) "School zone" means an area in, or on the grounds of, a public
or private school providing instruction in kindergarten or grades 1
to 12, inclusive, or within a distance of 1,000 feet from the grounds
of the public or private school.
(2) "Firearm" has the same meaning as that term is given in
Section 12001.
(3) "Locked container" has the same meaning as that term is given
in subdivision (c) of Section 12026.1.
(4) "Concealed firearm" has the same meaning as that term is given
in Sections 12025 and 12026.1.
(f) (1) Any person who violates subdivision (b) by possessing a
firearm in, or on the grounds of, a public or private school
providing instruction in kindergarten or grades 1 to 12, inclusive,
shall be punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for
two, three, or five years.
(2) Any person who violates subdivision (b) by possessing a
firearm within a distance of 1,000 feet from the grounds of a public
or private school providing instruction in kindergarten or grades 1
to 12, inclusive, shall be punished as follows:
(A) By imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for two, three, or
five years, if any of the following circumstances apply:
(i) If the person previously has been convicted of any felony, or
of any crime made punishable by Chapter 1 (commencing with Section
12000) of Title 2 of Part 4.
(ii) If the person is within a class of persons prohibited from
possessing or acquiring a firearm pursuant to Section 12021 or
12021.1 of this code or Section 8100 or 8103 of the Welfare and
Institutions Code.
(iii) If the firearm is any pistol, revolver, or other firearm
capable of being concealed upon the person and the offense is
punished as a felony pursuant to Section 12025.
(B) By imprisonment in a county jail for not more than one year or
by imprisonment in the state prison pursuant
to subdivision (h) of Sectio n 1170 for two, three,
or five years, in all cases other than those specified in
subparagraph (A).
(3) Any person who violates subdivision (d) shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 for three, five, or seven
years.
(g) (1) Every person convicted under this section for a
misdemeanor violation of subdivision (b) who has been convicted
previously of a misdemeanor offense enumerated in Section 12001.6
shall be punished by imprisonment in a county jail for not less than
three months, or if probation is granted or if the execution or
imposition of sentence is suspended, it shall be a condition thereof
that he or she be imprisoned in a county jail for not less than three
months.
(2) Every person convicted under this section of a felony
violation of subdivision (b) or (d) who has been convicted previously
of a misdemeanor offense enumerated in Section 12001.6, if probation
is granted or if the execution of sentence is suspended, it shall be
a condition thereof that he or she be imprisoned in a county jail
for not less than three months.
(3) Every person convicted under this section for a felony
violation of subdivision (b) or (d) who has been convicted previously
of any felony, or of any crime made punishable by Chapter 1
(commencing with Section 12000) of Title 2 of Part 4, if probation is
granted or if the execution or imposition of sentence is suspended,
it shall be a condition thereof that he or she be imprisoned in a
county jail for not less than three months.
(4) The court shall apply the three-month minimum sentence
specified in this subdivision, except in unusual cases where the
interests of justice would best be served by granting probation or
suspending the execution or imposition of sentence without the
minimum imprisonment required in this subdivision or by granting
probation or suspending the execution or imposition of sentence with
conditions other than those set forth in this subdivision, in which
case the court shall specify on the record and shall enter on the
minutes the circumstances indicating that the interests of justice
would best be served by this disposition.
(h) Notwithstanding Section 12026, any person who brings or
possesses a loaded firearm upon the grounds of a campus of, or
buildings owned or operated for student housing, teaching, research,
or administration by, a public or private university or college, that
are contiguous or are clearly marked university property, unless it
is with the written permission of the university or college
president, his or her designee, or equivalent university or college
authority, shall be punished by imprisonment in the state
prison pursuant to subdivision (h) of
Section 1170 for two, three, or four years. Notwithstanding
subdivision (k), a university or college shall post a prominent
notice at primary entrances on noncontiguous property stating that
firearms are prohibited on that property pursuant to this
subdivision.
(i) Notwithstanding Section 12026, any person who brings or
possesses a firearm upon the grounds of a campus of, or buildings
owned or operated for student housing, teaching, research, or
administration by, a public or private university or college, that
are contiguous or are clearly marked university property, unless it
is with the written permission of the university or college
president, his or her designee, or equivalent university or college
authority, shall be punished by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170
for one, two, or three years. Notwithstanding subdivision (k),
a university or college shall post a prominent notice at primary
entrances on noncontiguous property stating that firearms are
prohibited on that property pursuant to this subdivision.
(j) For purposes of this section, a firearm shall be deemed to be
loaded when there is an unexpended cartridge or shell, consisting of
a case that holds a charge of powder and a bullet or shot, in, or
attached in any manner to, the firearm, including, but not limited
to, in the firing chamber, magazine, or clip thereof attached to the
firearm. A muzzle-loader firearm shall be deemed to be loaded when it
is capped or primed and has a powder charge and ball or shot in the
barrel or cylinder.
(k) This section does not require that notice be posted regarding
the proscribed conduct.
( l ) This section does not apply to 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 California, 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, a member of the military
forces of this state or of the United States who is engaged in the
performance of his or her duties, 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, or an armored vehicle guard, engaged in the
performance of his or her duties, as defined in subdivision (e) of
Section 7521 of the Business and Professions Code.
(m) This section does not apply to a security guard authorized to
carry a loaded firearm pursuant to Section 12031.
(n) This section does not apply to an existing shooting range at a
public or private school or university or college campus.
(o) This section does not apply to an honorably retired peace
officer authorized to carry a concealed or loaded firearm pursuant to
subdivision (a) or (i) of Section 12027 or paragraph (1) or (8) of
subdivision (b) of Section 12031.
SEC. 422. Section 626.9 of the Penal Code, as amended
by Section 59 of Chapter 178 of the Statutes of 2010, is amended to
read:
626.9. (a) This section shall be known, and may be cited, as the
Gun-Free School Zone Act of 1995.
(b) Any person who possesses a firearm in a place that the person
knows, or reasonably should know, is a school zone, as defined in
paragraph (1) of subdivision (e), unless it is with the written
permission of the school district superintendent, his or her
designee, or equivalent school authority, shall be punished as
specified in subdivision (f).
(c) Subdivision (b) does not apply to the possession of a firearm
under any of the following circumstances:
(1) Within a place of residence or place of business or on private
property, if the place of residence, place of business, or private
property is not part of the school grounds and the possession of the
firearm is otherwise lawful.
(2) When the firearm is an unloaded pistol, revolver, or other
firearm capable of being concealed on the person and is in a locked
container or within the locked trunk of a motor vehicle.
This section does not prohibit or limit the otherwise lawful
transportation of any other firearm, other than a pistol, revolver,
or other firearm capable of being concealed on the person, in
accordance with state law.
(3) When the person possessing the firearm reasonably believes
that he or she is in grave danger because of circumstances forming
the basis of a current restraining order issued by a court against
another person or persons who has or have been found to pose a threat
to his or her life or safety. This subdivision may not apply when
the circumstances involve a mutual restraining order issued pursuant
to Division 10 (commencing with Section 6200) of the Family Code
absent a factual finding of a specific threat to the person's life or
safety. Upon a trial for violating subdivision (b), the trier of a
fact shall determine whether the defendant was acting out of a
reasonable belief that he or she was in grave danger.
(4) When the person is exempt from the prohibition against
carrying a concealed firearm pursuant to Section 25615, 25625, 25630,
or 25645.
(d) Except as provided in subdivision (b), it shall be unlawful
for any person, with reckless disregard for the safety of another, to
discharge, or attempt to discharge, a firearm in a school zone, as
defined in paragraph (1) of subdivision (e).
The prohibition contained in this subdivision does not apply to
the discharge of a firearm to the extent that the conditions of
paragraph (1) of subdivision (c) are satisfied.
(e) As used in this section, the following definitions shall
apply:
(1) "School zone" means an area in, or on the grounds of, a public
or private school providing instruction in kindergarten or grades 1
to 12, inclusive, or within a distance of 1,000 feet from the grounds
of the public or private school.
(2) "Firearm" has the same meaning as that term is given in
subdivisions (a) to (d), inclusive, of Section 16520.
(3) "Locked container" has the same meaning as that term is given
in Section 16850.
(4) "Concealed firearm" has the same meaning as that term is given
in Sections 25400 and 25610.
(f) (1) Any person who violates subdivision (b) by possessing a
firearm in, or on the grounds of, a public or private school
providing instruction in kindergarten or grades 1 to 12, inclusive,
shall be punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for
two, three, or five years.
(2) Any person who violates subdivision (b) by possessing a
firearm within a distance of 1,000 feet from the grounds of a public
or private school providing instruction in kindergarten or grades 1
to 12, inclusive, shall be punished as follows:
(A) By imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for two, three, or
five years, if any of the following circumstances apply:
(i) If the person previously has been convicted of any felony, or
of any crime made punishable by any provision listed in Section
16580.
(ii) If the person is within a class of persons prohibited from
possessing or acquiring a firearm pursuant to Chapter 2 (commencing
with Section 29800) or Chapter 3 (commencing with Section 29900) of
Division 9 of Title 4 of Part 6 of this code or Section 8100 or 8103
of the Welfare and Institutions Code.
(iii) If the firearm is any pistol, revolver, or other firearm
capable of being concealed upon the person and the offense is
punished as a felony pursuant to Section 25400.
(B) By imprisonment in a county jail for not more than one year or
by imprisonment in the state prison pursuant
to subdivision (h) of Section 1170 for two, three, or five
years, in all cases other than those specified in subparagraph (A).
(3) Any person who violates subdivision (d) shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 for three, five, or seven
years.
(g) (1) Every person convicted under this section for a
misdemeanor violation of subdivision (b) who has been convicted
previously of a misdemeanor offense enumerated in Section 23515 shall
be punished by imprisonment in a county jail for not less than three
months, or if probation is granted or if the execution or imposition
of sentence is suspended, it shall be a condition thereof that he or
she be imprisoned in a county jail for not less than three months.
(2) Every person convicted under this section of a felony
violation of subdivision (b) or (d) who has been convicted previously
of a misdemeanor offense enumerated in Section 23515, if probation
is granted or if the execution of sentence is suspended, it shall be
a condition thereof that he or she be imprisoned in a county jail for
not less than three months.
(3) Every person convicted under this section for a felony
violation of subdivision (b) or (d) who has been convicted previously
of any felony, or of any crime made punishable by any provision
listed in Section 16580, if probation is granted or if the execution
or imposition of sentence is suspended, it shall be a condition
thereof that he or she be imprisoned in a county jail for not less
than three months.
(4) The court shall apply the three-month minimum sentence
specified in this subdivision, except in unusual cases where the
interests of justice would best be served by granting probation or
suspending the execution or imposition of sentence without the
minimum imprisonment required in this subdivision or by granting
probation or suspending the execution or imposition of sentence with
conditions other than those set forth in this subdivision, in which
case the court shall specify on the record and shall enter on the
minutes the circumstances indicating that the interests of justice
would best be served by this disposition.
(h) Notwithstanding Section 25605, any person who brings or
possesses a loaded firearm upon the grounds of a campus of, or
buildings owned or operated for student housing, teaching, research,
or administration by, a public or private university or college, that
are contiguous or are clearly marked university property, unless it
is with the written permission of the university or college
president, his or her designee, or equivalent university or college
authority, shall be punished by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170
for two, three, or four years. Notwithstanding subdivision (k),
a university or college shall post a prominent notice at primary
entrances on noncontiguous property stating that firearms are
prohibited on that property pursuant to this subdivision.
(i) Notwithstanding Section 25605, any person who brings or
possesses a firearm upon the grounds of a campus of, or buildings
owned or operated for student housing, teaching, research, or
administration by, a public or private university or college, that
are contiguous or are clearly marked university property, unless it
is with the written permission of the university or college
president, his or her designee, or equivalent university or college
authority, shall be punished by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170
for one, two, or three years. Notwithstanding subdivision (k),
a university or college shall post a prominent notice at primary
entrances on noncontiguous property stating that firearms are
prohibited on that property pursuant to this subdivision.
(j) For purposes of this section, a firearm shall be deemed to be
loaded when there is an unexpended cartridge or shell, consisting of
a case that holds a charge of powder and a bullet or shot, in, or
attached in any manner to, the firearm, including, but not limited
to, in the firing chamber, magazine, or clip thereof attached to the
firearm. A muzzle-loader firearm shall be deemed to be loaded when it
is capped or primed and has a powder charge and ball or shot in the
barrel or cylinder.
(k) This section does not require that notice be posted regarding
the proscribed conduct.
( l ) This section does not apply to 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 California, 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, a member of the military
forces of this state or of the United States who is engaged in the
performance of his or her duties, a person holding a valid license to
carry the firearm pursuant to Chapter 4 (commencing with Section
26150) of Division 5 of Title 4 of Part 6, or an armored vehicle
guard, engaged in the performance of his or her duties, as defined in
subdivision (e) of Section 7521 of the Business and Professions
Code.
(m) This section does not apply to a security guard authorized to
carry a loaded firearm pursuant to Article 4 (commencing with Section
26000) of Chapter 3 of Division 5 of Title 4 of Part 6.
(n) This section does not apply to an existing shooting range at a
public or private school or university or college campus.
(o) This section does not apply to an honorably retired peace
officer authorized to carry a concealed or loaded firearm pursuant to
any of the following:
(1) Article 2 (commencing with Section 25450) of Chapter 2 of
Division 5 of Title 4 of Part 6.
(2) Section 25650.
(3) Sections 25900 to 25910, inclusive.
(4) Section 26020.
SEC. 423. Section 626.95 of the Penal Code, as added by
Section 1 of Chapter 750 of the Statutes of 1992, is amended to
read:
626.95. (a) Any person who is in violation of paragraph (2) of
subdivision (a), or subdivision (b), of Section 417 , or Section
12025 or 12031, upon the grounds of or within a playground, or a
public or private youth center during hours in which the facility is
open for business, classes, or school-related programs, or at any
time when minors are using the facility, knowing that he or she is on
or within those grounds, shall be punished by imprisonment
in the state prison pursuant to subdivision (h) of
Section 1170 for one, two, or three years, or in a county jail
not exceeding one year.
(b) State and local authorities are encouraged to cause signs to
be posted around playgrounds and youth centers giving warning of
prohibition of the possession of firearms upon the grounds of or
within playgrounds or youth centers.
(c) For purposes of this section, the following definitions shall
apply:
(1) "Playground" means any park or recreational area specifically
designed to be used by children that has play equipment installed,
including public grounds designed for athletic activities such as
baseball, football, soccer, or basketball, or any similar facility
located on public or private school grounds, or on city or county
parks.
(2) "Youth center" means any public or private facility that is
used to host recreational or social activities for minors while
minors are present.
(d) It is the Legislature's intent that only an actual conviction
of a felony of one of the offenses specified in this section would
subject the person to firearms disabilities under the federal Gun
Control Act of 1968 (P.L. 90-618; 18 U.S.C. Sec. 921).
SEC. 424. Section 626.95 of the Penal Code, as amended
by Section 60 of Chapter 178 of the Statutes of 2010, is amended to
read:
626.95. (a) Any person who is in violation of paragraph (2) of
subdivision (a), or subdivision (b), of Section 417, or 25400 or
25850, upon the grounds of or within a playground, or a public or
private youth center during hours in which the facility is open for
business, classes, or school-related programs, or at any time when
minors are using the facility, knowing that he or she is on or within
those grounds, shall be punished by imprisonment in the
state prison pursuant to subdivision (h) of Section
1170 for one, two, or three years, or in a county jail not
exceeding one year.
(b) State and local authorities are encouraged to cause signs to
be posted around playgrounds and youth centers giving warning of
prohibition of the possession of firearms upon the grounds of or
within playgrounds or youth centers.
(c) For purposes of this section, the following definitions shall
apply:
(1) "Playground" means any park or recreational area specifically
designed to be used by children that has play equipment installed,
including public grounds designed for athletic activities such as
baseball, football, soccer, or basketball, or any similar facility
located on public or private school grounds, or on city or county
parks.
(2) "Youth center" means any public or private facility that is
used to host recreational or social activities for minors while
minors are present.
(d) It is the Legislature's intent that only an actual conviction
of a felony of one of the offenses specified in this section would
subject the person to firearms disabilities under the federal Gun
Control Act of 1968 (P.L. 90-618; 18 U.S.C. Sec. 921).
SEC. 425. Section 626.10 of the Penal Code, as amended
by Section 1 of Chapter 258 of the Statutes of 2009, 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, 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
pursuant to subdivision (h) of Section 1170 .
(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 pursuant to subdivision (h) of
Section 1170 .
(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. 426. Section 626.10 of the Penal Code, as amended
by Section 61 of Chapter 178 of the Statutes of 2010, 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, 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
pursuant to subdivision (h) of Section 1170 .
(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 pursuan t to subdivision
(h) of Section 1170 .
(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 16780, or a
stun gun, as defined in Section 17230, upon the grounds of or within,
a public or private college or university campus is guilty of a
misdemeanor.
SEC. 427. Section 629.84 of the Penal Code is amended
to read:
629.84. Any violation of this chapter is punishable by a fine not
exceeding two thousand five hundred dollars ($2,500), or by
imprisonment in the county jail not exceeding one year, or by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 , or by both such
that fine and imprisonment in the
county jail or in the state prison .
SEC. 428. Section 631 of the Penal Code is amended to
read:
631. (a) Any person who, by means of any machine, instrument, or
contrivance, or in any other manner, intentionally taps, or makes any
unauthorized connection, whether physically, electrically,
acoustically, inductively, or otherwise, with any telegraph or
telephone wire, line, cable, or instrument, including the wire, line,
cable, or instrument of any internal telephonic communication
system, or who willfully and without the consent of all parties to
the communication, or in any unauthorized manner, reads, or attempts
to read, or to learn the contents or meaning of any message, report,
or communication while the same is in transit or passing over any
wire, line, or cable, or is being sent from, or received at any place
within this state; or who uses, or attempts to use, in any manner,
or for any purpose, or to communicate in any way, any information so
obtained, or who aids, agrees with, employs, or conspires with any
person or persons to unlawfully do, or permit, or cause to be done
any of the acts or things mentioned above in this section, is
punishable by a fine not exceeding two thousand five hundred dollars
($2,500), or by imprisonment in the county jail not exceeding one
year, or by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 , or by both a fine
and imprisonment in the county jail or in the state prison
pursuant to subdivision (h) of Section 1170 . If
the person has previously been convicted of a violation of this
section or Section 632, 632.5, 632.6, 632.7, or 636, he or she is
punishable by a fine not exceeding ten thousand dollars ($10,000), or
by imprisonment in the county jail not exceeding one year, or by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 , or by both a
that fine and imprisonment in the
county jail or in the state prison .
(b) This section shall not apply (1) to any public utility engaged
in the business of providing communications services and facilities,
or to the officers, employees or agents thereof, where the acts
otherwise prohibited herein are for the purpose of construction,
maintenance, conduct or operation of the services and facilities of
the public utility, or (2) to the use of any instrument, equipment,
facility, or service furnished and used pursuant to the tariffs of a
public utility, or (3) to any telephonic communication system used
for communication exclusively within a state, county, city and
county, or city correctional facility.
(c) Except as proof in an action or prosecution for violation of
this section, no evidence obtained in violation of this section shall
be admissible in any judicial, administrative, legislative, or other
proceeding.
(d) This section shall become operative on January 1, 1994.
SEC. 429. Section 636 of the Penal Code is amended to
read:
636. (a) Every person who, without permission from all parties to
the conversation, eavesdrops on or records, by means of an
electronic device, a conversation, or any portion thereof, between a
person who is in the physical custody of a law enforcement officer or
other public officer, or who is on the property of a law enforcement
agency or other public agency, and that person's attorney, religious
adviser, or licensed physician, is guilty of a felony
punishable by imprisonment pursuant to subdivision (h) of Section
1170 .
(b) Every person who, intentionally and without permission from
all parties to the conversation, nonelectronically eavesdrops upon a
conversation, or any portion thereof, that occurs between a person
who is in the physical custody of a law enforcement officer or other
public officer and that person's attorney, religious adviser, or
licensed physician, is guilty of a public offense. This subdivision
applies to conversations that occur in a place, and under
circumstances, where there exists a reasonable expectation of
privacy, including a custody holding area, holding area, or anteroom.
This subdivision does not apply to conversations that are
inadvertently overheard or that take place in a courtroom or other
room used for adjudicatory proceedings. A person who is convicted of
violating this subdivision shall be punished by imprisonment
in the state prison pursuant to subdivision (h) of
Section 1170 , or in the a county
jail for a term not to exceed one year, or by a fine not to exceed
two thousand five hundred dollars ($2,500), or by both that fine and
imprisonment.
(c) This section shall not apply to any employee of a public
utility engaged in the business of providing service and facilities
for telephone or telegraph communications while engaged in the
construction, maintenance, conduct, or operation of the service or
facilities of that public utility who listens in to conversations for
the limited purpose of testing or servicing equipment.
SEC. 430. Section 637 of the Penal Code is amended to
read:
637. Every person not a party to a telegraphic or telephonic
communication who willfully discloses the contents of a telegraphic
or telephonic message, or any part thereof, addressed to another
person, without the permission of such that
person, unless directed so to do by the lawful order of a
court, is punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 , or
in the a county jail not exceeding one
year, or by fine not exceeding five thousand dollars ($5,000), or by
both that fine and imprisonment.
SEC. 431. Section 647.6 of the Penal Code is amended to
read:
647.6. (a) (1) Every person who annoys or molests any child under
18 years of age shall be punished by a fine not exceeding five
thousand dollars ($5,000), by imprisonment in a county jail not
exceeding one year, or by both the fine and imprisonment.
(2) Every person who, motivated by an unnatural or abnormal sexual
interest in children, engages in conduct with an adult whom he or
she believes to be a child under 18 years of age, which conduct, if
directed toward a child under 18 years of age, would be a violation
of this section, shall be punished by a fine not exceeding five
thousand dollars ($5,000), by imprisonment in a county jail for up to
one year, or by both that fine and imprisonment.
(b) Every person who violates this section after having entered,
without consent, an inhabited dwelling house, or trailer coach as
defined in Section 635 of the Vehicle Code, or the inhabited portion
of any other building, shall be punished by imprisonment in
the state prison pursuant to subdivision (h) of
Section 1170 , or in a county jail not exceeding one year, and
by a fine not exceeding five thousand dollars ($5,000).
(c) (1) Every person who violates this section shall be punished
upon the second and each subsequent conviction by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 .
(2) Every person who violates this section after a previous felony
conviction under Section 261, 264.1, 269, 285, 286, 288a, 288.5, or
289, any of which involved a minor under 16 years of age, or a
previous felony conviction under this section, a conviction under
Section 288, or a felony conviction under Section 311.4 involving a
minor under 14 years of age shall be punished by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 for two, four, or six years.
(d) (1) In any case in which a person is convicted of violating
this section and probation is granted, the court shall require
counseling as a condition of probation, unless the court makes a
written statement in the court record, that counseling would be
inappropriate or ineffective.
(2) In any case in which a person is convicted of violating this
section, and as a condition of probation, the court prohibits the
defendant from having contact with the victim, the court order
prohibiting contact shall not be modified except upon the request of
the victim and a finding by the court that the modification is in the
best interest of the victim. As used in this paragraph, "contact
with the victim" includes all physical contact, being in the presence
of the victim, communication by any means, any communication by a
third party acting on behalf of the defendant, and any gifts.
(e) Nothing in this section prohibits prosecution under any other
provision of law.
SEC. 432. Section 653f of the Penal Code is amended to
read:
653f. (a) Every person who, with the intent that the crime be
committed, solicits another to offer, accept, or join in the offer or
acceptance of a bribe, or to commit or join in the commission of
carjacking, robbery, burglary, grand theft, receiving stolen
property, extortion, perjury, subornation of perjury, forgery,
kidnapping, arson or assault with a deadly weapon or instrument or by
means of force likely to produce great bodily injury, or, by the use
of force or a threat of force, to prevent or dissuade any person who
is or may become a witness from attending upon, or testifying at,
any trial, proceeding, or inquiry authorized by law, shall be
punished by imprisonment in a county jail for not more than one year
or in the state prison pursuant to
subdivision (h) of Section 1170 , or by a fine of not more than
ten thousand dollars ($10,000), or the amount which could have been
assessed for commission of the offense itself, whichever is greater,
or by both the fine and imprisonment.
(b) Every person who, with the intent that the crime be committed,
solicits another to commit or join in the commission of murder shall
be punished by imprisonment in the state prison for three, six, or
nine years.
(c) Every person who, with the intent that the crime be committed,
solicits another to commit rape by force or violence, sodomy by
force or violence, oral copulation by force or violence, or any
violation of Section 264.1, 288, or 289, shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 for two, three, or four years.
(d) (1) Every person who, with the intent
that the crime be committed, solicits another to commit an offense
specified in Section 11352, 11379, 11379.5, 11379.6, or 11391 of the
Health and Safety Code shall be punished by imprisonment in a county
jail not exceeding six months. Every person, who, having been
convicted of soliciting another to commit an offense specified in
this subdivision, is subsequently convicted of the proscribed
solicitation, shall be punished by imprisonment in a county jail not
exceeding one year, or in the state prison
pursuant to subdivision (h) of Section 1170 .
This
(2) This subdivision does not
apply where the term of imprisonment imposed under other provisions
of law would result in a longer term of imprisonment.
(e) Every person who, with the intent that the crime be committed,
solicits another to commit an offense specified in Section 14014 of
the Welfare and Institutions Code shall be punished by imprisonment
in a county jail for not exceeding six months. Every person who,
having been convicted of soliciting another to commit an offense
specified in this subdivision, is subsequently convicted of the
proscribed solicitation, shall be punished by imprisonment in a
county jail not exceeding one year, or in the state prison
pursuant to subdivision (h) of Section 1170 .
(f) An offense charged in violation of subdivision (a), (b), or
(c) shall be proven by the testimony of two witnesses, or of one
witness and corroborating circumstances. An offense charged in
violation of subdivision (d) or (e) shall be proven by the testimony
of one witness and corroborating circumstances.
SEC. 433. Section 653h of the Penal Code is amended to
read:
653h. (a) Every person is guilty of a public offense punishable
as provided in subdivisions (b) and (c), who:
(1) Knowingly and willfully transfers or causes to be transferred
any sounds that have been recorded on a phonograph record, disc,
wire, tape, film or other article on which sounds are recorded, with
intent to sell or cause to be sold, or to use or cause to be used for
commercial advantage or private financial gain through public
performance, the article on which the sounds are so transferred,
without the consent of the owner.
(2) Transports for monetary or like consideration within this
state or causes to be transported within this state any such article
with the knowledge that the sounds thereon have been so transferred
without the consent of the owner.
(b) Any person who has been convicted of a violation of
subdivision (a), shall be punished by imprisonment in the county jail
not to exceed one year, by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for
two, three, or five years, or by a fine not to exceed five hundred
thousand dollars ($500,000), or by both that fine and
imprisonment , if the offense involves the transfer or
transportation, or conduct causing that transfer or transportation,
of not less than 1,000 of the articles described in subdivision (a).
(c) Any person who has been convicted of any other violation of
subdivision (a) not described in subdivision (b), shall be punished
by imprisonment in the county jail not to exceed one year, or by a
fine of not more than fifty thousand dollars ($50,000), or by both
that fine and imprisonment . A second or subsequent
conviction under subdivision (a) not described in subdivision (b)
shall be punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 or
by a fine not to exceed two hundred thousand dollars ($200,000), or
by both that fine and imprisonment .
(d) Every person who offers for sale or resale, or sells or
resells, or causes the sale or resale, or rents, or possesses for
these purposes, any article described in subdivision (a) with
knowledge that the sounds thereon have been so transferred without
the consent of the owner is guilty of a public offense.
(1) A violation of subdivision (d) involving not less than 100 of
those articles shall be punishable by imprisonment in a county jail
not to exceed one year or by a fine not to exceed twenty thousand
dollars ($20,000), or by both that fine and imprisonment .
A second or subsequent conviction for the conduct described in this
paragraph shall be punishable by imprisonment in the county jail not
to exceed one year or in the state prison
pursuant to subdivision (h) of Section 1170 , or by a fine not
to exceed fifty thousand dollars ($50,000), or by both that fine
and imprisonment .
(2) A person who has been convicted of any violation of this
subdivision not described in paragraph (1) shall be punished by
imprisonment in the county jail not to exceed six months or by a fine
not to exceed ten thousand dollars ($10,000), or by both that
fine and imprisonment . A second conviction for the conduct
described in this paragraph shall be punishable by imprisonment in
the county jail not to exceed one year or by a fine not to exceed
twenty thousand dollars ($20,000), or by both that fine and
imprisonment . A third or subsequent conviction for the conduct
described in this paragraph shall be punishable by imprisonment in
the county jail not to exceed one year or in the state
prison pursuant to subdivision (h) of Section 1170
, or by a fine not to exceed fifty thousand dollars ($50,000),
or by both that fine and imprisonment .
(e) As used in this section, "person" means any individual,
partnership, partnership's member or employee, corporation, limited
liability company, association or corporation or association
employee, officer or director; "owner" means the person who owns the
original master recording embodied in the master phonograph record,
master disc, master tape, master film or other article used for
reproducing recorded sounds on phonograph records, discs, tapes,
films or other articles on which sound is or can be recorded, and
from which the transferred recorded sounds are directly or indirectly
derived; and "master recording" means the original fixation of
sounds upon a recording from which copies can be made.
(f) This section shall neither enlarge nor diminish the right of
parties in private litigation.
(g) This section does not apply to any person engaged in radio or
television broadcasting who transfers, or causes to be transferred,
any such sounds (other than from the sound track of a motion picture)
intended for, or in connection with, broadcast transmission or
related uses, or for archival purposes.
(h) This section does not apply to any not-for-profit educational
institution or any federal or state governmental entity, if the
institution or entity has as a primary purpose the advancement of the
public's knowledge and the dissemination of information regarding
America's musical cultural heritage, provided that this purpose is
clearly set forth in the institution's or entity's charter, bylaws,
certificate of incorporation, or similar document, and the
institution or entity has, prior to the transfer, made a good faith
effort to identify and locate the owner or owners of the sound
recordings to be transferred and, provided that the owner or owners
could not be and have not been located. Nothing in this section shall
be construed to relieve an institution or entity of its contractual
or other obligation to compensate the owners of sound recordings to
be transferred. In order to continue the exemption permitted by this
subdivision, the institution or entity shall make continuing efforts
to locate such owners and shall make an annual public notice of the
fact of the transfers in newspapers of general circulation serving
the jurisdictions where the owners were incorporated or doing
business at the time of initial affixations. The institution or
entity shall keep on file a record of the efforts made to locate such
owners for inspection by appropriate governmental agencies.
(i) This section applies only to such
those articles that were initially mastered prior to February
15, 1972.
SEC. 434. Section 653j of the Penal Code is amended to
read:
653j. (a) Every person 18 years of age or older who, in any
voluntary manner, solicits, induces, encourages, or intimidates any
minor with the intent that the minor shall commit a felony in
violation of paragraph (1) of subdivision (c) of Section 136.1 or
Section 187, 211, 215, 245, 246, 451, 459, or 520 of the Penal Code,
or Section 10851 of the Vehicle Code, shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 for a period of
three, five, or seven years. If the minor is 16 years of age or older
at the time of the offense, this section shall only apply when the
adult is at least five years older than the minor at the time the
offense is committed.
(b) In no case shall the court impose a sentence pursuant to
subdivision (a) which exceeds the maximum penalty prescribed for the
felony offense for which the minor was solicited, induced,
encouraged, or intimidated to commit.
(c) Whenever a sentence is imposed under subdivision (a), the
court shall consider the severity of the underlying crime as one of
the circumstances in aggravation.
SEC. 435. Section 653s of the Penal Code is amended to
read:
653s. (a) Any person who transports or causes to be transported
for monetary or other consideration within this state, any article
containing sounds of a live performance with the knowledge that the
sounds thereon have been recorded or mastered without the consent of
the owner of the sounds of the live performance is guilty of a public
offense punishable as provided in subdivision (g) or (h).
(b) As used in this section and Section 653u:
(1) "Live performance" means the recitation, rendering, or playing
of a series of musical, spoken, or other sounds in any audible
sequence thereof.
(2) "Article" means the original disc, wire, tape, film,
phonograph record, or other recording device used to record or master
the sounds of the live performance and any copy or reproduction
thereof which duplicates, in whole or in part, the original.
(3) "Person" means any individual, partnership, partnership member
or employee, corporation, association, or corporation or association
employee, officer, or director, limited liability company, or
limited liability company manager or officer.
(c) In the absence of a written agreement or operation of law to
the contrary, the performer or performers of the sounds of a live
performance shall be presumed to own the right to record or master
those sounds.
(d) For purposes of this section, a person who is authorized to
maintain custody and control over business records reflecting the
consent of the owner to the recordation or master recording of a live
performance shall be a proper witness in any proceeding regarding
the issue of consent.
Any witness called pursuant to this section shall be subject to
all rules of evidence relating to the competency of a witness to
testify and the relevance and admissibility of the testimony offered.
(e) This section shall neither enlarge nor diminish the rights and
remedies of parties to a recording or master recording which they
might otherwise possess by law.
(f) This section shall not apply to persons engaged in radio or
television broadcasting or cablecasting who record or fix the sounds
of a live performance for, or in connection with, broadcast or cable
transmission and related uses in educational television or radio
programs, for archival purposes, or for news programs or purposes if
the recordation or master recording is not commercially distributed
independent of the broadcast or cablecast by or through the
broadcasting or cablecasting entity to subscribers or the general
public.
(g) Any person who has been convicted of a violation of
subdivision (a), shall be punished by imprisonment in the county jail
not to exceed one year, or by imprisonment in
the state prison pursuant to subdivision (h)
of Section 1170 for two, three, or five years, or by a fine not
to exceed five hundred thousand dollars ($500,000), or by both, if
the offense involves the transportation or causing to be transported
of not less than 1,000 articles described in subdivision (a).
(h) Any person who has been convicted of any other violation of
subdivision (a) not described in subdivision (g) shall be punished by
imprisonment in the county jail not to exceed one year, or by a fine
not to exceed fifty thousand dollars ($50,000), or by
both that fine and impris onment . A second or
subsequent conviction under subdivision (a) not described in
subdivision (g) shall be punished by imprisonment in the county jail
not to exceed one year or in the state prison
pursuant to subdivision (h) of Section 1170 , or by a fine not
to exceed two hundred thousand dollars ($200,000), or by both
that fine and imprisonment .
(i) Every person who offers for sale or resale, or sells or
resells, or causes the sale or resale, or rents, or possesses for
these purposes, any article described in subdivision (a) with
knowledge that the sounds thereon have been so recorded or mastered
without the consent of the owner of the sounds of a live performance
is guilty of a public offense.
(1) A violation of subdivision (i) involving not less than 100 of
those articles shall be punishable by imprisonment in a county jail
not to exceed one year or by a fine not to exceed twenty thousand
dollars ($20,000), or by both that fine and imprisonment .
A second or subsequent conviction for the conduct described in this
paragraph shall be punishable by imprisonment in the county jail not
to exceed one year or in the state prison
pursuant to subdivision (h) of Section 1170 , or by a fine not
to exceed fifty thousand dollars ($50,000), or by both.
(2) A person who has been convicted of any violation of this
subdivision not described in paragraph (1) shall be punished by
imprisonment in the county jail not to exceed six months or by a fine
not to exceed ten thousand dollars ($10,000), or by both that
fine and imprisonment . A second conviction for the conduct
described in this paragraph shall be punishable by imprisonment in
the county jail not to exceed one year or by a fine not to exceed
twenty thousand dollars ($20,000), or by both that fine and
imprisonment . A third or subsequent conviction for the conduct
described in this paragraph shall be punishable by imprisonment in
the county jail not to exceed one year or in the state
prison
pursuant to subdivision (h) of Section 1170 , or by a fine
not to exceed fifty thousand dollars ($50,000), or by both that
fine and imprisonment .
SEC. 436. Section 653t of the Penal Code is amended to
read:
653t. (a) A person commits a public offense if the person
knowingly and maliciously interrupts, disrupts, impedes, or otherwise
interferes with the transmission of a communication over an amateur
or a citizen's band radio frequency, the purpose of which
communication is to inform or inquire about an emergency.
(b) For purposes of this section, "emergency" means a condition or
circumstance in which an individual is or is reasonably believed by
the person transmitting the communication to be in imminent danger of
serious bodily injury, in which property is or is reasonably
believed by the person transmitting the communication to be in
imminent danger of extensive damage or destruction, or in which that
injury or destruction has occurred and the person transmitting is
attempting to summon assistance.
(c) A violation of subdivision (a) is a misdemeanor punishable by
a fine not to exceed one thousand dollars ($1,000), by imprisonment
in a county jail not to exceed six months, or by both, unless, as a
result of the commission of the offense, serious bodily injury or
property loss in excess of ten thousand dollars ($10,000) occurs, in
which event the offense is a felony punishable by imprisonment
pursuant to subdivision (h) of Sectio n 1170 .
(d) Any person who knowingly and maliciously interrupts, disrupts,
impedes, or otherwise interferes with the transmission of an
emergency communication over a public safety radio frequency, when
the offense results in serious bodily injury or property loss in
excess of ten thousand dollars ($10,000), is guilty of a felony
punishable by imprisonment pursuant to subdivision (h) of Section
1170 .
SEC. 437. Section 653u of the Penal Code is amended to
read:
653u. (a) Any person who records or masters or causes to be
recorded or mastered on any article with the intent to sell for
commercial advantage or private financial gain, the sounds of a live
performance with the knowledge that the sounds thereon have been
recorded or mastered without the consent of the owner of the sounds
of the live performance is guilty of a public offense punishable as
provided in subdivisions (d) and (e).
(b) In the absence of a written agreement or operation of law to
the contrary, the performer or performers of the sounds of a live
performance shall be presumed to own the right to record or master
those sounds.
(c) (1) For purposes of this section, a
person who is authorized to maintain custody and control over
business records reflecting the consent of the owner to the
recordation or master recording of a live performance shall be a
proper witness in any proceeding regarding the issue of consent.
Any
(2) Any witness called pursuant
to this section shall be subject to all rules of evidence relating to
the competency of a witness to testify and the relevance and
admissibility of the testimony offered.
(d) Any person who has been convicted of a violation of
subdivision (a) shall be punished by imprisonment in the county jail
not to exceed one year, or by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170
for two, three, or five years, or by a fine not to exceed five
hundred thousand dollars ($500,000), or by both that fine and
imprisonment , if the offense involves the recording,
mastering, or causing to be recorded or mastered at least 1,000
articles described in subdivision (a).
(e) Any person who has been convicted of any other violation of
subdivision (a) not described in subdivision (d), shall be punished
by imprisonment in the county jail not to exceed one year, or by a
fine not to exceed fifty thousand dollars ($50,000), or by both
that fine and imprisonment . A second or subsequent conviction
under subdivision (a) not described in subdivision (d) shall be
punished by imprisonment in the county jail not to exceed one year or
in the state prison pursuant to subdivision
(h) of Section 1170 or by a fine not to exceed two hundred
thousand dollars ($200,000), or by both that fine and
imprisonment .
SEC. 438. Section 653w of the Penal Code is amended to
read:
653w. (a) (1) A person is guilty of failure
to disclose the origin of a recording or audiovisual work if, for
commercial advantage or private financial gain, he or she knowingly
advertises or offers for sale or resale, or sells or resells, or
causes the rental, sale, or resale of, or rents, or manufactures, or
possesses for these purposes, any recording or audiovisual work, the
outside cover, box, jacket, or label of which does not clearly and
conspicuously disclose the actual true name and address of the
manufacturer thereof and the name of the actual author, artist,
performer, producer, programmer, or group thereon. This section does
not require the original manufacturer or authorized licensees of
software producers to disclose the contributing authors or
programmers.
As
(2) As used in this section,
"recording" means any tangible medium upon which information or
sounds are recorded or otherwise stored, including, but not limited
to, any phonograph record, disc, tape, audio cassette, wire, film,
memory card, flash drive, hard drive, data storage device, or other
medium on which information or sounds are recorded or otherwise
stored, but does not include sounds accompanying a motion picture or
other audiovisual work.
As
(3) As used in this section,
"audiovisual works" are the physical embodiment of works that consist
of related images that are intrinsically intended to be shown using
machines or devices, such as projectors, viewers, or electronic
equipment, together with accompanying sounds, if any, regardless of
the nature of the material objects, such as films, tapes, discs,
memory cards, flash drives, hard drives, data storage devices, or
other devices, on which the works are embodied.
(b) Any person who has been convicted of a violation of
subdivision (a) shall be punished as follows:
(1) If the offense involves the advertisement, offer for sale or
resale, sale, rental, manufacture, or possession for these purposes,
of at least 100 articles of audio recordings or 100 articles of
audiovisual works described in subdivision (a), the person shall be
punished by imprisonment in a county jail not to exceed one year, or
by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for
two, three, or five years, or by a fine not to exceed five hundred
thousand dollars ($500,000), or by both that fine and
imprisonment .
(2) Any other violation of subdivision (a) not described in
paragraph (1), shall, upon a first offense, be punished by
imprisonment in a county jail not to exceed one year, or by a fine
not to exceed fifty thousand dollars ($50,000), or by both that
fine and imprisonment .
(3) A second or subsequent conviction under subdivision (a) not
described in paragraph (1), shall be punished by imprisonment in a
county jail not to exceed one year or in the state prison
pursuant to subdivision (h) of Section 1170 , or
by a fine not to exceed two hundred thousand dollars ($200,000), or
by both that fine and imprisonment .
SEC. 439. Section 664 of the Penal Code is amended to
read:
664. Every person who attempts to commit any crime, but fails, or
is prevented or intercepted in its perpetration, shall be punished
where no provision is made by law for the punishment of those
attempts, as follows:
(a) If the crime attempted is punishable by imprisonment in the
state prison, or by imprisonment pursuant to subdivision (h) of
Section 1170, the person guilty of the attempt shall be
punished by imprisonment in the state prison or in a county
jail, respectively, for one-half the term of imprisonment
prescribed upon a conviction of the offense attempted. However, if
the crime attempted is willful, deliberate, and premeditated murder,
as defined in Section 189, the person guilty of that attempt shall be
punished by imprisonment in the state prison for life with the
possibility of parole. If the crime attempted is any other one in
which the maximum sentence is life imprisonment or death, the person
guilty of the attempt shall be punished by imprisonment in the state
prison for five, seven, or nine years. The additional term provided
in this section for attempted willful, deliberate, and premeditated
murder shall not be imposed unless the fact that the attempted murder
was willful, deliberate, and premeditated is charged in the
accusatory pleading and admitted or found to be true by the trier of
fact.
(b) If the crime attempted is punishable by imprisonment in a
county jail, the person guilty of the attempt shall be punished by
imprisonment in a county jail for a term not exceeding one-half the
term of imprisonment prescribed upon a conviction of the offense
attempted.
(c) If the offense so attempted is punishable by a fine, the
offender convicted of that attempt shall be punished by a fine not
exceeding one-half the largest fine which may be imposed upon a
conviction of the offense attempted.
(d) If a crime is divided into degrees, an attempt to commit the
crime may be of any of those degrees, and the punishment for the
attempt shall be determined as provided by this section.
(e) Notwithstanding subdivision (a), if attempted murder is
committed upon a peace officer or firefighter, as those terms are
defined in paragraphs (7) and (9) of subdivision (a) of Section
190.2, a custodial officer, as that term is defined in subdivision
(a) of Section 831 or subdivision (a) of Section 831.5, a custody
assistant, as that term is defined in subdivision (a) of Section
831.7, or a nonsworn uniformed employee of a sheriff's department
whose job entails the care or control of inmates in a detention
facility, as defined in subdivision (c) of Section 289.6, and the
person who commits the offense knows or reasonably should know that
the victim is a peace officer, firefighter, custodial officer,
custody assistant, or nonsworn uniformed employee of a sheriff's
department engaged in the performance of his or her duties, the
person guilty of the attempt shall be punished by imprisonment in the
state prison for life with the possibility of parole.
This subdivision shall apply if it is proven that a direct but
ineffectual act was committed by one person toward killing another
human being and the person committing the act harbored express malice
aforethought, namely, a specific intent to unlawfully kill another
human being. The Legislature finds and declares that this paragraph
is declaratory of existing law.
(f) Notwithstanding subdivision (a), if the elements of
subdivision (e) are proven in an attempted murder and it is also
charged and admitted or found to be true by the trier of fact that
the attempted murder was willful, deliberate, and premeditated, the
person guilty of the attempt shall be punished by imprisonment in the
state prison for 15 years to life. Article 2.5 (commencing with
Section 2930) of Chapter 7 of Title 1 of Part 3 shall not apply to
reduce this minimum term of 15 years in state prison, and the person
shall not be released prior to serving 15 years' confinement.
SEC. 440. Section 666 of the Penal Code is amended to
read:
666. (a) Notwithstanding
Section 490, every person who, having been convicted three or more
times of petty theft, grand theft, auto theft under Section 10851 of
the Vehicle Code, burglary, carjacking, robbery, or a felony
violation of Section 496 and having served a term therefor in any
penal institution or having been imprisoned therein as a condition of
probation for that offense, is subsequently convicted of petty
theft, then the person convicted of that subsequent offense is
punishable by imprisonment in the county jail not exceeding one year,
or in the state prison imprisonment pursuant
to subdivision (h) of Section 1170 .
(b) Notwithstanding Section 490, any person described in paragraph
(1) who, having been convicted of petty theft, grand theft, auto
theft under Section 10851 of the Vehicle Code, burglary, carjacking,
robbery, or a felony violation of Section 496, and having served a
term of imprisonment therefor in any penal institution or having been
imprisoned therein as a condition of probation for that offense, who
is subsequently convicted of petty theft, is punishable by
imprisonment in the county jail not exceeding one year, or in the
state prison.
(1) This subdivision shall apply to any person who is required to
register pursuant to the Sex Offender Registration Act, or who has a
prior violent or serious felony conviction, as specified in
subdivision (c) of Section 667.5 or subdivision (c) of Section
1192.7.
(2) This subdivision shall not be construed to preclude
prosecution or punishment pursuant to subdivisions (b) to (i),
inclusive, of Section 667, or Section 1170.12.
SEC. 441. Section 666.5 of the Penal Code is amended to
read:
666.5. (a) Every person who, having been previously convicted of
a felony violation of Section 10851 of the Vehicle Code, or felony
grand theft involving an automobile in violation of subdivision (d)
of Section 487 or former subdivision (3) of Section 487, as that
section read prior to being amended by Section 4 of Chapter 1125 of
the Statutes of 1993, or felony grand theft involving a motor
vehicle, as defined in Section 415 of the Vehicle Code, any trailer,
as defined in Section 630 of the Vehicle Code, any special
construction equipment, as defined in Section 565 of the Vehicle
Code, or any vessel, as defined in Section 21 of the Harbors and
Navigation Code in violation of former Section 487h, or a felony
violation of Section 496d regardless of whether or not the person
actually served a prior prison term for those offenses, is
subsequently convicted of any of these offenses shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 for two, three, or four years,
or a fine of ten thousand dollars ($10,000), or both the fine and the
imprisonment.
(b) For the purposes of this section, the terms "special
construction equipment" and "vessel" are limited to motorized
vehicles and vessels.
(c) The existence of any fact which would bring a person under
subdivision (a) shall be alleged in the information or indictment and
either admitted by the defendant in open court, or found to be true
by the jury trying the issue of guilt or by the court where guilt is
established by plea of guilty or nolo contendere or by trial by the
court sitting without a jury.
SEC. 442. Section 667.5 of the Penal Code, as amended
by November 7, 2006, by Section 9 of initiative Proposition 83, is
amended to read:
667.5. Enhancement of prison terms for new offenses because of
prior prison terms shall be imposed as follows:
(a) Where one of the new offenses is one of the violent felonies
specified in subdivision (c), in addition to and consecutive to any
other prison terms therefor, the court shall impose a three-year term
for each prior separate prison term served by the defendant where
the prior offense was one of the violent felonies specified in
subdivision (c). However, no additional term shall be imposed under
this subdivision for any prison term served prior to a period of 10
years in which the defendant remained free of both prison custody and
the commission of an offense which results in a felony conviction.
(b) Except where subdivision (a) applies, where the new offense is
any felony for which a prison sentence or a sentence of
imprisonment in a county jail for more than one year is
imposed, in addition and consecutive to any other prison terms
therefor, the court shall impose a one-year term for each prior
separate prison term or county jail term of more than one year
served for any felony; provided that no additional term shall
be imposed under this subdivision for any prison term or county
jail term of more than one year served prior to a period of
five years in which the defendant remained free of both
prison custody and the commission of an offense which
results in a felony conviction , and prison custody or jail
custody of more than one year .
(c) For the purpose of this section, "violent felony" shall mean
any of the following:
(1) Murder or voluntary manslaughter.
(2) Mayhem.
(3) Rape as defined in paragraph (2) or (6) of subdivision (a) of
Section 261 or paragraph (1) or (4) of subdivision (a) of Section
262.
(4) Sodomy as defined in subdivision (c) or (d) of Section 286.
(5) Oral copulation as defined in subdivision (c) or (d) of
Section 288a.
(6) Lewd or lascivious act as defined in subdivision (a) or (b) of
Section 288.
(7) Any felony punishable by death or imprisonment in the state
prison for life.
(8) Any felony in which the defendant inflicts great bodily injury
on any person other than an accomplice which has been charged and
proved as provided for in Section 12022.7, 12022.8, or 12022.9 on or
after July 1, 1977, or as specified prior to July 1, 1977, in
Sections 213, 264, and 461, or any felony in which the defendant uses
a firearm which use has been charged and proved as provided in
subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55.
(9) Any robbery.
(10) Arson, in violation of subdivision (a) or (b) of Section 451.
(11) Sexual penetration as defined in subdivision (a) or (j) of
Section 289.
(12) Attempted murder.
(13) A violation of Section 12308, 12309, or 12310.
(14) Kidnapping.
(15) Assault with the intent to commit a specified felony, in
violation of Section 220.
(16) Continuous sexual abuse of a child, in violation of Section
288.5.
(17) Carjacking, as defined in subdivision (a) of Section 215.
(18) Rape, spousal rape, or sexual penetration, in concert, in
violation of Section 264.1.
(19) Extortion, as defined in Section 518, which would constitute
a felony violation of Section 186.22 of the Penal Code.
(20) Threats to victims or witnesses, as defined in Section 136.1,
which would constitute a felony violation of Section 186.22 of the
Penal Code.
(21) Any burglary of the first degree, as defined in subdivision
(a) of Section 460, wherein it is charged and proved that another
person, other than an accomplice, was present in the residence during
the commission of the burglary.
(22) Any violation of Section 12022.53.
(23) A violation of subdivision (b) or (c) of Section 11418. The
Legislature finds and declares that these specified crimes merit
special consideration when imposing a sentence to display society's
condemnation for these extraordinary crimes of violence against the
person.
(d) For the purposes of this section, the defendant shall be
deemed to remain in prison custody for an offense until the official
discharge from custody or until release on parole, whichever first
occurs, including any time during which the defendant remains subject
to reimprisonment for escape from custody or is reimprisoned on
revocation of parole. The additional penalties provided for prior
prison terms shall not be imposed unless they are charged and
admitted or found true in the action for the new offense.
(e) The additional penalties provided for prior prison terms shall
not be imposed for any felony for which the defendant did not serve
a prior separate term in state prison.
(f) A prior conviction of a felony shall include a conviction in
another jurisdiction for an offense which, if committed in
California, is punishable by imprisonment in the state prison if the
defendant served one year or more in prison for the offense in the
other jurisdiction. A prior conviction of a particular felony shall
include a conviction in another jurisdiction for an offense which
includes all of the elements of the particular felony as defined
under California law if the defendant served one year or more in
prison for the offense in the other jurisdiction.
(g) A prior separate prison term for the purposes of this section
shall mean a continuous completed period of prison incarceration
imposed for the particular offense alone or in combination with
concurrent or consecutive sentences for other crimes, including any
reimprisonment on revocation of parole which is not accompanied by a
new commitment to prison, and including any reimprisonment after an
escape from incarceration.
(h) Serving a prison term includes any confinement time in any
state prison or federal penal institution as punishment for
commission of an offense, including confinement in a hospital or
other institution or facility credited as service of prison time in
the jurisdiction of the confinement.
(i) For the purposes of this section, a commitment to the State
Department of Mental Health as a mentally disordered sex offender
following a conviction of a felony, which commitment exceeds one year
in duration, shall be deemed a prior prison term.
(j) For the purposes of this section, when a person subject to the
custody, control, and discipline of the Director of Corrections is
incarcerated at a facility operated by the Department of the Youth
Authority, that incarceration shall be deemed to be a term served in
state prison.
(k) (1) Notwithstanding subdivisions (d) and
(g) or any other provision of law, where one of the new offenses is
committed while the defendant is temporarily removed from prison
pursuant to Section 2690 or while the defendant is transferred to a
community facility pursuant to Section 3416, 6253, or 6263, or while
the defendant is on furlough pursuant to Section 6254, the defendant
shall be subject to the full enhancements provided for in this
section.
This
(2) This subdivision shall not
apply when a full, separate, and consecutive term is imposed pursuant
to any other provision of law.
SEC. 443. Section 667.5 of the Penal Code, as amended
by Section 63 of Chapter 178 of the Statutes of 2010, is amended to
read:
667.5. Enhancement of prison terms for new offenses because of
prior prison terms shall be imposed as follows:
(a) Where one of the new offenses is one of the violent felonies
specified in subdivision (c), in addition to and consecutive to any
other prison terms therefor, the court shall impose a three-year term
for each prior separate prison term served by the defendant where
the prior offense was one of the violent felonies specified in
subdivision (c). However, no additional term shall be imposed under
this subdivision for any prison term served prior to a period of 10
years in which the defendant remained free of both prison custody and
the commission of an offense which results in a felony conviction.
(b) Except where subdivision (a) applies, where the new offense is
any felony for which a prison sentence or a sentence of
imprisonment in a county jail for more than one year is
imposed, in addition and consecutive to any other prison terms
therefor, the court shall impose a one-year term for each prior
separate prison term or county jail term of more than one year
served for any felony; provided that no additional term shall
be imposed under this subdivision for any prison term or county
jail term of more than one year served prior to a period of
five years in which the defendant remained free of both
prison custody and the commission of an offense which
results in a felony conviction , and prison custody
or jail custody of more than one year .
(c) For the purpose of this section, "violent felony" shall mean
any of the following:
(1) Murder or voluntary manslaughter.
(2) Mayhem.
(3) Rape as defined in paragraph (2) or (6) of subdivision (a) of
Section 261 or paragraph (1) or (4) of subdivision (a) of Section
262.
(4) Sodomy as defined in subdivision (c) or (d) of Section 286.
(5) Oral copulation as defined in subdivision (c) or (d) of
Section 288a.
(6) Lewd or lascivious act as defined in subdivision (a) or (b) of
Section 288.
(7) Any felony punishable by death or imprisonment in the state
prison for life.
(8) Any felony in which the defendant inflicts great bodily injury
on any person other than an accomplice which has been charged and
proved as provided for in Section 12022.7, 12022.8, or 12022.9 on or
after July 1, 1977, or as specified prior to July 1, 1977, in
Sections 213, 264, and 461, or any felony in which the defendant uses
a firearm which use has been charged and proved as provided in
subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55.
(9) Any robbery.
(10) Arson, in violation of subdivision (a) or (b) of Section 451.
(11) Sexual penetration as defined in subdivision (a) or (j) of
Section 289.
(12) Attempted murder.
(13) A violation of Section 18745, 18750, or 18755.
(14) Kidnapping.
(15) Assault with the intent to commit a specified felony, in
violation of Section 220.
(16) Continuous sexual abuse of a child, in violation of Section
288.5.
(17) Carjacking, as defined in subdivision (a) of Section 215.
(18) Rape, spousal rape, or sexual penetration, in concert, in
violation of Section 264.1.
(19) Extortion, as defined in Section 518, which would constitute
a felony violation of Section 186.22 of the Penal Code.
(20) Threats to victims or witnesses, as defined in Section 136.1,
which would constitute a felony violation of Section 186.22 of the
Penal Code.
(21) Any burglary of the first degree, as defined in subdivision
(a) of Section 460, wherein it is charged and proved that another
person, other than an accomplice, was present in the residence during
the commission of the burglary.
(22) Any violation of Section 12022.53.
(23) A violation of subdivision (b) or (c) of Section 11418. The
Legislature finds and declares that these specified crimes merit
special consideration when imposing a sentence to display society's
condemnation for these extraordinary crimes of violence against the
person.
(d) For the purposes of this section, the defendant shall be
deemed to remain in prison custody for an offense until the
official discharge from custody or
until release on parole, whichever first occurs, including any time
during which the defendant remains subject to reimprisonment for
escape from custody or is reimprisoned on revocation of parole. The
additional penalties provided for prior prison terms shall not be
imposed unless they are charged and admitted or found true in the
action for the new offense.
(e) The additional penalties provided for prior prison terms shall
not be imposed for any felony for which the defendant did not serve
a prior separate term in state prison.
(f) A prior conviction of a felony shall include a conviction in
another jurisdiction for an offense which, if committed in
California, is punishable by imprisonment in the state prison if the
defendant served one year or more in prison for the offense in the
other jurisdiction. A prior conviction of a particular felony shall
include a conviction in another jurisdiction for an offense which
includes all of the elements of the particular felony as defined
under California law if the defendant served one year or more in
prison for the offense in the other jurisdiction.
(g) A prior separate prison term for the purposes of this section
shall mean a continuous completed period of prison incarceration
imposed for the particular offense alone or in combination with
concurrent or consecutive sentences for other crimes, including any
reimprisonment on revocation of parole which is not accompanied by a
new commitment to prison, and including any reimprisonment after an
escape from incarceration.
(h) Serving a prison term includes any confinement time in any
state prison or federal penal institution as punishment for
commission of an offense, including confinement in a hospital or
other institution or facility credited as service of prison time in
the jurisdiction of the confinement.
(i) For the purposes of this section, a commitment to the State
Department of Mental Health as a mentally disordered sex offender
following a conviction of a felony, which commitment exceeds one year
in duration, shall be deemed a prior prison term.
(j) For the purposes of this section, when a person subject to the
custody, control, and discipline of the Director of Corrections is
incarcerated at a facility operated by the Department of the Youth
Authority, that incarceration shall be deemed to be a term served in
state prison.
(k) (1) Notwithstanding subdivisions (d) and
(g) or any other provision of law, where one of the new offenses is
committed while the defendant is temporarily removed from prison
pursuant to Section 2690 or while the defendant is transferred to a
community facility pursuant to Section 3416, 6253, or 6263, or while
the defendant is on furlough pursuant to Section 6254, the defendant
shall be subject to the full enhancements provided for in this
section.
This
(2) This subdivision shall not
apply when a full, separate, and consecutive term is imposed pursuant
to any other provision of law.
SEC. 444. Section 668 of the Penal Code is amended to
read:
668. Every person who has been convicted in any other state,
government, country, or jurisdiction of an offense for which, if
committed within this state, that person could have been punished
under the laws of this state by imprisonment in the state prison, is
punishable for any subsequent crime committed within this state in
the manner prescribed by law and to the same extent as if that prior
conviction had taken place in a court of this state. The application
of this section includes, but is not limited to, all statutes that
provide for an enhancement or a term of imprisonment based on a prior
conviction or a prior prison term or a term pursuant to
subdivision (h) of Section 1170 .
SEC. 445. Section 800 of the Penal Code is amended to
read:
800. Except as provided in Section 799, prosecution for an
offense punishable by imprisonment in the state prison pursuant
to subdivision (h) of Section 1170 for eight years or more
shall be commenced within six years after commission of the offense.
SEC. 446. Section 801 of the Penal Code is amended to
read:
801. Except as provided in Sections 799 and 800, prosecution for
an offense punishable by imprisonment in the state prison or
pursuant to subdivision (h) of Section 1170 shall be commenced
within three years after commission of the offense.
SEC. 447. Section 803 of the Penal Code is amended to
read:
803. (a) Except as provided in this section, a limitation of time
prescribed in this chapter is not tolled or extended for any reason.
(b) No time during which prosecution of the same person for the
same conduct is pending in a court of this state is a part of a
limitation of time prescribed in this chapter.
(c) A limitation of time prescribed in this chapter does not
commence to run until the discovery of an offense described in this
subdivision. This subdivision applies to an offense punishable by
imprisonment in the state prison or imprisonment pursuant to
subdivision (h) of Section 1170, 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, including, but not limited to, the following
offenses:
(1) Grand theft of any type, forgery, falsification of public
records, or acceptance of a bribe by a public official or a public
employee.
(2) A violation of Section 72, 118, 118a, 132, 134, or 186.10.
(3) A violation of Section 25540, of any type, or Section 25541 of
the Corporations Code.
(4) A violation of Section 1090 or 27443 of the Government Code.
(5) Felony welfare fraud or Medi-Cal fraud in violation of Section
11483 or 14107 of the Welfare and Institutions Code.
(6) Felony insurance fraud in violation of Section 548 or 550 of
this code or former Section 1871.1, or Section 1871.4, of the
Insurance Code.
(7) A violation of Section 580, 581, 582, 583, or 584 of the
Business and Professions Code.
(8) A violation of Section 22430 of the Business and Professions
Code.
(9) A violation of Section 10690 of the Health and Safety Code.
(10) A violation of Section 529a.
(11) A violation of subdivision (d) or (e) of Section 368.
(d) If the defendant is out of the state when or after the offense
is committed, the prosecution may be commenced as provided in
Section 804 within the limitations of time prescribed by this
chapter, and no time up to a maximum of three years during which the
defendant is not within the state shall be a part of those
limitations.
(e) A limitation of time prescribed in this chapter does not
commence to run until the offense has been discovered, or could have
reasonably been discovered, with regard to offenses under Division 7
(commencing with Section 13000) of the Water Code, under Chapter 6.5
(commencing with Section 25100) of, Chapter 6.7 (commencing with
Section 25280) of, or Chapter 6.8 (commencing with Section 25300) of,
Division 20 of, or Part 4 (commencing with Section 41500) of
Division 26 of, the Health and Safety Code, or under Section 386, or
offenses under Chapter 5 (commencing with Section 2000) of Division 2
of, Chapter 9 (commencing with Section 4000) of Division 2 of,
Section 6126 of, Chapter 10 (commencing with Section 7301) of
Division 3 of, or Chapter 19.5 (commencing with Section 22440) of
Division 8 of, the Business and Professions Code.
(f) (1) Notwithstanding any other limitation of time described in
this chapter, a criminal complaint may be filed within one year of
the date of a report to a California law enforcement agency by a
person of any age alleging that he or she, while under the age of 18
years, was the victim of a crime described in Section 261, 286, 288,
288a, 288.5, or 289, or Section 289.5, as enacted by Chapter 293 of
the Statutes of 1991 relating to penetration by an unknown object.
(2) This subdivision applies only if all of the following occur:
(A) The limitation period specified in Section 800, 801, or 801.1,
whichever is later, has expired.
(B) The crime involved substantial sexual conduct, as described in
subdivision (b) of Section 1203.066, excluding masturbation that is
not mutual.
(C) There is independent evidence that corroborates the victim's
allegation. If the victim was 21 years of age or older at the time of
the report, the independent evidence shall clearly and convincingly
corroborate the victim's allegation.
(3) No evidence may be used to corroborate the victim's allegation
that otherwise would be inadmissible during trial. Independent
evidence does not include the opinions of mental health
professionals.
(4) (A) In a criminal investigation involving any of the crimes
listed in paragraph (1) committed against a child, when the
applicable limitations period has not expired, that period shall be
tolled from the time a party initiates litigation challenging a grand
jury subpoena until the end of the litigation, including any
associated writ or appellate proceeding, or until the final
disclosure of evidence to the investigating or prosecuting agency, if
that disclosure is ordered pursuant to the subpoena after the
litigation.
(B) Nothing in this subdivision affects the definition or
applicability of any evidentiary privilege.
(C) This subdivision shall not apply where a court finds that the
grand jury subpoena was issued or caused to be issued in bad faith.
(g) (1) Notwithstanding any other limitation of time described in
this chapter, a criminal complaint may be filed within one year of
the date on which the identity of the suspect is conclusively
established by DNA testing, if both of the following conditions are
met:
(A) The crime is one that is described in subdivision (c) of
Section 290.
(B) The offense was committed prior to January 1, 2001, and
biological evidence collected in connection with the offense is
analyzed for DNA type no later than January 1, 2004, or the offense
was committed on or after January 1, 2001, and biological evidence
collected in connection with the offense is analyzed for DNA type no
later than two years from the date of the offense.
(2) For purposes of this section, "DNA" means deoxyribonucleic
acid.
(h) For any crime, the proof of which depends substantially upon
evidence that was seized under a warrant, but which is unavailable to
the prosecuting authority under the procedures described in People
v. Superior Court (Laff) (2001) 25 Cal.4th 703, People v. Superior
Court (Bauman & Rose) (1995) 37 Cal.App.4th 1757, or subdivision (c)
of Section 1524, relating to claims of evidentiary privilege or
attorney work product, the limitation of time prescribed in this
chapter shall be tolled from the time of the seizure until final
disclosure of the evidence to the prosecuting authority. Nothing in
this section otherwise affects the definition or applicability of any
evidentiary privilege or attorney work product.
SEC. 448. Section 836.6 of the Penal Code is amended to
read:
836.6. (a) It is unlawful for any person who is remanded by a
magistrate or judge of any court in this state to the custody of a
sheriff, marshal, or other police agency, to thereafter escape or
attempt to escape from that custody.
(b) It is unlawful for any person who has been lawfully arrested
by any peace officer and who knows, or by the exercise of reasonable
care should have known, that he or she has been so arrested, to
thereafter escape or attempt to escape from that peace officer.
(c) Any person who violates subdivision (a) or (b) is guilty of a
misdemeanor, punishable by imprisonment in a county jail not to
exceed one year. However, if the escape or attempted escape is by
force or violence, and the person proximately causes a peace officer
serious bodily injury, the person shall be punished by imprisonment
in the state prison
pursuant to subdivision (h) of Section 1170 for two, three, or
four years, or by imprisonment in a county jail not to exceed one
year.
SEC. 449. Section 1168 of the Penal Code is amended to
read:
1168. (a) Every person who commits a public offense, for which
any specification of three time periods of imprisonment in any
state prison or imprisonment pursuant to subdivision (h) of
Section 1170 is now prescribed by law or for which only a single term
of imprisonment in state prison or imprisonment pursuant to
subdivision (h) of Section 1170 is specified shall, unless such
convicted person be placed on probation, a new trial granted, or the
imposing of sentence suspended, be sentenced pursuant to Chapter 4.5
(commencing with Section 1170) of Title 7 of Part 2.
(b) For any person not sentenced under such provision, but who is
sentenced to be imprisoned in the state prison or imprisonment
pursuant to subdivision (h) of Section 1170, including
imprisonment not exceeding one year and one day, the court imposing
the sentence shall not fix the term or duration of the period of
imprisonment.
SEC. 450. Section 1170 of the Penal Code, as amended by
Section 5 of Chapter 256 of the Statutes of 2010, is amended to
read:
1170. (a) (1) The Legislature finds and declares that the purpose
of imprisonment for crime is punishment. This purpose is best served
by terms proportionate to the seriousness of the offense with
provision for uniformity in the sentences of offenders committing the
same offense under similar circumstances. The Legislature further
finds and declares that the elimination of disparity and the
provision of uniformity of sentences can best be achieved by
determinate sentences fixed by statute in proportion to the
seriousness of the offense as determined by the Legislature to be
imposed by the court with specified discretion.
(2) Notwithstanding paragraph (1), the Legislature further finds
and declares that programs should be available for inmates,
including, but not limited to, educational programs, that are
designed to prepare nonviolent felony offenders for successful
reentry into the community. The Legislature encourages the
development of policies and programs designed to educate and
rehabilitate nonviolent felony offenders. In implementing this
section, the Department of Corrections and Rehabilitation is
encouraged to give priority enrollment in programs to promote
successful return to the community to an inmate with a short
remaining term of commitment and a release date that would allow him
or her adequate time to complete the program.
(3) In any case in which the punishment prescribed by statute for
a person convicted of a public offense is a term of imprisonment in
the state prison of any specification of three time periods, the
court shall sentence the defendant to one of the terms of
imprisonment specified unless the convicted person is given any other
disposition provided by law, including a fine, jail, probation, or
the suspension of imposition or execution of sentence or is sentenced
pursuant to subdivision (b) of Section 1168 because he or she had
committed his or her crime prior to July 1, 1977. In sentencing the
convicted person, the court shall apply the sentencing rules of the
Judicial Council. The court, unless it determines that there are
circumstances in mitigation of the punishment prescribed, shall also
impose any other term that it is required by law to impose as an
additional term. Nothing in this article shall affect any provision
of law that imposes the death penalty, that authorizes or restricts
the granting of probation or suspending the execution or imposition
of sentence, or expressly provides for imprisonment in the state
prison for life. In any case in which the amount of preimprisonment
credit under Section 2900.5 or any other provision of law is equal to
or exceeds any sentence imposed pursuant to this chapter, the entire
sentence shall be deemed to have been served and the defendant shall
not be actually delivered to the custody of the secretary. The court
shall advise the defendant that he or she shall serve a period of
parole and order the defendant to report to the parole office closest
to the defendant's last legal residence, unless the in-custody
credits equal the total sentence, including both confinement time and
the period of parole. The sentence shall be deemed a separate prior
prison term under Section 667.5, and a copy of the judgment and other
necessary documentation shall be forwarded to the secretary.
(b) When a judgment of imprisonment is to be imposed and the
statute specifies three possible terms, the choice of the appropriate
term shall rest within the sound discretion of the court. At least
four days prior to the time set for imposition of judgment, either
party or the victim, or the family of the victim if the victim is
deceased, may submit a statement in aggravation or mitigation. In
determining the appropriate term, the court may consider the record
in the case, the probation officer's report, other reports, including
reports received pursuant to Section 1203.03, and statements in
aggravation or mitigation submitted by the prosecution, the
defendant, or the victim, or the family of the victim if the victim
is deceased, and any further evidence introduced at the sentencing
hearing. The court shall select the term which, in the court's
discretion, best serves the interests of justice. The court shall set
forth on the record the reasons for imposing the term selected and
the court may not impose an upper term by using the fact of any
enhancement upon which sentence is imposed under any provision of
law. A term of imprisonment shall not be specified if imposition of
sentence is suspended.
(c) The court shall state the reasons for its sentence choice on
the record at the time of sentencing. The court shall also inform the
defendant that as part of the sentence after expiration of the term
he or she may be on parole for a period as provided in Section 3000.
(d) When a defendant subject to this section or subdivision (b) of
Section 1168 has been sentenced to be imprisoned in the state prison
and has been committed to the custody of the secretary, the court
may, within 120 days of the date of commitment on its own motion, or
at any time upon the recommendation of the secretary or the Board of
Parole Hearings, recall the sentence and commitment previously
ordered and resentence the defendant in the same manner as if he or
she had not previously been sentenced, provided the new sentence, if
any, is no greater than the initial sentence. The resentence under
this subdivision shall apply the sentencing rules of the Judicial
Council so as to eliminate disparity of sentences and to promote
uniformity of sentencing. Credit shall be given for time served.
(e) (1) Notwithstanding any other law and consistent with
paragraph (1) of subdivision (a), if the secretary or the Board of
Parole Hearings or both determine that a prisoner satisfies the
criteria set forth in paragraph (2), the secretary or the board may
recommend to the court that the prisoner's sentence be recalled.
(2) The court shall have the discretion to resentence or recall if
the court finds that the facts described in subparagraphs (A) and
(B) or subparagraphs (B) and (C) exist:
(A) The prisoner is terminally ill with an incurable condition
caused by an illness or disease that would produce death within six
months, as determined by a physician employed by the department.
(B) The conditions under which the prisoner would be released or
receive treatment do not pose a threat to public safety.
(C) The prisoner is permanently medically incapacitated with a
medical condition that renders him or her permanently unable to
perform activities of basic daily living, and results in the prisoner
requiring 24-hour total care, including, but not limited to, coma,
persistent vegetative state, brain death, ventilator-dependency, loss
of control of muscular or neurological function, and that
incapacitation did not exist at the time of the original sentencing.
The Board of Parole Hearings shall make findings pursuant to this
subdivision before making a recommendation for resentence or recall
to the court. This subdivision does not apply to a prisoner sentenced
to death or a term of life without the possibility of parole.
(3) Within 10 days of receipt of a positive recommendation by the
secretary or the board, the court shall hold a hearing to consider
whether the prisoner's sentence should be recalled.
(4) Any physician employed by the department who determines that a
prisoner has six months or less to live shall notify the chief
medical officer of the prognosis. If the chief medical officer
concurs with the prognosis, he or she shall notify the warden. Within
48 hours of receiving notification, the warden or the warden's
representative shall notify the prisoner of the recall and
resentencing procedures, and shall arrange for the prisoner to
designate a family member or other outside agent to be notified as to
the prisoner's medical condition and prognosis, and as to the recall
and resentencing procedures. If the inmate is deemed mentally unfit,
the warden or the warden's representative shall contact the inmate's
emergency contact and provide the information described in paragraph
(2).
(5) The warden or the warden's representative shall provide the
prisoner and his or her family member, agent, or emergency contact,
as described in paragraph (4), updated information throughout the
recall and resentencing process with regard to the prisoner's medical
condition and the status of the prisoner's recall and resentencing
proceedings.
(6) Notwithstanding any other provisions of this section, the
prisoner or his or her family member or designee may independently
request consideration for recall and resentencing by contacting the
chief medical officer at the prison or the secretary. Upon receipt of
the request, the chief medical officer and the warden or the warden'
s representative shall follow the procedures described in paragraph
(4). If the secretary determines that the prisoner satisfies the
criteria set forth in paragraph (2), the secretary or board may
recommend to the court that the prisoner's sentence be recalled. The
secretary shall submit a recommendation for release within 30 days in
the case of inmates sentenced to determinate terms and, in the case
of inmates sentenced to indeterminate terms, the secretary shall make
a recommendation to the Board of Parole Hearings with respect to the
inmates who have applied under this section. The board shall
consider this information and make an independent judgment pursuant
to paragraph (2) and make findings related thereto before rejecting
the request or making a recommendation to the court. This action
shall be taken at the next lawfully noticed board meeting.
(7) Any recommendation for recall submitted to the court by the
secretary or the Board of Parole Hearings shall include one or more
medical evaluations, a postrelease plan, and findings pursuant to
paragraph (2).
(8) If possible, the matter shall be heard before the same judge
of the court who sentenced the prisoner.
(9) If the court grants the recall and resentencing application,
the prisoner shall be released by the department within 48 hours of
receipt of the court's order, unless a longer time period is agreed
to by the inmate. At the time of release, the warden or the warden's
representative shall ensure that the prisoner has each of the
following in his or her possession: a discharge medical summary, full
medical records, state identification, parole medications, and all
property belonging to the prisoner. After discharge, any additional
records shall be sent to the prisoner's forwarding address.
(10) The secretary shall issue a directive to medical and
correctional staff employed by the department that details the
guidelines and procedures for initiating a recall and resentencing
procedure. The directive shall clearly state that any prisoner who is
given a prognosis of six months or less to live is eligible for
recall and resentencing consideration, and that recall and
resentencing procedures shall be initiated upon that prognosis.
(f) Any sentence imposed under this article shall be subject to
the provisions of Sections 3000 and 3057 and any other applicable
provisions of law.
(g) A sentence to state prison for a determinate term for which
only one term is specified, is a sentence to state prison under this
section.
(h) (1) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision where the term is not specified in the
underlying offense shall be punishable by a term of imprisonment in a
county jail for 16 months, or two or three years.
(2) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision shall be punishable by imprisonment in a
county jail for the term described in the underlying offense.
(3) Notwithstanding paragraphs (1) and (2), where the defendant
has a prior or current felony conviction for a serious felony
described in subdivision (c) of Section 1192.7, a violent felony
described in subdivision (c) of Section 667.5, is required to
register as a sex offender pursuant to Chapter 5.5 (commencing with
Section 290) of Title 9 of Part 1, or is convicted of a crime and as
part of the sentence an enhancement pursuant to Section 186.11 is
imposed, an executed sentence for a felony punishable pursuant to
this subdivision shall be served in state prison.
(4) Nothing in this subdivision shall be construed to prevent
other dispositions authorized by law, including pretrial diversion,
deferred entry of judgment, or an order granting probation pursuant
to Section 1203.1.
(5) The sentencing changes made by the act that added this
subdivision shall be applied prospectively to any person sentenced on
or after July 1, 2011.
(h)
(i) This section shall remain in effect only until
January 1, 2012, and as of that date is repealed, unless a later
enacted statute, that is enacted before that date, deletes or extends
that date.
SEC. 451. Section 1170 of the Penal Code, as amended by
Section 6 of Chapter 256 of the Statutes of 2010, is amended to
read:
1170. (a) (1) The Legislature finds and
declares that the purpose of imprisonment for crime is punishment.
This purpose is best served by terms proportionate to the seriousness
of the offense with provision for uniformity in the sentences of
offenders committing the same offense under similar circumstances.
The Legislature further finds and declares that the elimination of
disparity and the provision of uniformity of sentences can best be
achieved by determinate sentences fixed by statute in proportion to
the seriousness of the offense as determined by the Legislature to be
imposed by the court with specified discretion.
(2) Notwithstanding paragraph (1), the Legislature further finds
and declares that programs should be available for inmates,
including, but not limited to, educational programs, that are
designed to prepare nonviolent felony offenders for successful
reentry into the community. The Legislature encourages the
development of policies and programs designed to educate and
rehabilitate nonviolent felony offenders. In implementing this
section, the Department of Corrections and Rehabilitation is
encouraged to give priority enrollment in programs to promote
successful return to the community to an inmate with a short
remaining term of commitment and a release date that would allow him
or her adequate time to complete the program.
(3) In any case in which the punishment prescribed by statute for
a person convicted of a public offense is a term of imprisonment in
the state prison of any specification of three time periods, the
court shall sentence the defendant to one of the terms of
imprisonment specified unless the convicted person is given any other
disposition provided by law, including a fine, jail, probation, or
the suspension of imposition or execution of sentence or is sentenced
pursuant to subdivision (b) of Section 1168 because he or she had
committed his or her crime prior to July 1, 1977. In sentencing the
convicted person, the court shall apply the sentencing rules of the
Judicial Council. The court, unless it determines that there are
circumstances in mitigation of the punishment prescribed, shall also
impose any other term that it is required by law to impose as an
additional term. Nothing in this article shall affect any provision
of law that imposes the death penalty, that authorizes or restricts
the granting of probation or suspending the execution or imposition
of sentence, or expressly provides for imprisonment in the state
prison for life. In any case in which the amount of preimprisonment
credit under Section 2900.5 or any other provision of law is equal to
or exceeds any sentence imposed pursuant to this chapter, the entire
sentence shall be deemed to have been served and the defendant shall
not be actually delivered to the custody of the secretary. The court
shall advise the defendant that he or she shall serve a period of
parole and order the defendant to report to the parole office closest
to the defendant's last legal residence, unless the in-custody
credits equal the total sentence, including both confinement time and
the period of parole. The sentence shall be deemed a separate prior
prison term under Section 667.5, and a copy of the judgment and other
necessary documentation shall be forwarded to the secretary.
(b) When a judgment of imprisonment is to be imposed and the
statute specifies three possible terms, the court shall order
imposition of the middle term, unless there are circumstances in
aggravation or mitigation of the crime. At least four days prior to
the time set for imposition of judgment, either party or the victim,
or the family of the victim if the victim is deceased, may submit a
statement in aggravation or mitigation to dispute facts in the record
or the probation officer's report, or to present additional facts.
In determining whether there are circumstances that justify
imposition of the upper or lower term, the court may consider the
record in the case, the probation officer's report, other reports,
including reports received pursuant to Section 1203.03, and
statements in aggravation or mitigation submitted by the prosecution,
the defendant, or the victim, or the family of the victim if the
victim is deceased, and any further evidence introduced at the
sentencing hearing. The court shall set forth on the record the facts
and reasons for imposing the upper or lower term. The court may not
impose an upper term by using the fact of any enhancement upon which
sentence is imposed under any provision of law. A term of
imprisonment shall not be specified if imposition of sentence is
suspended.
(c) The court shall state the reasons for its sentence choice on
the record at the time of sentencing. The court shall also inform the
defendant that as part of the sentence after expiration of the term
he or she may be on parole for a period as provided in Section 3000.
(d) When a defendant subject to this section or subdivision (b) of
Section 1168 has been sentenced to be imprisoned in the state prison
and has been committed to the custody of the secretary, the court
may, within 120 days of the date of commitment on its own motion, or
at any time upon the recommendation of the secretary or the Board of
Parole Hearings, recall the sentence and commitment previously
ordered and resentence the defendant in the same manner as if he or
she had not previously been sentenced, provided the new sentence, if
any, is no greater than the initial sentence. The resentence under
this subdivision shall apply the sentencing rules of the Judicial
Council so as to eliminate disparity of sentences and to promote
uniformity of sentencing. Credit shall be given for time served.
(e) (1) Notwithstanding any other law and consistent with
paragraph (1) of subdivision (a), if the secretary or the Board of
Parole Hearings or both determine that a prisoner satisfies the
criteria set forth in paragraph (2), the secretary or the board may
recommend to the court that the prisoner's sentence be recalled.
(2) The court shall have the discretion to resentence or recall if
the court finds that the facts described in subparagraphs (A) and
(B) or subparagraphs (B) and (C) exist:
(A) The prisoner is terminally ill with an incurable condition
caused by an illness or disease that would produce death within six
months, as determined by a physician employed by the department.
(B) The conditions under which the prisoner would be released or
receive treatment do not pose a threat to public safety.
(C) The prisoner is permanently medically incapacitated with a
medical condition that renders him or her permanently unable to
perform activities of basic daily living, and results in the prisoner
requiring 24-hour total care, including, but not limited to, coma,
persistent vegetative state, brain death, ventilator-dependency, loss
of control of muscular or neurological function, and that
incapacitation did not exist at the time of the original sentencing.
The Board of Parole Hearings shall make findings pursuant to this
subdivision before making a recommendation for resentence or recall
to the court. This subdivision does not apply to a prisoner sentenced
to death or a term of life without the possibility of parole.
(3) Within 10 days of receipt of a positive recommendation by the
secretary or the board, the court shall hold a hearing to consider
whether the prisoner's sentence should be recalled.
(4) Any physician employed by the department who determines that a
prisoner has six months or less to live shall notify the chief
medical officer of the prognosis. If the chief medical officer
concurs with the prognosis, he or she shall notify the warden. Within
48 hours of receiving notification, the warden or the warden's
representative shall notify the prisoner of the recall and
resentencing procedures, and shall arrange for the prisoner to
designate a family member or other outside agent to be notified as to
the prisoner's medical condition and prognosis, and as to the recall
and resentencing procedures. If the inmate is deemed mentally unfit,
the warden or the warden's representative shall contact the inmate's
emergency contact and provide the information described in paragraph
(2).
(5) The warden or the warden's representative shall provide the
prisoner and his or her family member, agent, or emergency contact,
as described in paragraph (4), updated information throughout the
recall and resentencing process with regard to the prisoner's medical
condition and the status of the prisoner's recall and resentencing
proceedings.
(6) Notwithstanding any other provisions of this section, the
prisoner or his or her family member or designee may independently
request consideration for recall and resentencing by contacting the
chief medical officer at the prison or the secretary. Upon receipt of
the request, the chief medical officer and the warden or the warden'
s representative shall follow the procedures described in paragraph
(4). If the secretary determines that the prisoner satisfies the
criteria set forth in paragraph (2), the secretary or board may
recommend to the court that the prisoner's sentence be recalled. The
secretary shall submit a recommendation for release within 30 days in
the case of inmates sentenced to determinate terms and, in the case
of inmates sentenced to indeterminate terms, the secretary shall make
a recommendation to the Board of Parole Hearings with respect to the
inmates who have applied under this section. The board shall
consider this information and make an independent judgment pursuant
to paragraph (2) and make findings related thereto before rejecting
the request or making a recommendation to the court. This action
shall be taken at the next lawfully noticed board meeting.
(7) Any recommendation for recall submitted to the court by the
secretary or the Board of Parole Hearings shall include one or more
medical evaluations, a postrelease plan, and findings pursuant to
paragraph (2).
(8) If possible, the matter shall be heard before the same judge
of the court who sentenced the prisoner.
(9) If the court grants the recall and resentencing application,
the prisoner shall be released by the department within 48 hours of
receipt of the court's order, unless a longer time period is agreed
to by the inmate. At the time of release, the warden or the warden's
representative shall ensure that the prisoner has each of the
following in his or her possession: a discharge medical summary, full
medical records, state identification, parole medications, and all
property belonging to the prisoner. After discharge, any additional
records shall be sent to the prisoner's forwarding address.
(10) The secretary shall issue a directive to medical and
correctional staff employed by the department that details the
guidelines and procedures for initiating a recall and resentencing
procedure. The directive shall clearly state that any prisoner who is
given a prognosis of six months or less to live is eligible for
recall and resentencing consideration, and that recall and
resentencing procedures shall be initiated upon that prognosis.
(f) Any sentence imposed under this article shall be subject to
the provisions of Sections 3000 and 3057 and any other applicable
provisions of law.
(g) A sentence to state prison for a determinate term for which
only one term is specified, is a sentence to state prison under this
section.
(h) (1) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision where the term is not specified in the
underlying offense shall be punishable by a term of imprisonment in a
county jail for 16 months, or two or three years.
(2) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision shall be punishable by imprisonment in a
county jail for the term described in the underlying offense.
(3) Notwithstanding paragraphs (1) and (2), where the defendant
has a prior or current felony conviction for a serious felony
described in subdivision (c) of Section 1192.7, a violent felony
described in subdivision (c) of Section 667.5, is required to
register as a sex offender pursuant to Chapter 5.5 (commencing with
Section 290) of Title 9 of Part 1, or is convicted of a crime and as
part of the sentence an enhancement pursuant to Section 186.11 is
imposed, an executed sentence for a felony punishable pursuant to
this subdivision shall be served in state prison.
(4) Nothing in this subdivision shall be construed to prevent
other dispositions authorized by law, including pretrial diversion,
deferred entry of judgment, or an order granting probation pursuant
to Section 1203.1.
(5) The sentencing changes made by the act that added this
subdivision shall be applied prospectively to any person sentenced on
or after July 1, 2011.
(h)
(i) This section shall become operative on January 1,
2012.
SEC. 452. Section 1174.4 of the Penal Code, as amended
by Section 42 of Chapter 854 of the Statutes of 2001, is amended to
read:
1174.4. (a) Persons eligible for participation in this
alternative sentencing program shall meet all of the following
criteria:
(1) Pregnant women with an established history of substance abuse,
or pregnant or parenting women with an established history of
substance abuse who have one or more children under six years old at
the time of entry into the program. For women with children, at least
one eligible child shall reside with the mother in the facility.
(2) Never served a prior prison term for, nor been convicted in
the present proceeding of, committing or attempting to commit, any of
the following offenses:
(A) Murder or voluntary manslaughter.
(B) Mayhem.
(C) Rape.
(D) Kidnapping.
(E) Sodomy by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person.
(F) Oral copulation by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another
person.
(G) Lewd acts on a child under 14 years of age, as defined in
Section 288.
(H) Any felony punishable by death or imprisonment in the state
prison for life.
(I) Any felony in which the defendant inflicts great bodily injury
on any person, other than an accomplice, that has been charged and
proved as provided for in Section 12022.53, 12022.7, or 12022.9, or
any felony in which the defendant uses a firearm, as provided in
Section 12022.5, 12022.53, or 12022.55, in which the use has been
charged and proved.
(J) Robbery.
(K) Any robbery perpetrated in an inhabited dwelling house or
trailer coach as defined in the Vehicle Code, or in the inhabited
portion of any other building, wherein it is charged and proved that
the defendant personally used a deadly or dangerous weapon, as
provided in subdivision (b) of Section 12022, in the commission of
that robbery.
(L) Arson in violation of subdivision (a) of Section 451.
(M) Sexual penetration in violation of subdivision (a) of Section
289 if the act is accomplished against the victim's will by force,
violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person.
(N) Rape or sexual penetration in concert, in violation of Section
264.1.
(O) Continual sexual abuse of a child in violation of Section
288.5.
(P) Assault with intent to commit mayhem, rape, sodomy, oral
copulation, rape in concert with another, lascivious acts upon a
child, or sexual penetration.
(Q) Assault with a deadly weapon or with force likely to produce
great bodily injury in violation of subdivision (a) of Section 245.
(R) Any violent felony defined in Section 667.5.
(S) A violation of Section 12022.
(T) A violation of Section 12308.
(U) Burglary of the first degree.
(V) A violation of Section 11351, 11351.5, 11352, 11353, 11358,
11359, 11360, 11370.1, 11370.6, 11378, 11378.5, 11379, 11379.5,
11379.6, 11380, or 11383 of the Health and Safety Code.
(3) Has not been sentenced to state prison for a term exceeding 36
months.
(b) Prior to sentencing, if the court proposes to give
consideration to a placement, the court shall consider a written
evaluation by the probation department, which shall include the
following:
(1) Whether the defendant is eligible for participation pursuant
to this section.
(2) Whether participation by the defendant and her eligible
children is deemed to be in the best interests of the children.
(3) Whether the defendant is amenable to treatment for substance
abuse and would benefit from participation in the program.
(4) Whether the program is deemed to be in the best interests of
an eligible child of the defendant, as determined by a representative
of the appropriate child welfare services agency of the county if
the child is a dependent child of the juvenile court pursuant to
Section 300 of the Welfare and Institutions Code.
(c) The district attorney shall make a recommendation to the court
as to whether or not the defendant would benefit from the program,
which the court shall consider in making its decision. If the court's
decision is without the concurrence of the district attorney, the
court shall specify its reasons in writing and enter them into the
record.
(d) If the court determines that the defendant may benefit from
participation in this program, the court may impose a state
prison sentence of imprisonment pursuant to
subdivision (h) of Section 1170 with the recommendation that
the defendant participate in the program pursuant to this chapter.
The court shall notify the department within 48 hours of imposition
of this sentence.
(e) The Director of Corrections shall consider the court's
recommendation in making a determination on the inmate's placement in
the program.
(f) Women accepted for the program by the Director of Corrections
shall be delivered by the county, pursuant to Section 1202a, to the
facility selected by the department. Before the director accepts a
woman for the program, the county shall provide to the director the
necessary information to determine her eligibility and appropriate
placement status. Priority for services and aftercare shall be given
to inmates who are incarcerated in a county, or adjacent to a county,
in which a program facility is located.
(g) Prior to being admitted to the program, each participant shall
voluntarily sign an agreement specifying the terms and conditions of
participation in the program.
(h) The department may refer inmates back to the sentencing court
if the department determines that an eligible inmate has not been
recommended for the program. The department shall refer the inmate to
the court by an evaluative report so stating the department's
assessment of eligibility, and requesting a recommendation by the
court.
(i) Women who successfully complete the program, including the
minimum of one year of transition services under intensive parole
supervision, shall be discharged from parole. Women who do not
successfully complete the program shall be returned to the
state prison imprisonment pursuant to subdivision (h)
of Section 1170 where they shall serve their original
sentences. These persons shall receive full credit against their
original sentences for the time served in the program, pursuant to
Section 2933.
SEC. 453. Section 1174.4 of the Penal Code, as amended
by Section 72 of Chapter 178 of the Statutes of 2010, is amended to
read:
1174.4. (a) Persons eligible for participation in this
alternative sentencing program shall meet all of the following
criteria:
(1) Pregnant women with an established history of substance abuse,
or pregnant or parenting women with an established history of
substance abuse who have one or more children under six years old at
the time of entry into the program. For women with children, at least
one eligible child shall reside with the mother in the facility.
(2) Never served a prior prison term for, nor been convicted in
the present proceeding of, committing or attempting to commit, any of
the following offenses:
(A) Murder or voluntary manslaughter.
(B) Mayhem.
(C) Rape.
(D) Kidnapping.
(E) Sodomy by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person.
(F) Oral copulation by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another
person.
(G) Lewd acts on a child under 14 years of age, as defined in
Section 288.
(H) Any felony punishable by death or imprisonment in the state
prison for life.
(I) Any felony in which the defendant inflicts great bodily injury
on any person, other than an accomplice, that has been charged and
proved as provided for in Section 12022.53, 12022.7, or 12022.9, or
any felony in which the defendant uses a firearm, as provided in
Section 12022.5, 12022.53, or 12022.55, in which the use has been
charged and proved.
(J) Robbery.
(K) Any robbery perpetrated in an inhabited dwelling house or
trailer coach as defined in the Vehicle Code, or in the inhabited
portion of any other building, wherein it is charged and proved that
the defendant personally used a deadly or dangerous weapon, as
provided in subdivision (b) of Section 12022, in the commission of
that robbery.
(L) Arson in violation of subdivision (a) of Section 451.
(M) Sexual penetration in violation of subdivision (a) of Section
289 if the act is accomplished against the victim's will by force,
violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person.
(N) Rape or sexual penetration in concert, in violation of Section
264.1.
(O) Continual sexual abuse of a child in violation of Section
288.5.
(P) Assault with intent to commit mayhem, rape, sodomy, oral
copulation, rape in concert with another, lascivious acts upon a
child, or sexual penetration.
(Q) Assault with a deadly weapon or with force likely to produce
great bodily injury in violation of subdivision (a) of Section 245.
(R) Any violent felony defined in Section 667.5.
(S) A violation of Section 12022.
(T) A violation of Section 18745.
(U) Burglary of the first degree.
(V) A violation of Section 11351, 11351.5, 11352, 11353, 11358,
11359, 11360, 11370.1, 11370.6, 11378, 11378.5, 11379, 11379.5,
11379.6, 11380, or 11383 of the Health and Safety Code.
(3) Has not been sentenced to state prison for a term exceeding 36
months.
(b) Prior to sentencing, if the court proposes to give
consideration to a placement, the court shall consider a written
evaluation by the probation department, which shall include the
following:
(1) Whether the defendant is eligible for participation pursuant
to this section.
(2) Whether participation by the defendant and her eligible
children is deemed to be in the best interests of the children.
(3) Whether the defendant is amenable to treatment for substance
abuse and would benefit from participation in the program.
(4) Whether the program is deemed to be in the best interests of
an eligible child of the defendant, as determined by a representative
of the appropriate child welfare services agency of the county if
the child is a dependent child of the juvenile court pursuant to
Section 300 of the Welfare and Institutions Code.
(c) The district attorney shall make a recommendation to the court
as to whether or not the defendant would benefit from the program,
which the court shall consider in making its decision. If the court's
decision is without the concurrence of the district attorney, the
court shall specify its reasons in writing and enter them into the
record.
(d) If the court determines that the defendant may benefit from
participation in this program, the court may impose a state
prison sentence of imprisonment pursuant to
subdivision (h) of Section 1170 with the recommendation that
the defendant participate in the program pursuant to this chapter.
The court shall notify the department within 48 hours of imposition
of this sentence.
(e) The Director of Corrections shall consider the court's
recommendation in making a determination on the inmate's placement in
the program.
(f) Women accepted for the program by the Director of Corrections
shall be delivered by the county, pursuant to Section 1202a, to the
facility selected by the department. Before the director accepts a
woman for the program, the county shall provide to the director the
necessary information to determine her eligibility and appropriate
placement status. Priority for services and aftercare shall be given
to inmates who are incarcerated in a county, or adjacent to a county,
in which a program facility is located.
(g) Prior to being admitted to the program, each participant shall
voluntarily sign an agreement specifying the terms and conditions of
participation in the program.
(h) The department may refer inmates back to the sentencing court
if the department determines that an eligible inmate has not been
recommended for the program. The department shall refer the inmate to
the court by an evaluative report so stating the department's
assessment of eligibility, and requesting a recommendation by the
court.
(i) Women who successfully complete the program, including the
minimum of one year of transition services under intensive parole
supervision, shall be discharged from parole. Women who do not
successfully complete the program shall be returned to the
state prison imprisonment pursuant to subdivision (h)
of Section 1170 where they shall serve their original
sentences. These persons shall receive full credit against their
original sentences for the time served in the program, pursuant to
Section 2933.
SEC. 454. Section 1203.016 of the Penal Code is amended
to read:
1203.016. (a) Notwithstanding any other provision of law, the
board of supervisors of any county may authorize the correctional
administrator, as defined in subdivision (h), to offer a program
under which minimum security inmates and low-risk offenders
inmates committed to a county jail or other
county correctional facility or granted probation, or inmates
participating in a work furlough program, may voluntarily participate
or involuntarily be placed in a home detention program
during their sentence in lieu of confinement in the county jail or
other county
correctional facility or program under the auspices of the probation
officer.
(b) The board of supervisors , in consultation with the
correctional administrator, may prescribe reasonable rules and
regulations under which a home detention program may operate. As a
condition of participation in the home detention program, the inmate
shall give his or her consent in writing to participate in the home
detention program and shall in writing agree to comply or, for
involuntary participation, the inmate shall be informed in writing
that he or she shall comply, with the rules and regulations of
the program, including, but not limited to, the following rules:
(1) The participant shall remain within the interior premises of
his or her residence during the hours designated by the correctional
administrator.
(2) The participant shall admit any person or agent designated by
the correctional administrator into his or her residence at any time
for purposes of verifying the participant's compliance with the
conditions of his or her detention.
(3) The participant shall agree to the use of electronic
monitoring, which may include global positioning system devices or
other supervising devices for the purpose of helping to verify his or
her compliance with the rules and regulations of the home detention
program. The devices shall not be used to eavesdrop or record any
conversation, except a conversation between the participant and the
person supervising the participant which is to be used solely for the
purposes of voice identification.
(4) The participant shall agree that the correctional
administrator in charge of the county correctional facility from
which the participant was released may, without further order of the
court, immediately retake the person into custody to serve the
balance of his or her sentence if the electronic monitoring or
supervising devices are unable for any reason to properly perform
their function at the designated place of home detention, if the
person fails to remain within the place of home detention as
stipulated in the agreement, if the person willfully fails to pay
fees to the provider of electronic home detention services, as
stipulated in the agreement, subsequent to the written notification
of the participant that the payment has not been received and that
return to custody may result, or if the person for any other reason
no longer meets the established criteria under this section. A copy
of the agreement shall be delivered to the participant and a copy
retained by the correctional administrator.
(c) Whenever the peace officer supervising a participant has
reasonable cause to believe that the participant is not complying
with the rules or conditions of the program, or that the electronic
monitoring devices are unable to function properly in the designated
place of confinement, the peace officer may, under general or
specific authorization of the correctional administrator, and without
a warrant of arrest, retake the person into custody to complete the
remainder of the original sentence.
(d) Nothing in this section shall be construed to require the
correctional administrator to allow a person to participate in this
program if it appears from the record that the person has not
satisfactorily complied with reasonable rules and regulations while
in custody. A person shall be eligible for participation in a home
detention program only if the correctional administrator concludes
that the person meets the criteria for release established under this
section and that the person's participation is consistent with any
reasonable rules and regulations prescribed by the board of
supervisors or the administrative policy of the correctional
administrator.
(1) The rules and regulations and administrative policy of the
program shall be written and reviewed on an annual basis by the
county board of supervisors and the correctional administrator. The
rules and regulations shall be given to or made available to any
participant upon request.
(2) The correctional administrator, or his or her designee, shall
have the sole discretionary authority to permit program participation
as an alternative to physical custody. All persons referred or
recommended by the court to participate in the home detention program
pursuant to subdivision (e) who are denied participation or all
persons removed from program participation shall be notified in
writing of the specific reasons for the denial or removal. The notice
of denial or removal shall include the participant's appeal rights,
as established by program administrative policy.
(e) The court may recommend or refer a person to the correctional
administrator for consideration for placement in the home detention
program. The recommendation or referral of the court shall be given
great weight in the determination of acceptance or denial. At the
time of sentencing or at any time that the court deems it necessary,
the court may restrict or deny the defendant's participation in a
home detention program.
(f) The correctional administrator may permit home detention
program participants to seek and retain employment in the community,
attend psychological counseling sessions or educational or vocational
training classes, or seek medical and dental assistance. Willful
failure of the program participant to return to the place of home
detention not later than the expiration of any period of time during
which he or she is authorized to be away from the place of home
detention pursuant to this section and unauthorized departures from
the place of home detention are punishable as provided in Section
4532.
(g) The board of supervisors may prescribe a program
administrative fee to be paid by each home detention participant that
shall be determined according to his or her ability to pay.
Inability to pay all or a portion of the program fees shall not
preclude participation in the program, and eligibility shall not be
enhanced by reason of ability to pay. All program administration and
supervision fees shall be administered in compliance with Section
1208.2.
(h) As used in this section, the following words have the
following meanings: (1) "Correctional administrator" means
the sheriff, probation officer, or director of the county department
of corrections.
(2) "Minimum security inmate" means an inmate who, by established
local classification criteria, would be eligible for placement in a
Type IV local detention facility, as described in Title 15 of the
California Code of Regulations, or for placement into the community
for work or school activities, or who is determined to be a minimum
security risk under a classification plan developed pursuant to
Section 1050 of Title 15 of the California Code of Regulations.
(3) "Low-risk offender" means a probationer, as defined by the
National Institute of Corrections model probation system.
(i) Notwithstanding any other law, the police department of a city
where an office is located to which persons on an electronic
monitoring program report may require request
the county correctional administrator to provide information
concerning those persons. This information shall be limited to the
name, address, date of birth, and offense committed by the home
detainee. Any information received by a police department pursuant to
this paragraph shall be used only for the purpose of monitoring the
impact of home detention programs on the community.
(j) It is the intent of the Legislature that home detention
programs established under this section maintain the highest public
confidence, credibility, and public safety. In the furtherance of
these standards, the following shall apply:
(1) The correctional administrator, with the approval of the board
of supervisors, may administer a home detention program pursuant to
written contracts with appropriate public or private agencies or
entities to provide specified program services. No public or private
agency or entity may operate a home detention program in any county
without a written contract with that county's correctional
administrator. However, this does not apply to the use of electronic
monitoring by the California Department of
Corrections or the Department of the Youth Authority as
established in Section 3004 and
Rehabilitation . No public or private agency or entity entering
into a contract may itself employ any person who is in the home
detention program.
(2) Program acceptance shall not circumvent the normal booking
process for sentenced offenders. All home detention program
participants shall be supervised.
(3) (A) All privately operated home detention programs shall be
under the jurisdiction of, and subject to the terms and conditions of
the contract entered into with, the correctional administrator.
(B) Each contract shall include, but not be limited to, all of the
following:
(i) A provision whereby the private agency or entity agrees to
operate in compliance with any available standards promulgated by
state correctional agencies and bodies, including the Board
of Corrections Corrections Standards Authority ,
and all statutory provisions and mandates, state and county, as
appropriate and applicable to the operation of home detention
programs and the supervision of sentenced offenders in a home
detention program.
(ii) A provision that clearly defines areas of respective
responsibility and liability of the county and the private agency or
entity.
(iii) A provision that requires the private agency or entity to
demonstrate evidence of financial responsibility, submitted and
approved by the board of supervisors, in amounts and under conditions
sufficient to fully indemnify the county for reasonably foreseeable
public liability, including legal defense costs, that may arise from,
or be proximately caused by, acts or omissions of the contractor.
The contract shall provide for annual review by the correctional
administrator to ensure compliance with requirements set by the board
of supervisors and for adjustment of the financial responsibility
requirements if warranted by caseload changes or other factors.
(iv) A provision that requires the private agency or entity to
provide evidence of financial responsibility, such as certificates of
insurance or copies of insurance policies, prior to commencing any
operations pursuant to the contract or at any time requested by the
board of supervisors or correctional administrator.
(v) A provision that permits the correctional administrator to
immediately terminate the contract with a private agency or entity at
any time that the contractor fails to demonstrate evidence of
financial responsibility.
(C) All privately operated home detention programs shall comply
with all appropriate, applicable ordinances and regulations specified
in subdivision (a) of Section 1208.
(D) The board of supervisors, the correctional administrator, and
the designee of the correctional administrator shall comply with
Section 1090 of the Government Code in the consideration, making, and
execution of contracts pursuant to this section.
(E) The failure of the private agency or entity to comply with
statutory provisions and requirements or with the standards
established by the contract and with the correctional administrator
may be sufficient cause to terminate the contract.
(F) Upon the discovery that a private agency or entity with whom
there is a contract is not in compliance pursuant to this paragraph,
the correctional administrator shall give 60 days' notice to the
director of the private agency or entity that the contract may be
canceled if the specified deficiencies are not corrected.
(G) Shorter notice may be given or the contract may be canceled
without notice whenever a serious threat to public safety is present
because the private agency or entity has failed to comply with this
section.
(k) For purposes of this section, "evidence of financial
responsibility" may include, but is not limited to, certified copies
of any of the following:
(1) A current liability insurance policy.
(2) A current errors and omissions insurance policy.
(3) A surety bond.
SEC. 455. Section 1203.018 is added to the Penal Code, to read:
1203.018. (a) Notwithstanding any other law, this section shall
only apply to inmates being held in lieu of bail and on no other
basis.
(b) Notwithstanding any other law, the board of supervisors of any
county may authorize the correctional administrator, as defined in
paragraph (1) of subdivision (k), to offer a program under which
inmates being held in lieu of bail in a county jail or other county
correctional facility may participate in an electronic monitoring
program if the conditions specified in subdivision (c) are met.
(c) (1) In order to qualify for participation in an electronic
monitoring program pursuant to this section, the inmate must be an
inmate with no holds or outstanding warrants to whom one of the
following circumstances applies:
(A) The inmate has been held in custody for at least 30 calendar
days from the date of arraignment pending disposition of only
misdemeanor charges.
(B) The inmate has been held in custody pending disposition of
charges for at least 60 calendar days from the date of arraignment.
(2) All participants shall be subject to discretionary review for
eligibility and compliance by the correctional administrator
consistent with this section.
(d) The board of supervisors, after consulting with the sheriff
and district attorney, may prescribe reasonable rules and regulations
under which an electronic monitoring program pursuant to this
section may operate. As a condition of participation in the
electronic monitoring program, the participant shall give his or her
consent in writing to participate and shall agree in writing to
comply with the rules and regulations of the program, including, but
not limited to, all of the following:
(1) The participant shall remain within the interior premises of
his or her residence during the hours designated by the correctional
administrator.
(2) The participant shall admit any person or agent designated by
the correctional administrator into his or her residence at any time
for purposes of verifying the participant's compliance with the
conditions of his or her detention.
(3) The electronic monitoring may include global positioning
system devices or other supervising devices for the purpose of
helping to verify the participant's compliance with the rules and
regulations of the electronic monitoring program. The electronic
devices shall not be used to eavesdrop or record any conversation,
except a conversation between the participant and the person
supervising the participant to be used solely for the purposes of
voice identification.
(4) The correctional administrator in charge of the county
correctional facility from which the participant was released may,
without further order of the court, immediately retake the person
into custody if the electronic monitoring or supervising devices are
unable for any reason to properly perform their function at the
designated place of home detention, if the person fails to remain
within the place of home detention as stipulated in the agreement, if
the person willfully fails to pay fees to the provider of electronic
home detention services, as stipulated in the agreement, subsequent
to the written notification of the participant that the payment has
not been received and that return to custody may result, or if the
person for any other reason no longer meets the established criteria
under this section.
(5) A copy of the signed consent to participate and a copy of the
agreement to comply with the rules and regulations shall be provided
to the participant and a copy shall be retained by the correctional
administrator.
(e) The rules and regulations and administrative policy of the
program shall be reviewed on an annual basis by the county board of
supervisors and the correctional administrator. The rules and
regulations shall be given to every participant.
(f) Whenever the peace officer supervising a participant has
reasonable cause to believe that the participant is not complying
with the rules or conditions of the program, or that the electronic
monitoring devices are unable to function properly in the designated
place of confinement, the peace officer may, under general or
specific authorization of the correctional administrator, and without
a warrant of arrest, retake the person into custody.
(g) (1) Nothing in this section shall be construed to require the
correctional administrator to allow a person to participate in this
program if it appears from the record that the person has not
satisfactorily complied with reasonable rules and regulations while
in custody. A person shall be eligible for participation in an
electronic monitoring program only if the correctional administrator
concludes that the person meets the criteria for release established
under this section and that the person's participation is consistent
with any reasonable rules and regulations prescribed by the board of
supervisors or the administrative policy of the correctional
administrator.
(2) The correctional administrator, or his or her designee, shall
have discretionary authority consistent with this section to permit
program participation as an alternative to physical custody. All
persons approved by the correctional administrator to participate in
the electronic monitoring program pursuant to subdivision (c) who are
denied participation and all persons removed from program
participation shall be notified in writing of the specific reasons
for the denial or removal. The notice of denial or removal shall
include the participant's appeal rights, as established by program
administrative policy.
(h) The correctional administrator may permit electronic
monitoring program participants to seek and retain employment in the
community, attend psychological counseling sessions or educational or
vocational training classes, or seek medical and dental assistance.
(i) Willful failure of the program participant to return to the
place of home detention later than the expiration of any period of
time during which he or she is authorized to be away from the place
of home detention pursuant to this section and unauthorized
departures from the place of home detention is guilty of misdemeanor.
(j) The board of supervisors may prescribe a program
administrative fee to be paid by each electronic monitoring
participant.
(k) For purposes of this section, the following terms have the
following meanings:
(1) "Correctional administrator" means the sheriff, probation
officer, or director of the county department of corrections.
(2) "Electronic monitoring program" includes, but is not limited
to, home detention programs, work furlough programs, and work release
programs.
( l ) Notwithstanding any other law, upon request of a
local law enforcement agency with jurisdiction over the location
where a participant in an electronic monitoring program is placed,
the correctional administrator shall provide the following
information regarding participants in the electronic monitoring
program:
(1) The participant's name, address, and date of birth.
(2) The offense or offenses alleged to have been committed by the
participant.
(3) The period of time the participant will be placed on home
detention.
(4) Whether the participant successfully completed the prescribed
period of home detention or was returned to a county correctional
facility, and if the person was returned to a county correctional
facility, the reason for the return.
(5) The gender and ethnicity of the participant.
(m) Any information received by a law enforcement agency pursuant
to subdivision ( l ) shall be used only for the purpose of
monitoring the impact of home electronic monitoring programs in the
community.
(n) It is the intent of the Legislature that electronic monitoring
programs established under this section maintain the highest public
confidence, credibility, and public safety. In the furtherance of
these standards, the following shall apply:
(1) The correctional administrator, with the approval of the board
of supervisors, may administer an electronic monitoring program as
provided in this section pursuant to written contracts with
appropriate public or private agencies or entities to provide
specified program services. No public or private agency or entity may
operate a home detention program pursuant to this section in any
county without a written contract with that county's correctional
administrator. No public or private agency or entity entering into a
contract pursuant to this subdivision may itself employ any person
who is in the electronic monitoring program.
(2) Program participants shall undergo the normal booking process
for arrestees entering the jail. All electronic monitoring program
participants shall be supervised.
(3) (A) All privately operated electronic monitoring programs
shall be under the jurisdiction of, and subject to the terms and
conditions of the contract entered into with, the correctional
administrator.
(B) Each contract specified in subparagraph (A) shall include, but
not be limited to, all of the following:
(i) A provision whereby the private agency or entity agrees to
operate in compliance with any available standards and all state and
county laws applicable to the operation of electronic monitoring
programs and the supervision of offenders in an electronic monitoring
program.
(ii) A provision that clearly defines areas of respective
responsibility and liability of the county and the private agency or
entity.
(iii) A provision that requires the private agency or entity to
demonstrate evidence of financial responsibility, submitted to and
approved by the board of supervisors, in amounts and under conditions
sufficient to fully indemnify the county for reasonably foreseeable
public liability, including legal defense costs that may arise from,
or be proximately caused by, acts or omissions of the contractor.
(iv) A provision that requires the private agency or entity to
provide evidence of financial responsibility, such as certificates of
insurance or copies of insurance policies, prior to commencing any
operations pursuant to the contract or at any time requested by the
board of supervisors or correctional administrator.
(v) A provision that requires an annual review by the correctional
administrator to ensure compliance with requirements set by the
board of supervisors and for adjustment of the financial
responsibility requirements if warranted by caseload changes or other
factors.
(vi) A provision that permits the correctional administrator to
immediately terminate the contract with a private agency or entity at
any time that the contractor fails to demonstrate evidence of
financial responsibility.
(C) All privately operated electronic monitoring programs shall
comply with all applicable ordinances and regulations specified in
subdivision (a) of Section 1208.
(D) The board of supervisors, the correctional administrator, and
the designee of the correctional administrator shall comply with
Section 1090 of the Government Code in the consideration, making, and
execution of contracts pursuant to this section.
(E) The failure of the private agency or entity to comply with
state or county laws or with the standards established by the
contract with the correctional administrator shall constitute cause
to terminate the contract.
(F) Upon the discovery that a private agency or entity with which
there is a contract is not in compliance with this paragraph, the
correctional administrator shall give 60 days' notice to the director
of the private agency or entity that the contract may be canceled if
the specified deficiencies are not corrected.
(G) Shorter notice may be given or the contract may be canceled
without notice whenever a serious threat to public safety is present
because the private agency or entity has failed to comply with this
section.
(H) For purposes of this section, "evidence of financial
responsibility" may include, but is not limited to, certified copies
of any of the following:
(i) A current liability insurance policy.
(ii) A current errors and omissions insurance policy.
(iii) A surety bond.
SEC. 456. Section 1208.2 of the Penal Code is amended
to read:
1208.2. (a) (1) This section shall apply to individuals
authorized to participate in a work furlough program pursuant to
Section 1208, or to individuals authorized to participate in an
electronic home detention program pursuant to Section 1203.016
, or 1203.018, or to individuals
authorized to participate in a county parole program pursuant to
Article 3.5 (commencing with Section 3074) of Chapter 8 of Title 1 of
Part 3.
(2) As used in this section, as appropriate, "administrator" means
the sheriff, probation officer, director of the county department of
corrections, or county parole administrator.
(b) (1) A board of supervisors which implements programs
identified in paragraph (1) of subdivision (a), may prescribe a
program administrative fee and an application fee, that together
shall not exceed the pro rata cost of the program to which the person
is accepted, including equipment, supervision, and other operating
costs, except as provided in paragraph (2).
(2) With regard to a privately operated electronic home detention
program pursuant to Section 1203.016 or 1203.018 , the
limitation, described in paragraph (1), in prescribing a program
administrative fee and application fee shall not apply.
(c) The correctional administrator, or his or her designee, shall
not have access to a person's financial data prior to granting or
denying a person's participation in, or assigning a person to, any of
the programs governed by this section.
(d) The correctional administrator, or his or her designee, shall
not consider a person's ability or inability to pay all or a portion
of the program fee for the purposes of granting or denying a person's
participation in, or assigning a person to, any of the programs
governed by this section.
(e) For purposes of this section, "ability to pay" means the
overall capability of the person to reimburse the costs, or a portion
of the costs, of providing supervision and shall include, but shall
not be limited to, consideration of all of the following factors:
(1) Present financial position.
(2) Reasonably discernible future financial position. In no event
shall the administrator, or his or her designee, consider a period of
more than six months from the date of acceptance into the program
for purposes of determining reasonably discernible future financial
position.
(3) Likelihood that the person shall be able to obtain employment
within the six-month period from the date of acceptance into the
program.
(4) Any other factor that may bear upon the person's financial
capability to reimburse the county for the fees fixed pursuant to
subdivision (b).
(f) The administrator, or his or her designee, may charge a person
the fee set by the board of supervisors or any portion of the fee
and may determine the method and frequency of payment. Any fee the
administrator, or his or her designee, charges pursuant to this
section shall not in any case be in excess of the fee set by the
board of supervisors and shall be based on the person's ability to
pay. The administrator, or his or her designee, shall have the option
to waive the fees for program supervision when deemed necessary,
justified, or in the interests of justice. The fees charged for
program supervision may be modified or waived at any time based on
the changing financial position of the person. All fees paid by
persons for program supervision shall be deposited into the general
fund of the county.
(g) No person shall be denied consideration for, or be removed
from, participation in any of the programs to which this section
applies because of an inability to pay all or a portion of the
program supervision fees. At any time during a person's sentence, the
person may request that the administrator, or his or her designee,
modify or suspend the payment of fees on the grounds of a change in
circumstances with regard to the person's ability to pay.
(h) If the person and the administrator, or his or her designee,
are unable to come to an agreement regarding the person's ability to
pay, or the amount which is to be paid, or the method and frequency
with which payment is to be made, the administrator, or his or her
designee, shall advise the appropriate court of the fact that the
person and administrator, or his or her designee, have not been able
to reach agreement and the court shall then resolve the disagreement
by determining the person's ability to pay, the amount which is to be
paid, and the method and frequency with which payment is to be made.
(i) At the time a person is approved for any of the programs to
which this section applies, the administrator, or his or her
designee, shall furnish the person a written statement of the person'
s rights in regard to the program for which the person has been
approved, including, but not limited to, both of the following:
(1) The fact that the person cannot be denied consideration for or
removed from participation in the program because of an inability to
pay.
(2) The fact that if the person is unable to reach agreement with
the administrator, or his or her designee, regarding the person's
ability to pay, the amount which is to be paid, or the manner and
frequency with which payment is to be made, that the matter shall be
referred to the court to resolve the differences.
(j) In all circumstances where a county board of supervisors has
approved a program administrator, as described in Sections
1203.016 and 1208 Section 1203.016, 1203.018, or 1208
, to enter into a contract with a private agency or entity to
provide specified program services, the program administrator shall
ensure that the provisions of this section are contained within any
contractual agreement for this purpose. All privately operated home
detention programs shall comply with all appropriate, applicable
ordinances and regulations specified in subdivision (a) of Section
1208.
SEC. 457. Section 1213 of the Penal Code is amended to
read:
1213. (a) When a probationary order or a judgment, other than of
death, has been pronounced, a copy of the entry of that portion of
the probationary order ordering the defendant confined in a city or
county jail as a condition of probation, or a copy of the entry of
the judgment, or, if the judgment is for imprisonment in the
state prison or imprisonment pursuant to subdivision (h) of
Section 1170, either a copy of the minute order or an abstract of the
judgment as provided in Section 1213.5, certified by the clerk of
the court, and a Criminal Investigation and Identification (CII)
number shall be forthwith furnished to the officer whose duty it is
to execute the probationary order or judgment, and no other warrant
or authority is necessary to justify or require its execution.
(b) If a copy of the minute order is used as the commitment
document, the first page or pages shall be identical in form and
content to that prescribed by the Judicial Council for an abstract of
judgment, and other matters as appropriate may be added thereafter.
SEC. 458. Section 1230.1 is added to the Penal Code, to read:
1230.1. Each county local Community Corrections Partnership
established pursuant to subdivision (b) of Section 1230 shall
recommend a local plan to the county board of supervisors for the
implementation of the 2011 public safety realignment. There is hereby
established an executive committee of each county's Community
Corrections Partnership consisting of the chief probation officer of
the county, a chief of police, the sheriff, a county supervisor or
the chief administrative officer for the county, and the head of the
county department of social services for purposes related to the
development and presentation of the plan. Consistent with local needs
and resources, the plan may include recommendations to maximize the
effective investment of criminal justice resources in evidence-based
correctional sanctions and programs, including, but not limited to,
day reporting centers, drug courts, residential multiservice centers,
mental health treatment programs, electronic and GPS monitoring
programs, victim restitution programs, counseling programs, community
service programs, educational programs, and work training programs.
SEC. 459. Section 1320 of the Penal Code is amended to
read:
1320. (a) Every person who is charged with or convicted of the
commission of a misdemeanor who is released from custody on his or
her own recognizance and who in order to evade the process of the
court willfully fails to appear as required, is guilty of a
misdemeanor. It shall be presumed that a defendant who willfully
fails to appear within 14 days of the date assigned for his or her
appearance intended to evade the process of the court.
(b) Every person who is charged with or convicted of the
commission of a felony who is released from custody on his or her own
recognizance and who in order to evade the process of the court
willfully fails to appear as required, is guilty of a felony, and
upon conviction shall be punished by a fine not exceeding five
thousand dollars ($5,000) or by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170
, or in the county jail for not more than one year, or by both
that fine and imprisonment. It shall be presumed that a defendant who
willfully fails to appear within 14 days of the date assigned for
his or her appearance intended to evade the process of the court.
SEC. 460. Section 1320.5 of the Penal Code is amended
to read:
1320.5. Every person who is charged with or convicted of the
commission of a felony, who is released from custody on bail, and who
in order to evade the process of the court willfully fails to appear
as required, is guilty of a felony. Upon a conviction under this
section, the person shall be punished by a fine not exceeding ten
thousand dollars ($10,000) or by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170
, or in the county jail for not more than one year, or by both
the fine and imprisonment. Willful failure to appear within 14 days
of the date assigned for appearance may be found to have been for the
purpose of evading the process of the court.
SEC. 461. Section 2057 is added to the Penal Code, to read:
2057. Counties are authorized to contract with the Department of
Corrections and Rehabilitation for the commitment to the department,
of persons who have suffered a felony conviction.
SEC. 462. Section 2600 of the Penal Code is amended to
read:
2600. A person sentenced to imprisonment in a state prison
or to imprisonment pursuant to subdivision (h) of Section 1170
may during that period of confinement be deprived of such rights, and
only such rights, as is reasonably related to legitimate penological
interests.
Nothing in this section shall be construed to permit the
involuntary administration of psychotropic medication unless the
process specified in the permanent injunction, dated October 31,
1986, in the matter of Keyhea v. Rushen, 178 Cal. App. 3d 526, has
been followed. The judicial hearing for the authorization for the
involuntary administration of psychotropic medication provided for in
Part III of the injunction shall be conducted by an administrative
law judge. The hearing may, at the direction of the director, be
conducted at the facility where the inmate is located.
Nothing in this section shall be construed to overturn the
decision in Thor v. Superior Court, 5 Cal. 4th 725.
SEC. 463. Section 2650 of the Penal Code is amended to
read:
2650. The person of a prisoner sentenced to imprisonment in the
state prison or to imprisonment pursuant to subdivision (h) of
Section 1170 is under the protection of the law, and any injury
to his person, not authorized by law, is punishable in the same
manner as if he were not convicted or sentenced.
SEC. 464. Section 2772 of the Penal Code is amended to
read:
2772. Any person who, without authority, interferes with or in
any way interrupts the work of any prisoners employed pursuant to
this article, and any person not authorized by law, who gives or
attempts to give to any prisoner so employed any controlled
substances or any intoxicating liquors of any kind whatever, or
firearms, weapons or explosives of any kind, is guilty of a felony
and upon conviction thereof shall be punished by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 and shall be disqualified from holding any
state office or position in the employ of this state. Any person who
interferes with the discipline or good conduct of any prisoner
employed pursuant to this article, while such
that prisoner is in the confines or limits of the state prison
road camp is guilty of a misdemeanor and upon conviction thereof
shall be punished by imprisonment in the county jail for a term not
more than six months, or by a fine of not more than two hundred
dollars ($200), or by both such that
fine and imprisonment. Any peace officer or any officer or guard of
any state prison or any superintendent of such
that road work, having in charge the prisoners employed
upon such highways or state roads, may arrest without a warrant any
person violating any provisions of this article.
SEC. 465. Section 2790 of the Penal Code is amended to
read:
2790. Any person, who, without authority, interferes with or in
any way interrupts the work of any convict used pursuant to this
article and any person not authorized by law, who gives or attempts
to give to any state prison convict so employed any controlled
substances, or any intoxicating liquors of any kind whatever, or
firearms, weapons or explosives of any kind is guilty of a felony and
upon conviction thereof shall be punished by imprisonment
in the state prison pursuant to subdivision (h) of
Section 1170 and shall be disqualified from holding any state
office or position in the employ of this state. Any person who
interferes with the discipline or good conduct of any convict used
pursuant to this article, while such that
convict is in such camps is guilty of a misdemeanor and upon
conviction thereof shall be punished by imprisonment in the county
jail for a term not more than six months, or by a fine of not more
than four hundred dollars ($400), or by both such
that fine and imprisonment. Any peace officer or any
officer or guard of any state prison or any superintendent of
such that work, having in charge the
convicts used in such those camps, may
arrest without a warrant any person violating any provisions of this
article.
SEC. 466. Section 2900.5 of the Penal Code is amended
to read:
2900.5. (a) In all felony and misdemeanor convictions, either by
plea or by verdict, when the defendant has been in custody,
including, but not limited to, any time spent in a jail, camp, work
furlough facility, halfway house, rehabilitation facility, hospital,
prison, juvenile detention facility, or similar residential
institution, all days of custody of the defendant, including days
served as a condition of probation in compliance with a court order,
and including days credited to the period of
confinement pursuant to Section 4019, and days served in home
detention pursuant to Section 1203.018, shall be credited upon
his or her term of imprisonment, or credited to any fine on a
proportional basis, including, but not limited to, base fines and
restitution fines, which may be imposed, at the rate of not less than
thirty dollars ($30) per day, or more, in the discretion of the
court imposing the sentence. If the total number of days in custody
exceeds the number of days of the term of imprisonment to be imposed,
the entire term of imprisonment shall be deemed to have been served.
In any case where the court has imposed both a prison or jail term
of imprisonment and a fine, any days to be credited to the defendant
shall first be applied to the term of imprisonment imposed, and
thereafter the remaining days, if any, shall be applied to the fine
on a proportional basis, including, but not limited to, base fines
and restitution fines.
(b) For the purposes of this section, credit shall be given only
where the custody to be credited is attributable to proceedings
related to the same conduct for which the defendant has been
convicted. Credit shall be given only once for a single period of
custody attributable to multiple offenses for which a consecutive
sentence is imposed.
(c) For the purposes of this section, "term of imprisonment"
includes any period of imprisonment imposed as a condition of
probation or otherwise ordered by a court in imposing or suspending
the imposition of any sentence, and also includes any term of
imprisonment, including any period of imprisonment prior to release
on parole and any period of imprisonment and parole, prior to
discharge, whether established or fixed by statute, by any court, or
by any duly authorized administrative agency.
(d) It shall be the duty of the court imposing the sentence to
determine the date or dates of any admission to, and release from,
custody prior to sentencing and the total number of days to be
credited pursuant to this section. The total number of days to be
credited shall be contained in the abstract of judgment provided for
in Section 1213.
(e) It shall be the duty of any agency to which a person is
committed to apply the credit provided for in this section for the
period between the date of sentencing and the date the person is
delivered to the agency.
(f) If a defendant serves time in a camp, work furlough facility,
halfway house, rehabilitation facility, hospital, juvenile detention
facility, similar residential facility, or home detention program
pursuant to Section 1203.016, 1203.017, or 1203.018, in
lieu of imprisonment in a county jail, and the statute under which
the defendant is sentenced requires a mandatory minimum period of
time in jail, the time spent in these facilities or programs shall
qualify as mandatory time in jail.
(g) Notwithstanding any other provision of this code as it
pertains to the sentencing of convicted offenders, nothing in this
section is to be construed as authorizing the sentencing of convicted
offenders to any of the facilities or programs mentioned herein.
(h) This section shall become operative on January 1, 1999.
SEC. 467. Section 2932 of the Penal Code is amended to
read:
2932. (a) (1) For any time credit accumulated pursuant to Section
2931 or to Section , 2933, or
4019 , not more than 360 days of credit may be denied or lost
for a single act of murder, attempted murder, solicitation of murder,
manslaughter, rape, sodomy, or oral copulation accomplished against
the victim's will, attempted rape, attempted sodomy, or attempted
oral copulation accomplished against the victim's will, assault or
battery causing serious bodily injury, assault with a deadly weapon
or caustic substance, taking of a hostage, escape with force or
violence, or possession or manufacture of a deadly weapon or
explosive device, whether or not prosecution is undertaken for
purposes of this paragraph. Solicitation of murder shall be proved by
the testimony of two witnesses, or of one witness and corroborating
circumstances.
(2) Not more than 180 days of credit may be denied or lost for a
single act of misconduct, except as specified in paragraph (1), which
could be prosecuted as a felony whether or not prosecution is
undertaken.
(3) Not more than 90 days of credit may be denied or lost for a
single act of misconduct which could be prosecuted as a misdemeanor,
whether or not prosecution is undertaken.
(4) Not more than 30 days of credit may be denied or lost for a
single act of misconduct defined by regulation as a serious
disciplinary offense by the Department of Corrections and
Rehabilitation . Any person confined due to a change in
custodial classification following the commission of any serious
disciplinary infraction shall, in addition to any loss of time
credits, be ineligible to receive participation or worktime credit
for a period not to exceed the number of days of credit which have
been lost for the act of misconduct or 180 days, whichever is less.
Any person confined in a secure housing unit for having committed any
misconduct specified in paragraph (1) in which great bodily injury
is inflicted upon a nonprisoner shall, in addition to any loss of
time credits, be ineligible to receive participation or worktime
credit for a period not to exceed the number of days of credit which
have been lost for that act of misconduct. In unusual cases, an
inmate may be denied the opportunity to participate in a credit
qualifying assignment for up to six months beyond the period
specified in this subdivision if the Director of Corrections
Secretary of the Department of Corrections and
Rehabilitation, or for prisoners confined in local facilities as
specified in Section 4019, the sheriff or director of the county
correctional department, finds, after a hearing, that no credit
qualifying program may be assigned to the inmate without creating a
substantial risk of physical harm to staff or other inmates. At the
end of the six-month period and of successive six-month periods, the
denial of the opportunity to participate in a credit qualifying
assignment may be renewed upon a hearing and finding by the
director secretary, or for prisoners confined in local
facilities as specified in Section 4019, the sheriff or director of
the county correctional department .
The
(5) The prisoner may appeal the
decision through the department's review procedure, or in the
case of prisoners confined in local facilities as specified in
Section 4019, through the sheriff's or director of the county
correctional department's review procedure, which shall include
a review by an individual independent of the institution who has
supervisorial authority over the institution.
(b) For any credit accumulated pursuant to Section 2931, not more
than 30 days of participation credit may be denied or lost for a
single failure or refusal to participate. Any act of misconduct
described by the Department of Corrections and Rehabilitation,
or for prisoners confined in local facilities as specified in Section
4019, the sheriff or director of the county correctional department,
as a serious disciplinary infraction if committed while
participating in work, educational, vocational, therapeutic, or other
prison activity shall be deemed a failure to participate.
(c) Any procedure not provided for by this section, but necessary
to carry out the purposes of this section, shall be those procedures
provided for by the Department of Corrections and Rehabilitation
for serious disciplinary infractions if those procedures are
not in conflict with this section , or in the case of prisoners
confined in local facilities as specified in Section 4019, by the
sheriff or director of the county correctional department .
(1) (A) The Department of Corrections and Rehabilitation, or
in the case of prisoners confined in local facilities as specified in
Section 4019, the sheriff or director of the county correctional
department, shall, using reasonable diligence to investigate,
provide written notice to the prisoner. The written notice shall be
given within 15 days after the discovery of information leading to
charges that may result in a possible denial of credit, except that
if the prisoner has escaped, the notice shall be given within 15 days
of the prisoner's return to the custody of the Director of
Corrections Secretary of the Department of Corrections
and Rehabilitation, or in the case of prisoners confined in local
facilities as specified in Section 4019, the sheriff or director of
the county correc tional department . The written
notice shall include the specific charge, the date, the time, the
place that the alleged misbehavior took place, the evidence relied
upon, a written explanation of the procedures that will be employed
at the proceedings and the prisoner's rights at the hearing. The
hearing shall be conducted by an individual who shall be independent
of the case and shall take place within 30 days of the written
notice.
(B) The Department of Corrections
Secretary of the Department of Corrections and Rehabilitation, or in
the case of prisoners confined in local facilities as
specified in Section 4019, the sheriff or director of the county
correctional department, may delay written notice beyond 15
days when all of the following factors are true:
(i) An act of misconduct is involved which could be prosecuted as
murder, attempted murder, or assault on a prison employee, whether or
not prosecution is undertaken.
(ii) Further investigation is being undertaken for the purpose of
identifying other prisoners involved in the misconduct.
(iii) Within 15 days after the discovery of information leading to
charges that may result in a possible denial of credit, the
investigating officer makes a written request to delay notifying that
prisoner and states the reasons for the delay.
(iv) The warden of the institution , or for prisoners
confined in local facilities as specified in Section 4019, the
sheriff or director of the county correctional department,
approves of the delay in writing.
The
(C) The period of delay under
this paragraph shall not exceed 30 days. The prisoner's hearing shall
take place within 30 days of the written notice.
(2) The prisoner may elect to be assigned an employee to assist in
the investigation, preparation, or presentation of a defense at the
disciplinary hearing if it is determined by the department , or
for prisoners confined in local facilities as specified in Section
4019, the sheriff or director of the county correctional department,
that: (i) (A) the prisoner is
illiterate; or (ii) (B) the complexity
of the issues or the prisoner's confinement status makes it unlikely
that the prisoner can collect and present the evidence necessary for
an adequate comprehension of the case.
(3) The prisoner may request witnesses to attend the hearing and
they shall be called unless the person conducting the hearing has
specific reasons to deny this request. The specific reasons shall be
set forth in writing and a copy of the document shall be presented to
the prisoner.
(4) The prisoner has the right, under the direction of the person
conducting the hearing, to question all witnesses.
(5) At the conclusion of the hearing the charge shall be dismissed
if the facts do not support the charge, or the prisoner may be found
guilty on the basis of a preponderance of the evidence.
(d) If found guilty the prisoner shall be advised in writing of
the guilty finding and the specific evidence relied upon to reach
this conclusion and the amount of time-credit loss. The prisoner may
appeal the decision through the Department of Corrections'
Corrections and Rehabilitation's review procedure, or
in the case of prisoners confined in local facilities as specified in
Section 4019, the review procedure established by the
sheriff or the director of the county correctional department ,
and may, upon final notification of appeal denial, within 15 days of
the notification demand review of the department's
denial of credit to the Board of Prison Terms
Parole Hearings, or in the case of prisoners confined
in local facilities as specified in Section 4019, the court with
jurisdiction over the prisoner , and the board or the
court may affirm, reverse, or modify the department's
decision or grant a hearing before the board or the
court at which hearing the prisoner shall have the rights
specified in Section 3041.5.
(e) Each prisoner subject to Section 2931 shall be notified of the
total amount of good behavior and participation credit which may be
credited pursuant to Section 2931, and his or her anticipated
time-credit release date. The prisoner shall be notified of any
change in the anticipated release date due to denial or loss of
credits, award of worktime credit, under Section 2933, or the
restoration of any credits previously forfeited.
(f) (1) If the conduct the prisoner is
charged with also constitutes a crime, the Department of Corrections
and Rehabilitation, or in the case of prisoners confined in
local facilities as specified in Section 4019, the sheriff or
director of the county correctional department, may refer the
case to criminal authorities for possible prosecution. The department
, or in the case of prisoners confined in local facilities as
specified in Section 4019, the sheriff or director of the county
correctional department, shall notify the prisoner, who may
request postponement of the disciplinary proceedings pending the
referral.
The
(2) The prisoner may revoke his
or her request for postponement of the disciplinary proceedings up
until the filing of the accusatory pleading. In the event of the
revocation of the request for postponement of the proceeding, the
department or the court shall hold the hearing within 30
days of the revocation.
Notwithstanding
(3) Notwithstanding the
notification requirements in this paragraph and subparagraphs (A) and
(B) of paragraph (1) of subdivision (c), in the event the case is
referred to criminal authorities for prosecution and the authority
requests that the prisoner not be notified so as to protect the
confidentiality of its investigation, no notice to the prisoner shall
be required until an accusatory pleading is filed with the court, or
the authority notifies the warden, in writing, that it will not
prosecute or it authorizes the notification of the prisoner. The
notice exceptions provided for in this paragraph shall only apply if
the criminal authority requests of the warden, in writing, and within
the 15 days provided in subparagraph (A) of paragraph (1) of
subdivision (c), that the prisoner not be notified. Any period of
delay of notice to the prisoner shall not exceed 30 days beyond the
15 days referred to in subdivision (c). In the event that no
prosecution is undertaken, the procedures in subdivision (c) shall
apply, and the time periods set forth in that subdivision shall
commence to run from the date the warden is notified in writing of
the decision not to prosecute. In the event the authority either
cancels its requests that the prisoner not be notified before it
makes a decision on prosecution or files an accusatory pleading, the
provisions of this paragraph shall apply as if no request had been
received, beginning from the date of the cancellation or filing.
In
(4) In the case where the
prisoner is prosecuted by the district attorney, the Department of
Corrections and Rehabilitation, or in the case of prisoners
confined in local facilities as specified in Section 4019, the
sheriff or the director of the county department of corrections,
shall not deny time credit where the prisoner is found not
guilty and may deny credit if the prisoner is found guilty, in which
case the procedures in subdivision (c) shall not apply.
(g) If time credit denial proceedings or criminal prosecution
prohibit the release of a prisoner who would have otherwise been
released, and the prisoner is found not guilty of the alleged
misconduct, the amount of time spent incarcerated, in excess of what
the period of incarceration would have been absent the alleged
misbehavior, shall be deducted from the prisoner's parole period.
(h) Nothing in the amendments to this section made at the 1981-82
Regular Session of the Legislature shall affect the granting or
revocation of credits attributable to that portion of the prisoner's
sentence served prior to January 1, 1983.
SEC. 468. Section 3000 of the Penal Code is amended to
read:
3000. (a) (1) The Legislature finds and declares that the period
immediately following incarceration is critical to successful
reintegration of the offender into society and to positive
citizenship. It is in the interest of public safety for the state to
provide for the effective supervision of and surveillance of
parolees, including the judicious use of revocation actions, and to
provide educational, vocational, family and personal counseling
necessary to assist parolees in the transition between imprisonment
and discharge. A sentence pursuant to Section 1168 or 1170 shall
include a period of parole, unless waived, or as otherwise provided
in this article.
(2) The Legislature finds and declares that it is not the intent
of this section to diminish resources allocated to the Department of
Corrections and Rehabilitation for parole functions for which the
department is responsible. It is also not the intent of this section
to diminish the resources allocated to the Board of Parole Hearings
to execute its duties with respect to parole functions for which the
board is responsible.
(3) The Legislature finds and declares that diligent effort must
be made to ensure that parolees are held accountable for their
criminal behavior, including, but not limited to, the satisfaction of
restitution fines and orders.
(4) The parole period of any person found to be a sexually violent
predator shall be tolled until that person is found to no longer be
a sexually violent predator, at which time the period of parole, or
any remaining portion thereof, shall begin to run.
(b) Notwithstanding any provision to the contrary in Article 3
(commencing with Section 3040) of this chapter, the following shall
apply to any inmate subject to Section 3000.08 :
(1) In the case of any inmate sentenced under Section 1168, the
period of parole shall not exceed five years in the case of an inmate
imprisoned for any offense other than first or second degree murder
for which the inmate has received a life sentence, and shall not
exceed three years in the case of any other inmate, unless in either
case the parole authority court for
good cause waives parole and discharges the inmate from custody of
the department. This subdivision shall also be applicable to inmates
who committed crimes prior to July 1, 1977, to the extent specified
in Section 1170.2.
(2) At the expiration of a term of imprisonment of one year and
one day, or a term of imprisonment imposed pursuant to Section 1170
or at the expiration of a term reduced pursuant to Section 2931 or
2933, if applicable, the inmate shall be released on parole for a
period not exceeding three years, except that any inmate sentenced
for an offense specified in paragraph (3), (4), (5), (6), (11), or
(18) of subdivision (c) of Section 667.5 shall be released on parole
for a period not exceeding 10 years, unless a longer period of parole
is specified in Section 3000.1.
(3) Notwithstanding paragraphs (1) and (2), in the case of any
offense for which the inmate has received a life sentence pursuant to
subdivision (b) of Section 209, with the intent to commit a
specified sex offense, or Section 667.51, 667.61, or 667.71, the
period of parole shall be 10 years, unless a longer period of parole
is specified in Section 3000.1.
(4) (A) Notwithstanding paragraphs (1) to (3), inclusive, in the
case of a person convicted of and required to register as a sex
offender for the commission of an offense specified in Section 261,
262, 264.1, 286, 288a, paragraph (1) of subdivision (b) of Section
288, Section 288.5, or 289, in which one or more of the victims of
the offense was a child under 14 years of age, the period of parole
shall be 20 years and six months unless the board
court , for good cause, determines that the
person will be retained on parole. The board
court shall make a written record of this determination and
transmit a copy of it to the parolee.
(B) In the event of a retention on parole, the parolee shall be
entitled to a review by the board court
each year thereafter.
(C) There shall be a court hearing as provided
consistent with the procedures set forth in
Sections 3041.5 and 3041.7 within 12 months of the date of any
revocation of parole order returning the
parolee to custody to consider the release of the inmate on
parole, and notwithstanding the provisions of paragraph (2) of
subdivision (b) of Section 3041.5, there shall be annual parole
consideration hearings thereafter, unless the person is released or
otherwise ineligible for parole release. The panel or board
court shall release the person within one year
of the date of the revocation unless it determines that the
circumstances and gravity of the parole violation are such that
consideration of the public safety requires a more lengthy period of
incarceration or unless there is a new prison commitment following a
conviction.
(D) The provisions of Section 3042 shall not apply to any hearing
held pursuant to this subdivision.
(5) The parole authority court shall
consider the request of any inmate regarding the length of his or
her parole and the conditions thereof.
(6) Upon successful completion of parole, or at the end of the
maximum statutory period of parole specified for the inmate under
paragraph (1), (2), (3), or (4), as the case may be, whichever is
earlier, the inmate shall be discharged from custody. The date of the
maximum statutory period of parole under this subdivision and
paragraphs (1), (2), (3), and (4) shall be computed from the date of
initial parole and shall be a period chronologically determined. Time
during which parole is suspended because the prisoner has absconded
or has been returned to custody as a parole violator shall not be
credited toward any period of parole unless the prisoner is found not
guilty of the parole violation. However, the period of parole is
subject to the following:
(A) Except as provided in Section 3064, in no case may a prisoner
subject to three years on parole be retained under parole supervision
or in custody for a period longer than four years from the date of
his or her initial parole.
(B) Except as provided in Section 3064, in no case may a prisoner
subject to five years on parole be retained under parole supervision
or in custody for a period longer than seven years from the date of
his or her initial parole.
(C) Except as provided in Section 3064, in no case may a prisoner
subject to 10 years on parole be retained under parole supervision or
in custody for a period longer than 15 years from the date of his or
her initial parole.
(7) The Department of Corrections and Rehabilitation shall meet
with each inmate at least 30 days prior to his or her good time
release date and shall provide, under guidelines specified by the
parole authority or the department, whichever is applicable
, the conditions of parole and the length of parole up to the
maximum period of time provided by law. The inmate has the right to
reconsideration of the length of parole and conditions thereof by the
department or the parole authority , whichever is
applicable . The Department of Corrections and Rehabilitation
or the Board of Parole Hearings may impose as a condition of parole
that a prisoner make payments on the prisoner's outstanding
restitution fines or orders imposed pursuant to subdivision (a) or
(c) of Section 13967 of the Government Code, as operative prior to
September 28, 1994, or subdivision (b) or (f) of Section 1202.4.
(8) For purposes of this chapter, the Board of Parole Hearings
, or where applicable, the court, shall be considered the
parole authority.
(9) The sole authority to issue warrants for the return to actual
custody of any state prisoner released on parole rests with the
Board of Parole Hearings court , except
for any escaped state prisoner or any state prisoner released prior
to his or her scheduled release date who should be returned to
custody, and Section 3060 shall apply.
(10) It is the intent of the Legislature that efforts be made with
respect to persons who are subject to Section 290.011 who are on
parole to engage them in treatment.
SEC. 469. Section 3000.08 is added to the Penal Code,
to read:
3000.08. (a) Persons released from state prison on or after July
1, 2011, after serving a prison term for any of the following
felonies shall be subject to parole supervision by the Department of
Corrections and Rehabilitation and the jurisdiction of the court in
the county into which the parolee is released:
(1) A serious felony as described in subdivision (c) of Section
1192.7.
(2) A violent felony as described in subdivision (c) of Section
667.5.
(3) A crime for which the person was sentenced pursuant to
paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of
subdivision (c) of Section 1170.12.
(4) Any crime where the person eligible for release from prison is
classified as a High Risk Sex Offender.
(b) Notwithstanding any other provision of law, all other
offenders released from prison shall be placed on postrelease
supervision pursuant to Title 2.05 (commencing with Section 3450).
(c) At any time during the period of parole of a person subject to
this section, if any parole agent or peace officer has probable
cause to believe that the parolee is violating any term or condition
of his or her parole, the agent or officer may, without warrant or
other process and at any time until the final disposition of the
case, arrest the person and bring him or her before the court or the
court may, in its discretion, issue a warrant for that person's
arrest.
(d) Upon a hearing on the alleged violation and a finding of good
cause that the parolee has committed a violation of law or violated
his or her conditions of parole, the court may impose additional and
appropriate conditions of supervision, including rehabilitation and
treatment services and appropriate incentives for compliance, and
impose immediate, structured, and graduated sanctions for parole
violations, including imprisonment in a county jail.
(e) (1) Upon its own motion or upon the petition of the parolee,
parole agent, or the district attorney of the county in which the
parolee is supervised, the court may modify the parole of the parolee
pursuant to subdivision (b) of this subdivision. The court shall
give notice of its motion, and the parole agent or the district
attorney shall give notice of his or her petition to the parolee, his
or her attorney of record, and the district attorney or the parole
agent, as the case may be. The parolee shall give notice of his or
her petition to the parole agent and notice of any motion or petition
shall be given to the district attorney in all cases. The court
shall refer its motion or the petition to the parole agent, and the
parole agent shall prepare a written report regarding the facts and
circumstances of the motion or petition to modify parole.
(2) After the receipt of a written report from the parole agent,
the court shall read and consider the report and either its motion or
the petition, and may modify the parole of the parolee upon the
grounds set forth in subdivision (b) if the interests of justice so
require. Upon the agreement by the parolee in writing to the specific
terms of a modification of a specific term of parole, any
requirement that the parolee make a personal appearance in court for
the purpose of a modification shall be waived.
(3) Prior to the modification of a specific term of parole and
waiver of appearance, the parolee shall be informed of his or her
right to consult with counsel if the modification of parole requires
the parolee to serve a period of time in jail in excess of 14 days,
or if the parolee is indigent, inform him or her of the right to
secure court appointed counsel. If the parolee waives his or her
right to counsel, a written waiver shall be required. If the parolee
consults with counsel and thereafter agrees to a modification of the
term of parole and waiver of personal appearance, the agreement shall
be signed by counsel showing approval for the modification of parole
and waiver of appearance.
(f) Notwithstanding any other provision of law, in any case where
Section 3000.1 applies to a person who is on parole and there is good
cause to believe that the person has committed a violation of law or
violated his or her conditions of parole, and there is imposed a
period of imprisonment of longer than 30 days, that person shall be
remanded to the custody of the Department of Corrections and
Rehabilitation and the jurisdiction of the Board of Parole Hearings
for the purpose of future parole consideration.
SEC. 470. Section 3000.09 is added to the Penal Code,
to read:
3000.09. (a) Notwithstanding any other law, any parolee who was
paroled from state prison prior to July 1, 2011, shall be subject to
this section.
(b) Parolees subject to this section shall remain under
supervision by the Department of Corrections and Rehabilitation until
one of the following occurs:
(1) Jurisdiction over the person is terminated by operation of
law.
(2) The supervising agent recommends to the jurisdictional
authority that the offender be discharged and the jurisdictional
authority approves the discharge.
(3) The offender, except an offender who if released from prison
after July 1, 2011, would be subject to parole based on the criteria
identified in subdivision (a) of Section 3000.08, completes six
consecutive months of parole without violating their conditions, at
which time the supervising agent shall review and make a
recommendation on whether to discharge the offender to the
jurisdictional authority and the jurisdictional authority approves
the discharge.
(c) Parolees subject to this section who are being held for a
parole violation in county jail on July 1, 2011, shall be subject to
the jurisdiction of the Board of Parole Hearings.
(d) Persons who are subject to this section and on parole for a
serious felony described in subdivision (c) of Section 1192.7, a
violent felony described in subdivision (c) of Section 667.5, a crime
for which the person was sentenced pursuant to paragraph (2) of
subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of
Section 1170.12, or any crime where the person released from prison
was classified as a High Risk Sex Offender, whose parole is revoked,
as ordered by the Board of Parole Hearings, shall be remanded to
state prison. Upon completion of a revocation term for imprisonment
in state prison, the parolee shall remain under the supervision of
the Division of Adult Parole Operations. Any subsequent revocation
action shall be conducted by the court in the county into which the
parolee was released. Any subsequent term of imprisonment as ordered
by the court for a violation of the person's conditions of parole
shall be subject to Section 3000.08.
(e) Parolees subject to this section who are not on parole for a
crime or with a classification described in subdivision (c) who
violate the conditions of their parole on or after July 1, 2011,
shall be under the jurisdiction of the court in the county into which
the parolee was released. Persons returned to custody for any
violation of a parole condition, as ordered by the court, shall serve
any custody term in county jail.
(f) This section shall remain in effect until July 1, 2014, and on
that date and thereafter any person, who is not on parole for a
crime or with a classification described in subdivision (c), shall be
discharged from parole.
SEC. 471. Section 3000.1 of the Penal Code is amended
to read:
3000.1. (a) (1) In the case of any inmate sentenced under Section
1168 for any offense of first or second degree murder with a maximum
term of life imprisonment, the period of parole, if parole is
granted, shall be the remainder of the inmate's life.
(2) Notwithstanding any other provision of law, in the case of any
inmate sentenced to a life term under subdivision (b) of Section
209, if that offense was committed with the intent to commit a
specified sexual offense, Sections 269 and 288.7, subdivision (c) of
Section 667.51, Section 667.71 in which one or more of the victims of
the offense was a child under 14 years of age, or subdivision (j),
(l), or (m) of Section 667.61, the period of parole, if parole is
granted, shall be the remainder of the inmate's life.
(b) Notwithstanding any other provision of law, when any person
referred to in paragraph (1) of subdivision (a) has been released on
parole from the state prison, and has been on parole continuously for
seven years in the case of any person imprisoned for first degree
murder, and five years in the case of any person imprisoned for
second degree murder, since release from confinement, the
board court shall, within 30 days, discharge
that person from parole, unless the board
court , for good cause, determines that the person will be
retained on parole. The board court
shall make a written record of its determination and transmit a copy
of it to the parolee.
(c) In the event of a retention on parole pursuant to subdivision
(b), the parolee shall be entitled to a review by the board
court each year thereafter.
(d) There shall be a hearing as provided in Sections 3041.5 and
3041.7 within 12 months of the date of any revocation of parole
pursuant to subdivision (d) of Section 3000.08 to consider the
release of the inmate on parole and, notwithstanding the provisions
of paragraph (2) of subdivision (b) of Section 3041.5, there shall be
annual parole consideration hearings thereafter, unless the person
is released or otherwise ineligible for parole release. The panel or
board shall release the person within one year of the date of the
revocation unless it determines that the circumstances and gravity of
the parole violation are such that consideration of the public
safety requires a more lengthy period of incarceration or unless
there is a new prison commitment following a conviction.
(e) The provisions of Section 3042 shall not apply to any hearing
held pursuant to this section.
SEC. 472. Section 3001 of the Penal Code is amended to
read:
3001. (a) Notwithstanding any other provision of law, when any
person referred to in paragraph (1) of subdivision (b) of Section
3000 who was not imprisoned for committing a violent felony, as
defined in subdivision (c) of Section 667.5, has been released on
parole from the state prison, and has been on parole continuously for
one year six months since release from
confinement, within 30 days, that person shall be discharged from
parole, unless the Department of Corrections and Rehabilitation
recommends to the Board of Prison Terms
court that the person be retained on parole and the
board court , for good cause, determines that
the person will be retained. Notwithstanding any other provision of
law, when any person referred to in paragraph (1) of subdivision (b)
of Section 3000 who was imprisoned for committing a violent felony,
as defined in subdivision (c) of Section 667.5, has been released on
parole from the state prison for a period not exceeding three years
and has been on parole continuously for two years since release from
confinement, or has been released on parole from the state prison for
a period not exceeding five years and has been on parole
continuously for three years since release from confinement, the
department shall discharge, within 30 days, that person from parole,
unless the department recommends to the board
court that the person be retained on parole and the
board court , for good cause, determines that
the person will be retained. The board court
shall make a written record of its determination and the
department shall transmit a copy thereof to the parolee.
(b) Notwithstanding any other provision of law, when any person
referred to in paragraph (2) of subdivision (b) of Section 3000 has
been released on parole from the state prison, and has been on parole
continuously for three years since release from confinement, the
board court shall discharge, within 30
days, the person from parole, unless the board
court , for good cause, determines that the person will be
retained on parole. The board court
shall make a written record of its determination
state its findings on the record and the department shall
transmit a copy thereof of those findings
to the parolee.
(c) Notwithstanding any other provision of law, when any person
referred to in paragraph (3) of subdivision (b) of Section 3000 has
been released on parole from the state prison, and has been on parole
continuously for six years and six months since release
from confinement, the board court shall
discharge, within 30 days, the person from parole, unless the
board court , for good cause,
determines that the person will be retained on parole. The
board court shall make a written record of its
determination and the department shall transmit a copy thereof to the
parolee.
(d) In the event of a retention on parole, the parolee shall be
entitled to a review by the parole authority each year thereafter
until the maximum statutory period of parole has expired.
(e) The amendments to this section made during the 1987-88 Regular
Session of the Legislature shall only be applied prospectively and
shall not extend the parole period for any person whose eligibility
for discharge from parole was fixed as of the effective date of those
amendments.
SEC. 473. Section 3003 of the Penal Code is
amended to read:
3003. (a) Except as otherwise provided in this section, an inmate
who is released on parole or postrelease supervision as
provided by Title 2.05 (commencing with Section 3450) shall be
returned to the county that was the last legal residence of the
inmate prior to his or her incarceration. For purposes of this
subdivision, "last legal residence" shall not be construed to mean
the county wherein the inmate committed an offense while confined in
a state prison or local jail facility or while confined for treatment
in a state hospital.
(b) Notwithstanding subdivision (a), an inmate may be returned to
another county if that would be in the best interests of the public.
If the Board of Parole Hearings setting the conditions of parole for
inmates sentenced pursuant to subdivision (b) of Section 1168, as
determined by the parole consideration panel, or the Department of
Corrections and Rehabilitation setting the conditions of parole for
inmates sentenced pursuant to Section 1170, decides on a return to
another county, it shall place its reasons in writing in the parolee'
s permanent record and include these reasons in the notice to the
sheriff or chief of police pursuant to Section 3058.6. In making its
decision, the paroling authority shall consider, among others, the
following factors, giving the greatest weight to the protection of
the victim and the safety of the community:
(1) The need to protect the life or safety of a victim, the
parolee, a witness, or any other person.
(2) Public concern that would reduce the chance that the inmate's
parole would be successfully completed.
(3) The verified existence of a work offer, or an educational or
vocational training program.
(4) The existence of family in another county with whom the inmate
has maintained strong ties and whose support would increase the
chance that the inmate's parole would be successfully completed.
(5) The lack of necessary outpatient treatment programs for
parolees receiving treatment pursuant to Section 2960.
(c) The Department of Corrections and Rehabilitation, in
determining an out-of-county commitment, shall give priority to the
safety of the community and any witnesses and victims.
(d) In making its decision about an inmate who participated in a
joint venture program pursuant to Article 1.5 (commencing with
Section 2717.1) of Chapter 5, the paroling authority shall give
serious consideration to releasing him or her to the county where the
joint venture program employer is located if that employer states to
the paroling authority that he or she intends to employ the inmate
upon release.
(e) (1) The following information, if available, shall be released
by the Department of Corrections and Rehabilitation to local law
enforcement agencies regarding a paroled inmate or inmate placed
on postrelease supervision pursuant to Title 2.05 (commencing with
Section 3450) who is released in their jurisdictions:
(A) Last, first, and middle name.
(B) Birth date.
(C) Sex, race, height, weight, and hair and eye color.
(D) Date of parole and discharge.
(E) Registration status, if the inmate is required to register as
a result of a controlled substance, sex, or arson offense.
(F) California Criminal Information Number, FBI number, social
security number, and driver's license number.
(G) County of commitment.
(H) A description of scars, marks, and tattoos on the inmate.
(I) Offense or offenses for which the inmate was convicted that
resulted in parole in this instance.
(J) Address, including all of the following information:
(i) Street name and number. Post office box numbers are not
acceptable for purposes of this subparagraph.
(ii) City and ZIP Code.
(iii) Date that the address provided pursuant to this subparagraph
was proposed to be effective.
(K) Contact officer and unit, including all of the following
information:
(i) Name and telephone number of each contact officer.
(ii) Contact unit type of each contact officer such as units
responsible for parole, registration, or county probation.
(L) A digitized image of the photograph and at least a single
digit fingerprint of the parolee.
(M) A geographic coordinate for the parolee's residence location
for use with a Geographical Information System (GIS) or comparable
computer program.
(2) The information required by this subdivision shall come from
the statewide parolee database. The information obtained from each
source shall be based on the same timeframe.
(3) All of the information required by this subdivision shall be
provided utilizing a computer-to-computer transfer in a format usable
by a desktop computer system. The transfer of this information shall
be continually available to local law enforcement agencies upon
request.
(4) The unauthorized release or receipt of the information
described in this subdivision is a violation of Section 11143.
(f) Notwithstanding any other provision of law, an inmate who is
released on parole shall not be returned to a location within 35
miles of the actual residence of a victim of, or a witness to, a
violent felony as defined in paragraphs (1) to (7), inclusive, and
paragraph (16) of subdivision (c) of Section 667.5 or a felony in
which the defendant inflicts great bodily injury on any person other
than an accomplice that has been charged and proved as provided for
in Section 12022.53, 12022.7, or 12022.9, if the victim or witness
has requested additional distance in the placement of the inmate on
parole, and if the Board of Parole Hearings or the Department of
Corrections and Rehabilitation finds that there is a need to protect
the life, safety, or well-being of a victim or witness.
(g) Notwithstanding any other law, an inmate who is released on
parole for a violation of Section 288 or 288.5 whom the Department of
Corrections and Rehabilitation determines poses a high risk to the
public shall not be placed or reside, for the duration of his or her
parole, within one-half mile of any public or private school
including any or all of kindergarten and grades 1 to 12, inclusive.
(h) Notwithstanding any other law, an inmate who is released on
parole for an offense involving stalking shall not be returned to a
location within 35 miles of the victim's actual residence or place of
employment if the victim or witness has requested additional
distance in the placement of the inmate on parole, and if the Board
of Parole Hearings or the Department of Corrections and
Rehabilitation finds that there is a need to protect the life,
safety, or well-being of the victim.
(i) The authority shall give consideration to the equitable
distribution of parolees and the proportion of out-of-county
commitments from a county compared to the number of commitments from
that county when making parole decisions.
(j) An inmate may be paroled to another state pursuant to any
other law. The Department of Corrections and Rehabilitation
shall coordinate with local entities regarding the placement of
inmates placed out of state on postrelease super vision
pursuant to Title 2.05 (commencing with Section 3450).
(k) (1) Except as provided in paragraph (2), the Department of
Corrections and Rehabilitation shall be the agency primarily
responsible for, and shall have control over, the program, resources,
and staff implementing the Law Enforcement Automated Data System
(LEADS) in conformance with subdivision (e). County agencies
supervising inmates released to postrelease supervision pursuant to
Title 2.05 (commencing with Section 3450) shall provide any
information requested by the department to ensure the availability of
accurate information regarding inmates released from state prison.
This information may include the issuance of warrants, revocations,
or the termination of postrelease supervision.
(2) Notwithstanding paragraph (1), the Department of Justice shall
be the agency primarily responsible for the proper release of
information under LEADS that relates to fingerprint cards.
SEC. 474. Section 3056 of the Penal Code is amended to
read:
3056. (a) Prisoners on parole shall remain
under the legal custody of the department and
but shall not be subject at any time to be
taken back within the inclosure of the prison
returned to prison except as provided in subdivision (b) .
(b) Inmates paroled pursuant to Section 3000.1 may be returned to
prison following the revocation of parole by a court pursuant to
Section 3000.08.
SEC. 475. Section 3057 of the Penal Code, as amended by
Section 10 of Chapter 747 of the Statutes of 2007, is amended to
read:
3057. (a) Confinement pursuant to a revocation of parole in the
absence of a new conviction and commitment to prison under other
provisions of law, shall not exceed 12 months, except as provided in
subdivision (c).
(b) Upon completion of confinement pursuant to parole revocation
without a new commitment to prison, the inmate shall be released on
parole for a period which shall not extend beyond that portion of the
maximum statutory period of parole specified by Section 3000 which
was unexpired at the time of each revocation.
(c) Notwithstanding the limitations in subdivision (a) and in
Section 3060.5 upon confinement pursuant to a parole revocation, the
parole authority may extend the confinement pursuant to parole
revocation for a maximum of an additional 12 months for subsequent
acts of misconduct committed by the parolee while confined pursuant
to that parole revocation. Upon a finding of good cause to believe
that a parolee has committed a subsequent act of misconduct and
utilizing procedures governing parole revocation proceedings, the
parole authority may extend the period of confinement pursuant to
parole revocation as follows: (1) not more than 180 days for an act
punishable as a felony, whether or not prosecution is undertaken, (2)
not more than 90 days for an act punishable as a misdemeanor,
whether or not prosecution is undertaken, and (3) not more than 30
days for an act defined as a serious disciplinary offense pursuant to
subdivision (a) of Section 2932.
(d) (1) Except for parolees specified in paragraph (2), any
revocation period imposed under subdivision (a) may be reduced in the
same manner and to the same extent as a term of imprisonment may be
reduced by worktime credits under Section 2933. Worktime credit must
be earned and may be forfeited pursuant to the provisions of Section
2932.
Worktime credit forfeited shall not be restored.
(2) The following parolees shall not be eligible for credit under
this subdivision:
(A) Parolees who are sentenced under Section 1168 with a maximum
term of life imprisonment.
(B) Parolees who violated a condition of parole relating to
association with specified persons, entering prohibited areas,
attendance at parole outpatient clinics, or psychiatric attention.
(C) Parolees who were revoked for conduct described in, or that
could be prosecuted under any of the following sections, whether or
not prosecution is undertaken: Section 189, Section 191.5,
subdivision (a) of Section 192, subdivision (a) of Section 192.5,
Section 203, 207, 211, 215, 217.1, or 220, subdivision (b) of Section
241, Section 244, paragraph (1) or (2) of subdivision (a) of Section
245, paragraph (2) or (6) of subdivision (a) of Section 261,
paragraph (1) or (4) of subdivision (a) of Section 262, Section
264.1, subdivision (c) or (d) of Section 286, Section 288,
subdivision (c) or (d) of Section 288a, subdivision (a) of Section
289, 347, or 404, subdivision (a) of Section 451, Section 12020,
12021, 12022, 12022.5, 12022.53, 12022.7, 12022.8, 12025, or 12560,
or Section 664 for any attempt to engage in conduct described in or
that could be prosecuted under any of the above-mentioned sections.
(D) Parolees who were revoked for any reason if they had been
granted parole after conviction of any of the offenses specified in
subparagraph (C).
(E) Parolees who the parole authority finds at a revocation
hearing to be unsuitable for reduction of the period of confinement
because of the circumstances and gravity of the parole violation, or
because of prior criminal history.
(e) Commencing July 1, 2011, this section shall only apply to
inmates sentenced to a term of life imprisonment.
SEC. 476. Section 3057 of the Penal Code, as amended by
Section 83 of Chapter 178 of the Statutes of 2010, is amended to
read:
3057. (a) Confinement pursuant to a revocation of parole in the
absence of a new conviction and commitment to prison under other
provisions of law, shall not exceed 12 months, except as provided in
subdivision (c).
(b) Upon completion of confinement pursuant to parole revocation
without a new commitment to prison, the inmate shall be released on
parole for a period which shall not extend beyond that portion of the
maximum statutory period of parole specified by Section 3000 which
was unexpired at the time of each revocation.
(c) Notwithstanding the limitations in subdivision (a) and in
Section 3060.5 upon confinement pursuant to a parole revocation, the
parole authority may extend the confinement pursuant to parole
revocation for a maximum of an additional 12 months for subsequent
acts of misconduct committed by the parolee while confined pursuant
to that parole revocation. Upon a finding of good cause to believe
that a parolee has committed a subsequent act of misconduct and
utilizing procedures governing parole revocation proceedings, the
parole authority may extend the period of confinement pursuant to
parole revocation as follows: (1) not more than 180 days for an act
punishable as a felony, whether or not prosecution is undertaken, (2)
not more than 90 days for an act punishable as a misdemeanor,
whether or not prosecution is undertaken, and (3) not more than 30
days for an act defined as a serious disciplinary offense pursuant to
subdivision (a) of Section 2932.
(d) (1) Except for parolees specified in paragraph (2), any
revocation period imposed under subdivision (a) may be reduced in the
same manner and to the same extent as a term of imprisonment may be
reduced by worktime credits under Section 2933. Worktime credit must
be earned and may be forfeited pursuant to the provisions of Section
2932.
Worktime credit forfeited shall not be restored.
(2) The following parolees shall not be eligible for credit under
this subdivision:
(A) Parolees who are sentenced under Section 1168 with a maximum
term of life imprisonment.
(B) Parolees who violated a condition of parole relating to
association with specified persons, entering prohibited areas,
attendance at parole outpatient clinics, or psychiatric attention.
(C) Parolees who were revoked for conduct described in, or that
could be prosecuted under any of the following sections, whether or
not prosecution is undertaken: Section 189, Section 191.5,
subdivision (a) of Section 192, subdivision (a) of Section 192.5,
Section 203, 207, 211, 215, 217.1, or 220, subdivision (b) of Section
241, Section 244, paragraph (1) or (2) of subdivision (a) of Section
245, paragraph (2) or (6) of subdivision (a) of Section 261,
paragraph (1) or (4) of subdivision (a) of Section 262, Section
264.1, subdivision (c) or (d) of Section 286, Section 288,
subdivision (c) or (d) of Section 288a, subdivision (a) of Section
289, 347, or 404, subdivision (a) of Section 451, Section 12022,
12022.5, 12022.53, 12022.7, 12022.8, or 25400, Chapter 2 (commencing
with Section 29800) of Division 9 of Title 4 of Part 6, any provision
listed in Section 16590, or Section 664 for any attempt to engage in
conduct described in or that could be prosecuted under any of the
above-mentioned sections.
(D) Parolees who were revoked for any reason if they had been
granted parole after conviction of any of the offenses specified in
subparagraph (C).
(E) Parolees who the parole authority finds at a revocation
hearing to be unsuitable for reduction of the period of confinement
because of the circumstances and gravity of the parole violation, or
because of prior criminal history.
(e) Commencing July 1, 2011, this section shall only apply to
inmates sentenced to a term of life imprisonment.
SEC. 477. Section 3060 of the Penal Code is repealed.
3060. The parole authority shall have full power to suspend or
revoke any parole, and to order returned to prison any prisoner upon
parole. The written order of the parole authority shall be a
sufficient warrant for any peace or prison officer to return to
actual custody any conditionally released or paroled prisoner.
SEC. 478. Section 3061 of the Penal Code is repealed.
3061. It is hereby made the duty of all peace officers to execute
any such order in like manner as ordinary criminal process.
SEC. 479. Title 2.05 (commencing with Section 3450) is
added to Part 3 of the Penal Code, to read:
TITLE 2.05. Postrelease Community Supervision Act of 2011
3450. (a) This act shall be known and may be cited as the
Postrelease Community Supervision Act of 2011.
(b) The Legislature finds and declares all of the following:
(1) The Legislature reaffirms its commitment to reducing
recidivism among criminal offenders.
(2) Despite the dramatic increase in corrections spending over the
past two decades, national reincarceration rates for people released
from prison remain unchanged or have worsened. National data show
that about 40 percent of released individuals are reincarcerated
within three years. In California, the recidivism rate for persons
who have served time in prison is even greater than the national
average.
(3) Criminal justice policies that rely on the reincarceration of
parolees for technical violations do not result in improved public
safety.
(4) California must reinvest its criminal justice resources to
support community corrections programs and evidence-based practices
that will achieve improved public safety returns on this state's
substantial investment in its criminal justice system.
(5) Realigning the postrelease supervision of certain felons
reentering the community after serving a prison term to local
community corrections programs, which are strengthened through
community-based punishment, evidence-based practices, and improved
supervision strategies, will improve public safety outcomes among
adult felon parolees and will facilitate their successful
reintegration back into society.
(6) Community corrections programs require a partnership between
local public safety entities and the county to provide and expand the
use of community-based punishment for offenders paroled from state
prison. Each county's local Community Corrections Partnership, as
established in paragraph (2) of subdivision (b) of Section 1230,
should play a critical role in developing programs and ensuring
appropriate outcomes for persons subject to postrelease community
supervision.
(7) Fiscal policy and correctional practices should align to
promote a justice reinvestment strategy that fits each county.
"Justice reinvestment" is a data-driven approach to reduce
corrections and related criminal justice spending and reinvest
savings in strategies designed to increase public safety. The purpose
of justice reinvestment is to manage and allocate criminal justice
populations more cost-effectively, generating savings that can be
reinvested in evidence-based strategies that increase public safety
while holding offenders accountable.
(8) "Community-based punishment" means evidence-based correctional
sanctions and programming encompassing a range of custodial and
noncustodial responses to criminal or noncompliant offender activity.
Intermediate sanctions may be provided by local public safety
entities directly or through public or private correctional service
providers and include, but are not limited to, the following:
(A) Short-term "flash" incarceration in jail for a period of not
more than seven days.
(B) Intensive community supervision.
(C) Home detention with electronic monitoring or GPS monitoring.
(D) Mandatory community service.
(E) Restorative justice programs, such as mandatory victim
restitution and victim-offender reconciliation.
(F) Work, training, or education in a furlough program pursuant to
Section 1208.
(G) Work, in lieu of confinement, in a work release program
pursuant to Section 4024.2.
(H) Day reporting.
(I) Mandatory residential or nonresidential substance abuse
treatment programs.
(J) Mandatory random drug testing.
(K) Mother-infant care programs.
(L) Community-based residential programs offering structure,
supervision, drug treatment, alcohol treatment, literacy programming,
employment counseling, psychological counseling, mental health
treatment, or any combination of these and other interventions.
(9) "Evidence-based practices" refers to supervision policies,
procedures, programs, and practices demonstrated by scientific
research to reduce recidivism among individuals under probation,
parole, or postrelease supervision.
3451. (a) Notwithstanding any other law and except for persons
serving a prison term for any crime described in subdivision (b), all
persons released from prison on and after July 1, 2011, after
serving a prison term for a felony shall, upon release from prison
and for a period not exceeding three years immediately following
release, be subject to community supervision provided by a county
agency designated by each county's board of supervisors which is
consistent with evidence-based practices, including, but not limited
to, supervision policies, procedures, programs, and practices
demonstrated by scientific research to reduce recidivism among
individuals under postrelease supervision.
(b) This section shall not apply to any person released from
prison after having served a prison term for any of the following:
(1) A serious felony described in subdivision (c) of Section
1192.7.
(2) A violent felony described in subdivision (c) of Section
667.5.
(3) A crime for which the person was sentenced pursuant to
paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of
subdivision (c) of Section 1170.12.
(4) Any crime where the person eligible for release from prison is
classified as a High Risk Sex Offender.
(c) (1) Postrelease supervision under this title shall be
implemented by a county agency according to a postrelease strategy
designated by each county's board of supervisors.
(2) The Department of Corrections and Rehabilitation shall inform
every prisoner subject to the provisions of this title, upon release
from state prison, of the requirements of this title and of his or
her responsibility to report to the county agency responsible for
serving that inmate. The department shall also inform persons serving
a term of parole for a felony offense who are subject to this
section of the requirements of this title and of his or her
responsibility to report to the county agency responsible for serving
that parolee. Thirty days prior to the release of any person subject
to postrelease supervision by a county, the department shall notify
the county of all information that would otherwise be required for
parolees under subdivision (e) of Section 3003.
3452. (a) Persons eligible for postrelease community supervision
pursuant to this title shall enter into a postrelease community
supervision agreement prior to, and as a condition of, their release
from prison. Persons on parole transferred to postrelease community
supervision shall enter into a postrelease community supervision
agreement as a condition of their release from state prison.
(b) A postrelease community supervision agreement shall specify
the following:
(1) The person's release date and the maximum period the person
may be subject to postrelease supervision under this title.
(2) The name, address, and telephone number of the county agency
responsible for the person's postrelease supervision.
(3) An advisement that if a person breaks the law or violates the
conditions of release, he or she can be incarcerated in a county jail
regardless of whether or not new charges are filed.
3453. A postrelease community supervision agreement shall include
the following conditions:
(a) The person shall sign and agree to the conditions of release.
(b) The person shall obey all laws.
(c) The person shall report to the supervising county agency
within two working days of release from custody.
(d) The person shall follow the directives and instructions of the
supervising county agency.
(e) The person shall report to the supervising county agency as
directed by that agency.
(f) The person, and his or her residence and possessions, shall be
subject to search at any time of the day or night, with or without a
warrant, by an agent of the supervising county agency or by a peace
officer.
(g) The person shall waive extradition if found outside the state.
(h) The person shall inform the supervising county agency of the
person's place of residence, employment, education, or training.
(i) (1) The person shall inform the supervising county
agency of any pending or anticipated changes in residence,
employment, education, or training.
(2) If the person enters into new employment, he or she shall
inform the supervising county agency of the new employment within
three business days of that entry.
(j) The person shall immediately inform the supervising county
agency if he or she is arrested or receives a citation.
(k) The person shall obtain the permission of the supervising
county agency to travel more than 50 miles from the person's place of
residence.
(l) The person shall obtain a travel pass from the supervising
county agency before he or she may leave the county or state for more
than two days.
(m) The person shall not be in the presence of a firearm or
ammunition, or any item that appears to be a firearm or ammunition.
(n) The person shall not possess, use, or have access to any
weapon listed in Section 12020, 16140, subdivision (c) of Section
16170, Section 16220, 16260, 16320, 16330, or 16340, subdivision (b)
of Section 16460, Section 16470, subdivision (f) of Section 16520, or
Section 16570, 16740, 16760, 16830, 16920, 16930, 16940, 17090,
17125, 17160, 17170, 17180, 17190, 17200, 17270, 17280, 17330, 17350,
17360, 17700, 17705, 17710, 17715, 17720, 17725, 17730, 17735,
17740, 17745, 19100, 19200, 19205, 20200, 20310, 20410, 20510, 20611,
20710, 20910, 21110, 21310, 21810, 22010, 22015, 22210, 22215,
22410, 32430, 24310, 24410, 24510, 24610, 24680, 24710, 30210, 30215,
31500, 32310, 32400, 32405, 32410, 32415, 32420, 32425, 32435,
32440, 32445, 32450, 32900, 33215, 33220, 33225, or 33600.
(o) (1) Except as provided in paragraph (2) and subdivision (p),
the person shall not possess a knife with a blade longer than two
inches.
(2) The person may possess a kitchen knife with a blade longer
than two inches if the knife is used and kept only in the kitchen of
the person's residence.
(p) The person may use a knife with a blade longer than two
inches, if the use is required for that person's employment, the use
has been approved in a document issued by the supervising county
agency, and the person possesses the document of approval at all
times and makes it available for inspection.
(q) The person agrees to waive any right to a court hearing prior
to the imposition of a period of "flash incarceration" in a county
jail of not more than seven consecutive days, and not more than 14
aggregate days, for any violation of his or her postrelease
supervision conditions.
(r) The person agrees to participate in rehabilitation programming
as recommended by the supervising county agency.
3454. (a) Each supervising county agency, as established by the
county board of supervisors pursuant to subdivision (a) of Section
3451, shall establish a review process for assessing and refining a
person's program of postrelease supervision. Any additional
postrelease supervision conditions shall be reasonably related to the
underlying offense for which the offender spent time in prison and
the offender's criminal history, and be otherwise consistent with
law.
(b) Each county agency responsible for postrelease supervision, as
established by the county board of supervisors pursuant to
subdivision (a) of Section 3451, may determine additional appropriate
conditions of supervision consistent with those listed in Section
3453, order the provision of appropriate rehabilitation and treatment
services, determine appropriate incentives, and determine and order
appropriate responses to alleged violations, which can include, but
shall not be limited to, immediate, structured, and graduated
sanctions up to and including imprisonment in a county jail.
3455. (a) The court shall establish a process to determine
violations of conditions of postrelease supervision. Upon a finding
that the person has violated the conditions of supervision, the court
shall have authority to do all of the following:
(1) Impose additional conditions of supervision and sanctions
without ordering a custodial sanction.
(2) Modify the person's supervision with additional conditions and
sanctions.
(3) Revoke and terminate supervision where the person has been
convicted of a new misdemeanor or felony.
(b) Confinement pursuant to a violation of conditions of
postrelease supervision shall not exceed a period of 12 months in the
county jail.
(c) Periods of "flash incarceration," as defined in subdivision
(e), are encouraged as one method of punishment for violations of an
offender's conditions of postrelease supervision.
(d) In no case shall a person be under supervision or in custody
pursuant to this title on or after three years from the date of the
person's initial entry onto postrelease supervision.
(e) "Flash incarceration" is a period of detention in county jail
due to a violation of an offender's conditions of postrelease
supervision. The length of the detention period can range between one
and 14 consecutive days. Flash incarceration is a tool that may be
used by each county agency responsible for postrelease supervision.
Shorter, but if necessary more frequent, periods of detention for
violations of an offender's postrelease supervision conditions shall
appropriately punish an offender while preventing the disruption in a
work or home establishment that typically arises from longer term
revocations.
3456. The county agency responsible for postrelease supervision,
as established by the county board of supervisors pursuant to
subdivision (a) of Section 3451, shall maintain postrelease
supervision over a person under postrelease supervision pursuant to
this title until one of the following events occurs:
(a) The person has been subject to postrelease supervision
pursuant to this title for three years at which time the offender
shall be immediately discharged from postrelease supervision.
(b) Any person on postrelease supervision for six consecutive
months with no violations of his or her conditions of postrelease
supervision may be considered for immediate discharge upon
recommendation by the supervising county agency to the court, and
that discharge is granted.
(c) Jurisdiction over the person has been terminated by operation
of law.
(d) Jurisdiction is transferred to another supervising county
agency.
(e) Jurisdiction is terminated by the court upon a motion by the
supervising county agency.
3457. The Department of Corrections and Rehabilitation shall have
no jurisdiction over any person who is under postrelease community
supervision pursuant to this title.
3458. No person subject to this title shall be returned to prison
for a violation of any condition of the person's postrelease
supervision agreement.
SEC. 480. Section 4011.7 of the Penal Code is amended
to read:
4011.7. Notwithstanding the provisions of Sections 4011 and
4011.5, when it appears that the prisoner in need of medical or
surgical treatment necessitating hospitalization or in need of
medical or hospital care was arrested for, charged with, or convicted
of an offense constituting a misdemeanor, the court in proceedings
under Section 4011 or the sheriff or jailer in action taken under
Section 4011.5 may direct that the guard be removed from the prisoner
while he or she is in the hospital. If such
that direction is given, any such
prisoner who knowingly escapes or attempts to escape from
such that hospital shall upon
conviction thereof be guilty of a misdemeanor and punishable by
imprisonment for not to exceed one year in the county jail if
such the escape or attempt to escape
was not by force or violence. However, if such
the escape is by force or violence such
the prisoner shall be guilty of a felony and punishable
by imprisonment in the state prison pursuant
to subdivision (h) of Section 1170 , or in the county jail for
not exceeding one year; provided, that when such
that second term of imprisonment is to be served in the
county jail it shall commence from the time such
that prisoner would otherwise be discharged from
such tha t jail.
SEC. 481. Section 4016.5 of the Penal Code is amended
to read:
4016.5. A city or county shall be reimbursed by the Department of
Corrections and Rehabilitation for costs incurred resulting from the
detention of a state prisoner , or a
person sentenced or referred to the state prison , or a
parolee and from parole revocation proceedings when the
detention meets any of the following conditions:
(a) The detention relates to a violation of the conditions of
parole or the rules and regulations of the Secretary of the
Department of Corrections and Rehabilitation and does not relate to a
new criminal charge.
(b) The detention is pursuant to (1) an order of the Board of
Parole Hearings under the authority granted by Section 3060, or (2)
an order of the Governor under the authority granted by Section 3062
or (3) an exercise of a state parole or correctional officer's peace
officer powers as specified in Section 830.5.
(c) Security services and facilities are provided for hearings
which are conducted by the Board of Parole Hearings to revoke parole.
(d)
(a) (1) The detention results
from a new commitment, or a referral pursuant to Section 1203.03,
once the abstract of judgment has been completed, the department's
intake control unit has been notified by the county that the prisoner
is ready to be transported pursuant to Section 1216, and the
department is unable to accept delivery of the prisoner. The
reimbursement shall be provided for each day starting on the day
following the fifth working day after the date of notification by the
county, if the prisoner remains ready to be delivered and the
department is unable to receive the prisoner. If a county delivers or
attempts to deliver a person to the department without the prior
notification required by this paragraph, the date of the delivery or
attempted delivery shall be recognized as the notification date
pursuant to this paragraph. The notification and verification
required by the county for prisoners ready to be transported, and
reimbursement provided to the county for prisoners that the
department is unable to receive, shall be made pursuant to procedures
established by the department.
A
(2) A city or county shall be
reimbursed by the department from funds appropriated in Item
5240-101-0001 of the Budget Act of 1998 for costs incurred pursuant
to subdivisions (a), (b), and (c) and from funds
appropriated in Item 5240-001-0001 of that act
the annual Budget Act for costs incurred pursuant to
this subdivision (d) .
The
(3) The reimbursement required by
this section shall be expended for maintenance, upkeep, and
improvement of jail conditions, facilities, and services. Before the
county is reimbursed by the department, the total amount of all
charges against that county authorized by law for services rendered
by the department shall be first deducted from the gross amount of
reimbursement authorized by this section. The net reimbursement shall
be calculated and paid monthly by the department. The department
shall withhold all or part of the net reimbursement to a county whose
jail facility or facilities do not conform to minimum standards for
local detention facilities as authorized by Section 6030 only if the
county is failing to make reasonable efforts to correct differences,
with consideration given to the resources available for those
purposes.
"Costs
(4) "Costs incurred resulting
from the detention," as used in this section, shall include the same
cost factors as are utilized by the Department of Corrections and
Rehabilitation in determining the cost of prisoner care in state
correctional facilities.
(e)
(b) No city, county, or other jurisdiction may file,
and the state may not reimburse, a claim pursuant to this section
that is presented to the Department of Corrections and Rehabilitation
or to any other agency or department of the state more than six
months after the close of the month in which the costs were incurred.
(c) The changes to this section made by the act that added this
subdivision shall be effective on July 1, 2011.
SEC. 482. Section 4019 of the Penal Code is amended to
read:
4019. (a) The provisions of this section shall apply in all of
the following cases:
(1) When a prisoner is confined in or committed to a county jail,
industrial farm, or road camp, or any city jail, industrial farm, or
road camp, including all days of custody from the date of arrest to
the date on which the serving of the sentence commences, under a
judgment of imprisonment, or a fine and imprisonment until the fine
is paid in a criminal action or proceeding.
(2) When a prisoner is confined in or committed to the county
jail, industrial farm, or road camp or any city jail, industrial
farm, or road camp as a condition of probation after suspension of
imposition of a sentence or suspension of execution of sentence, in a
criminal action or proceeding.
(3) When a prisoner is confined in or committed to the county
jail, industrial farm, or road camp or any city jail, industrial
farm, or road camp for a definite period of time for contempt
pursuant to a proceeding, other than a criminal action or proceeding.
(4) When a prisoner is confined in a county jail, industrial farm,
or road camp, or a city jail, industrial farm, or road camp
following arrest and prior to the imposition of sentence for a felony
conviction.
(b) Subject to the provisions of subdivision (d), for each
six-day four-day period in which a
prisoner is confined in or committed to a facility as specified in
this section, one day shall be deducted from his or her period of
confinement unless it appears by the record that the prisoner has
refused to satisfactorily perform labor as assigned by the sheriff,
chief of police, or superintendent of an industrial farm or road
camp.
(c) For each six-day four-day period
in which a prisoner is confined in or committed to a facility as
specified in this section, one day shall be deducted from his or her
period of confinement unless it appears by the record that the
prisoner has not satisfactorily complied with the reasonable rules
and regulations established by the sheriff, chief of police, or
superintendent of an industrial farm or road camp.
(d) Nothing in this section shall be construed to require the
sheriff, chief of police, or superintendent of an industrial farm or
road camp to assign labor to a prisoner if it appears from the record
that the prisoner has refused to satisfactorily perform labor as
assigned or that the prisoner has not satisfactorily complied with
the reasonable rules and regulations of the sheriff, chief of police,
or superintendent of any industrial farm or road camp.
(e) No deduction may be made under this section unless the person
is committed for a period of six four
days or longer.
(f) It is the intent of the Legislature that if all days are
earned under this section, a term of six four
days will be deemed to have been served for every
four two days spent in actual custody.
(g) The changes in this section as enacted by the act that added
this subdivision shall apply to prisoners who are confined to a
county jail, city jail, industrial farm, or road camp for a crime
committed on or after the effective date of that act.
(h) The changes to this section enacted by the act that added this
subdivision shall apply prospectively and shall apply to prisoners
who are confined to a county jail, city jail, industrial farm, or
road camp for a crime committed on or after July 1, 2011. Any days
earned by a prisoner prior to July 1, 2011, shall be calculated at
the rate required by the prior law.
SEC. 483. Section 4131.5 of the Penal Code is amended
to read:
4131.5. Every person confined in, sentenced to, or serving a
sentence in, a city or county jail, industrial farm, or industrial
road camp in this state, who commits a battery upon the person of any
individual who is not himself or herself a person
confined or sentenced therein, is guilty of a public offense and is
punishable by imprisonment in a state prison
pursuant to subdivision (h) of Section 1170 , or in a county
jail for not more than one year.
SEC. 484. Section 4501.1 of the Penal Code is amended
to read:
4501.1. (a) Every person confined in the state prison who commits
a battery by gassing upon the person of any peace officer, as
defined in Chapter 4.5 (commencing with Section 830) of Title 3 of
Part 2, or employee of the state prison is guilty of aggravated
battery and shall be punished by imprisonment in a county jail or by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 for two, three, or four years.
Every state prison inmate convicted of a felony under this section
shall serve his or her term of imprisonment as prescribed in Section
4501.5.
(b) For purposes of this section, "gassing" means intentionally
placing or throwing, or causing to be placed or thrown, upon the
person of another, any human excrement or other bodily fluids or
bodily substances or any mixture containing human excrement or other
bodily fluids or bodily substances that results in actual contact
with the person's skin or membranes.
(c) The warden or other person in charge of the state prison shall
use every available means to immediately investigate all reported or
suspected violations of subdivision (a), including, but not limited
to, the use of forensically acceptable means of preserving and
testing the suspected gassing substance to confirm the presence of
human excrement or other bodily fluids or bodily substances. If there
is probable cause to believe that the inmate has violated
subdivision (a), the chief medical officer of the state prison or his
or her designee, may, when he or she deems it medically necessary to
protect the health of an officer or employee who may have been
subject to a violation of this section, order the inmate to receive
an examination or test for hepatitis or tuberculosis or both
hepatitis and tuberculosis on either a voluntary or involuntary basis
immediately after the event, and periodically thereafter as
determined to be necessary by the medical officer in order to ensure
that further hepatitis or tuberculosis transmission does not occur.
These decisions shall be consistent with an occupational exposure as
defined by the Center for Disease Control and Prevention. The results
of any examination or test shall be provided to the officer or
employee who has been subject to a reported or suspected violation of
this section. Nothing in this subdivision shall be construed to
otherwise supersede the operation of Title 8 (commencing with Section
7500). Any person performing tests, transmitting test results, or
disclosing information pursuant to this section shall be immune from
civil liability for any action taken in accordance with this section.
(d) The warden or other person in charge of the state prison shall
refer all reports for which there is probable cause to believe that
the inmate has violated subdivision (a) to the local district
attorney for prosecution.
(e) The Department of Corrections and Rehabilitation
shall report to the Legislature, by January 1, 2000, its findings and
recommendations on gassing incidents at the state prison and the
medical testing authorized by this section. The report shall include,
but not be limited to, all of the following:
(1) The total number of gassing incidents at each state prison
facility up to the date of the report.
(2) The disposition of each gassing incident, including the
administrative penalties imposed, the number of incidents that are
prosecuted, and the results of those prosecutions, including any
penalties imposed.
(3) A profile of the inmates who commit the aggravated batteries,
including the number of inmates who have one or more prior serious or
violent felony convictions.
(4) Efforts that the department has taken to limit these
incidents, including staff training and the use of protective
clothing and goggles.
(5) The results and costs of the medical testing authorized by
this section.
(f) Nothing in this section shall preclude prosecution under both
this section and any other provision of law.
SEC. 485. Section 4502 of the Penal Code is amended to
read:
4502. (a) Every person who, while at or confined in any penal
institution, while being conveyed to or from any penal institution,
or while under the custody of officials, officers, or employees of
any penal institution, possesses or carries upon his or her person or
has under his or her custody or control any instrument or weapon of
the kind commonly known as a blackjack, slungshot, billy, sandclub,
sandbag, or metal knuckles, any explosive substance, or fixed
ammunition, any dirk or dagger or sharp instrument, any pistol,
revolver, or other firearm, or any tear gas or tear gas weapon, is
guilty of a felony and shall be punished by imprisonment in
the state prison pursuant to subdivision (h) of
Section 1170 for two, three, or four years, to be served
consecutively.
(b) Every person who, while at or confined in any penal
institution, while being conveyed to or from any penal institution,
or while under the custody of officials, officers, or employees of
any penal institution, manufactures or attempts to manufacture any
instrument or weapon of the kind commonly known as a blackjack,
slungshot, billy, sandclub, sandbag, or metal knuckles, any explosive
substance, or fixed ammunition, any dirk or dagger or sharp
instrument, any pistol, revolver, or other firearm, or any tear gas
or tear gas weapon, is guilty of a felony and shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 for 16 months, or
two or three years, to be served consecutively.
(c) For purposes of this section, "penal institution" means the
state prison, a prison road camp, prison forestry camp, or other
prison camp or farm, or a county jail or county road camp.
SEC. 486. Section 4530 of the Penal Code is amended to
read:
4530. (a) Every prisoner confined in a state prison who, by force
or violence, escapes or attempts to escape therefrom and every
prisoner committed to a state prison who, by force or violence,
escapes or attempts to escape while being conveyed to or from
such that prison or any other state
prison, or any prison road camp, prison forestry camp, or other
prison camp or prison farm or any other place while under the custody
of prison officials, officers or employees; or who, by force or
violence, escapes or attempts to escape from any prison road camp,
prison forestry camp, or other prison camp or prison farm or other
place while under the custody of prison officials, officers or
employees; or who, by force or violence, escapes or attempts to
escape while at work outside or away from prison under custody of
prison officials, officers, or employees, is punishable by
imprisonment in a state prison pursuant to
subdivision (h) of Section 1170 for a term of two, four, or six
years. The second term of imprisonment of a person convicted under
this subdivision shall commence from the time he or she
would otherwise have been discharged from prison. No additional
probation report shall be required with respect to such
that offense.
(b) Every prisoner who commits an escape or attempts an escape as
described in subdivision (a), without force or violence, is
punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for 16 months,
or two or three years to be served consecutively. No additional
probation report shall be required with respect to such offense.
(c) The willful failure of a prisoner who is employed or
continuing his education, or who is authorized to secure employment
or education, or who is temporarily released pursuant to Section
2690, 2910, or 6254, or Section 3306 of the Welfare and Institutions
Code, to return to the place of confinement not later than the
expiration of a period during which he or she is authorized to be
away from the place of confinement, is an escape from the place of
confinement punishable as provided in this section. A conviction of a
violation of this subdivision, not involving force or violence,
shall not be charged as a prior felony conviction in any subsequent
prosecution for a public offense.
SEC. 487. Section 4532 of the Penal Code is amended to
read:
4532. (a) (1) Every prisoner arrested and booked for, charged
with, or convicted of a misdemeanor, and every person committed under
the terms of Section 5654, 5656, or 5677 of the Welfare and
Institutions Code as an inebriate, who is confined in any county or
city jail, prison, industrial farm, or industrial road camp, is
engaged on any county road or other county work, is in the lawful
custody of any officer or person, is employed or continuing in his or
her regular educational program or authorized to secure employment
or education away from the place of confinement, pursuant to the
Cobey Work Furlough Law (Section 1208), is authorized for temporary
release for family
emergencies or for purposes preparatory to his or her return to the
community pursuant to Section 4018.6, or is a participant in a home
detention program pursuant to Section 1203.016, 1203.017, or
1203.018, and who thereafter escapes or attempts to escape from
the county or city jail, prison, industrial farm, or industrial road
camp or from the custody of the officer or person in charge of him
or her while engaged in or going to or returning from the county work
or from the custody of any officer or person in whose lawful custody
he or she is, or from the place of confinement in a home detention
program pursuant to Section 1203.016, 1203.017, or 1203.018
is guilty of a felony and, if the escape or attempt to escape
was not by force or violence, is punishable by imprisonment in the
state prison for a determinate term of one year and one day, or in a
county jail not exceeding one year.
(2) If the escape or attempt to escape described in paragraph (1)
is committed by force or violence, the person is guilty of a felony,
punishable by imprisonment in the state prison for two, four, or six
years to be served consecutively, or in a county jail not exceeding
one year. When the second term of imprisonment is to be served in a
county jail, it shall commence from the time the prisoner otherwise
would have been discharged from jail.
(3) A conviction of a violation of this subdivision, or a
violation of subdivision (b) involving a participant of a home
detention program pursuant to Section 1203.016, 1203.017, or
1203.018 that is not committed by force or violence, shall not
be charged as a prior felony conviction in any subsequent prosecution
for a public offense.
(b) (1) Every prisoner arrested and booked for, charged with, or
convicted of a felony, and every person committed by order of the
juvenile court, who is confined in any county or city jail, prison,
industrial farm, or industrial road camp, is engaged on any county
road or other county work, is in the lawful custody of any officer or
person, or is confined pursuant to Section 4011.9, is a participant
in a home detention program pursuant to Section 1203.016,
1203.017, or 1203.018 who escapes or attempts to escape from a
county or city jail, prison, industrial farm, or industrial road camp
or from the custody of the officer or person in charge of him or her
while engaged in or going to or returning from the county work or
from the custody of any officer or person in whose lawful custody he
or she is, or from confinement pursuant to Section 4011.9, or from
the place of confinement in a home detention program pursuant to
Section 1203.016, is guilty of a felony and, if the escape or attempt
to escape was not by force or violence, is punishable by
imprisonment in the state prison for 16 months, two years, or three
years, to be served consecutively, or in a county jail not exceeding
one year.
(2) If the escape or attempt to escape described in paragraph (1)
is committed by force or violence, the person is guilty of a felony,
punishable by imprisonment in the state prison for a full term of
two, four, or six years to be served consecutively to any other term
of imprisonment, commencing from the time the person otherwise would
have been released from imprisonment and the term shall not be
subject to reduction pursuant to subdivision (a) of Section 1170.1,
or in a county jail for a consecutive term not to exceed one year,
that term to commence from the time the prisoner otherwise would have
been discharged from jail.
(c) Notwithstanding any other law, every inmate who is a
participant in an alternative custody program pursuant to Section
1170.05 who escapes or attempts to escape from the program is guilty
of a misdemeanor.
(d) (1) Except in unusual cases where the interests of justice
would best be served if the person is granted probation, probation
shall not be granted to any person who is convicted of a felony
offense under this section in that he or she escaped or attempted to
escape from a secure main jail facility, from a court building, or
while being transported between the court building and the jail
facility.
(2) In any case in which a person is convicted of a violation of
this section designated as a misdemeanor, he or she shall be confined
in a county jail for not less than 90 days nor more than one year
except in unusual cases where the interests of justice would best be
served by the granting of probation.
(3) For the purposes of this subdivision, "main jail facility"
means the facility used for the detention of persons pending
arraignment, after arraignment, during trial, and upon sentence or
commitment. The facility shall not include an industrial farm,
industrial road camp, work furlough facility, or any other nonsecure
facility used primarily for sentenced prisoners. As used in this
subdivision, "secure" means that the facility contains an outer
perimeter characterized by the use of physically restricting
construction, hardware, and procedures designed to eliminate ingress
and egress from the facility except through a closely supervised gate
or doorway.
(4) If the court grants probation under this subdivision, it shall
specify the reason or reasons for that order on the court record.
(5) Any sentence imposed under this subdivision shall be served
consecutive to any other sentence in effect or pending.
(e) The willful failure of a prisoner, whether convicted of a
felony or a misdemeanor, to return to his or her place of confinement
no later than the expiration of the period that he or she was
authorized to be away from that place of confinement, is an escape
from that place of confinement. This subdivision applies to a
prisoner who is employed or continuing in his or her regular
educational program, authorized to secure employment or education
pursuant to the Cobey Work Furlough Law (Section 1208), authorized
for temporary release for family emergencies or for purposes
preparatory to his or her return to the community pursuant to Section
4018.6, or permitted to participate in a home detention program
pursuant to Section 1203.016 , 1203.017, or 1203.018 . A
prisoner convicted of a misdemeanor who willfully fails to return to
his or her place of confinement under this subdivision shall be
punished as provided in paragraph (1) of subdivision (a). A prisoner
convicted of a felony who willfully fails to return to his or her
place of confinement shall be punished as provided in paragraph (1)
of subdivision (b).
SEC. 488. Section 4533 of the Penal Code is amended to
read:
4533. Every keeper of a prison, sheriff, deputy sheriff, or
jailer, or person employed as a guard, who fraudulently contrives,
procures, aids, connives at, or voluntarily permits the escape of any
prisoner in custody, is punishable by imprisonment in the
state prison pursuant to subdivision (h) of Section
1170 , and fine not exceeding ten thousand dollars ($10,000).
SEC. 489. Section 4536 of the Penal Code is amended to
read:
4536. (a) Every person committed to a state hospital or other
public or private mental health facility as a mentally disordered sex
offender, who escapes from or who escapes while being conveyed to or
from such state hospital or other public or private mental health
facility, is punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 or
in the county jail not to exceed one year. The term imposed pursuant
to this section shall be served consecutively to any other sentence
or commitment.
(b) The medical director or person in charge of a state hospital
or other public or private mental health facility to which a person
has been committed as a mentally disordered sex offender shall
promptly notify the chief of police of the city in which the hospital
or facility is located, or the sheriff of the county if the hospital
or facility is located in an unincorporated area, of the escape of
the person, and shall request the assistance of the chief of police
or sheriff in apprehending the person, and shall, within 48 hours of
the escape of the person, orally notify the court that made the
commitment, the prosecutor in the case, and the Department of Justice
of the escape.
SEC. 490. Section 4550 of the Penal Code is amended to
read:
4550. Every person who rescues or attempts to rescue, or aids
another person in rescuing or attempting to rescue any prisoner from
any prison, or prison road camp or any jail or county road camp, or
from any officer or person having him or her in lawful
custody, is punishable as follows:
1.
(a) If such the prisoner
was in custody upon a conviction of a felony punishable with death
: , by imprisonment in the
state prison pursuant to subdivision (h) of Section
1170 for two, three or four years ; .
2.
(b) If such the prisoner
was in custody otherwise than as specified in subsection 1
hereof: subdivision (a), by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 , or by imprisonment in the county jail not
to exceed one year.
SEC. 491. Section 4573 of the Penal Code is amended to
read:
4573. (a) Except when otherwise authorized
by law, or when authorized by the person in charge of the prison or
other institution referred to in this section or by an officer of the
institution empowered by the person in charge of the institution to
give the authorization, any person, who knowingly brings or sends
into, or knowingly assists in bringing into, or sending into, any
state prison, prison road camp, prison forestry camp, or other prison
camp or prison farm or any other place where prisoners of the state
are located under the custody of prison officials, officers or
employees, or into any county, city and county, or city jail, road
camp, farm or other place where prisoners or inmates are located
under custody of any sheriff, chief of police, peace officer,
probation officer or employees, or within the grounds belonging to
the institution, any controlled substance, the possession of which is
prohibited by Division 10 (commencing with Section 11000) of the
Health and Safety Code, any device, contrivance, instrument, or
paraphernalia intended to be used for unlawfully injecting or
consuming a controlled substance, is guilty of a felony punishable by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 for two, three, or four years.
The
(b) The prohibitions and
sanctions addressed in this section shall be clearly and prominently
posted outside of, and at the entrance to, the grounds of all
detention facilities under the jurisdiction of, or operated by, the
state or any city, county, or city and county.
SEC. 492. Section 4573.6 of the Penal Code is amended
to read:
4573.6. (a) Any person who knowingly has in
his or her possession in any state prison, prison road camp, prison
forestry camp, or other prison camp or prison farm or any place where
prisoners of the state are located under the custody of prison
officials, officers, or employees, or in any county, city and county,
or city jail, road camp, farm, or any place or institution, where
prisoners or inmates are being held under the custody of any sheriff,
chief of police, peace officer, probation officer, or employees, or
within the grounds belonging to any jail, road camp, farm, place or
institution, any controlled substances, the possession of which is
prohibited by Division 10 (commencing with Section 11000) of the
Health and Safety Code, any device, contrivance, instrument, or
paraphernalia intended to be used for unlawfully injecting or
consuming controlled substances, without being authorized to so
possess the same by the rules of the Department of Corrections, rules
of the prison or jail, institution, camp, farm or place, or by the
specific authorization of the warden, superintendent, jailer, or
other person in charge of the prison, jail, institution, camp, farm
or place, is guilty of a felony punishable by imprisonment
in the state prison pursuant to subdivision (h) of
Section 1170 for two, three, or four years.
The
(b) The prohibitions and
sanctions addressed in this section shall be clearly and prominently
posted outside of, and at the entrance to, the grounds of all
detention facilities under the jurisdiction of, or operated by, the
state or any city, county, or city and county.
SEC. 493. Section 4573.9 of the Penal Code is amended
to read:
4573.9. (a) Notwithstanding any other
provision of law, any person, other than a person held in custody,
who sells, furnishes, administers, or gives away, or offers to sell,
furnish, administer, or give away to any person held in custody in
any state prison or other institution under the jurisdiction of the
Department of Corrections, or in any prison camp, prison farm, or any
other place where prisoners or inmates of these institutions are
located under the custody of prison institution officials, officers,
or employees, or in any county, city and county, or city jail, road
camp, farm, or any other institution or place where prisoners or
inmates are being held under the custody of any sheriff, chief of
police, peace officer, probation officer, or employees, or within the
grounds belonging to any institution or place, any controlled
substance, the possession of which is prohibited by Division 10
(commencing with Section 11000) of the Health and Safety Code, if the
recipient is not authorized to possess the same by the rules of the
Department of Corrections, rules of the prison or jail, institution,
camp, farm, or place, or by the specific authorization of the warden,
superintendent, jailer, or other person in charge of the prison,
jail, institution, camp, farm, or place, is guilty of a felony
punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for two, four,
or six years.
The
(b) The prohibitions and
sanctions addressed in this section shall be clearly and prominently
posted outside of, and at the entrance to, the grounds of all
detention facilities under the jurisdiction of, or operatd
operated by, the state or any city, county, or
city and county.
SEC. 494. Section 4574 of the Penal Code is amended to
read:
4574. (a) Except when otherwise authorized by law, or when
authorized by the person in charge of the prison or other institution
referred to in this section or by an officer of the institution
empowered by the person in charge of the institution to give such
authorization, any person, who knowingly brings or sends into, or
knowingly assists in bringing into, or sending into, any state prison
or prison road camp or prison forestry camp, or other prison camp or
prison farm or any other place where prisoners of the state prison
are located under the custody of prison officials, officers or
employees, or any jail or any county road camp in this state, or
within the grounds belonging or adjacent to any such institution, any
firearms, deadly weapons, or explosives, and any person who, while
lawfully confined in a jail or county road camp possesses therein any
firearm, deadly weapon, explosive, tear gas or tear gas weapon, is
guilty of a felony and punishable by imprisonment in the
state prison pursuant to subdivision (h) of Section
1170 for two, three, or four years.
(b) Except as provided in subdivision (a), any person who
knowingly brings or sends into such those
places any tear gas or tear gas weapons which results in the
release of such tear gas or use of such weapon is guilty of a felony
and punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for two,
three, or four years.
(c) Except as provided in subdivision (a), any person who
knowingly brings or sends into such those
places any tear gas or tear gas weapons is guilty of a
misdemeanor and punishable by imprisonment in the county jail not
exceeding six months, or by fine not exceeding one thousand dollars
($1,000), or by both such fine and imprisonment.
SEC. 495. Section 4600 of the Penal Code is amended to
read:
4600. (a) Every person who willfully and intentionally breaks
down, pulls down, or otherwise destroys or injures any jail, prison,
or any public property in any jail or prison, is punishable by a fine
not exceeding ten thousand dollars ($10,000), and by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 , except that where the damage or injury to
any city, city and county, or county jail property or prison
property is determined to be nine hundred fifty dollars ($950) or
less, that person is guilty of a misdemeanor.
(b) In any case in which a person is convicted of violating this
section, the court may order the defendant to make restitution to the
public entity that owns the property damaged by the defendant. The
court shall specify in the order that the public entity that owns the
property damaged by the defendant shall not enforce the order until
the defendant satisfies all outstanding fines, penalties,
assessments, restitution fines, and restitution orders.
SEC. 496. Section 11411 of the Penal Code is amended to
read:
11411. (a) Any person who hangs a noose, knowing it to be a
symbol representing a threat to life, on the private property of
another, without authorization, for the purpose of terrorizing the
owner or occupant of that private property or in reckless disregard
of the risk of terrorizing the owner or occupant of that private
property, or who hangs a noose, knowing it to be a symbol
representing a threat to life, on the property of a primary school,
junior high school, high school, college campus, public park, or
place of employment, for the purpose of terrorizing any person who
attends or works at the school, park, or place of employment, or who
is otherwise associated with the school, park, or place of
employment, shall be punished by imprisonment in a county jail not to
exceed one year, or by a fine not to exceed five thousand dollars
($5,000), or by both the fine and imprisonment for the first
conviction or by imprisonment in a county jail not to exceed one
year, or by a fine not to exceed fifteen thousand dollars ($15,000),
or by both the fine and imprisonment for any subsequent conviction.
(b) Any person who places or displays a sign, mark, symbol,
emblem, or other physical impression, including, but not limited to,
a Nazi swastika, on the private property of another, without
authorization, for the purpose of terrorizing the owner or occupant
of that private property or in reckless disregard of the risk of
terrorizing the owner or occupant of that private property shall be
punished by imprisonment in a county jail not to exceed one year, by
a fine not to exceed five thousand dollars ($5,000), or by both the
fine and imprisonment for the first conviction and by imprisonment in
a county jail not to exceed one year, by a fine not to exceed
fifteen thousand dollars ($15,000), or by both the fine and
imprisonment for any subsequent conviction.
(c) Any person who engages in a pattern of conduct for the purpose
of terrorizing the owner or occupant of private property or in
reckless disregard of terrorizing the owner or occupant of that
private property, by placing or displaying a sign, mark, symbol,
emblem, or other physical impression, including, but not limited to,
a Nazi swastika, on the private property of another on two or more
occasions, shall be punished by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170
for 16 months or 2 or 3 years, by a fine not to exceed ten
thousand dollars ($10,000), or by both the fine and imprisonment, or
by imprisonment in a county jail not to exceed one year, by a fine
not to exceed five thousand dollars ($5,000), or by both the fine and
imprisonment. A violation of this subdivision shall not constitute
felonious conduct for purposes of Section 186.22.
(d) Any person who burns or desecrates a cross or other religious
symbol, knowing it to be a religious symbol, on the private property
of another without authorization for the purpose of terrorizing the
owner or occupant of that private property or in reckless disregard
of the risk of terrorizing the owner or occupant of that private
property, or who burns, desecrates, or destroys a cross or other
religious symbol, knowing it to be a religious symbol, on the
property of a primary school, junior high school, or high school for
the purpose of terrorizing any person who attends or works at the
school or who is otherwise associated with the school, shall be
punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for 16 months or 2
or 3 years, by a fine of not more than ten thousand dollars
($10,000), or by both the fine and imprisonment, or by imprisonment
in a county jail not to exceed one year, by a fine not to exceed five
thousand dollars ($5,000), or by both the fine and imprisonment for
the first conviction and by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for
16 months or 2 or 3 years, by a fine of not more than ten thousand
dollars ($10,000), or by both the fine and imprisonment, or by
imprisonment in a county jail not to exceed one year, by a fine not
to exceed fifteen thousand dollars ($15,000), or by both the fine and
imprisonment for any subsequent conviction.
(e) As used in this section, "terrorize" means to cause a person
of ordinary emotions and sensibilities to fear for personal safety.
(f) The provisions of this section are severable. If any provision
of this section or its application is held invalid, that invalidity
shall not affect other provisions or applications that can be given
effect without the invalid provision or application.
SEC. 497. Section 11413 of the Penal Code, as amended
by Section 25 of Chapter 700 of the Statutes of 2004, is amended to
read:
11413. (a) Any person who explodes, ignites, or attempts to
explode or ignite any destructive device or any explosive, or who
commits arson, in or about any of the places listed in subdivision
(b), for the purpose of terrorizing another or in reckless disregard
of terrorizing another is guilty of a felony, and shall be punished
by imprisonment in the state prison pursuant
to subdivision (h) of Section 1170 for three, five, or seven
years, and a fine not exceeding ten thousand dollars ($10,000).
(b) Subdivision (a) applies to the following places:
(1) Any health facility licensed under Chapter 2 (commencing with
Section 1250) of Division 2 of the Health and Safety Code, or any
place where medical care is provided by a licensed health care
professional.
(2) Any church, temple, synagogue, mosque, or other place of
worship.
(3) The buildings, offices, and meeting sites of organizations
that counsel for or against abortion or among whose major activities
are lobbying, publicizing, or organizing with respect to public or
private issues relating to abortion.
(4) Any place at which a lecture, film-showing, or other private
meeting or presentation that educates or propagates with respect to
abortion practices or policies, whether on private property or at a
meeting site authorized for specific use by a private group on public
property, is taking place.
(5) Any bookstore or public or private library.
(6) Any building or facility designated as a courthouse.
(7) The home or office of a judicial officer.
(8) Any building or facility regularly occupied by county
probation department personnel in which the employees perform
official duties of the probation department.
(9) Any private property, if the property was targeted in whole or
in part because of any of the actual or perceived characteristics of
the owner or occupant of the property listed in subdivision (a) of
Section 422.55.
(10) Any public or private school providing instruction in
kindergarten or grades 1 to 12, inclusive.
(c) As used in this section, "judicial officer" means a
magistrate, judge, justice, commissioner, referee, or any person
appointed by a court to serve in one of these capacities, of any
state or federal court located in this state.
(d) As used in this section, "terrorizing" means to cause a person
of ordinary emotions and sensibilities to fear for personal safety.
(e) Nothing in this section shall be construed to prohibit the
prosecution of any person pursuant to Section 12303.3 or any other
provision of law in lieu of prosecution pursuant to this section.
SEC. 498. Section 11413 of the Penal Code, as amended
by Section 91 of Chapter 178 of the Statutes of 2010, is amended to
read:
11413. (a) Any person who explodes, ignites, or attempts to
explode or ignite any destructive device or any explosive, or who
commits arson, in or about any of the places listed in subdivision
(b), for the purpose of terrorizing another or in reckless disregard
of terrorizing another is guilty of a felony, and shall be punished
by imprisonment in the state prison pursuant
to subdivision (h) of Section 1170 for three, five, or seven
years, and a fine not exceeding ten thousand dollars ($10,000).
(b) Subdivision (a) applies to the following places:
(1) Any health facility licensed under Chapter 2 (commencing with
Section 1250) of Division 2 of the Health and Safety Code, or any
place where medical care is provided by a licensed health care
professional.
(2) Any church, temple, synagogue, mosque, or other place of
worship.
(3) The buildings, offices, and meeting sites of organizations
that counsel for or against abortion or among whose major activities
are lobbying, publicizing, or organizing with respect to public or
private issues relating to abortion.
(4) Any place at which a lecture, film-showing, or other private
meeting or presentation that educates or propagates with respect to
abortion practices or policies, whether on private property or at a
meeting site authorized for specific use by a private group on public
property, is taking place.
(5) Any bookstore or public or private library.
(6) Any building or facility designated as a courthouse.
(7) The home or office of a judicial officer.
(8) Any building or facility regularly occupied by county
probation department personnel in which the employees perform
official duties of the probation department.
(9) Any private
property, if the property was targeted in whole or in part because of
any of the actual or perceived characteristics of the owner or
occupant of the property listed in subdivision (a) of Section 422.55.
(10) Any public or private school providing instruction in
kindergarten or grades 1 to 12, inclusive.
(c) As used in this section, "judicial officer" means a
magistrate, judge, justice, commissioner, referee, or any person
appointed by a court to serve in one of these capacities, of any
state or federal court located in this state.
(d) As used in this section, "terrorizing" means to cause a person
of ordinary emotions and sensibilities to fear for personal safety.
(e) Nothing in this section shall be construed to prohibit the
prosecution of any person pursuant to Section 18740 or any other
provision of law in lieu of prosecution pursuant to this section.
SEC. 499. Section 11418 of the Penal Code, as amended
by Section 5 of Chapter 606 of the Statutes of 2002, is amended to
read:
11418. (a) (1) Any person, without lawful authority, who
possesses, develops, manufactures, produces, transfers, acquires, or
retains any weapon of mass destruction, shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 for 4, 8, or 12 years.
(2) Any person who commits a violation of paragraph (1) and who
has been previously convicted of Section 11411, 11412, 11413, 11418,
11418.1, 11418.5, 11419, 11460, 12303.1, 12303.2, or 12303.3 shall be
punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for 5, 10, or 15
years.
(b) (1) Any person who uses or directly employs against another
person a weapon of mass destruction in a form that may cause
widespread, disabling illness or injury in human beings shall be
punished by imprisonment in the state prison for life.
(2) Any person who uses or directly employs against another person
a weapon of mass destruction in a form that may cause widespread
great bodily injury or death and causes the death of any human being
shall be punished by imprisonment in the state prison for life
without the possibility of parole. Nothing in this paragraph shall
prevent punishment instead under Section 190.2.
(3) Any person who uses a weapon of mass destruction in a form
that may cause widespread damage to or disruption of the food supply
or "source of drinking water" as defined in subdivision (d) of
Section 25249.11 of the Health and Safety Code shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 for 5, 8, or 12 years and by a
fine of not more than one hundred thousand dollars ($100,000).
(4) Any person who maliciously uses against animals, crops, or
seed and seed stock, a weapon of mass destruction in a form that may
cause widespread damage to or substantial diminution in the value of
stock animals or crops, including seeds used for crops or product of
the crops, shall be punished by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170
for 4, 8, or 12 years and by a fine of not more than one
hundred thousand dollars ($100,000).
(c) Any person who uses a weapon of mass destruction in a form
that may cause widespread and significant damage to public natural
resources, including coastal waterways and beaches, public parkland,
surface waters, ground water, and wildlife, shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 for 3, 4, or 6
three, four, or six years.
(d) (1) Any person who uses recombinant technology or any other
biological advance to create new pathogens or more virulent forms of
existing pathogens for use in any crime described in subdivision (b)
shall be punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for
4, 8, or 12 years and by a fine of not more than two hundred fifty
thousand dollars ($250,000).
(2) Any person who uses recombinant technology or any other
biological advance to create new pathogens or more virulent forms of
existing pathogens for use in any crime described in subdivision (c)
shall be punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for
three, six, or nine years and by a fine of not more than two hundred
fifty thousand dollars ($250,000).
(e) Nothing in this section shall be construed to prevent
punishment instead pursuant to any other provision of law that
imposes a greater or more severe punishment.
SEC. 500. Section 11418 of the Penal Code, as amended
by Section 92 of Chapter 178 of the Statutes of 2010, is amended to
read:
11418. (a) (1) Any person, without lawful authority, who
possesses, develops, manufactures, produces, transfers, acquires, or
retains any weapon of mass destruction, shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 for 4, 8, or 12 years.
(2) Any person who commits a violation of paragraph (1) and who
has been previously convicted of Section 11411, 11412, 11413, 11418,
11418.1, 11418.5, 11419, 11460, 18715, 18725, or 18740 shall be
punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for 5, 10, or 15
years.
(b) (1) Any person who uses or directly employs against another
person a weapon of mass destruction in a form that may cause
widespread, disabling illness or injury in human beings shall be
punished by imprisonment in the state prison for life.
(2) Any person who uses or directly employs against another person
a weapon of mass destruction in a form that may cause widespread
great bodily injury or death and causes the death of any human being
shall be punished by imprisonment in the state prison for life
without the possibility of parole. Nothing in this paragraph shall
prevent punishment instead under Section 190.2.
(3) Any person who uses a weapon of mass destruction in a form
that may cause widespread damage to or disruption of the food supply
or "source of drinking water" as defined in subdivision (d) of
Section 25249.11 of the Health and Safety Code shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 for 5, 8, or 12 years and by a
fine of not more than one hundred thousand dollars ($100,000).
(4) Any person who maliciously uses against animals, crops, or
seed and seed stock, a weapon of mass destruction in a form that may
cause widespread damage to or substantial diminution in the value of
stock animals or crops, including seeds used for crops or product of
the crops, shall be punished by imprisonment in the state
prison pursuant to subdivision ( h) of
Section 1170 for 4, 8, or 12 years and by a fine of not more
than one hundred thousand dollars ($100,000).
(c) Any person who uses a weapon of mass destruction in a form
that may cause widespread and significant damage to public natural
resources, including coastal waterways and beaches, public parkland,
surface waters, ground water, and wildlife, shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 for 3, 4, or 6 years.
(d) (1) Any person who uses recombinant technology or any other
biological advance to create new pathogens or more virulent forms of
existing pathogens for use in any crime described in subdivision (b)
shall be punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for
4, 8, or 12 years and by a fine of not more than two hundred fifty
thousand dollars ($250,000).
(2) Any person who uses recombinant technology or any other
biological advance to create new pathogens or more virulent forms of
existing pathogens for use in any crime described in subdivision (c)
shall be punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for
three, six, or nine years and by a fine of not more than two hundred
fifty thousand dollars ($250,000).
(e) Nothing in this section shall be construed to prevent
punishment instead pursuant to any other provision of law that
imposes a greater or more severe punishment.
SEC. 501. Section 11419 of the Penal Code is amended to
read:
11419. (a) Any person or entity possessing any of the restricted
biological agents enumerated in subdivision (b) shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 for 4, 8, or 12 years, and by a
fine of not more than two hundred fifty thousand dollars ($250,000).
(b) For the purposes of this section, "restricted biological
agents" means the following:
(1) Viruses: Crimean-Congo hemorrhagic fever virus, eastern equine
encephalitis virus, ebola viruses, equine morbilli virus, lassa
fever virus, marburg virus, Rift Valley fever virus, South African
hemorrhagic fever viruses (Junin, Machupo, Sabia, Flexal, Guanarito),
tick-borne encephalitis complex viruses, variola major virus
(smallpox virus), Venezuelan equine encephalitis virus, viruses
causing hantavirus pulmonary syndrome, yellow fever virus.
(2) Bacteria: bacillus anthracis (commonly known as anthrax),
brucella abortus, brucella melitensis, brucella suis, burkholderia
(pseudomonas) mallei, burkholderia (pseudomonas) pseudomallei,
clostridium botulinum, francisella tularensis, yersinia pestis
(commonly known as plague).
(3) Rickettsiae: coxiella burnetii, rickettsia prowazekii,
rickettsia rickettsii.
(4) Fungi: coccidioides immitis.
(5) Toxins: abrin, aflatoxins, botulinum toxins, clostridium
perfringens epsilon toxin, conotoxins, diacetoxyscirpenol, ricin,
saxitoxin, shigatoxin, staphylococcal enterotoxins, tabtoxin,
tetrodotoxin, T-2 toxin.
(6) Any other microorganism, virus, infectious substance, or
biological product that has the same characteristics as, or is
substantially similar to, the substances prohibited in this section.
(c) (1) This section shall not apply to any physician,
veterinarian, pharmacist, or licensed medical practitioner authorized
to dispense a prescription under Section 11026 of the Health and
Safety Code, or universities, research institutions, or
pharmaceutical corporations, or any person possessing the agents
pursuant to a lawful prescription issued by a person defined in
Section 11026 of the Health and Safety Code, if the person possesses
vaccine strains of the viral agents Junin virus strain #1, Rift
Valley fever virus strain MP-12, Venezuelan equine encephalitis virus
strain TC-83 and yellow fever virus strain 17-D; any vaccine strain
described in Section 78.1 of Subpart A of Part 78 of Subchapter C of
Chapter 1 of Title 9 of the Code of Federal Regulations, or any
successor provisions, and any toxin for medical use, inactivated for
use as vaccines, or toxin preparation for biomedical research use at
a median lethal dose for vertebrates of more than 100 ng/kg, as well
as any national standard toxin required for biologic potency testing
as described in Part 113 (commencing with Section 113.1) of
Subchapter E of Chapter 1 of Title 9 of the Code of Federal
Regulations, or any successor provisions.
(2) For the purposes of this section, no person shall be deemed to
be in possession of an agent if the person is naturally exposed to,
or innocently infected or contaminated with, the agent.
(d) Any peace officer who encounters any of the restricted agents
mentioned above shall immediately notify and consult with a local
public health officer to ensure proper consideration of any public
health risk.
(e) Nothing in this section shall be construed to prevent
punishment instead pursuant to any other provision of law that
imposes a greater or more severe punishment.
SEC. 501.5. 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 punishable by
imprisonment in the state prison for 16 months, or 2 or 3 years
.
(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
punishable by imprisonme nt in the state prison for 16
months, or 2 or 3 years .
(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 punishable by imprisonment in the state
prison for 16 months, or 2 or 3 years .
(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, paragraph (1) of subdivision (a) of
Section 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 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 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. 502. Section 12021.1 of the Penal Code is amended
to read:
12021.1. (a) Notwithstanding subdivision (a) of Section 12021,
any person who has been previously convicted of any of the offenses
listed in subdivision (b) 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 punishable by imprisonment in the state
prison for 16 months, or two or three yea rs . A
dismissal of an accusatory pleading pursuant to Section 1203.4a
involving an offense set forth in subdivision (b) does not affect the
finding of a previous conviction. If probation is granted, or if the
imposition or execution of sentence is suspended, it shall be a
condition of the probation or suspension that the defendant serve at
least six months in a county jail.
(b) As used in this section, a violent offense includes any of the
following:
(1) Murder or voluntary manslaughter.
(2) Mayhem.
(3) Rape.
(4) Sodomy by force, violence, duress, menace, or threat of great
bodily harm.
(5) Oral copulation by force, violence, duress, menace, or threat
of great bodily harm.
(6) Lewd acts on a child under the age of 14 years.
(7) Any felony punishable by death or imprisonment in the state
prison for life.
(8) Any other felony in which the defendant inflicts great bodily
injury on any person, other than an accomplice, that has been charged
and proven, or any felony in which the defendant uses a firearm
which use has been charged and proven.
(9) Attempted murder.
(10) Assault with intent to commit rape or robbery.
(11) Assault with a deadly weapon or instrument on a peace
officer.
(12) Assault by a life prisoner on a noninmate.
(13) Assault with a deadly weapon by an inmate.
(14) Arson.
(15) Exploding a destructive device or any explosive with intent
to injure.
(16) Exploding a destructive device or any explosive causing great
bodily injury.
(17) Exploding a destructive device or any explosive with intent
to murder.
(18) Robbery.
(19) Kidnapping.
(20) Taking of a hostage by an inmate of a state prison.
(21) Attempt to commit a felony punishable by death or
imprisonment in the state prison for life.
(22) Any felony in which the defendant personally used a dangerous
or deadly weapon.
(23) Escape from a state prison by use of force or violence.
(24) Assault with a deadly weapon or force likely to produce great
bodily injury.
(25) Any felony violation of Section 186.22.
(26) Any attempt to commit a crime listed in this subdivision
other than an assault.
(27) Any offense enumerated in subdivision (a), (b), or (d) of
Section 12001.6.
(28) Carjacking.
(29) Any offense enumerated in subdivision (c) of Section 12001.6
if the person has two or more convictions for violating paragraph (2)
of subdivision (a) of Section 417.
(c) Any person previously convicted of any of the offenses listed
in subdivision (b) which conviction results from certification by the
juvenile court for prosecution as an adult in adult court under the
provisions of Section 707 of the Welfare and Institutions Code, who
owns or has in his or her possession or under his or her custody or
control any firearm is guilty of a felony punishable by
imprisonment in the state prison for 16 months, or two or three years
. If probation is granted, or if the imposition or execution
of sentence is suspended, it shall be a condition of the probation or
suspension that the defendant serve at least six months in a county
jail.
(d) The court shall apply the minimum sentence as specified in
subdivisions (a) and (c) except in unusual cases where the interests
of justice would best be served by granting probation or suspending
the imposition or execution of sentence without the imprisonment
required by subdivisions (a) and (c), or by granting probation or
suspending the imposition or execution of sentence with conditions
other than those set forth in subdivisions (a) and (c), in which case
the court shall specify on the record and shall enter on the minutes
the circumstances indicating that the interests of justice would
best be served by the disposition.
SEC. 503. Section 12021.5 of the Penal Code, as amended
by Section 11 of Chapter 256 of the Statutes of 2010, is amended to
read:
12021.5. (a) Every person who carries a loaded or unloaded
firearm on his or her person, or in a vehicle, during the commission
or attempted commission of any street gang crimes described in
subdivision (a) or (b) of Section 186.22, shall, upon conviction of
the felony or attempted felony, be punished by an additional term of
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 for one, two, or three years.
The court shall select the sentence enhancement which, in the court's
discretion, best serves the interests of justice and shall state the
reasons for its choice on the record at the time of sentence, in
accordance with the provisions of subdivision (d) of Section 1170.1.
(b) Every person who carries a loaded or unloaded firearm together
with a detachable shotgun magazine, a detachable pistol magazine, a
detachable magazine, or a belt-feeding device on his or her person,
or in a vehicle, during the commission or attempted commission of any
street gang crimes described in subdivision (a) or (b) of Section
186.22, shall, upon conviction of the felony or attempted felony, be
punished by an additional term of imprisonment in the state
prison pursuant to subdivision (h) of Section 1170
for two, three, or four years. The court shall select the
sentence enhancement which, in the court's discretion, best serves
the interests of justice and shall state the reasons for its choice
on the record at the time of sentence, in accordance with the
provisions of subdivision (d) of Section 1170.1.
(c) As used in this section, the following definitions shall
apply:
(1) "Detachable magazine" means a device that is designed or
redesigned to do all of the following:
(A) To be attached to a rifle that is designed or redesigned to
fire ammunition.
(B) To be attached to, and detached from, a rifle that is designed
or redesigned to fire ammunition.
(C) To feed ammunition continuously and directly into the loading
mechanism of a rifle that is designed or redesigned to fire
ammunition.
(2) "Detachable pistol magazine" means a device that is designed
or redesigned to do all of the following:
(A) To be attached to a semiautomatic firearm that is not a rifle
or shotgun that is designed or redesigned to fire ammunition.
(B) To be attached to, and detached from, a firearm that is not a
rifle or shotgun that is designed or redesigned to fire ammunition.
(C) To feed ammunition continuously and directly into the loading
mechanism of a firearm that is not a rifle or a shotgun that is
designed or redesigned to fire ammunition.
(3) "Detachable shotgun magazine" means a device that is designed
or redesigned to do all of the following:
(A) To be attached to a firearm that is designed or redesigned to
fire a fixed shotgun shell through a smooth or rifled bore.
(B) To be attached to, and detached from, a firearm that is
designed or redesigned to fire a fixed shotgun shell through a smooth
bore.
(C) To feed fixed shotgun shells continuously and directly into
the loading mechanism of a firearm that is designed or redesigned to
fire a fixed shotgun shell.
(4) "Belt-feeding device" means a device that is designed or
redesigned to continuously feed ammunition into the loading mechanism
of a machinegun or a semiautomatic firearm.
(5) "Rifle" shall have the same meaning as specified in paragraph
(20) of subdivision (c) of Section 12020.
(6) "Shotgun" shall have the same meaning as specified in
paragraph (21) of subdivision (c) of Section 12020.
(d) This section shall remain in effect only until January 1,
2012, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2012, deletes or extends
that date.
SEC. 504. Section 12021.5 of the Penal Code, as amended
by Section 12 of Chapter 256 of the Statutes of 2010, is amended to
read:
12021.5. (a) Every person who carries a loaded or unloaded
firearm on his or her person, or in a vehicle, during the commission
or attempted commission of any street gang crimes described in
subdivision (a) or (b) of Section 186.22, shall, upon conviction of
the felony or attempted felony, be punished by an additional term of
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 for one, two, or three years in
the court's discretion. The court shall impose the middle term
unless there are circumstances in aggravation or mitigation. The
court shall state the reasons for its enhancement choice on the
record at the time of sentence.
(b) Every person who carries a loaded or unloaded firearm together
with a detachable shotgun magazine, a detachable pistol magazine, a
detachable magazine, or a belt-feeding device on his or her person,
or in a vehicle, during the commission or attempted commission of any
street gang crimes described in subdivision (a) or (b) of Section
186.22, shall, upon conviction of the felony or attempted felony, be
punished by an additional term of imprisonment in the state
prison pursuant to subdivision (h) of
Section 1170 for two, three, or four years in the court's
discretion. The court shall impose the middle term unless there are
circumstances in aggravation or mitigation. The court shall state the
reasons for its enhancement choice on the record at the time of
sentence.
(c) As used in this section, the following definitions shall
apply:
(1) "Detachable magazine" means a device that is designed or
redesigned to do all of the following:
(A) To be attached to a rifle that is designed or redesigned to
fire ammunition.
(B) To be attached to, and detached from, a rifle that is designed
or redesigned to fire ammunition.
(C) To feed ammunition continuously and directly into the loading
mechanism of a rifle that is designed or redesigned to fire
ammunition.
(2) "Detachable pistol magazine" means a device that is designed
or redesigned to do all of the following:
(A) To be attached to a semiautomatic firearm that is not a rifle
or shotgun that is designed or redesigned to fire ammunition.
(B) To be attached to, and detached from, a firearm that is not a
rifle or shotgun that is designed or redesigned to fire ammunition.
(C) To feed ammunition continuously and directly into the loading
mechanism of a firearm that is not a rifle or a shotgun that is
designed or redesigned to fire ammunition.
(3) "Detachable shotgun magazine" means a device that is designed
or redesigned to do all of the following:
(A) To be attached to a firearm that is designed or redesigned to
fire a fixed shotgun shell through a smooth or rifled bore.
(B) To be attached to, and detached from, a firearm that is
designed or redesigned to fire a fixed shotgun shell through a smooth
bore.
(C) To feed fixed shotgun shells continuously and directly into
the loading mechanism of a firearm that is designed or redesigned to
fire a fixed shotgun shell.
(4) "Belt-feeding device" means a device that is designed or
redesigned to continuously feed ammunition into the loading mechanism
of a machinegun or a semiautomatic firearm.
(5) "Rifle" shall have the same meaning as specified in paragraph
(20) of subdivision (c) of Section 12020.
(6) "Shotgun" shall have the same meaning as specified in
paragraph (21) of subdivision (c) of Section 12020.
(d) This section shall become operative on January 1, 2012.
SEC. 505. Section 12022 of the Penal Code, as amended
by Section 3 of Chapter 494 of the Statutes of 2004, is amended to
read:
12022. (a) (1) Except as provided in subdivisions (c) and (d),
any person who is armed with a firearm in the commission of a felony
or attempted felony shall be punished by an additional and
consecutive term of imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for
one year, unless the arming is an element of that offense. This
additional term shall apply to any person who is a principal in the
commission of a felony or attempted felony if one or more of the
principals is armed with a firearm, whether or not the person is
personally armed with a firearm.
(2) Except as provided in subdivision (c), and notwithstanding
subdivision (d), if the firearm is an assault weapon, as defined in
Section 12276 or Section 12276.1, or a machinegun, as defined in
Section 12200, or a .50 BMG rifle, as defined in Section 12278, the
additional and consecutive term described in this subdivision shall
be imprisonment pursuant to subdivision (h) of Section 1170 for
three years whether or not the arming is an element of the
offense of which the person was convicted. The additional term
provided in this paragraph shall apply to any person who is a
principal in the commission of a felony or attempted felony if one or
more of the principals is armed with an assault weapon or
machinegun, or a .50 BMG rifle, whether or not the person is
personally armed with an assault weapon or machinegun, or a .50 BMG
rifle.
(b) (1) Any person who personally uses a deadly or dangerous
weapon in the commission of a felony or attempted felony shall be
punished by an additional and consecutive term of imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 for one year, unless use of a deadly or
dangerous weapon is an element of that offense.
(2) If the person described in paragraph (1) has been convicted of
carjacking or attempted carjacking, the additional term shall be
imprisonment pursuant to subdivision (h) of Section 1170 for
one, two, or three years.
(3) When a person is found to have personally used a deadly or
dangerous weapon in the commission of a felony or attempted felony as
provided in this subdivision and the weapon is owned by that person,
the court shall order that the weapon be deemed a nuisance and
disposed of in the manner provided in Section 12028.
(c) Notwithstanding the enhancement set forth in subdivision (a),
any person who is personally armed with a firearm in the commission
of a violation or attempted violation of Section 11351, 11351.5,
11352, 11366.5, 11366.6, 11378, 11378.5, 11379, 11379.5, or 11379.6
of the Health and Safety Code, shall be punished by an additional and
consecutive term of imprisonment in the state prison
pursuant to subdivision (h) of Section 1170
for three, four, or five years.
(d) Notwithstanding the enhancement set forth in subdivision (a),
any person who is not personally armed with a firearm who, knowing
that another principal is personally armed with a firearm, is a
principal in the commission of an offense or attempted offense
specified in subdivision (c), shall be punished by an additional and
consecutive term of imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for
one, two, or three years.
(e) For purposes of imposing an enhancement under Section 1170.1,
the enhancements under this section shall count as one, single
enhancement.
(f) Notwithstanding any other provision of law, the court may
strike the additional punishment for the enhancements provided in
subdivision (c) or (d) in an unusual case where the interests of
justice would best be served, if the court specifies on the record
and enters into the minutes the circumstances indicating that the
interests of justice would best be served by that disposition.
SEC. 506. Section 12022 of the Penal Code, as added by
Section 5 of Chapter 711 of the Statutes of 2010, is amended to read:
12022. (a) (1) Except as provided in subdivisions (c) and (d),
any person who is armed with a firearm in the commission of a felony
or attempted felony shall be punished by an additional and
consecutive term of imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for
one year, unless the arming is an element of that offense. This
additional term shall apply to any person who is a principal in the
commission of a felony or attempted felony if one or more of the
principals is armed with a firearm, whether or not the person is
personally armed with a firearm.
(2) Except as provided in subdivision (c), and notwithstanding
subdivision (d), if the firearm is an assault weapon, as defined in
Section 30510 or Section 30515, or a machinegun, as defined in
Section 16880, or a .50 BMG rifle, as defined in Section 30530, the
additional and consecutive term described in this subdivision shall
be three years imprisonment pursuant to subdivision (h) of
Section 1170 whether or not the arming is an element of the
offense of which the person was convicted. The additional term
provided in this paragraph shall apply to any person who is a
principal in the commission of a felony or attempted felony if one or
more of the principals is armed with an assault weapon or
machinegun, or a .50 BMG rifle, whether or not the person is
personally armed with an assault weapon or machinegun, or a .50 BMG
rifle.
(b) (1) Any person who personally uses a deadly or dangerous
weapon in the commission of a felony or attempted felony shall be
punished by an additional and consecutive term of imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 for one year, unless use of a deadly or
dangerous weapon is an element of that offense.
(2) If the person described in paragraph (1) has been convicted of
carjacking or attempted carjacking, the additional term shall be
pursuant to subdivision (h) of Section 1170 for one, two,
or three years.
(3) When a person is found to have personally used a deadly or
dangerous weapon in the commission of a felony or attempted felony as
provided in this subdivision and the weapon is owned by that person,
the court shall order that the weapon be deemed a nuisance and
disposed of in the manner provided in Sections 18000 and 18005.
(c) Notwithstanding the enhancement set forth in subdivision (a),
any person who is personally armed with a firearm in the commission
of a violation or attempted violation of Section 11351, 11351.5,
11352, 11366.5, 11366.6, 11378, 11378.5, 11379, 11379.5, or 11379.6
of the Health and Safety Code, shall be punished by an additional and
consecutive term of imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for
three, four, or five years.
(d) Notwithstanding the enhancement set forth in subdivision (a),
any person who is not personally armed with a firearm who, knowing
that another principal is personally armed with a firearm, is a
principal in the commission of an offense or attempted offense
specified in subdivision (c), shall be punished by an additional and
consecutive term of imprisonment in the state prison
p ursuant to subdivision (h) of Section
1170 for one, two, or three years.
(e) For purposes of imposing an enhancement under Section 1170.1,
the enhancements under this section shall count as one, single
enhancement.
(f) Notwithstanding any other provision of law, the court may
strike the additional punishment for the enhancements provided in
subdivision (c) or (d) in an unusual case where the interests of
justice would best be served, if the court specifies on the record
and enters into the minutes the circumstances indicating that the
interests of justice would best be served by that disposition.
SEC. 507. Section 12022.5 of the Penal Code, as amended
by Section 4 of Chapter 494 of the Statutes of 2004, is amended to
read:
12022.5. (a) Except as provided in subdivision (b), any person
who personally uses a firearm in the commission of a felony or
attempted felony shall be punished by an additional and consecutive
term of imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for 3, 4, or 10
years, unless use of a firearm is an element of that offense.
(b) Notwithstanding subdivision (a), any person who personally
uses an assault weapon, as specified in Section 12276 or Section
12276.1, or a machinegun, as defined in Section 12200, in the
commission of a felony or attempted felony, shall be punished by an
additional and consecutive term of imprisonment in the state
prison pursuant to subdivision (h) of Section 1170
for 5, 6, or 10 years.
(c) Notwithstanding Section 1385 or any other provisions of law,
the court shall not strike an allegation under this section or a
finding bringing a person within the provisions of this section.
(d) Notwithstanding the limitation in subdivision (a) relating to
being an element of the offense, the additional term provided by this
section shall be imposed for any violation of Section 245 if a
firearm is used, or for murder if the killing is perpetrated by means
of shooting a firearm from a motor vehicle, intentionally at another
person outside of the vehicle with the intent to inflict great
bodily injury or death.
(e) When a person is found to have personally used a firearm, an
assault weapon, a machinegun, or a .50 BMG rifle, in the commission
of a felony or attempted felony as provided in this section and the
firearm, assault weapon, machinegun, or a .50 BMG rifle, is owned by
that person, the court shall order that the firearm be deemed a
nuisance and disposed of in the manner provided in Section 12028.
(f) For purposes of imposing an enhancement under Section 1170.1,
the enhancements under this section shall count as one, single
enhancement.
SEC. 508. Section 12022.5 of the Penal Code, as added
by Section 5 of Chapter 711 of the Statutes of 2010, is amended to
read:
12022.5. (a) Except as provided in subdivision (b), any person
who personally uses a firearm in the commission of a felony or
attempted felony shall be punished by an additional and consecutive
term of imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for 3, 4, or 10
years, unless use of a firearm is an element of that offense.
(b) Notwithstanding subdivision (a), any person who personally
uses an assault weapon, as specified in Section 30510 or Section
30515, or a machinegun, as defined in Section 16880, in the
commission of a felony or attempted felony, shall be punished by an
additional and consecutive term of imprisonment in the state
prison pursuant to subdivision (h) of Section 1170
for 5, 6, or 10 years.
(c) Notwithstanding Section 1385 or any other provisions of law,
the court shall not strike an allegation under this section or a
finding bringing a person within the provisions of this section.
(d) Notwithstanding the limitation in subdivision (a) relating to
being an element of the offense, the additional term provided by this
section shall be imposed for any violation of Section 245 if a
firearm is used, or for murder if the killing is perpetrated by means
of shooting a firearm from a motor vehicle, intentionally at another
person outside of the vehicle with the intent to inflict great
bodily injury or death.
(e) When a person is found to have personally used a firearm, an
assault weapon, a machinegun, or a .50 BMG rifle, in the commission
of a felony or attempted felony as provided in this section and the
firearm, assault weapon, machinegun, or a .50 BMG rifle, is owned by
that person, the court shall order that the firearm be deemed a
nuisance and disposed of in the manner provided in Sections 18000 and
18005.
(f) For purposes of imposing an enhancement under Section 1170.1,
the enhancements under this section shall count as one, single
enhancement.
SEC. 509. Section 12022.9 of the Penal Code, as amended
by Section 7 of Chapter 126 of the Statutes of 2002, is amended to
read:
12022.9. Any person who, during the commission of a felony or
attempted felony, knows or reasonably should know that the victim is
pregnant, and who, with intent to inflict injury, and without the
consent of the woman, personally inflicts injury upon a pregnant
woman that results in the termination of the pregnancy shall be
punished by an additional and consecutive term of imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 for five years. The additional term
provided in this subdivision shall not be imposed unless the fact of
that injury is charged in the accusatory pleading and admitted or
found to be true by the trier of fact.
Nothing in this section shall be construed as affecting the
applicability of subdivision (a) of Section 187.
SEC. 510. Section 12022.9 of the Penal Code, as added
by Section 5 of Chapter 711 of the Statutes of 2010, is amended to
read:
12022.9. Any person who, during the commission of a felony or
attempted felony, knows or reasonably should know that the victim is
pregnant, and who, with intent to inflict injury, and without the
consent of the woman, personally inflicts injury upon a pregnant
woman that results in the termination of the pregnancy shall be
punished by an additional and consecutive term of imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 for five years. The additional term
provided in this subdivision shall not be imposed unless the fact of
that injury is charged in the accusatory pleading and admitted or
found to be true by the trier of fact.
Nothing in this section shall be construed as affecting the
applicability of subdivision (a) of Section 187.
SEC. 511. Section 12025 of the
Penal Code is amended to read:
12025. (a) A person is guilty of carrying a concealed firearm
when he or she does any of the following:
(1) Carries concealed within any vehicle which is under his or her
control or direction any pistol, revolver, or other firearm capable
of being concealed upon the person.
(2) Carries concealed upon his or her person any pistol, revolver,
or other firearm capable of being concealed upon the person.
(3) Causes to be carried concealed within any vehicle in which he
or she is an occupant any pistol, revolver, or other firearm capable
of being concealed upon the person.
(b) Carrying a concealed firearm in violation of this section is
punishable, as follows:
(1) Where the person previously has been convicted of any felony,
or of any crime made punishable by this chapter, as a felony
punishable by imprisonment pursuant to subdivision (h) of Section
1170 .
(2) Where the firearm is stolen and the person knew or had
reasonable cause to believe that it was stolen, as a felony
punishable by imprisonment pursuant to subdivision (h) of Section
1170 .
(3) Where the person is an active participant in a criminal street
gang, as defined in subdivision (a) of Section 186.22, under the
Street Terrorism Enforcement and Prevention Act (Chapter 11
(commencing with Section 186.20) of Title 7 of Part 1), as a felony
punishable by imprisonment pursuant to subdivision (h) of
Section 1170 .
(4) Where the person is not in lawful possession of the firearm,
as defined in this section, or the person is within a class of
persons prohibited from possessing or acquiring a firearm pursuant to
Section 12021 or 12021.1 of this code or Section 8100 or 8103 of the
Welfare and Institutions Code, as a felony punishable by
imprisonment pursuant to subdivision (h) of Section 1170 .
(5) Where the person has been convicted of a crime against a
person or property, or of a narcotics or dangerous drug violation, by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 , or by imprisonment in a
county jail not to exceed one year, by a fine not to exceed one
thousand dollars ($1,000), or by both that imprisonment and fine.
(6) By imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 , or by
imprisonment in a county jail not to exceed one year, by a fine not
to exceed one thousand dollars ($1,000), or by both that fine and
imprisonment if both of the following conditions are met:
(A) Both the pistol, revolver, or other firearm capable of being
concealed upon the person and the unexpended ammunition capable of
being discharged from that firearm are either in the immediate
possession of the person or readily accessible to that person, or the
pistol, revolver, or other firearm capable of being concealed upon
the person is loaded as defined in subdivision (g) of Section 12031.
(B) The person is not listed with the Department of Justice
pursuant to paragraph (1) of subdivision (c) of Section 11106, as the
registered owner of that pistol, revolver, or other firearm capable
of being concealed upon the person.
(7) In all cases other than those specified in paragraphs (1) to
(6), inclusive, by imprisonment in a county jail not to exceed one
year, by a fine not to exceed one thousand dollars ($1,000), or by
both that imprisonment and fine.
(c) A peace officer may arrest a person for a violation of
paragraph (6) of subdivision (b) if the peace officer has probable
cause to believe that the person is not listed with the Department of
Justice pursuant to paragraph (1) of subdivision (c) of Section
11106 as the registered owner of the pistol, revolver, or other
firearm capable of being concealed upon the person, and one or more
of the conditions in subparagraph (A) of paragraph (6) of subdivision
(b) is met.
(d) (1) Every person convicted under this section who previously
has been convicted of a misdemeanor offense enumerated in Section
12001.6 shall be punished by imprisonment in a county jail for at
least three months and not exceeding six months, or, if granted
probation, or if the execution or imposition of sentence is
suspended, it shall be a condition thereof that he or she be
imprisoned in a county jail for at least three months.
(2) Every person convicted under this section who has previously
been convicted of any felony, or of any crime made punishable by this
chapter, if probation is granted, or if the execution or imposition
of sentence is suspended, it shall be a condition thereof that he or
she be imprisoned in a county jail for not less than three months.
(e) The court shall apply the three-month minimum sentence as
specified in subdivision (d), except in unusual cases where the
interests of justice would best be served by granting probation or
suspending the imposition or execution of sentence without the
minimum imprisonment required in subdivision (d) or by granting
probation or suspending the imposition or execution of sentence with
conditions other than those set forth in subdivision (d), in which
case, the court shall specify on the record and shall enter on the
minutes the circumstances indicating that the interests of justice
would best be served by that disposition.
(f) Firearms carried openly in belt holsters are not concealed
within the meaning of this section.
(g) For purposes of this section, "lawful possession of the
firearm" means that the person who has possession or custody of the
firearm either lawfully owns the firearm or has the permission of the
lawful owner or a person who otherwise has apparent authority to
possess or have custody of the firearm. A person who takes a firearm
without the permission of the lawful owner or without the permission
of a person who has lawful custody of the firearm does not have
lawful possession of the firearm.
(h) (1) The district attorney of each county shall submit annually
a report on or before June 30, to the Attorney General consisting of
profiles by race, age, gender, and ethnicity of any person charged
with a felony or a misdemeanor under this section and any other
offense charged in the same complaint, indictment, or information.
(2) The Attorney General shall submit annually, a report on or
before December 31, to the Legislature compiling all of the reports
submitted pursuant to paragraph (1).
(3) This subdivision shall remain operative until January 1, 2005,
and as of that date shall be repealed.
SEC. 512. Section 12035 of the Penal Code is amended to
read:
12035. (a) As used in this section, the following definitions
apply:
(1) "Locking device" means a device that is designed to prevent
the firearm from functioning and when applied to the firearm, renders
the firearm inoperable.
(2) "Loaded firearm" has the same meaning as set forth in
subdivision (g) of Section 12031.
(3) "Child" means a person under 18 years of age.
(4) "Great bodily injury" has the same meaning as set forth in
Section 12022.7.
(5) "Locked container" has the same meaning as set forth in
subdivision (d) of Section 12026.2.
(b) (1) Except as provided in subdivision (c), a person commits
the crime of "criminal storage of a firearm of the first degree" if
he or she keeps any loaded firearm within any premises that are under
his or her custody or control and he or she knows or reasonably
should know that a child is likely to gain access to the firearm
without the permission of the child's parent or legal guardian and
the child obtains access to the firearm and thereby causes death or
great bodily injury to himself, herself, or any other person.
(2) Except as provided in subdivision (c), a person commits the
crime of "criminal storage of a firearm of the second degree" if he
or she keeps any loaded firearm within any premises that are under
his or her custody or control and he or she knows or reasonably
should know that a child is likely to gain access to the firearm
without the permission of the child's parent or legal guardian and
the child obtains access to the firearm and thereby causes injury,
other than great bodily injury, to himself, herself, or any other
person, or carries the firearm either to a public place or in
violation of Section 417.
(c) Subdivision (b) shall not apply whenever any of the following
occurs:
(1) The child obtains the firearm as a result of an illegal entry
to any premises by any person.
(2) The firearm is kept in a locked container or in a location
that a reasonable person would believe to be secure.
(3) The firearm is carried on the person or within such a close
proximity thereto that the individual can readily retrieve and use
the firearm as if carried on the person.
(4) The firearm is locked with a locking device that has rendered
the firearm inoperable.
(5) The person is a peace officer or a member of the armed forces
or National Guard and the child obtains the firearm during, or
incidental to, the performance of the person's duties.
(6) The child obtains, or obtains and discharges, the firearm in a
lawful act of self-defense or defense of another person, or persons.
(7) The person who keeps a loaded firearm on any premise that is
under his or her custody or control has no reasonable expectation,
based on objective facts and circumstances, that a child is likely to
be present on the premises.
(d) Criminal storage of a firearm is punishable as follows:
(1) Criminal storage of a firearm in the first degree, by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 for 16 months, or two or three
years, by a fine not exceeding ten thousand dollars ($10,000), or by
both that imprisonment and fine; or by imprisonment in a county jail
not exceeding one year, by a fine not exceeding one thousand dollars
($1,000), or by both that fine and imprisonment.
(2) Criminal storage of a firearm in the second degree, 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.
(e) If the person who allegedly violated this section is the
parent or guardian of a child who is injured or who dies as the
result of an accidental shooting, the district attorney shall
consider, among other factors, the impact of the injury or death on
the person alleged to have violated this section when deciding
whether to prosecute an alleged violation. It is the Legislature's
intent that a parent or guardian of a child who is injured or who
dies as the result of an accidental shooting shall be prosecuted only
in those instances in which the parent or guardian behaved in a
grossly negligent manner or where similarly egregious circumstances
exist. This subdivision shall not otherwise restrict, in any manner,
the factors that a district attorney may consider when deciding
whether to prosecute alleged violations of this section.
(f) If the person who allegedly violated this section is the
parent or guardian of a child who is injured or who dies as the
result of an accidental shooting, no arrest of the person for the
alleged violation of this section shall occur until at least seven
days after the date upon which the accidental shooting occurred.
In addition to the limitation contained in this subdivision, a law
enforcement officer shall consider the health status of a child who
suffers great bodily injury as the result of an accidental shooting
prior to arresting a person for a violation of this section, if the
person to be arrested is the parent or guardian of the injured child.
The intent of this subdivision is to encourage law enforcement
officials to delay the arrest of a parent or guardian of a seriously
injured child while the child remains on life-support equipment or is
in a similarly critical medical condition.
(g) (1) The fact that the person who allegedly violated this
section attended a firearm safety training course prior to the
purchase of the firearm that is obtained by a child in violation of
this section shall be considered a mitigating factor by a district
attorney when he or she is deciding whether to prosecute the alleged
violation.
(2) In any action or trial commenced under this section, the fact
that the person who allegedly violated this section attended a
firearm safety training course prior to the purchase of the firearm
that is obtained by a child in violation of this section, shall be
admissible.
(h) Every person licensed under Section 12071 shall post within
the licensed premises the notice required by paragraph (7) of
subdivision (b) of that section, disclosing the duty imposed by this
section upon any person who keeps a loaded firearm.
SEC. 513. Section 12040 of the Penal Code is amended to
read:
12040. (a) A person commits criminal possession of a firearm when
he or she carries a firearm in a public place or on any public
street while masked so as to hide his or her identity.
(b) Criminal possession of a firearm is punishable by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 or by imprisonment in a county jail not to
exceed one year.
(c) Subdivision (a) shall not apply to the following:
(1) A peace officer who is in the performance of his or her
duties.
(2) Full-time paid peace officers of other states and the federal
government who are carrying out official duties while in this state.
(3) Any person summoned by any of the officers enumerated in
paragraph (1) or (2) to assist in making arrests or preserving the
peace while he or she is actually engaged in assisting that officer.
(4) The possession of an unloaded firearm or a firearm loaded with
blank ammunition by an authorized participant in, or while
rehearsing for, a motion picture, television, video production,
entertainment event, entertainment activity, or lawfully organized
and conducted activity when the participant lawfully uses the firearm
as part of that production, event, or activity.
(5) The possession of a firearm by a licensed hunter while
actually engaged in lawful hunting, or while going directly to or
returning directly from the hunting expedition.
SEC. 514. Section 12072 of the Penal Code is amended to
read:
12072. (a) (1) No person, corporation, or firm shall knowingly
supply, deliver, sell, or give possession or control of a firearm to
any person within any of the classes prohibited by Section 12021 or
12021.1.
(2) No person, corporation, or dealer shall sell, supply, deliver,
or give possession or control of a firearm to any person whom he or
she has cause to believe to be within any of the classes prohibited
by Section 12021 or 12021.1 of this code or Section 8100 or 8103 of
the Welfare and Institutions Code.
(3) (A) No person, corporation, or firm shall sell, loan, or
transfer a firearm to a minor, nor sell a handgun to an individual
under 21 years of age.
(B) Subparagraph (A) shall not apply to or affect those
circumstances set forth in subdivision (p) of Section 12078.
(4) No person, corporation, or dealer shall sell, loan, or
transfer a firearm to any person whom he or she knows or has cause to
believe is not the actual purchaser or transferee of the firearm, or
to any person who is not the person actually being loaned the
firearm, if the person, corporation, or dealer has either of the
following:
(A) Knowledge that the firearm is to be subsequently loaned, sold,
or transferred to avoid the provisions of subdivision (c) or (d).
(B) Knowledge that the firearm is to be subsequently loaned, sold,
or transferred to avoid the requirements of any exemption to the
provisions of subdivision (c) or (d).
(5) No person, corporation, or dealer shall acquire a firearm for
the purpose of selling, transferring, or loaning the firearm, if the
person, corporation, or dealer has either of the following:
(A) In the case of a dealer, intent to violate subdivision (b) or
(c).
(B) In any other case, intent to avoid either of the following:
(i) The provisions of subdivision (d).
(ii) The requirements of any exemption to the provisions of
subdivision (d).
(6) The dealer shall comply with the provisions of paragraph (18)
of subdivision (b) of Section 12071.
(7) The dealer shall comply with the provisions of paragraph (19)
of subdivision (b) of Section 12071.
(8) No person shall sell or otherwise transfer his or her
ownership in a handgun unless the firearm bears either:
(A) The name of the manufacturer, the manufacturer's make or
model, and a manufacturer's serial number assigned to that firearm.
(B) The identification number or mark assigned to the firearm by
the Department of Justice pursuant to Section 12092.
(9) (A) No person shall make an application to purchase more than
one handgun within any 30-day period.
(B) Subparagraph (A) shall not apply to any of the following:
(i) Any law enforcement agency.
(ii) Any agency duly authorized to perform law enforcement duties.
(iii) Any state or local correctional facility.
(iv) Any private security company licensed to do business in
California.
(v) Any person who is properly identified as a full-time paid
peace officer, as defined in Chapter 4.5 (commencing with Section
830) of Title 3 of Part 2, and who is authorized to, and does carry a
firearm during the course and scope of his or her employment as a
peace officer.
(vi) Any motion picture, television, or video production company
or entertainment or theatrical company whose production by its nature
involves the use of a firearm.
(vii) Any person who may, pursuant to Section 12078, claim an
exemption from the waiting period set forth in subdivision (c) of
this section.
(viii) Any transaction conducted through a licensed firearms
dealer pursuant to Section 12082.
(ix) Any person who is licensed as a collector pursuant to Chapter
44 (commencing with Section 921) of Title 18 of the United States
Code and the regulations issued pursuant thereto and who has a
current certificate of eligibility issued to him or her by the
Department of Justice pursuant to Section 12071.
(x) The exchange of a handgun where the dealer purchased that
firearm from the person seeking the exchange within the 30-day period
immediately preceding the date of exchange or replacement.
(xi) The replacement of a handgun when the person's handgun was
lost or stolen, and the person reported that firearm lost or stolen
prior to the completion of the application to purchase to any local
law enforcement agency of the city, county, or city and county in
which he or she resides.
(xii) The return of any handgun to its owner.
(xiii) Community colleges that are certified by the Commission on
Peace Officer Standards and Training to present the law enforcement
academy basic course or other commission-certified law enforcement
training.
(b) No person licensed under Section 12071 shall supply, sell,
deliver, or give possession or control of a handgun to any person
under the age of 21 years or any other firearm to a person under the
age of 18 years.
(c) No dealer, whether or not acting pursuant to Section 12082,
shall deliver a firearm to a person, as follows:
(1) Within 10 days of the application to purchase, or, after
notice by the department pursuant to subdivision (d) of Section
12076, within 10 days of the submission to the department of any
correction to the application, or within 10 days of the submission to
the department of any fee required pursuant to subdivision (e) of
Section 12076, whichever is later.
(2) Unless unloaded and securely wrapped or unloaded and in a
locked container.
(3) Unless the purchaser, transferee, or person being loaned the
firearm presents clear evidence of his or her identity and age, as
defined in Section 12071, to the dealer.
(4) Whenever the dealer is notified by the Department of Justice
that the person is prohibited by state or federal law from
possessing, receiving, owning, or purchasing a firearm.
(5) (A) Commencing April 1, 1994, and until January 1, 2003, no
handgun shall be delivered unless the purchaser, transferee, or
person being loaned the firearm presents to the dealer a basic
firearms safety certificate.
(B) Commencing January 1, 2003, no handgun shall be delivered
unless the purchaser, transferee, or person being loaned the handgun
presents a handgun safety certificate to the dealer.
(6) No handgun shall be delivered whenever the dealer is notified
by the Department of Justice that within the preceding 30-day period
the purchaser has made another application to purchase a handgun and
that the previous application to purchase involved none of the
entities specified in subparagraph (B) of paragraph (9) of
subdivision (a).
(d) Where neither party to the transaction holds a dealer's
license issued pursuant to Section 12071, the parties to the
transaction shall complete the sale, loan, or transfer of that
firearm through a licensed firearms dealer pursuant to Section 12082.
(e) No person may commit an act of collusion relating to Article 8
(commencing with Section 12800) of Chapter 6. For purposes of this
section and Section 12071, collusion may be proven by any one of the
following factors:
(1) Answering a test applicant's questions during an objective
test relating to firearms safety.
(2) Knowingly grading the examination falsely.
(3) Providing an advance copy of the test to an applicant.
(4) Taking or allowing another person to take the basic firearms
safety course for one who is the applicant for a basic firearms
safety certificate or a handgun safety certificate.
(5) Allowing another to take the objective test for the applicant,
purchaser, or transferee.
(6) Using or allowing another to use one's identification, proof
of residency, or thumbprint.
(7) Allowing others to give unauthorized assistance during the
examination.
(8) Reference to unauthorized materials during the examination and
cheating by the applicant.
(9) Providing originals or photocopies of the objective test, or
any version thereof, to any person other than as authorized by the
department.
(f) (1) (A) Commencing July 1, 2008, a person who is licensed
pursuant to Chapter 44 (commencing with Section 921) of Title 18 of
the United States Code may not deliver, sell, or transfer a firearm
to a person in California who is licensed pursuant to Chapter 44
(commencing with Section 921) of Title 18 of the United States Code
unless, prior to delivery, the person intending to deliver, sell, or
transfer the firearm obtains a verification number via the Internet
for the intended delivery, sale, or transfer, from the department. If
Internet service is unavailable to either the department or the
licensee due to a technical or other malfunction, or a federal
firearms licensee who is located outside of California does not
possess a computer or have Internet access, alternate means of
communication, including facsimile or telephone, shall be made
available for a licensee to obtain a verification number in order to
comply with this section.
(B) For every verification number request received pursuant to
this section, the department shall determine whether the intended
recipient is on the centralized list of firearms dealers pursuant to
this section, or the centralized list of exempted federal firearms
licensees pursuant to subdivision (a) of Section 12083, or the
centralized list of firearms manufacturers pursuant to subdivision
(f) of Section 12086.
(C) If the department finds after the reviews specified in
subparagraph (B) that the intended recipient is authorized to receive
the firearm shipment, the department shall issue to the inquiring
party a unique verification number for the intended delivery, sale,
or transfer. One verification number shall be issued for each
delivery, sale, or transfer, which may involve multiple firearms. In
addition to the unique verification number, the department may
provide to the inquiring party information necessary for determining
the eligibility of the intended recipient to receive the firearm. The
person intending to deliver, sell, or transfer the firearm shall
provide the unique verification number to the recipient along with
the firearm upon delivery, in a manner to be determined by the
department.
(D) If the department finds after the reviews specified in
subparagraph (B) that the intended recipient is not authorized to
receive the firearm shipment, the department shall notify the
inquiring party that the intended recipient is ineligible to receive
the shipment.
(E) The department shall prescribe the manner in which the
verification numbers may be requested via the Internet, or by
alternate means of communication, such as by facsimile or telephone,
including all required enrollment information and procedures.
(2) (A) On or after January 1, 1998, within 60 days of bringing a
handgun into this state, a personal handgun importer shall do one of
the following:
(i) Forward by prepaid mail or deliver in person to the Department
of Justice, a report prescribed by the department including
information concerning that individual and a description of the
firearm in question.
(ii) Sell or transfer the firearm in accordance with the
provisions of subdivision (d) or in accordance with the provisions of
an exemption from subdivision (d).
(iii) Sell or transfer the firearm to a dealer licensed pursuant
to Section 12071.
(iv) Sell or transfer the firearm to a sheriff or police
department.
(B) If the personal handgun importer sells or transfers the
handgun pursuant to subdivision (d) of Section 12072 and the sale or
transfer cannot be completed by the dealer to the purchaser or
transferee, and the firearm can be returned to the personal handgun
importer, the personal handgun importer shall have complied with the
provisions of this paragraph.
(C) The provisions of this paragraph are cumulative and shall not
be construed as restricting the application of any other law.
However, an act or omission punishable in different ways by this
section and different provisions of the Penal Code shall not be
punished under more than one provision.
(D) (i) On and after January 1, 1998, the department shall conduct
a public education and notification program regarding this paragraph
to ensure a high degree of publicity of the provisions of this
paragraph.
(ii) As part of the public education and notification program
described in this subparagraph, the department shall do all of the
following:
(I) Work in conjunction
with the Department of Motor Vehicles to ensure that any person who
is subject to this paragraph is advised of the provisions of this
paragraph, and provided with blank copies of the report described in
clause (i) of subparagraph (A) at the time that person applies for a
California driver's license or registers his or her motor vehicle in
accordance with the Vehicle Code.
(II) Make the reports referred to in clause (i) of subparagraph
(A) available to dealers licensed pursuant to Section 12071.
(III) Make the reports referred to in clause (i) of subparagraph
(A) available to law enforcement agencies.
(IV) Make persons subject to the provisions of this paragraph
aware of the fact that reports referred to in clause (i) of
subparagraph (A) may be completed at either the licensed premises of
dealers licensed pursuant to Section 12071 or at law enforcement
agencies, that it is advisable to do so for the sake of accuracy and
completeness of the reports, that prior to transporting a handgun to
a law enforcement agency in order to comply with subparagraph (A),
the person should give prior notice to the law enforcement agency
that he or she is doing so, and that in any event, the handgun should
be transported unloaded and in a locked container.
(iii) Any costs incurred by the department to implement this
paragraph shall be absorbed by the department within its existing
budget and the fees in the Dealers' Record of Sale Special Account
allocated for implementation of this subparagraph pursuant to Section
12076.
(3) Where a person who is licensed as a collector pursuant to
Chapter 44 (commencing with Section 921) of Title 18 of the United
States Code and the regulations issued pursuant thereto, whose
licensed premises are within this state, acquires a handgun that is a
curio or relic, as defined in Section 478.11 of Title 27 of the Code
of Federal Regulations, outside of this state, takes actual
possession of that firearm outside of this state pursuant to the
provisions of subsection (j) of Section 923 of Title 18 of the United
States Code, as amended by Public Law 104-208, and transports that
firearm into this state, within five days of that licensed collector
transporting that firearm into this state, he or she shall report to
the department in a format prescribed by the department his or her
acquisition of that firearm.
(4) (A) It is the intent of the Legislature that a violation of
paragraph (2) or (3) shall not constitute a "continuing offense" and
the statute of limitations for commencing a prosecution for a
violation of paragraph (2) or (3) commences on the date that the
applicable grace period specified in paragraph (2) or (3) expires.
(B) Paragraphs (2) and (3) shall not apply to a person who reports
his or her ownership of a handgun after the applicable grace period
specified in paragraph (2) or (3) expires if evidence of that
violation arises only as the result of the person submitting the
report described in paragraph (2) or (3).
(g) (1) Except as provided in paragraph (2), (3), or (5), a
violation of this section is a misdemeanor.
(2) If any of the following circumstances apply, a violation of
this section is punishable by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170
for two, three, or four years.
(A) If the violation is of paragraph (1) of subdivision (a).
(B) If the defendant has a prior conviction of violating the
provisions, other than paragraph (9) of subdivision (a), of this
section or former Section 12100 of this code or Section 8101 of the
Welfare and Institutions Code.
(C) If the defendant has a prior conviction of violating any
offense specified in subdivision (b) of Section 12021.1 or of a
violation of Section 12020, 12220, or 12520, or of former Section
12560.
(D) If the defendant is in a prohibited class described in Section
12021 or 12021.1 of this code or Section 8100 or 8103 of the Welfare
and Institutions Code.
(E) A violation of this section by a person who actively
participates in a "criminal street gang" as defined in Section
186.22.
(F) A violation of subdivision (b) involving the delivery of any
firearm to a person who the dealer knows, or should know, is a minor.
(3) If any of the following circumstances apply, a violation of
this section shall be punished by imprisonment in a county jail not
exceeding one year or in the state prison
pursuant to subdivision (h) of Section 1170 , or by a fine not
to exceed one thousand dollars ($1,000), or by both that fine and
imprisonment.
(A) A violation of paragraph (2), (4), or (5) of subdivision (a).
(B) A violation of paragraph (3) of subdivision (a) involving the
sale, loan, or transfer of a handgun to a minor.
(C) A violation of subdivision (b) involving the delivery of a
handgun.
(D) A violation of paragraph (1), (3), (4), (5), or (6) of
subdivision (c) involving a pistol, revolver, or other firearm
capable of being concealed upon the person.
(E) A violation of subdivision (d) involving a handgun.
(F) A violation of subdivision (e).
(4) If both of the following circumstances apply, an additional
term of imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for one, two, or
three years shall be imposed in addition and consecutive to the
sentence prescribed.
(A) A violation of paragraph (2) of subdivision (a) or subdivision
(b).
(B) The firearm transferred in violation of paragraph (2) of
subdivision (a) or subdivision (b) is used in the subsequent
commission of a felony for which a conviction is obtained and the
prescribed sentence is imposed.
(5) (A) A first violation of paragraph (9) of subdivision (a) is
an infraction punishable by a fine of fifty dollars ($50).
(B) A second violation of paragraph (9) of subdivision (a) is an
infraction punishable by a fine of one hundred dollars ($100).
(C) A third or subsequent violation of paragraph (9) of
subdivision (a) is a misdemeanor.
(D) For purposes of this paragraph each application to purchase a
handgun in violation of paragraph (9) of subdivision (a) shall be
deemed a separate offense.
SEC. 515. Section 12076 of the Penal Code is amended to
read:
12076. (a) (1) Before January 1, 1998, the Department of Justice
shall determine the method by which a dealer shall submit firearm
purchaser information to the department and the information shall be
in one of the following formats:
(A) Submission of the register described in Section 12077.
(B) Electronic or telephonic transfer of the information contained
in the register described in Section 12077.
(2) On or after January 1, 1998, electronic or telephonic
transfer, including voice or facsimile transmission, shall be the
exclusive means by which purchaser information is transmitted to the
department.
(3) On or after January 1, 2003, except as permitted by the
department, electronic transfer shall be the exclusive means by which
information is transmitted to the department. Telephonic transfer
shall not be permitted for information regarding sales of any
firearms.
(b) (1) Where the register is used, the purchaser of any firearm
shall be required to present clear evidence of his or her identity
and age, as defined in Section 12071, to the dealer, and the dealer
shall require him or her to sign his or her current legal name and
affix his or her residence address and date of birth to the register
in quadruplicate. The salesperson shall affix his or her signature to
the register in quadruplicate as a witness to the signature and
identification of the purchaser. Any person furnishing a fictitious
name or address or knowingly furnishing any incorrect information or
knowingly omitting any information required to be provided for the
register and any person violating any provision of this section is
guilty of a misdemeanor, provided however, that any person who is
prohibited from obtaining a firearm pursuant to Section 12021 or
12021.1 of this code, or Section 8100 or 8103 of the Welfare and
Institutions Code who knowingly furnishes a fictitious name or
address or knowingly furnishes any incorrect information or knowingly
omits any information required to be provided for the register shall
be punished by imprisonment in a county jail not exceeding one year
or imprisonment in the state prison pursuant
to subdivision (h) of Section 1170 for a term of 8, 12, or 18
months.
(2) The original of the register shall be retained by the dealer
in consecutive order. Each book of 50 originals shall become the
permanent register of transactions that shall be retained for not
less than three years from the date of the last transaction and shall
be available for the inspection of any peace officer, Department of
Justice employee designated by the Attorney General, or agent of the
federal Bureau of Alcohol, Tobacco, Firearms and Explosives upon the
presentation of proper identification, but no information shall be
compiled therefrom regarding the purchasers or other transferees of
firearms that are not pistols, revolvers, or other firearms capable
of being concealed upon the person.
(3) Two copies of the original sheet of the register, on the date
of the application to purchase, shall be placed in the mail, postage
prepaid, and properly addressed to the Department of Justice.
(4) If requested, a photocopy of the original shall be provided to
the purchaser by the dealer.
(5) If the transaction is a private party transfer conducted
pursuant to Section 12082, a photocopy of the original shall be
provided to the seller or purchaser by the dealer, upon request. The
dealer shall redact all of the purchaser's personal information, as
required pursuant to paragraph (1) of subdivision (b) and paragraph
(1) of subdivision (c) of Section 12077, from the seller's copy, and
the seller's personal information from the purchaser's copy.
(c) (1) Where the electronic or telephonic transfer of applicant
information is used, the purchaser shall be required to present clear
evidence of his or her identity and age, as defined in Section
12071, to the dealer, and the dealer shall require him or her to sign
his or her current legal name to the record of electronic or
telephonic transfer. The salesperson shall affix his or her signature
to the record of electronic or telephonic transfer as a witness to
the signature and identification of the purchaser. Any person
furnishing a fictitious name or address or knowingly furnishing any
incorrect information or knowingly omitting any information required
to be provided for the electronic or telephonic transfer and any
person violating any provision of this section is guilty of a
misdemeanor, provided however, that any person who is prohibited from
obtaining a firearm pursuant to Section 12021 or 12021.1 of this
code, or Section 8100 or 8103 of the Welfare and Institutions Code
who knowingly furnishes a fictitious name or address or knowingly
furnishes any incorrect information or knowingly omits any
information required to be provided for the register shall be
punished by imprisonment in a county jail not exceeding one year or
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 for a term of 8, 12, or 18
months.
(2) The record of applicant information shall be transmitted to
the Department of Justice by electronic or telephonic transfer on the
date of the application to purchase.
(3) The original of each record of electronic or telephonic
transfer shall be retained by the dealer in consecutive order. Each
original shall become the permanent record of the transaction that
shall be retained for not less than three years from the date of the
last transaction and shall be provided for the inspection of any
peace officer, Department of Justice employee designated by the
Attorney General, or agent of the federal Bureau of Alcohol, Tobacco,
Firearms and Explosives upon the presentation of proper
identification, but no information shall be compiled therefrom
regarding the purchasers or other transferees of firearms that are
not pistols, revolvers, or other firearms capable of being concealed
upon the person.
(4) If requested, a copy of the record of electronic or telephonic
transfer shall be provided to the purchaser by the dealer.
(5) If the transaction is a private party transfer conducted
pursuant to Section 12082, a copy shall be provided to the seller or
purchaser by the dealer, upon request. The dealer shall redact all of
the purchaser's personal information, as required pursuant to
paragraph (1) of subdivision (b) and paragraph (1) of subdivision (c)
of Section 12077, from the seller's copy, and the seller's personal
information from the purchaser's copy.
(d) (1) The department shall examine its records, as well as those
records that it is authorized to request from the State Department
of Mental Health pursuant to Section 8104 of the Welfare and
Institutions Code, in order to determine if the purchaser is a person
described in subparagraph (A) of paragraph (9) of subdivision (a) of
Section 12072, or is prohibited by state or federal law from
possessing, receiving, owning, or purchasing a firearm.
(2) To the extent that funding is available, the Department of
Justice may participate in the National Instant Criminal Background
Check System (NICS), as described in subsection (t) of Section 922 of
Title 18 of the United States Code, and, if that participation is
implemented, shall notify the dealer and the chief of the police
department of the city or city and county in which the sale was made,
or if the sale was made in a district in which there is no municipal
police department, the sheriff of the county in which the sale was
made, that the purchaser is a person prohibited from acquiring a
firearm under federal law.
(3) If the department determines that the purchaser is prohibited
by state or federal law from possessing, receiving, owning, or
purchasing a firearm or is a person described in subparagraph (A) of
paragraph (9) of subdivision (a) of Section 12072, it shall
immediately notify the dealer and the chief of the police department
of the city or city and county in which the sale was made, or if the
sale was made in a district in which there is no municipal police
department, the sheriff of the county in which the sale was made, of
that fact.
(4) If the department determines that the copies of the register
submitted to it pursuant to paragraph (3) of subdivision (b) contain
any blank spaces or inaccurate, illegible, or incomplete information,
preventing identification of the purchaser or the pistol, revolver,
or other firearm to be purchased, or if any fee required pursuant to
subdivision (e) is not submitted by the dealer in conjunction with
submission of copies of the register, the department may notify the
dealer of that fact. Upon notification by the department, the dealer
shall submit corrected copies of the register to the department, or
shall submit any fee required pursuant to subdivision (e), or both,
as appropriate and, if notification by the department is received by
the dealer at any time prior to delivery of the firearm to be
purchased, the dealer shall withhold delivery until the conclusion of
the waiting period described in Sections 12071 and 12072.
(5) If the department determines that the information transmitted
to it pursuant to subdivision (c) contains inaccurate or incomplete
information preventing identification of the purchaser or the pistol,
revolver, or other firearm capable of being concealed upon the
person to be purchased, or if the fee required pursuant to
subdivision (e) is not transmitted by the dealer in conjunction with
transmission of the electronic or telephonic record, the department
may notify the dealer of that fact. Upon notification by the
department, the dealer shall transmit corrections to the record of
electronic or telephonic transfer to the department, or shall
transmit any fee required pursuant to subdivision (e), or both, as
appropriate, and if notification by the department is received by the
dealer at any time prior to delivery of the firearm to be purchased,
the dealer shall withhold delivery until the conclusion of the
waiting period described in Sections 12071 and 12072.
(e) The Department of Justice may require the dealer to charge
each firearm purchaser a fee not to exceed fourteen dollars ($14),
except that the fee may be increased at a rate not to exceed any
increase in the California Consumer Price Index as compiled and
reported by the Department of Industrial Relations. The fee shall be
no more than is necessary to fund the following:
(1) (A) The department for the cost of furnishing this
information.
(B) The department for the cost of meeting its obligations under
paragraph (2) of subdivision (b) of Section 8100 of the Welfare and
Institutions Code.
(2) Local mental health facilities for state-mandated local costs
resulting from the reporting requirements imposed by Section 8103 of
the Welfare and Institutions Code.
(3) The State Department of Mental Health for the costs resulting
from the requirements imposed by Section 8104 of the Welfare and
Institutions Code.
(4) Local mental hospitals, sanitariums, and institutions for
state-mandated local costs resulting from the reporting requirements
imposed by Section 8105 of the Welfare and Institutions Code.
(5) Local law enforcement agencies for state-mandated local costs
resulting from the notification requirements set forth in subdivision
(a) of Section 6385 of the Family Code.
(6) Local law enforcement agencies for state-mandated local costs
resulting from the notification requirements set forth in subdivision
(c) of Section 8105 of the Welfare and Institutions Code.
(7) For the actual costs associated with the electronic or
telephonic transfer of information pursuant to subdivision (c).
(8) The Department of Food and Agriculture for the costs resulting
from the notification provisions set forth in Section 5343.5 of the
Food and Agricultural Code.
(9) The department for the costs associated with subparagraph (D)
of paragraph (2) of subdivision (f) of Section 12072.
(10) The department for the costs associated with funding
Department of Justice firearms-related regulatory and enforcement
activities related to the sale, purchase, loan, or transfer of
firearms pursuant to this chapter.
The fee established pursuant to this subdivision shall not exceed
the sum of the actual processing costs of the department, the
estimated reasonable costs of the local mental health facilities for
complying with the reporting requirements imposed by paragraph (2) of
this subdivision, the costs of the State Department of Mental Health
for complying with the requirements imposed by paragraph (3) of this
subdivision, the estimated reasonable costs of local mental
hospitals, sanitariums, and institutions for complying with the
reporting requirements imposed by paragraph (4) of this subdivision,
the estimated reasonable costs of local law enforcement agencies for
complying with the notification requirements set forth in subdivision
(a) of Section 6385 of the Family Code, the estimated reasonable
costs of local law enforcement agencies for complying with the
notification requirements set forth in subdivision (c) of Section
8105 of the Welfare and Institutions Code imposed by paragraph (6) of
this subdivision, the estimated reasonable costs of the Department
of Food and Agriculture for the costs resulting from the notification
provisions set forth in Section 5343.5 of the Food and Agricultural
Code, the estimated reasonable costs of the department for the costs
associated with subparagraph (D) of paragraph (2) of subdivision (f)
of Section 12072, and the estimated reasonable costs of department
firearms-related regulatory and enforcement activities related to the
sale, purchase, loan, or transfer of firearms pursuant to this
chapter.
(f) (1) The Department of Justice may charge a fee sufficient to
reimburse it for each of the following but not to exceed fourteen
dollars ($14), except that the fee may be increased at a rate not to
exceed any increase in the California Consumer Price Index as
compiled and reported by the Department of Industrial Relations:
(A) For the actual costs associated with the preparation, sale,
processing, and filing of forms or reports required or utilized
pursuant to Section 12078.
(B) For the actual processing costs associated with the submission
of a Dealers' Record of Sale to the department.
(C) For the actual costs associated with the preparation, sale,
processing, and filing of reports utilized pursuant to subdivision (
l ) of Section 12078 or paragraph (18) of subdivision (b)
of Section 12071, or clause (i) of subparagraph (A) of paragraph (2)
of subdivision (f) of Section 12072, or paragraph (3) of subdivision
(f) of Section 12072.
(D) For the actual costs associated with the electronic or
telephonic transfer of information pursuant to subdivision (c).
(2) If the department charges a fee pursuant to subparagraph (B)
of paragraph (1) of this subdivision, it shall be charged in the same
amount to all categories of transaction that are within that
subparagraph.
(3) Any costs incurred by the Department of Justice to implement
this subdivision shall be reimbursed from fees collected and charged
pursuant to this subdivision. No fees shall be charged to the dealer
pursuant to subdivision (e) for implementing this subdivision.
(g) All money received by the department pursuant to this section
shall be deposited in the Dealers' Record of Sale Special Account of
the General Fund, which is hereby created, to be available, upon
appropriation by the Legislature, for expenditure by the department
to offset the costs incurred pursuant to this section, paragraph (1)
and subparagraph (D) of paragraph (2) of subdivision (f) of Section
12072, Sections 12083 and 12099, subdivision (c) of Section 12131,
Sections 12234, 12289, and 12289.5, and subdivisions (f) and (g) of
Section 12305.
(h) Where the electronic or telephonic transfer of applicant
information is used, the department shall establish a system to be
used for the submission of the fees described in subdivision (e) to
the department.
(i) (1) Only one fee shall be charged pursuant to this section for
a single transaction on the same date for the sale of any number of
firearms that are not pistols, revolvers, or other firearms capable
of being concealed upon the person or for the taking of possession of
those firearms.
(2) In a single transaction on the same date for the delivery of
any number of firearms that are pistols, revolvers, or other firearms
capable of being concealed upon the person, the department shall
charge a reduced fee pursuant to this section for the second and
subsequent firearms that are part of that transaction.
(j) Only one fee shall be charged pursuant to this section for a
single transaction on the same date for taking title or possession of
any number of firearms pursuant to paragraph (18) of subdivision (b)
of Section 12071 or subdivision (c) or (i) of Section 12078.
(k) Whenever the Department of Justice acts pursuant to this
section as it pertains to firearms other than pistols, revolvers, or
other firearms capable of being concealed upon the person, the
department's acts or omissions shall be deemed to be discretionary
within the meaning of the California Tort Claims Act pursuant to
Division 3.6 (commencing with Section 810) of Title 1 of the
Government Code.
( l ) As used in this section, the following
definitions apply:
(1) "Purchaser" means the purchaser or transferee of a firearm or
a person being loaned a firearm.
(2) "Purchase" means the purchase, loan, or transfer of a firearm.
(3) "Sale" means the sale, loan, or transfer of a firearm.
(4) "Seller" means, if the transaction is being conducted pursuant
to Section 12082, the person selling, loaning, or transferring the
firearm.
SEC. 516. Section 12090 of the Penal Code is amended to
read:
12090. Any person who changes, alters, removes or obliterates the
name of the maker, model, manufacturer's number, or other mark of
identification, including any distinguishing number or mark assigned
by the Department of Justice on any pistol, revolver, or any other
firearm, without first having secured written permission from the
department to make such change, alteration or removal shall be
punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 .
SEC. 517. Section 12101 of the Penal Code is amended to
read:
12101. (a) (1) A minor shall not possess a pistol, revolver, or
other firearm capable of being concealed upon the person.
(2) Paragraph (1) shall not apply if one of the following
circumstances exists:
(A) The minor is accompanied by his or her parent or legal
guardian, and the minor is actively engaged in, or is in direct
transit to or from, a lawful, recreational sport, including, but not
limited to, competitive shooting, or agricultural, ranching, or
hunting activity, or a motion picture, television, or video
production, or entertainment or theatrical event, the nature of which
involves this use of a firearm.
(B) The minor is accompanied by a responsible adult, the minor has
the prior written consent of his or her parent or legal guardian,
and the minor is actively engaged in, or is in direct transit to or
from, a lawful, recreational sport, including, but not limited to,
competitive shooting, or agricultural, ranching, or hunting activity,
or a motion picture, television, or video production, or
entertainment or theatrical event, the nature of which involves the
use of a firearm.
(C) The minor is at least 16 years of age, the minor has the prior
written consent of his or her parent or legal guardian and the minor
is actively engaged in, or is in direct transit to or from, a lawful
recreational sport, including, but not limited to, competitive
shooting, or agricultural, ranching, or hunting activity, or a motion
picture, television, or video production, or entertainment or
theatrical event, the nature of which involves the use of a firearm.
(D) The minor has the prior written consent of his or her parent
or legal guardian, the minor is on lands owned or lawfully possessed
by his or her parent or legal guardian, and the minor is actively
engaged in, or is in direct transit to or from, a lawful,
recreational sport, including, but not limited to, competitive
shooting, or agricultural, ranching, or hunting activity, or a motion
picture, television, or video production, or
entertainment or theatrical event, the
nature of which involves the use of a firearm.
(b) (1) A minor shall not possess live ammunition.
(2) Paragraph (1) shall not apply if one of the following
circumstances exists:
(A) The minor has the written consent of his or her parent or
legal guardian to possess live ammunition.
(B) The minor is accompanied by his or her parent or legal
guardian.
(C) The minor is actively engaged in, or is going to or from, a
lawful, recreational sport, including, but not limited to,
competitive shooting, or agricultural, ranching, or hunting activity,
the nature of which involves the use of a firearm.
(c) Every minor who violates this section shall be punished as
follows:
(1) By imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 or in a county jail
if one of the following applies:
(A) The minor has been found guilty previously of violating this
section.
(B) The minor has been found guilty previously of an offense
specified in subdivision (b) of Section 12021.1 or in Section 12020,
12220, 12520, or 12560.
(C) The minor has been found guilty of a violation of paragraph
(1) of subdivision (a).
(2) Violations of this section other than those violations
specified in paragraph (1) shall be punishable as a misdemeanor.
(d) In a proceeding to enforce this section brought pursuant to
Article 14 (commencing with Section 601) of Chapter 2 of Part 1 of
the Welfare and Institutions Code, the court may require the
custodial parent or legal guardian of a minor who violates this
section to participate in classes on parenting education that meet
the requirements established in Section 16507.7 of the Welfare and
Institutions Code.
(e) As used in this section, "responsible adult" means a person at
least 21 years of age who is not prohibited by state or federal law
from possessing, receiving, owning, or purchasing a firearm.
(f) It is not the intent of the Legislature in enacting the
amendments to this section or to Section 12078 to expand or narrow
the application of current statutory or judicial authority as to the
rights of minors to be loaned or to possess live ammunition or a
firearm for the purpose of self-defense or the defense of others.
SEC. 518. Section 12220 of the Penal Code is amended to
read:
12220. (a) Any person, firm, or corporation, who within this
state possesses or knowingly transports a machinegun, except as
authorized by this chapter, is guilty of a public offense and upon
conviction thereof shall be punished by imprisonment in the
state prison pursuant to subdivision (h) of Section
1170 , or by a fine not to exceed ten thousand dollars
($10,000), or by both such th at
fine and imprisonment.
(b) Any person, firm, or corporation who within this state
intentionally converts a firearm into a machinegun, or who sells, or
offers for sale, or knowingly manufactures a machinegun, except as
authorized by this chapter, is punishable by imprisonment in
the state prison pursuant to subdivision (h) of
Section 1170 for four, six, or eight years.
SEC. 519. Section 12280 of the Penal Code is amended to
read:
12280. (a) (1) Any person who, within this state, manufactures or
causes to be manufactured, distributes, transports, or imports into
the state, keeps for sale, or offers or exposes for sale, or who
gives or lends any assault weapon or any .50 BMG rifle, except as
provided by this chapter, is guilty of a felony, and upon conviction
shall be punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for
four, six, or eight years.
(2) In addition and consecutive to the punishment imposed under
paragraph (1), any person who transfers, lends, sells, or gives any
assault weapon or any .50 BMG rifle to a minor in violation of
paragraph (1) shall receive an enhancement of one year in a
county jail .
(3) Except in the case of a first violation involving not more
than two firearms as provided in subdivisions (b) and (c), for
purposes of this section, if more than one assault weapon or .50 BMG
rifle is involved in any violation of this section, there shall be a
distinct and separate offense for each.
(b) Any person who, within this state, possesses any assault
weapon, except as provided in this chapter, shall be punished by
imprisonment in a county jail for a period not exceeding one year, or
by imprisonment in the state prison pursuant
to subdivision (h) of Section 1170 . However, a first
violation of these provisions is punishable by a fine not exceeding
five hundred dollars ($500) if the person was found in possession of
no more than two firearms in compliance with subdivision (c) of
Section 12285 and the person meets all of the following conditions:
(1) The person proves that he or she lawfully possessed the
assault weapon prior to the date it was defined as an assault weapon
pursuant to Section 12276, 12276.1, or 12276.5.
(2) The person has not previously been convicted of a violation of
this section.
(3) The person was found to be in possession of the assault weapon
within one year following the end of the one-year registration
period established pursuant to subdivision (a) of Section 12285.
(4) The person relinquished the firearm pursuant to Section 12288,
in which case the assault weapon shall be destroyed pursuant to
Section 12028.
(c) Any person who, within this state, possesses any .50 BMG
rifle, except as provided in this chapter, shall be punished by a
fine of one thousand dollars ($1,000), imprisonment in a county jail
for a period not to exceed one year, or by both that fine and
imprisonment. However, a first violation of these provisions is
punishable by a fine not exceeding five hundred dollars ($500) if the
person was found in possession of no more than two firearms in
compliance with subdivision (a) of Section 12285 and the person meets
the conditions set forth in paragraphs (1), (2), and (3):
(1) The person proves that he or she lawfully possessed the .50
BMG rifle prior to January 1, 2005.
(2) The person has not previously been convicted of a violation of
this section.
(3) The person was found to be in possession of the .50 BMG rifle
within one year following the end of the .50 BMG rifle registration
period established pursuant to subdivision (a) of Section 12285.
(4) Firearms seized pursuant to this subdivision from persons who
meet all of the conditions set forth in paragraphs (1), (2), and (3)
shall be returned unless the court finds in the interest of public
safety, after notice and hearing, that the .50 BMG rifle should be
destroyed pursuant to Section 12028. Firearms seized from persons who
do not meet the conditions set forth in paragraphs (1), (2), and (3)
shall be destroyed pursuant to Section 12028.
(d) Notwithstanding Section 654 or any other provision of law, any
person who commits another crime while violating this section may
receive an additional, consecutive punishment of one year for
violating this section in addition and consecutive to the punishment,
including enhancements, which is prescribed for the other crime.
(e) Subdivisions (a), (b), and (c) shall not apply to the sale to,
purchase by, importation of, or possession of assault weapons or a .
50 BMG rifle by the Department of Justice, police departments,
sheriffs' offices, marshals' offices, the Department of Corrections
and Rehabilitation, the Department of the California Highway Patrol,
district attorneys' offices, Department of Fish and Game, Department
of Parks and Recreation, or the military or naval forces of this
state or of the United States, or any federal law enforcement agency
for use in the discharge of their official duties.
(f) (1) Subdivisions (b) and (c) shall not prohibit the possession
or use of assault weapons or a .50 BMG rifle by sworn peace officer
members of those agencies specified in subdivision (e) for law
enforcement purposes, whether on or off duty.
(2) Subdivisions (a), (b), and (c) shall not prohibit the
delivery, transfer, or sale of an assault weapon or a .50 BMG rifle
to, or the possession of an assault weapon or a .50 BMG rifle by, a
sworn peace officer member of an agency specified in subdivision (e)
if the peace officer is authorized by his or her employer to possess
or receive the assault weapon or the .50 BMG rifle. Required
authorization is defined as verifiable written certification from the
head of the agency, identifying the recipient or possessor of the
assault weapon as a peace officer and authorizing him or her to
receive or possess the specific assault weapon. For this exemption to
apply, in the case of a peace officer who possesses or receives the
assault weapon prior to January 1, 2002, the officer shall register
the assault weapon pursuant to Section 12285 on or before April 1,
2002, and in the case of a peace officer who possesses or receives
the assault weapon on or after January 1, 2002, the officer shall
register the assault weapon pursuant to Section 12285 not later than
90 days after possession or receipt. In the case of a peace officer
who possesses or receives a .50 BMG rifle on or before January 1,
2005, the officer shall register the .50 BMG rifle on or before April
30, 2006. In the case of a peace officer who possesses or receives a
.50 BMG rifle after January 1, 2005, the officer shall register the
.50 BMG rifle not later than one year after possession or receipt.
The peace officer must include with the registration, a copy of the
authorization required pursuant to this paragraph.
(3) Nothing in this section shall be construed to limit or
prohibit the delivery, transfer, or sale of an assault weapon or a .
50 BMG rifle to, or the possession of an assault weapon or a .50 BMG
rifle by, a member of a federal law enforcement agency provided that
person is authorized by the employing agency to possess the assault
weapon or .50 BMG rifle.
(g) Subdivision (b) shall not apply to the possession of an
assault weapon during the 90-day period immediately after the date it
was specified as an assault weapon pursuant to Section 12276.5, or
during the one-year period after the date it was defined as an
assault weapon pursuant to Section 12276.1, if all of the following
are applicable:
(1) The person is eligible under this chapter to register the
particular assault weapon.
(2) The person lawfully possessed the particular assault weapon
prior to the date it was specified as an assault weapon pursuant to
Section 12276.5, or prior to the date it was defined as an assault
weapon pursuant to Section 12276.1.
(3) The person is otherwise in compliance with this chapter.
(h) Subdivisions (a), (b), and (c) shall not apply to the
manufacture by persons who are issued permits pursuant to Section
12287 of assault weapons or .50 BMG rifles for sale to the following:
(1) Exempt entities listed in subdivision (e).
(2) Entities and persons who have been issued permits pursuant to
Section 12286 or 12287.
(3) Entities outside the state who have, in effect, a federal
firearms dealer's license solely for the purpose of distribution to
an entity listed in paragraphs (4) to (6), inclusive.
(4) Federal military and law enforcement agencies.
(5) Law enforcement and military agencies of other states.
(6) Foreign governments and agencies approved by the United States
State Department.
(i) Subdivision (a) shall not apply to a person who is the
executor or administrator of an estate that includes an assault
weapon or a .50 BMG rifle registered under Section 12285 or that was
possessed pursuant to paragraph (1) of subdivision (f) that is
disposed of as authorized by the probate court, if the disposition is
otherwise permitted by this chapter.
(j) Subdivisions (b) and (c) shall not apply to a person who is
the executor or administrator of an estate that includes an assault
weapon or a .50 BMG rifle registered under Section 12285 or that was
possessed pursuant to paragraph (1) of subdivision (f) if the assault
weapon or .50 BMG rifle is possessed at a place set forth in
paragraph (1) of subdivision (c) of Section 12285 or as authorized by
the probate court.
(k) Subdivision (a) shall not apply to either of the following:
(1) A person who lawfully possesses and has registered an assault
weapon or .50 BMG rifle pursuant to this chapter who lends that
assault weapon or .50 BMG rifle to another if all the following
apply:
(A) The person to whom the assault weapon or .50 BMG rifle is lent
is 18 years of age or over and is not prohibited by state or federal
law from possessing, receiving, owning, or purchasing a firearm.
(B) The person to whom the assault weapon or .50 BMG rifle is lent
remains in the presence of the registered possessor of the assault
weapon or .50 BMG rifle.
(C) The assault weapon or .50 BMG rifle is possessed at any of the
following locations:
(i) While on a target range that holds a regulatory or business
license for the purpose of practicing shooting at that target range.
(ii) While on the premises of a target range of a public or
private club or organization organized for the purpose of practicing
shooting at targets.
(iii) While attending any exhibition, display, or educational
project that is about firearms and that is sponsored by, conducted
under the auspices of, or approved by a law enforcement agency or a
nationally or state recognized entity that fosters proficiency in, or
promotes education about, firearms.
(2) The return of an assault weapon or .50 BMG rifle to the
registered possessor, or the lawful possessor, which is lent by the
same pursuant to paragraph (1).
( l ) Subdivisions (b) and (c) shall not apply to the
possession of an assault weapon or .50 BMG rifle by a person to whom
an assault weapon or .50 BMG rifle is lent pursuant to subdivision
(k).
(m) Subdivisions (a), (b), and (c) shall not apply to the
possession and importation of an assault weapon or a .50 BMG rifle
into this state by a nonresident if all of the following conditions
are met:
(1) The person is attending or going directly to or coming
directly from an organized competitive match or league competition
that involves the use of an assault weapon or a .50 BMG rifle.
(2) The competition or match is conducted on the premises of one
of the following:
(A) A target range that holds a regulatory or business license for
the purpose of practicing shooting at that target range.
(B) A target range of a public or private club or organization
that is organized for the purpose of practicing shooting at targets.
(3) The match or competition is sponsored by, conducted under the
auspices of, or approved by, a law enforcement agency or a nationally
or state recognized entity that fosters proficiency in, or promotes
education about, firearms.
(4) The assault weapon or .50 BMG rifle is transported in
accordance with Section 12026.1 or 12026.2.
(5) The person is 18 years of age or over and is not in a class of
persons prohibited from possessing firearms by virtue of Section
12021 or 12021.1 of this code or Section 8100 or 8103 of the Welfare
and Institutions Code.
(n) Subdivisions (b) and (c) shall not apply to any of the
following persons:
(1) A person acting in accordance with Section 12286 or 12287.
(2) A person who has a permit to possess an assault weapon or a .
50 BMG rifle issued pursuant to Section 12286 or 12287 when he or she
is acting in accordance with Section 12285, 12286, or 12287.
(o) Subdivisions (a), (b), and (c) shall not apply to any of the
following persons:
(1) A person acting in accordance with Section 12285.
(2) A person acting in accordance with Section 12286, 12287, or
12290.
(p) Subdivisions (b) and (c) shall not apply to the registered
owner of an assault weapon or a .50 BMG rifle possessing that firearm
in accordance with subdivision (c) of Section 12285.
(q) Subdivision (a) shall not apply to the importation into this
state of an assault weapon or a .50 BMG rifle by the registered owner
of that assault weapon or a .50 BMG rifle if it is in accordance
with the provisions of subdivision (c) of Section 12285.
(r) Subdivision (a) shall not apply during the first 180 days of
the 2005 calendar year to the importation into this state of a .50
BMG rifle by a person who lawfully possessed that .50 BMG rifle in
this state prior to January 1, 2005.
(s) Subdivision (c) shall not apply to the possession of a .50 BMG
rifle that is not defined or specified as an assault weapon pursuant
to this chapter, by any person prior to May 1, 2006, if all of the
following are applicable:
(1) The person is eligible under this chapter to register that .50
BMG rifle.
(2) The person lawfully possessed the .50 BMG rifle prior to
January 1, 2005.
(3) The person is otherwise in compliance with this chapter.
(t) Subdivisions (a), (b), and (c) shall not apply to the sale of
assault weapons or .50 BMG rifles by persons who are issued permits
pursuant to Section 12287 to any of the following:
(1) Exempt entities listed in subdivision (e).
(2) Entities and persons who have been issued permits pursuant to
Section 12286 or 12287.
(3) Federal military and law enforcement agencies.
(4) Law enforcement and military agencies of other states.
(5) Foreign governments and agencies approved by the United States
State Department.
(6) Officers described in subdivision (f) who are authorized to
possess assault weapons or .50 BMG rifles pursuant to subdivision
(f).
(u) As used in this chapter, the date a firearm is an assault
weapon is the earliest of the following:
(1) The effective date of an amendment to Section 12276 that adds
the designation of the specified firearm.
(2) The effective date of the list promulgated pursuant to Section
12276.5 that adds or changes the designation of the specified
firearm.
(3) The operative date of Section 12276.1, as specified in
subdivision (d) of that section.
SEC. 520. Section 12281 of the Penal Code is amended to
read:
12281. (a) Any person who, or firm, company, or corporation that,
operated a retail or other commercial firm, company, or corporation,
and manufactured, distributed, transported, imported, possessed,
possessed for sale, offered for sale, or transferred, for commercial
purpose, an SKS rifle in California between January 1, 1992, and
December 19, 1997, shall be immune from criminal prosecution under
Section 12280. The immunity provided in this subdivision shall apply
retroactively to any person who, or firm, company, or corporation
that, is or was charged by complaint or indictment with a violation
of Section 12280 for conduct related to an SKS rifle, whether or not
the case of that person, firm, company, or corporation is final.
(b) Any person who possessed, gave, loaned, or transferred an SKS
rifle in California between January 1, 1992, and December 19, 1997,
shall be immune from criminal prosecution under Section 12280. The
immunity provided in this subdivision shall apply retroactively to
any person who was charged by complaint or indictment with a
violation of Section 12280 for conduct related to an SKS rifle,
whether or not the case of that person is final.
(c) Any SKS rifle in the possession of any person who, or firm,
company, or corporation that, is described in subdivision (a) or (b),
shall not be subject to seizure by law enforcement for violation of
Section 12280 prior to January 1, 2000.
(d) Any person, firm, company, or corporation, convicted under
Section 12280 for conduct relating to an SKS rifle, shall be
permitted to withdraw his or her plea of guilty or nolo contendere,
or to reopen his or her case and assert the immunities provided in
this section, if the court determines that the allowance of the
immunity is in the interests of justice. The court shall interpret
this section liberally to the benefit of the defendant.
(e) The Department of Justice shall notify all district attorneys
on or before January 31, 1999, of the provisions of this section. The
department shall identify all criminal prosecutions in the state for
conduct related to SKS rifles within 90 days of the effective date
of this section. In all cases so identified by the Attorney General,
the district attorneys shall inform defense counsel, or the defendant
if the defendant is in propria persona, in writing, of the
provisions of this section within 120 days of the effective date of
this section.
(f) (1) Any person, firm, company, or corporation that is in
possession of an SKS rifle shall do one of the following on or before
January 1, 2000:
(A) Relinquish the SKS rifle to the Department of Justice pursuant
to subdivision (h).
(B) Relinquish the SKS rifle to a law enforcement agency pursuant
to Section 12288.
(C) Dispose of the SKS rifle as permitted by Section 12285.
(2) Any person who has obtained title to an SKS rifle by bequest
or intestate succession shall be required to comply with subparagraph
(A) or (B) of paragraph (1) of this subdivision unless he or she
otherwise complies with paragraph (1) of subdivision (b) of Section
12285.
(3) Any SKS rifle relinquished to the department pursuant to this
subdivision shall be in a manner prescribed by the department.
(4) The department shall conduct a public education and
notification program as described in Section 12289, commencing no
later than January 1, 1999.
(g) Any person who complies with subdivision (f) shall be exempt
from the prohibitions set forth in subdivision (a) or (b) of Section
12280 for those acts by that person associated with complying with
the requirements of subdivision (f).
(h) (1) The department shall purchase any SKS rifle relinquished
pursuant to subdivision (f) from funds appropriated for this purpose
by the act amending this section in the 1997-98 Regular Session of
the Legislature or by subsequent budget acts or other legislation.
The department shall adopt regulations for this purchase program that
include, but are not limited to, the manner of delivery, the
reimbursement to be paid, and the manner in which persons shall be
informed of the state purchase program.
(2) Any person who relinquished possession of an SKS rifle to a
law enforcement agency pursuant to Section 12288 prior to the
effective date of the purchase program set forth in paragraph (1)
shall be eligible to be reimbursed from the purchase program. The
procedures for reimbursement pursuant to this paragraph shall be part
of the regulations adopted by the department pursuant to paragraph
(1).
(i) Notwithstanding paragraph (11) of subdivision (a) of Section
12276, an "SKS rifle" under this section means all SKS rifles
commonly referred to as "SKS Sporter" versions, manufactured to
accept a detachable AK-47 magazine and imported into this state and
sold by a licensed gun dealer, or otherwise lawfully possessed in
this state by a resident of this state who is not a licensed gun
dealer, between January 1, 1992, and December 19, 1997.
(j) Failure to comply with subdivision (f) is a public offense
punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 , or in a
county jail, not exceeding one year.
(k) In addition to the regulations required pursuant to
subdivision (h), emergency regulations for the purchase program
described in subdivision (h) shall be adopted pursuant to Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2
of the Government Code.
SEC. 521. Section 12303.3 of the Penal Code is amended
to read:
12303.3. Every person who possesses, explodes, ignites, or
attempts to explode or ignite any destructive device or any explosive
with intent to injure, intimidate, or terrify any person, or with
intent to wrongfully injure or destroy any property, is guilty of a
felony, and shall be punished by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170
for a period of three, five, or seven years.
SEC. 522. Section 12303.6 of the Penal Code is amended
to read:
12303.6. Any person, firm, or corporation who, within this state,
sells, offers for sale, or knowingly transports any destructive
device, other than fixed ammunition of a caliber greater than .60
caliber, except as provided by this chapter, is guilty of a felony
and is punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for
two, three or four years.
SEC. 523. Section 12304 of the Penal Code is amended to
read:
12304. Any person, firm or corporation who, within this state,
sells, offers for sale, possesses or knowingly transports any fixed
ammunition of a caliber greater than .60 caliber, except as provided
in this chapter, is guilty of a public offense and upon conviction
thereof shall be punished by imprisonment in the county jail for a
term not to exceed six months or by a fine not to exceed one thousand
dollars ($1,000), or by both such that
fine and imprisonment.
A second or subsequent conviction shall be punished by
imprisonment in the county jail for a term not to exceed one year, or
by imprisonment in the state prison pursuant
to subdivision (h) of Section 1170 , or by a fine not to
exceed three thousand dollars ($3,000), or by both such
that fine and imprisonment.
SEC. 524. Section 12312 of the Penal Code is amended to
read:
12312. Every person who possesses any substance, material, or any
combination of substances or materials, with the intent to make any
destructive device or any explosive without first obtaining a valid
permit to make such destructive device or explosive, is guilty of a
felony, and is punishable by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170
for two, three, or four years.
SEC. 525. Section 12320 of the Penal Code is amended to
read:
12320. Any person, firm, or corporation who, within this state
knowingly possesses any handgun ammunition designed primarily to
penetrate metal or armor is guilty of a public offense and upon
conviction thereof shall be punished by imprisonment in the
state prison pursuant to subdivision (h) of Section
1170 , or in the county jail for a term not to exceed one year,
or by a fine not to exceed five thousand dollars ($5,000), or by
both such that fine and imprisonment.
SEC. 526. Section 12355 of the Penal Code is amended to
read:
12355. (a) Except
as provided in Chapter 2.5 (commencing with Section 12301), any
person who assembles, maintains, places, or causes to be placed a
boobytrap device as described in subdivision (c) is guilty of a
felony punishable by imprisonment in the
state prison pursuant to subdivision (h) of Section
1170 for two, three, or five years.
(b) Possession of any device with the intent to use the device as
a boobytrap is punishable by imprisonment in state prison
pursuant to subdivision (h) of Section 1170 , or
in a county jail not exceeding one year, or by a fine not exceeding
five thousand dollars ($5,000), or by both that fine and
imprisonment.
(c) For purposes of this section, "boobytrap" means any concealed
or camouflaged device designed to cause great bodily injury when
triggered by an action of any unsuspecting person coming across the
device. Boobytraps may include, but are not limited to, guns,
ammunition, or explosive devices attached to trip wires or other
triggering mechanisms, sharpened stakes, and lines or wire with hooks
attached.
SEC. 527. Section 12370 of the Penal Code is amended to
read:
12370. (a) A person who has been convicted of a violent felony,
as defined in subdivision (c) of Section 667.5, under the laws of the
United States, the State of California, or any other state,
government, or country, who purchases, owns, or possesses body armor,
as defined in subdivision (f), except as authorized under
subdivision (b), is guilty of a felony, punishable by imprisonment
in a state prison pursuant to subdivision (h)
of Section 1170 for 16 months, or two or three years.
(b) A person whose employment, livelihood, or safety is dependent
on the ability to legally possess and use body armor, who is subject
to the prohibition imposed by subdivision (a) due to a prior violent
felony conviction, may file a petition with the chief of police or
county sheriff of the jurisdiction in which he or she seeks to
possess and use the body armor for an exception to this prohibition.
The chief of police or sheriff may reduce or eliminate the
prohibition, impose conditions on reduction or elimination of the
prohibition, or otherwise grant relief from the prohibition as he or
she deems appropriate, based on the following:
(1) A finding that the petitioner is likely to use body armor in a
safe and lawful manner.
(2) A finding that the petitioner has a reasonable need for this
type of protection under the circumstances.
In making its decision, the chief of police or sheriff shall
consider the petitioner's continued employment, the interests of
justice, any relevant evidence, and the totality of the
circumstances. It is the intent of the Legislature that law
enforcement officials exercise broad discretion in fashioning
appropriate relief under this paragraph in cases in which relief is
warranted. However, this paragraph may not be construed to require
law enforcement officials to grant relief to any particular
petitioner. Relief from this prohibition does not relieve any other
person or entity from any liability that might otherwise be imposed.
(c) The chief of police or sheriff shall require, as a condition
of granting an exception under subdivision (b), that the petitioner
agree to maintain on his or her person a certified copy of the law
enforcement official's permission to possess and use body armor,
including any conditions or limitations.
(d) Law enforcement officials who enforce the prohibition
specified in subdivision (a) against a person who has been granted
relief pursuant to subdivision (b), 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 permission granting the person relief from the
prohibition, as required by subdivision (c). This immunity from
liability does not relieve any person or entity from any other
liability that might otherwise be imposed.
(e) For purposes of this section only, "violent felony" refers to
the specific crimes listed in subdivision (c) of Section 667.5, and
to crimes defined under the applicable laws of the United States or
any other state, government, or country that are reasonably
equivalent to the crimes listed in subdivision (c) of Section 667.5.
(f) For purposes of this section, "body armor" means any
bullet-resistant material intended to provide ballistic and trauma
protection for the person wearing the body armor.
SEC. 528. Section 12403.7 of the Penal Code is amended
to read:
12403.7. Notwithstanding any other law, any person may purchase,
possess, or use tear gas and tear gas weapons for the projection or
release of tear gas if the tear gas and tear gas weapons are used
solely for self-defense purposes, subject to the following
requirements:
(a) No person convicted of a felony or any crime involving an
assault under the laws of the United States, the State of California,
or any other state, government, or country or convicted of misuse of
tear gas under subdivision (g) shall purchase, possess, or use tear
gas or tear gas weapons.
(b) No person who is addicted to any narcotic drug shall purchase,
possess, or use tear gas or tear gas weapons.
(c) No person shall sell or furnish any tear gas or tear gas
weapon to a minor.
(d) No person who is a minor shall purchase, possess, or use tear
gas or tear gas weapons.
(e) (1) No person shall purchase, possess, or use any tear gas
weapon that expels a projectile, or that expels the tear gas by any
method other than an aerosol spray, or that contains more than 2.5
ounces net weight of aerosol spray.
(2) Every tear gas container and tear gas weapon that may be
lawfully purchased, possessed, and used pursuant to this section
shall have a label that states: "WARNING: The use of this substance
or device for any purpose other than self-defense is a crime under
the law. The contents are dangerous--use with care."
(3) After January 1, 1984, every tear gas container and tear gas
weapon that may be lawfully purchased, possessed, and used pursuant
to this section shall have a label that discloses the date on which
the useful life of the tear gas weapon expires.
(4) Every tear gas container and tear gas weapon that may be
lawfully purchased pursuant to this section shall be accompanied at
the time of purchase by printed instructions for use.
(f) Effective March 1, 1994, every tear gas container and tear gas
weapon that may be lawfully purchased, possessed, and used pursuant
to this section shall be accompanied by an insert including
directions for use, first aid information, safety and storage
information, and explanation of the legal ramifications of improper
use of the tear gas container or tear gas product.
(g) Any person who uses tear gas or tear gas weapons except in
self-defense is guilty of a public offense and is punishable by
imprisonment in a state prison pursuant to
subdivision (h) of Section 1170 for 16 months, or two or three
years or in a county jail not to exceed one year or by a fine not to
exceed one thousand dollars ($1,000), or by both the fine and
imprisonment, except that, if the use is against a peace officer, as
defined in Chapter 4.5 (commencing with Section 830) of Title 3 of
Part 2, engaged in the performance of his or her official duties and
the person committing the offense knows or reasonably should know
that the victim is a peace officer, the offense is punishable by
imprisonment in a state prison pursuant to
subdivision (h) of Section 1170 for 16 months or two or three
years or by a fine of one thousand dollars ($1,000), or by both the
fine and imprisonment.
SEC. 529. Section 12422 of the Penal Code is amended to
read:
12422. Any person who changes, alters, removes or obliterates the
name of the manufacturer, the serial number or any other mark of
identification on any tear gas weapon is guilty of a public offense
and, upon conviction, shall be punished by imprisonment in
the state prison pursuant to subdivision (h) of
Section 1170 or by a fine of not more than two thousand dollars
($2,000) or by both.
Possession of any such weapon upon which the same shall have been
changed, altered, removed, or obliterated, shall be presumptive
evidence that such possessor has changed, altered, removed, or
obliterated the same.
SEC. 530. Section 12520 of the Penal Code is amended to
read:
12520. Any person, firm, or corporation who within this state
possesses a silencer is guilty of a felony and upon conviction
thereof shall be punished by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170
or by a fine not to exceed ten thousand dollars ($10,000) or by
both.
SEC. 531. Section 18715 of the Penal Code is amended to
read:
18715. (a) Every person who recklessly or maliciously has in
possession any destructive device or any explosive in any of the
following places is guilty of a felony:
(1) On a public street or highway.
(2) In or near any theater, hall, school, college, church, hotel,
or other public building.
(3) In or near any private habitation.
(4) In, on, or near any aircraft, railway passenger train, car,
cable road, cable car, or vessel engaged in carrying passengers for
hire.
(5) In, on, or near any other public place ordinarily passed by
human beings.
(b) An offense under subdivision (a) is punishable by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 for a period of two, four, or six years.
SEC. 532. Section 18720 of the Penal Code is amended to
read:
18720. Every person who possesses any substance, material, or any
combination of substances or materials, with the intent to make any
destructive device or any explosive without first obtaining a valid
permit to make that destructive device or explosive, is guilty of a
felony, and is punishable by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170
for two, three, or four years.
SEC. 533. Section 18725 of the Penal Code is amended to
read:
18725. Every person who willfully does any of the following is
guilty of a felony and is punishable by imprisonment in the
state prison pursuant to subdivision (h) of Section
1170 for two, four, or six years:
(a) Carries any destructive device or any explosive on any vessel,
aircraft, car, or other vehicle that transports passengers for hire.
(b) While on board any vessel, aircraft, car, or other vehicle
that transports passengers for hire, places or carries any
destructive device or any explosive in any hand baggage, roll, or
other container.
(c) Places any destructive device or any explosive in any baggage
that is later checked with any common carrier.
SEC. 534. Section 18730 of the Penal Code is amended to
read:
18730. Except as provided by this chapter, any person, firm, or
corporation who, within this state, sells, offers for sale, or
knowingly transports any destructive device, other than fixed
ammunition of a caliber greater than .60 caliber, is guilty of a
felony and is punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for
two, three, or four years.
SEC. 535. Section 18735 of the Penal Code is amended to
read:
18735. (a) Except as provided by this chapter, any person, firm,
or corporation who, within this state, sells, offers for sale,
possesses or knowingly transports any fixed ammunition of a caliber
greater than .60 caliber is guilty of a public offense.
(b) Upon conviction of an offense under subdivision (a), a person,
firm, or corporation shall be punished by imprisonment in the county
jail for a term not to exceed six months or by a fine not to exceed
one thousand dollars ($1,000), or by both this fine and imprisonment.
(c) A second or subsequent conviction shall be punished by
imprisonment in the county jail for a term not to exceed one year, or
by imprisonment in the state prison pursuant
to subdivision (h) of Section 1170 , or by a fine not to
exceed three thousand dollars ($3,000), or by both this fine and
imprisonment.
SEC. 536. Section 18740 of the Penal Code is amended to
read:
18740. Every person who possesses, explodes, ignites, or attempts
to explode or ignite any destructive device or any explosive with
intent to injure, intimidate, or terrify any person, or with intent
to wrongfully injure or destroy any property, is guilty of a felony,
and shall be punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for
a period of three, five, or seven years.
SEC. 537. Section 20110 of the Penal Code is amended to
read:
20110. (a) Except as provided in Chapter 1 (commencing with
Section 18710) of Division 5 of Title 2, any person who assembles,
maintains, places, or causes to be placed a boobytrap device is
guilty of a felony punishable by imprisonment in the state
prison a county jail for two, three, or five
years.
(b) Possession of any device with the intent to use the device as
a boobytrap is punishable by imprisonment in state prison
pursuant to subdivision (h) of Section 1170 , or
in a county jail not exceeding one year, or by a fine not exceeding
five thousand dollars ($5,000), or by both that fine and
imprisonment.
SEC. 538. Section 22810 of the Penal Code is amended to
read:
22810. Notwithstanding any other provision of law, any person may
purchase, possess, or use tear gas or any tear gas weapon for the
projection or release of tear gas if the tear gas or tear gas weapon
is used solely for self-defense purposes, subject to the following
requirements:
(a) No person convicted of a felony or any crime involving an
assault under the laws of the United States, the State of California,
or any other state, government, or country, or convicted of misuse
of tear gas under subdivision (g), shall purchase, possess, or use
tear gas or any tear gas weapon.
(b) No person addicted to any narcotic drug shall purchase,
possess, or use tear gas or any tear gas weapon.
(c) No person shall sell or furnish any tear gas or tear gas
weapon to a minor.
(d) No minor shall purchase, possess, or use tear gas or any tear
gas weapon.
(e) (1) No person shall purchase, possess, or use any tear gas
weapon that expels a projectile, or that expels the tear gas by any
method other than an aerosol spray, or that contains more than 2.5
ounces net weight of aerosol spray.
(2) Every tear gas container and tear gas weapon that may be
lawfully purchased, possessed, and used pursuant to this section
shall have a label that states: "WARNING: The use of this substance
or device for any purpose other than self-defense is a crime under
the law. The contents are dangerous -- use with care."
(3) After January 1, 1984, every tear gas container and tear gas
weapon that may be lawfully purchased, possessed, and used pursuant
to this section shall have a label that discloses the date on which
the useful life of the tear gas weapon expires.
(4) Every tear gas container and tear gas weapon that may be
lawfully purchased pursuant to this section shall be accompanied at
the time of purchase by printed instructions for use.
(f) Effective March 1, 1994, every tear gas container and tear gas
weapon that may be lawfully purchased, possessed, and used pursuant
to this section shall be accompanied by an insert including
directions for use, first aid information, safety and storage
information, and explanation of the legal ramifications of improper
use of the tear gas container or tear gas product.
(g) (1) Except as provided in paragraph (2), any person who uses
tear gas or any tear gas weapon except in self-defense is guilty of a
public offense and is punishable by imprisonment in a state
prison pursuant to subdivision (h) of Section 1170
for 16 months, or two or three years or in a county jail not to
exceed one year or by a fine not to exceed one thousand dollars
($1,000), or by both the fine and imprisonment.
(2) If the use is against a peace officer, as defined in Chapter
4.5 (commencing with Section 830) of Title 3 of Part 2, engaged in
the performance of official duties and the person committing the
offense knows or reasonably should know that the victim is a peace
officer, the offense is punishable by imprisonment in a
state prison pursuant to subdivision (h) of Section
1170 for 16 months or two or three years or by a fine of one
thousand dollars ($1,000), or by both the fine and imprisonment.
SEC. 539. Section 22910 of the Penal Code is amended to
read:
22910. (a) Any person who changes, alters, removes, or
obliterates the name of the manufacturer, the serial number, or any
other mark of identification on any tear gas weapon is guilty of a
public offense and, upon conviction, shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 or by a fine of not more than
two thousand dollars ($2,000), or by both that fine and imprisonment.
(b) Possession of any such weapon upon which the same shall have
been changed, altered, removed, or obliterated, shall be presumptive
evidence that such possessor has changed, altered, removed, or
obliterated the same.
SEC. 540. Section 23900 of the Penal Code is amended to
read:
23900. Any person who changes, alters, removes, or obliterates
the name of the maker, model, manufacturer's number, or other mark of
identification, including any distinguishing number or mark assigned
by the Department of Justice, on any pistol, revolver, or any other
firearm, without first having secured written permission from the
department to make that change, alteration, or removal shall be
punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 .
SEC. 541. Section 25110 of the Penal Code is amended to
read:
25110. (a) Criminal storage of a firearm in the first degree is
punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for 16 months,
or two or three years, by a fine not exceeding ten thousand dollars
($10,000), or by both that imprisonment and fine; or 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.
(b) Criminal storage of a firearm in the second degree is
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.
SEC. 542. Section 25300 of the Penal Code is amended to
read:
25300. (a) A person commits criminal possession of a firearm when
the person carries a firearm in a public place or on any public
street while masked so as to hide the person's identity.
(b) Criminal possession of a firearm is punishable by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 or by imprisonment in a county jail not to
exceed one year.
(c) Subdivision (a) does not apply to any of the following:
(1) A peace officer in performance of the officer's duties.
(2) A full-time paid peace officer of another state or the federal
government who is carrying out official duties while in this state.
(3) Any person summoned by any of the officers enumerated in
paragraph (1) or (2) to assist in making an arrest or preserving the
peace while that person is actually engaged in assisting that
officer.
(4) The possession of an unloaded firearm or a firearm loaded with
blank ammunition by an authorized participant in, or while
rehearsing for, a motion picture, television, video production,
entertainment event, entertainment activity, or lawfully organized
and conducted activity when the participant lawfully uses the firearm
as part of that production, event, or activity.
(5) The possession of a firearm by a licensed hunter while
actually engaged in lawful hunting, or while going directly to or
returning directly from the hunting expedition.
SEC. 543. Section 25400 of the Penal Code is amended to
read:
25400. (a) A person is guilty of carrying a concealed firearm
when the person does any of the following:
(1) Carries concealed within any vehicle that is under the person'
s control or direction any pistol, revolver, or other firearm capable
of being concealed upon the person.
(2) Carries concealed upon the person any pistol, revolver, or
other firearm capable of being concealed upon the person.
(3) Causes to be carried concealed within any vehicle in which the
person is an occupant any pistol, revolver, or other firearm capable
of being concealed upon the person.
(b) A firearm carried openly in a belt holster is not concealed
within the meaning of this section.
(c) Carrying a concealed firearm in violation of this section is
punishable as follows:
(1) If the person previously has been convicted of any felony, or
of any crime made punishable by a provision listed in Section 16580,
as a felony.
(2) If the firearm is stolen and the person knew or had reasonable
cause to believe that it was stolen, as a felony.
(3) If the person is an active participant in a criminal street
gang, as defined in subdivision (a) of Section 186.22, under the
Street Terrorism Enforcement and Prevention Act (Chapter 11
(commencing with Section 186.20) of Title 7 of Part 1), as a felony.
(4) If the person is not in lawful possession of the firearm or
the person is within a class of persons prohibited from possessing or
acquiring a firearm pursuant to Chapter 2 (commencing with Section
29800) or Chapter 3 (commencing with Section 29900) of Division 9 of
this title, or Section 8100 or 8103 of the Welfare and Institutions
Code, as a felony.
(5) If the person has been convicted of a crime against a person
or property, or of a narcotics or dangerous drug violation, by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 , or by imprisonment in a county
jail not to exceed one year, by a fine not to exceed one thousand
dollars ($1,000), or by both that imprisonment and fine.
(6) If both of the following conditions are met, by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 , or by imprisonment in a county jail not
to exceed one year, by a fine not to exceed one thousand dollars
($1,000), or by both that fine and imprisonment:
(A) The pistol, revolver, or other firearm capable of being
concealed upon the person is loaded, or both it and the unexpended
ammunition capable of being discharged from it are in the immediate
possession of the person or readily accessible to that person.
(B) The person is not listed with the Department of Justice
pursuant to paragraph (1) of subdivision (c) of Section 11106 as the
registered owner of that pistol, revolver, or other firearm capable
of being concealed upon the person.
(7) In all cases other than those specified in paragraphs (1) to
(6), inclusive, by imprisonment in a county jail not to exceed one
year, by a fine not to exceed one thousand dollars ($1,000), or by
both that imprisonment and fine.
(d) (1) Every person convicted under this section who previously
has been convicted of a misdemeanor offense enumerated in Section
23515 shall be punished by imprisonment in a county jail for at least
three months and not exceeding six months, or, if granted probation,
or if the execution or imposition of sentence is suspended, it shall
be a condition thereof that the person be imprisoned in a county
jail for at least three months.
(2) Every person convicted under this section who has previously
been convicted of any felony, or of any crime made punishable by a
provision listed in Section 16580, if probation is granted, or if the
execution or imposition of sentence is suspended, it shall be a
condition thereof that the person be imprisoned in a county jail for
not less than three months.
(e) The court shall apply the three-month minimum sentence as
specified in subdivision (d), except in unusual cases where the
interests of justice would best be served by granting probation or
suspending the imposition or execution of sentence without the
minimum imprisonment required in subdivision (d) or by granting
probation or suspending the imposition or execution of sentence with
conditions other than those set forth in subdivision (d), in which
case, the court shall specify on the record and shall enter on the
minutes the circumstances indicating that the interests of justice
would best be served by that disposition.
(f) A peace officer may arrest a person for a violation of
paragraph (6) of subdivision (c) if the peace officer has probable
cause to believe that the person is not listed with the Department of
Justice pursuant to paragraph (1) of subdivision (c) of Section
11106 as the registered owner of the pistol, revolver, or other
firearm capable of being concealed upon the person, and one or more
of the conditions in subparagraph (A) of paragraph (6) of subdivision
(c) is met.
SEC. 544. Section 25850 of the Penal Code is amended to
read:
25850. (a) A person is guilty of carrying a loaded firearm when
the person carries a loaded firearm on the person or in a vehicle
while in any public place or on any public street in an incorporated
city or in any public place or on any public street in a prohibited
area of unincorporated territory.
(b) In order to determine whether or not a firearm is loaded for
the purpose of enforcing this section, peace officers are authorized
to examine any firearm carried by anyone on the person or in a
vehicle while in any public place or on any public street in an
incorporated city or prohibited area of an unincorporated territory.
Refusal to allow a peace officer to inspect a firearm pursuant to
this section constitutes probable cause for arrest for violation of
this section.
(c) Carrying a loaded firearm in violation of this section is
punishable, as follows:
(1) Where the person previously has been convicted of any felony,
or of any crime made punishable by a provision listed in Section
16580, as a felony.
(2) Where the firearm is stolen and the person knew or
had reasonable cause to believe that it was stolen, as a felony.
(3) Where the person is an active participant in a criminal street
gang, as defined in subdivision (a) of Section 186.22, under the
Street Terrorism Enforcement and Prevention Act (Chapter 11
(commencing with Section 186.20) of Title 7 of Part 1), as a felony.
(4) Where the person is not in lawful possession of the firearm,
or is within a class of persons prohibited from possessing or
acquiring a firearm pursuant to Chapter 2 (commencing with Section
29800) or Chapter 3 (commencing with Section 29900) of Division 9 of
this title, or Section 8100 or 8103 of the Welfare and Institutions
Code, as a felony.
(5) Where the person has been convicted of a crime against a
person or property, or of a narcotics or dangerous drug violation, by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 , or by imprisonment in a
county jail not to exceed one year, by a fine not to exceed one
thousand dollars ($1,000), or by both that imprisonment and fine.
(6) Where the person is not listed with the Department of Justice
pursuant to Section 11106 as the registered owner of the handgun, by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 , or by imprisonment in a
county jail not to exceed one year, or by a fine not to exceed one
thousand dollars ($1,000), or both that fine and imprisonment.
(7) In all cases other than those specified in paragraphs (1) to
(6), inclusive, as a misdemeanor, punishable by imprisonment in a
county jail not to exceed one year, by a fine not to exceed one
thousand dollars ($1,000), or by both that imprisonment and fine.
(d) (1) Every person convicted under this section who has
previously been convicted of an offense enumerated in Section 23515,
or of any crime made punishable under a provision listed in Section
16580, shall serve a term of at least three months in a county jail,
or, if granted probation or if the execution or imposition of
sentence is suspended, it shall be a condition thereof that the
person be imprisoned for a period of at least three months.
(2) The court shall apply the three-month minimum sentence except
in unusual cases where the interests of justice would best be served
by granting probation or suspending the imposition or execution of
sentence without the minimum imprisonment required in this section or
by granting probation or suspending the imposition or execution of
sentence with conditions other than those set forth in this section,
in which case, the court shall specify on the record and shall enter
on the minutes the circumstances indicating that the interests of
justice would best be served by that disposition.
(e) A violation of this section that is punished by imprisonment
in a county jail not exceeding one year shall not constitute a
conviction of a crime punishable by imprisonment for a term exceeding
one year for the purposes of determining federal firearms
eligibility under Section 922(g)(1) of Title 18 of the United States
Code.
(f) Nothing in this section, or in Article 3 (commencing with
Section 25900) or Article 4 (commencing with Section 26000), shall
preclude prosecution under Chapter 2 (commencing with Section 29800)
or Chapter 3 (commencing with Section 29900) of Division 9 of this
title, Section 8100 or 8103 of the Welfare and Institutions Code, or
any other law with a greater penalty than this section.
(g) Notwithstanding paragraphs (2) and (3) of subdivision (a) of
Section 836, a peace officer may make an arrest without a warrant:
(1) When the person arrested has violated this section, although
not in the officer's presence.
(2) Whenever the officer has reasonable cause to believe that the
person to be arrested has violated this section, whether or not this
section has, in fact, been violated.
(h) A peace officer may arrest a person for a violation of
paragraph (6) of subdivision (c), if the peace officer has probable
cause to believe that the person is carrying a handgun in violation
of this section and that person is not listed with the Department of
Justice pursuant to paragraph (1) of subdivision (c) of Section 11106
as the registered owner of that handgun.
SEC. 545. Section 27590 of the Penal Code is amended to
read:
27590. (a) Except as provided in subdivision (b), (c), or (e), a
violation of this article is a misdemeanor.
(b) If any of the following circumstances apply, a violation of
this article is punishable by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170
for two, three, or four years.
(1) If the violation is of subdivision (a) of Section 27500.
(2) If the defendant has a prior conviction of violating the
provisions, other than Section 27535, of this article or former
Section 12100 of this code, as that section read at any time from
when it was enacted by Section 3 of Chapter 1386 of the Statutes of
1988 to when it was repealed by Section 18 of Chapter 23 of the
Statutes of 1994, or Section 8101 of the Welfare and Institutions
Code.
(3) If the defendant has a prior conviction of violating any
offense specified in Section 29905 or of a violation of Section 32625
or 33410, or of former Section 12560, as that section read at any
time from when it was enacted by Section 4 of Chapter 931 of the
Statutes of 1965 to when it was repealed by Section 14 of Chapter 9
of the Statutes of 1990, or of any provision listed in Section 16590.
(4) If the defendant is in a prohibited class described in Chapter
2 (commencing with Section 29800) or Chapter 3 (commencing with
Section 29900) of Division 9 of this title, or Section 8100 or 8103
of the Welfare and Institutions Code.
(5) A violation of this article by a person who actively
participates in a "criminal street gang" as defined in Section
186.22.
(6) A violation of Section 27510 involving the delivery of any
firearm to a person who the dealer knows, or should know, is a minor.
(c) If any of the following circumstances apply, a violation of
this article shall be punished by imprisonment in a county jail not
exceeding one year or in the state prison
pursuant to subdivision (h) of Section 1170 , or by a fine not
to exceed one thousand dollars ($1,000), or by both that fine and
imprisonment.
(1) A violation of Section 27515, 27520, or subdivision (b) of
Section 27500.
(2) A violation of Section 27505 involving the sale, loan, or
transfer of a handgun to a minor.
(3) A violation of Section 27510 involving the delivery of a
handgun.
(4) A violation of subdivision (a), (c), (d), (e), or (f) of
Section 27540 involving a pistol, revolver, or other firearm capable
of being concealed upon the person.
(5) A violation of Section 27545 involving a handgun.
(6) A violation of Section 27550.
(d) If both of the following circumstances apply, an additional
term of imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for one, two, or
three years shall be imposed in addition and consecutive to the
sentence prescribed.
(1) A violation of Section 27510 or subdivision (b) of Section
27500.
(2) The firearm transferred in violation of Section 27510 or
subdivision (b) of Section 27500 is used in the subsequent commission
of a felony for which a conviction is obtained and the prescribed
sentence is imposed.
(e) (1) A first violation of Section 27535 is an infraction
punishable by a fine of fifty dollars ($50).
(2) A second violation of Section 27535 is an infraction
punishable by a fine of one hundred dollars ($100).
(3) A third or subsequent violation of Section 27535 is a
misdemeanor.
(4) For purposes of this subdivision each application to purchase
a handgun in violation of Section 27535 shall be deemed a separate
offense.
SEC. 546. Section 28250 of the Penal Code is amended to
read:
28250. (a) Any person who does any of the following is guilty of
a misdemeanor:
(1) Furnishing a fictitious name or address for the register under
Section 28210 or the electronic or telephonic transfer under Section
28215.
(2) Knowingly furnishing any incorrect information for the
register under Section 28210 or the electronic or telephonic transfer
under Section 28215.
(3) Knowingly omitting any information required to be provided for
the register under Section 28210 or the electronic or telephonic
transfer under Section 28215.
(4) Violating any provision of this article.
(b) Notwithstanding subdivision (a), any person who is prohibited
from obtaining a firearm pursuant to Chapter 2 (commencing with
Section 29800) or Chapter 3 (commencing with Section 29900) of
Division 9 of this title, or Section 8100 or 8103 of the Welfare and
Institutions Code, who does any of the following shall be punished by
imprisonment in a county jail not exceeding one year or imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 for a term of 8, 12, or 18 months:
(1) Knowingly furnishes a fictitious name or address for the
register under Section 28210 or the electronic or telephonic transfer
under Section 28215.
(2) Knowingly furnishes any incorrect information for the register
under Section 28210 or the electronic or telephonic transfer under
Section 28215.
(3) Knowingly omits any information required to be provided for
the register under Section 28210 or the electronic or telephonic
transfer under Section 28215.
SEC. 547. Section 29700 of the Penal Code is amended to
read:
29700. Every minor who violates this chapter shall be punished as
follows:
(a) By imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 or in a county jail
if one of the following applies:
(1) The minor has been found guilty previously of violating this
chapter.
(2) The minor has been found guilty previously of an offense
specified in Section 29905, 32625, or 33410, or an offense specified
in any provision listed in Section 16590.
(3) The minor has been found guilty of a violation of Section
29610.
(b) Violations of this chapter other than those violations
specified in subdivision (a) shall be punishable as a misdemeanor.
SEC. 548. Section 30315 of the Penal Code is amended to
read:
30315. Any person, firm, or corporation who, within this state
knowingly possesses any handgun ammunition designed primarily to
penetrate metal or armor is guilty of a public offense and upon
conviction thereof shall be punished by imprisonment in the
state prison pursuant to subdivision (h) of Section
1170 , or in the county jail for a term not to exceed one year,
or by a fine not to exceed five thousand dollars ($5,000), or by
both that fine and imprisonment.
SEC. 549. Section 30600 of the Penal Code is amended to
read:
30600. (a) Any person who, within this state, manufactures or
causes to be manufactured, distributes, transports, or imports into
the state, keeps for sale, or offers or exposes for sale, or who
gives or lends any assault weapon or any .50 BMG rifle, except as
provided by this chapter, is guilty of a felony, and upon conviction
shall be punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 for
four, six, or eight years.
(b) In addition and consecutive to the punishment imposed under
subdivision (a), any person who transfers, lends, sells, or gives any
assault weapon or any .50 BMG rifle to a minor in violation of
subdivision (a) shall receive an enhancement of imprisonment
pursuant to subdivision (h) of Section 1170 of one year.
(c) Except in the case of a first violation involving not more
than two firearms as provided in Sections 30605 and 30610, for
purposes of this article, if more than one assault weapon or .50 BMG
rifle is involved in any violation of this article, there shall be a
distinct and separate offense for each.
SEC. 550. Section 30605 of the Penal Code is amended to
read:
30605. (a) Any person who, within this state, possesses any
assault weapon, except as provided in this chapter, shall be punished
by imprisonment in a county jail for a period not exceeding one
year, or by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 .
(b) Notwithstanding subdivision (a), a first violation of these
provisions is punishable by a fine not exceeding five hundred dollars
($500) if the person was found in possession of no more than two
firearms in compliance with Section 30945 and the person meets all of
the following conditions:
(1) The person proves that he or she lawfully possessed the
assault weapon prior to the date it was defined as an assault weapon.
(2) The person has not previously been convicted of a violation of
this article.
(3) The person was found to be in possession of the assault weapon
within one year following the end of the one-year registration
period established pursuant to Section 30900.
(4) The person relinquished the firearm pursuant to Section 31100,
in which case the assault weapon shall be destroyed pursuant to
Sections 18000 and 18005.
SEC. 551. Section 30725 of the Penal Code is amended to
read:
30725. (a) Any person who complies with Section 30720 shall be
exempt from the prohibitions set forth in Section 30600 or 30605 for
those acts by that person associated with complying with the
requirements of Section 30720.
(b) Failure to comply with Section 30720 is a public offense
punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 , or in a
county jail, not exceeding one year.
SEC. 552. Section 31360 of the Penal Code is amended to
read:
31360. (a) A person who has been convicted of a violent felony
under the laws of the United States, the State of California, or any
other state, government, or country, who purchases, owns, or
possesses body armor, as defined in Section 16288, except as
authorized under subdivision (b), is guilty of a felony, punishable
by imprisonment in a state prison pursuant to
subdivision (h) of Section 1170 for 16 months, or two or three
years.
(b) A person whose employment, livelihood, or safety is dependent
on the ability to legally possess and use body armor, who is subject
to the prohibition imposed by subdivision (a) due to a prior violent
felony conviction, may file a petition for an exception to this
prohibition with the chief of police or county sheriff of the
jurisdiction in which that person seeks to possess and use the body
armor. The chief of police or sheriff may reduce or eliminate the
prohibition, impose conditions on reduction or elimination of the
prohibition, or otherwise grant relief from the prohibition as the
chief of police or sheriff deems appropriate, based on the following:
(1) A finding that the petitioner is likely to use body armor in a
safe and lawful manner.
(2) A finding that the petitioner has a reasonable need for this
type of protection under the circumstances.
In making its decision, the chief of police or sheriff shall
consider the petitioner's continued employment, the interests of
justice, any relevant evidence, and the totality of the
circumstances. It is the intent of the Legislature that law
enforcement officials exercise broad discretion in fashioning
appropriate relief under this paragraph in cases in which relief is
warranted. However, this paragraph may not be construed to require
law enforcement officials to grant relief to any particular
petitioner. Relief from this prohibition does not relieve any other
person or entity from any liability that might otherwise be imposed.
(c) The chief of police or sheriff shall require, as a condition
of granting an exception under subdivision (b), that the petitioner
agree to maintain on the petitioner's person a certified copy of the
law enforcement official's permission to possess and use body armor,
including any conditions or limitations.
(d) Law enforcement officials who enforce the prohibition
specified in subdivision (a) against a person who has been granted
relief pursuant to subdivision (b), shall be immune from any
liability for false arrest arising from the enforcement of this
subdivision unless the person has in possession a certified copy of
the permission granting the person relief from the prohibition, as
required by subdivision (c). This immunity from liability does not
relieve any person or entity from any other liability that might
otherwise be imposed.
SEC. 553. Section 32625 of the Penal Code is amended to
read:
32625. (a) Any person, firm, or corporation, who within this
state possesses or knowingly transports a machinegun, except as
authorized by this chapter, is guilty of a public offense and upon
conviction thereof shall be punished by imprisonment in the
state prison pursuant to subdivision (h) of Section
1170 , or by a fine not to exceed ten thousand dollars
($10,000), or by both that fine and imprisonment.
(b) Any person, firm, or corporation who within this state
intentionally converts a firearm into a machinegun, or who sells, or
offers for sale, or knowingly manufactures a machinegun, except as
authorized by this chapter, is punishable by imprisonment in
the state prison pursuant to subdivision (h) of
Section 1170 for four, six, or eight years.
SEC. 554. Section 33410 of the Penal Code is amended to
read:
33410. Any person, firm, or corporation who within this state
possesses a silencer is guilty of a felony and upon conviction
thereof shall be punished by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170
or by a fine not to exceed ten thousand dollars ($10,000), or
by both that fine and imprisonment.
SEC. 555. Section 10283 of the Public Contract Code is
amended to read:
10283. Such felonies are punishable by imprisonment in
the state prison pursuant to subdivision (h) of
Section 1170 of the Penal Code .
SEC. 556. Section 10873 of the Public Contract Code is
amended to read:
10873. Such felonies are punishable by imprisonment in
the state prison pursuant to subdivision (h) of Section
1170 of the Penal Code .
SEC. 557. Section 5097.99 of the Public Resources Code
is amended to read:
5097.99. (a) No person shall obtain or possess any Native
American artifacts or human remains which are taken from a Native
American grave or cairn on or after January 1, 1984, except as
otherwise provided by law or in accordance with an agreement reached
pursuant to subdivision ( l ) of Section 5097.94 or
pursuant to Section 5097.98.
(b) Any person who knowingly or willfully obtains or possesses any
Native American artifacts or human remains which are taken from a
Native American grave or cairn after January 1, 1988, except as
otherwise provided by law or in accordance with an agreement reached
pursuant to subdivision ( l ) of Section 5097.94 or
pursuant to Section 5097.98, is guilty of a felony which is
punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
.
(c) Any person who removes, without authority of law, any Native
American artifacts or human remains from a Native American grave or
cairn with an intent to sell or dissect or with malice or wantonness
is guilty of a felony which is punishable by imprisonment in
the state prison pursuant to subdivision (h) of
Section 1170 of the Penal Code .
SEC. 558. Section 14591 of the Public Resources Code is
amended to read:
14591. (a) Except as provided in subdivision (b), in addition to
any other applicable civil or criminal penalties, any person
convicted of a violation of this division is guilty of an infraction,
which is punishable by a fine of one hundred dollars ($100) for each
initial separate violation and not more than one thousand dollars
($1,000) for each subsequent separate violation per day.
(b) (1) Every person who, with intent to defraud, takes any of the
following actions is guilty of fraud:
(A) Submits a false or fraudulent claim for payment pursuant to
Section 14573 or 14573.5.
(B) Fails to accurately report the number of beverage containers
sold, as required by subdivision (b) of Section 14550.
(C) Fails to make payments as required by Section 14574.
(D) Redeems out-of-state containers, rejected containers, line
breakage, or containers that have already been redeemed.
(E) Returns redeemed containers to the marketplace for redemption.
(F) Brings out-of-state containers, rejected containers, or line
breakage to the marketplace for redemption.
(G) Submits a false or fraudulent claim for handling fee payments
pursuant to Section 14585.
(2) If the money obtained or withheld pursuant to paragraph (1)
exceeds nine hundred fifty dollars ($950), the fraud is punishable by
imprisonment in the county jail for not more than one year or by a
fine not exceeding ten thousand dollars ($10,000), or by both, or by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code for 16
months, two years, or three years, or by a fine not exceeding
twenty-five thousand dollars ($25,000) or twice the late or unmade
payments plus interest, whichever is greater, or by both fine and
imprisonment. If the money obtained or withheld pursuant to paragraph
(1) equals, or is less than, nine hundred fifty dollars ($950), the
fraud is punishable by imprisonment in the county jail for not more
than six months or by a fine not exceeding one thousand dollars
($1,000), or by both.
(c) For purposes of this section and Chapter 8.5 (commencing with
Section 14595), "line breakage" and "rejected container" have the
same meanings as defined in the regulations adopted or amended by the
department pursuant to this division.
SEC. 559. Section 25205 of the Public Resources Code is
amended to read:
25205. (a) No person shall be a member of the commission who,
during the two years prior to appointment on the commission, received
any substantial portion of his or her income directly or indirectly
from any electric utility, or who engages in sale or manufacture of
any major component of any facility. A member of the commission shall
not be employed by any electric utility, applicant, or, within two
years after he or she ceases to be a member of the commission, by any
person who engages in the sale or manufacture of any major component
of any facility.
(b) Except as provided in Section 25202, the members of the
commission shall not hold any other elected or appointed public
office or position.
(c) The members of the commission and all employees of the
commission shall comply with all applicable provisions of Section
19251 of the Government Code.
(d) A person who is a member or employee of the commission shall
not participate personally and substantially as a member or employee
of the commission, through decision, approval, disapproval,
recommendation, the rendering of advice, investigation, or otherwise,
in a judicial or other proceeding, hearing, application, request for
a ruling, or other determination, contract, claim, controversy,
study, plan, or other particular matter in which, to his or her
knowledge, he or she, his or her spouse, minor child, or partner, or
any organization, except a governmental agency or educational or
research institution qualifying as a nonprofit organization under
state or federal income tax law, in which he or she is serving, or
has served as officer, director, trustee, partner, or employee while
serving as a member or employee of the commission or within two years
prior to his or her appointment as a member of the commission, has a
direct or indirect financial interest.
(e) A person who is a partner, employer, or employee of a member
or employee of the commission shall not act as an attorney, agent, or
employee for any person other than the state in connection with any
judicial or other proceeding, hearing, application, request for a
ruling, or other determination, contract, claim, controversy, study,
plan, or other particular matter in which the commission is a party
or has a direct and substantial interest.
(f) The provisions of this section shall not apply if the Attorney
General finds that the interest of the member or employee of the
commission is not so substantial as to be deemed likely to affect the
integrity of the services which the state may expect from the member
or employee.
(g) Any person who violates any provision of this section is
guilty of a felony and shall be subject to a fine of not more than
ten thousand dollars ($10,000) or imprisonment in the state
prison pursuant to subdivision (h) of Section 1170 of
the Penal Code , or both that fine and imprisonment
.
(h) The amendment of subdivision (d) of this section enacted by
the 1975-76 Regular Session of the Legislature does not constitute a
change in, but is declaratory of, existing law.
SEC. 560. Section 48680 of the Public Resources Code is
amended to read:
48680. (a) Except as provided in subdivision (b), in addition to
any other civil or criminal penalties, any person convicted of a
violation of this chapter is guilty of an infraction, which is
punishable by a fine of not more than one hundred dollars ($100) per
day for each day the violation occurs.
(b) (1) Every person who, with intent to defraud, does not
accurately report the amount of oil sold, collected, or transferred
pursuant to Article 8 (commencing with Section 48670), who, with
intent to defraud, does not make payments as required by Section
48650, or who knowingly receives or pays a recycling incentive for
oil upon which a payment has not been made pursuant to Section 48650
is guilty of fraud. If the money obtained or withheld is four hundred
dollars ($400) or less, the fraud is punishable by imprisonment in
the county jail for not more than six months, by a fine of not more
than one thousand dollars ($1,000), or by both that fine and
imprisonment. If the money obtained or withheld is more than four
hundred dollars ($400), the fraud is punishable by imprisonment in
the county jail for not more than one year or imprisonment
in the state prison pursuant to subdivision (h) of
Section 1170 of the Penal Code , by a fine
not exceeding ten thousand dollars ($10,000),
or twice the late or unmade payments plus interest, whichever is
greater, or by both that fine and imprisonment.
(2) Any person who claims an exemption pursuant to this chapter
which the person knows to be false, and makes that claim for the
purpose of willfully evading the payment of any fee imposed pursuant
to this chapter, is guilty of a misdemeanor punishable by
imprisonment in the county jail for not more than one year. The
person shall also be subject to payment of a fine not to exceed five
thousand dollars ($5,000). The fine shall be distributed as follows:
(A) Fifty percent to the local jurisdiction which undertook the
prosecution.
(B) Fifty percent to the General Fund.
(c) Any person who violates this chapter may be assessed a civil
penalty by the board of not more than one hundred dollars ($100) per
day for each day the violation occurs or continues, pursuant to a
hearing and notice.
SEC. 561. Section 7680 of the Public Utilities Code is
amended to read:
7680. Every conductor, engineer, brakeman, switchman, or other
person having charge, wholly or in part, of any railroad, car,
locomotive, or train, who willfully or negligently suffers or causes
it to collide with another car, locomotive, or train, or with any
other object or thing whereby the death of a human being is produced,
is punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code for two, three or four years.
SEC. 562. Section 7724 of the Public Utilities Code is
amended to read:
7724. (a) Any person who commits any of the following acts,
shall, upon conviction, be punished by imprisonment in the county
jail for not more than one year or by imprisonment in the
state prison pursuant to subdivision (h) of Section
1170 of the Penal Code for 16, 24, or 36 months:
(1) Except as provided by Section 7724.1, knowingly fails to
follow the direction or order of the secretary or the commission
arising from a rail accident or release of a hazardous or potentially
hazardous commodity from a railcar.
(2) Knowingly causes, or aids or abets in, the discharge or spill
of, a hazardous or potentially hazardous commodity from a railcar,
unless the discharge is authorized by the United States, the state,
or another agency with appropriate jurisdiction.
(3) Knowingly fails to comply with the regulations adopted
pursuant to Section 7712, and that failure results in a rail accident
or release of hazardous material or creates a significant risk of
accident or release of hazardous material.
(b) The court shall also impose upon a person convicted of
violating subdivision (a), a fine not to exceed five hundred thousand
dollars ($500,000) for each violation. For purposes of this
subdivision, each day or partial day that a violation occurs is a
separate violation.
(c) The court shall also impose upon a person convicted of
violating paragraph (1) of subdivision (a), a fine equal to twice the
cost of abating, repairing, and responding to the cost associated
with the illegal discharge of a hazardous or potentially hazardous
commodity from a railcar as a result of a rail accident.
SEC. 563. Section 7903 of the Public Utilities Code is
amended to read:
7903. Every agent, operator, or employee of any telegraph or
telephone office, who in any way uses or appropriates any information
derived by him from any private message passing through his hands,
and addressed to any other person, or in any other manner acquired by
him by reason of his trust as such agent, operator, or employee, or
trades or speculates upon any such information so obtained, or in any
manner turns, or attempts to turn, the information so obtained to
his own account, profit, or advantage, is punishable by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code , or by imprisonment in
the a county jail not exceeding one
year, or by fine not exceeding ten thousand dollars ($10,000), or by
both such that fine and imprisonment.
SEC. 564. Section 21407.6 of the Public Utilities Code
is amended to read:
21407.6. (a) Any person convicted under Section 21407.1 shall be
punished upon a first conviction by imprisonment in the county jail
for not less than 30 days nor more than six months or by a fine of
not less than two hundred fifty dollars ($250) nor more than one
thousand dollars ($1,000) or by both such
that fine and imprisonment.
Any person convicted under Section 21407.1 shall be punished upon
a second or any subsequent conviction by imprisonment in the county
jail for not less than five days nor more than one year and by a fine
of not less than two hundred fifty dollars ($250) nor more than one
thousand dollars ($1,000), without being granted probation by the
court and without having the court suspend the execution of the
sentence.
(b) Any person convicted under Section 21407.1 and who, when so
operating an aircraft, has done any act forbidden by law or neglects
any duty imposed by law in the operation of the aircraft, which act
or neglect proximately causes bodily injury to any person other than
the operator shall be punished by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170 of
the Penal Code , or in the county jail for not less than 90
days nor more than one year and by fine of not less than two hundred
fifty dollars ($250) nor more than ten thousand dollars ($10,000).
SEC. 565. Section 7093.6 of the Revenue and Taxation
Code, as amended by Section 171 of Chapter 140 of the Statutes of
2009, is amended to read:
7093.6. (a) (1) Beginning January 1, 2003, the executive director
and chief counsel of the board, or their delegates, may compromise
any final tax liability in which the reduction of tax is seven
thousand five hundred dollars ($7,500) or less.
(2) Except as provided in paragraph (3), the board, upon
recommendation by its executive director and chief counsel, jointly,
may compromise a final tax liability involving a reduction in tax in
excess of seven thousand five hundred dollars ($7,500). Any
recommendation for approval of an offer in compromise that is not
either approved or disapproved within 45 days of the submission of
the recommendation shall be deemed approved.
(3) The board, itself, may by resolution delegate to the executive
director and the chief counsel, jointly, the authority to compromise
a final tax liability in which the reduction of tax is in excess of
seven thousand five hundred dollars ($7,500), but less than ten
thousand dollars ($10,000).
(b) For purposes of this section, "a final tax liability" means
any final tax liability arising under Part 1 (commencing with Section
6001), Part 1.5 (commencing with Section 7200), Part 1.6 (commencing
with Section 7251), and Part 1.7 (commencing with Section 7280) or
related interest, additions to tax, penalties, or other amounts
assessed under this part.
(c) (1) Offers in compromise shall be considered only for
liabilities that were generated from a business that has been
discontinued or transferred, where the taxpayer making the offer no
longer has a controlling interest or association with the transferred
business or has a controlling interest or association with a similar
type of business as the transferred or discontinued business.
(2) Notwithstanding paragraph (1), a qualified final tax liability
may be compromised regardless of whether the business has been
discontinued or transferred or whether the taxpayer has a controlling
interest or association with a similar type of business as the
transferred or discontinued business. All other provisions of this
section that apply to a final tax liability shall also apply to a
qualified final tax liability, and no compromise shall be made under
this subdivision unless all other requirements of this section are
met. For purposes of this subdivision, a "qualified final tax
liability" means any of the following:
(A) That part of a final tax liability, including related
interest, additions to tax, penalties, or other amounts assessed
under this part, arising from a transaction or transactions in which
the board finds no evidence that the taxpayer collected sales tax
reimbursement or use tax from the purchaser or other person and which
was determined against the taxpayer under Article 2 (commencing with
Section 6481), Article 3 (commencing with Section 6511), and Article
5 (commencing with Section 6561) of Chapter 5.
(B) A final tax liability, including related interest, additions
to tax, penalties, or other amounts assessed under this part, arising
under Article 7 (commencing with Section 6811) of Chapter 6.
(C) That part of a final tax liability for use tax, including
related interest, additions to tax, penalties, or other amounts
assessed under this part, determined under Article 2 (commencing with
Section 6481), Article 3 (commencing with Section 6511), and Article
5 (commencing with Section 6561) of Chapter 5, against a taxpayer
who is a consumer that is not required to hold a permit under Section
6066.
(3) A qualified final tax liability may not be compromised with
any of the following:
(A) A taxpayer who previously received a compromise under
paragraph (2) for a liability, or a part thereof, arising from a
transaction or transactions that are substantially similar to the
transaction or transactions attributable to the liability for which
the taxpayer is making the offer.
(B) A business that was transferred by a taxpayer who previously
received a compromise under paragraph (2) and who has a controlling
interest or association with the transferred business, when the
liability for which the offer is made is attributable to a
transaction or transactions substantially similar to the transaction
or transactions for which the taxpayer's liability was previously
compromised.
(C) A business in which a taxpayer who previously received a
compromise under paragraph (2) has a controlling interest or
association with a similar type of business for which the taxpayer
received the compromise, when the liability of the business making
the offer arose from a transaction or transactions substantially
similar to the transaction or transactions for which the taxpayer's
liability was previously compromised.
(d) The board may, in its discretion, enter into a written
agreement that permits the taxpayer to pay the compromise in
installments for a period not exceeding one year. The agreement may
provide that the installments shall be paid by electronic funds
transfers or any other means to facilitate the payment of each
installment.
(e) Except for any recommendation for approval as specified in
subdivision (a), the members of the State Board of Equalization shall
not participate in any offer in compromise matters pursuant to this
section.
(f) A taxpayer that has received a compromise under paragraph (2)
of subdivision (c) may be required to enter into any collateral
agreement that is deemed necessary for the protection of the
interests of the state. A collateral agreement may include a
provision that allows the board to reestablish the liability, or any
portion thereof, if the taxpayer has sufficient annual income during
the succeeding five-year period. The board shall establish criteria
for determining "sufficient annual income" for purposes of this
subdivision.
(g) A taxpayer that has received a compromise under paragraph (2)
of subdivision (c) shall file and pay by the due date all
subsequently required sales and use tax returns for a five-year
period from the date the liability is compromised, or until the
taxpayer is no longer required to file sales and use tax returns,
whichever period is earlier.
(h) For amounts to be compromised under this section, the
following conditions shall exist:
(1) The taxpayer shall establish that:
(A) The amount offered in payment is the most that can be expected
to be paid or collected from the taxpayer's present assets or
income.
(B) The taxpayer does not have reasonable prospects of acquiring
increased income or assets that would enable the taxpayer to satisfy
a greater amount of the liability than the amount offered, within a
reasonable period of time.
(2) The board shall have determined that acceptance of the
compromise is in the best interest of the state.
(i) A determination by the board that it would not be in the best
interest of the state to accept an offer in compromise in
satisfaction of a final tax liability shall not be subject to
administrative appeal or judicial review.
(j) When an offer in compromise is either accepted or rejected, or
the terms and conditions of a compromise agreement are fulfilled,
the board shall notify the taxpayer in writing. In the event an offer
is rejected, the amount posted will either be applied to the
liability or refunded, at the discretion of the taxpayer.
(k) When more than one taxpayer is liable for the debt, such as
with spouses or partnerships or other business combinations, the
acceptance of an offer in compromise from one liable taxpayer shall
not relieve the other taxpayers from paying the entire liability.
However, the amount of the liability shall be reduced by the amount
of the accepted offer.
(l) Whenever a compromise of tax or penalties or total tax and
penalties in excess of five hundred dollars ($500) is approved, there
shall be placed on file for at least one year in the office of the
executive director of the board a public record with respect to that
compromise. The public record shall include all of the following
information:
(1) The name of the taxpayer.
(2) The amount of unpaid tax and related penalties, additions to
tax, interest, or other amounts involved.
(3) The amount offered.
(4) A summary of the reason why the compromise is in the best
interest of the state.
The public record shall not include any information that relates
to any trade secrets, patent, process, style of work, apparatus,
business secret, or organizational structure, that if disclosed,
would adversely affect the taxpayer or violate the confidentiality
provisions of Section 7056. No list shall be prepared and no releases
distributed by the board in connection with these statements.
(m) Any compromise made under this section may be rescinded, all
compromised liabilities may be reestablished (without regard to any
statute of limitations that otherwise may be applicable), and no
portion of the amount offered in compromise refunded, if either of
the following occurs:
(1) The board determines that any person did any of the following
acts regarding the making of the offer:
(A) Concealed from the board any property belonging to the estate
of any taxpayer or other person liable for the tax.
(B) Received, withheld, destroyed, mutilated, or falsified any
book, document, or record, or made any false statement, relating to
the estate or financial condition of the taxpayer or other person
liable for the tax.
(2) The taxpayer fails to comply with any of the terms and
conditions relative to the offer.
(n) Any person who, in connection with any offer or compromise
under this section, or offer of that compromise to enter into that
agreement, willfully does either of the following shall be guilty of
a felony and, upon conviction, shall be fined not more than fifty
thousand dollars ($50,000) or imprisoned in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code , or both, together with the costs of investigation
and prosecution:
(1) Conceals from any officer or employee of this state any
property belonging to the estate of a taxpayer or other person liable
in respect of the tax.
(2) Receives, withholds, destroys, mutilates, or falsifies any
book, document, or record, or makes any false statement, relating to
the estate or financial condition of the taxpayer or other person
liable in respect of the tax.
(o) For purposes of this section, "person" means the taxpayer, any
member of the taxpayer's family, any corporation, agent, fiduciary,
or representative of, or any other individual or entity acting on
behalf of, the taxpayer, or any other corporation or entity owned or
controlled by the taxpayer, directly or indirectly, or that owns or
controls the taxpayer, directly or indirectly.
(p) This section shall remain in effect only until January 1,
2013, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2013, deletes or extends
that date.
SEC. 566. Section 7093.6 of the Revenue and Taxation
Code, as amended by Section 172 of Chapter 140 of the Statutes of
2009, is amended to read:
7093.6. (a) (1) The executive director and chief counsel of the
board, or their delegates, may compromise any final tax liability in
which the reduction of tax is seven thousand five hundred dollars
($7,500) or less.
(2) Except as provided in paragraph (3), the board, upon
recommendation by its executive director and chief counsel, jointly,
may compromise a final tax liability involving a reduction in tax in
excess of seven thousand five hundred dollars ($7,500). Any
recommendation for approval of an offer in compromise that is not
either approved or disapproved within 45 days of the submission of
the recommendation shall be deemed approved.
(3) The board, itself, may by resolution delegate to the executive
director and the chief counsel, jointly, the authority to compromise
a final tax liability in which the reduction of tax is in excess of
seven thousand five hundred dollars ($7,500), but less than ten
thousand dollars ($10,000).
(b) For purposes of this section, "a final tax liability" means
any final tax liability arising under Part 1 (commencing with Section
6001), Part 1.5 (commencing with Section 7200), Part 1.6 (commencing
with Section 7251), and Part 1.7 (commencing with Section 7280) or
related interest, additions to tax, penalties, or other amounts
assessed under this part.
(c) Offers in compromise shall be considered only for liabilities
that were generated from a business that has been discontinued or
transferred, where the taxpayer making the offer no longer has a
controlling interest or association with the transferred business or
has a controlling interest or association with a similar type of
business as the transferred or discontinued business.
(d) For amounts to be compromised under this section, the
following conditions shall exist:
(1) The taxpayer shall establish that:
(A) The amount offered in payment is the most that can be expected
to be paid or collected from the taxpayer's present assets or
income.
(B) The taxpayer does not have reasonable prospects of acquiring
increased income or assets that would enable the taxpayer to satisfy
a greater amount of the liability than the amount offered, within a
reasonable period of time.
(2) The board shall have determined that acceptance of the
compromise is in the best interest of the state.
(e) A determination by the board that it would not be in the best
interest of the state to accept an offer in compromise in
satisfaction of a final tax liability shall not be subject to
administrative appeal or judicial review.
(f) When an offer in compromise is either accepted or rejected, or
the terms and conditions of a compromise agreement are fulfilled,
the board shall notify the taxpayer in writing. In the event an offer
is rejected, the amount posted will either be applied to the
liability or refunded, at the discretion of the taxpayer.
(g) When more than one taxpayer is liable for the debt, such as
with spouses or partnerships or other business combinations, the
acceptance of an offer in compromise from one liable taxpayer shall
not relieve the other taxpayers from paying the entire liability.
However, the amount of the liability shall be reduced by the amount
of the accepted offer.
(h) Whenever a compromise of tax or penalties or total tax and
penalties in excess of five hundred dollars ($500) is approved, there
shall be placed on file for at least one year in the office of the
executive director of the board a public record with respect to that
compromise. The public record shall include all of the following
information:
(1) The name of the taxpayer.
(2) The amount of unpaid tax and related penalties, additions to
tax, interest, or other amounts involved.
(3) The amount offered.
(4) A summary of the reason why the compromise is in the best
interest of the state.
The public record shall not include any information that relates
to any trade secrets, patent, process, style of work, apparatus,
business secret, or organizational structure, that if disclosed,
would adversely affect the taxpayer or violate the confidentiality
provisions of Section 7056. No list shall be prepared and no releases
distributed by the board in connection with these statements.
(i) Any compromise made under this section may be rescinded, all
compromised liabilities may be reestablished (without regard to any
statute of limitations that otherwise may be applicable), and no
portion of the amount offered in compromise refunded, if either of
the following occurs:
(1) The board determines that any person did any of the following
acts regarding the making of the offer:
(A) Concealed from the board any property belonging to the estate
of any taxpayer or other person liable for the tax.
(B) Received, withheld, destroyed, mutilated, or falsified any
book, document, or record, or made any false statement, relating to
the estate or financial condition of the taxpayer or other person
liable for the tax.
(2) The taxpayer fails to comply with any of the terms and
conditions relative to the offer.
(j) Any person who, in connection with any offer or compromise
under this section, or offer of that compromise to enter into that
agreement, willfully does either of the following shall be guilty of
a felony and, upon conviction, shall be fined not more than fifty
thousand dollars ($50,000) or imprisoned in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code , or both, together with the costs of investigation
and prosecution:
(1) Conceals from any officer or employee of this state any
property belonging to the estate of a taxpayer or other person liable
in respect of the tax.
(2) Receives, withholds, destroys, mutilates, or falsifies any
book, document, or record, or makes any false statement, relating to
the estate or financial condition of the taxpayer or other person
liable in respect of the tax.
(k) For purposes of this section, "person" means the taxpayer, any
member of the taxpayer's family, any corporation, agent, fiduciary,
or representative of, or any other individual or entity acting on
behalf of, the taxpayer, or any other corporation or entity owned or
controlled by the taxpayer, directly or indirectly, or that owns or
controls the taxpayer, directly or indirectly.
(l) This section shall become operative on January 1, 2013.
SEC. 567. Section 9278 of the Revenue and Taxation
Code, as amended by Section 2 of Chapter 222 of the Statutes of 2008,
is amended to read:
9278. (a) (1) Beginning January 1, 2003, the executive director
and chief counsel of the board, or their delegates, may compromise
any final tax liability in which the reduction of tax is seven
thousand five hundred dollars ($7,500) or less.
(2) Except as provided in paragraph (3), the board, upon
recommendation by its executive director and chief counsel, jointly,
may compromise a final tax liability involving a reduction in tax in
excess of seven thousand five hundred dollars ($7,500). Any
recommendation for approval of an offer in compromise that is not
either approved or disapproved within 45 days of the submission of
the recommendation shall be deemed approved.
(3) The board, itself, may by resolution delegate to the executive
director and the chief counsel, jointly, the authority to compromise
a final tax liability in which the reduction of tax is in excess of
seven thousand five hundred dollars ($7,500), but less than ten
thousand dollars ($10,000).
(b) For purposes of this section, "a final tax liability" means
any final tax liability arising under Part 3 (commencing with Section
8601), or related interest, additions to tax, penalties, or other
amounts assessed under this part.
(c) (1) Offers in compromise shall be considered only for
liabilities that were generated from a business that has been
discontinued or transferred, where the taxpayer making the offer no
longer has a controlling interest or association with the transferred
business or has a controlling interest or association with a similar
type of business as the transferred or discontinued business.
(2) Notwithstanding paragraph (1), a qualified final tax liability
may be compromised regardless of whether the business has been
discontinued or transferred or whether the taxpayer has a controlling
interest or association with a similar type of business as the
transferred or discontinued business. All other provisions of this
section that apply to a final tax liability shall also apply to a
qualified final tax liability, and no compromise shall be made under
this subdivision unless all other requirements of this section are
met. For purposes of this subdivision, a "qualified final tax
liability" means either of the following:
(A) That part of a final tax liability, including related
interest, additions to tax, penalties or other amounts assessed under
this part, arising from a transaction or transactions in which the
board finds no evidence that the vendor collected use fuel tax
reimbursement from the purchaser or other person and which was
determined against the vendor under Article 2 (commencing with
Section 8776), Article 3 (commencing with Section 8801), or Article 5
(commencing with Section 8851) of Chapter 4.
(B) A final tax liability, including related interest, additions
to tax, penalties or other amounts assessed under this part, arising
under Article 4.5 (commencing with Section 9021) of Chapter 5.
(3) A qualified final tax liability may not be compromised with
any of the following:
(A) A taxpayer who previously received a compromise under
paragraph (2) for a liability, or a part thereof, arising from a
transaction or transactions that are substantially similar to the
transaction or transactions attributable to the liability for which
the taxpayer is making the
offer.
(B) A business that was transferred by a taxpayer who previously
received a compromise under paragraph (2) and who has a controlling
interest or association with the transferred business, when the
liability for which the offer is made is attributable to a
transaction or transactions substantially similar to the transaction
or transactions for which the taxpayer's liability was previously
compromised.
(C) A business in which a taxpayer who previously received a
compromise under paragraph (2) has a controlling interest or
association with a similar type of business for which the taxpayer
received the compromise, when the liability of the business making
the offer arose from a transaction or transactions substantially
similar to the transaction or transactions for which the taxpayer's
liability was previously compromised.
(d) The board may, in its discretion, enter into a written
agreement which permits the taxpayer to pay the compromise in
installments for a period not exceeding one year. The agreement may
provide that such installments shall be paid by electronic funds
transfers or any other means to facilitate the payment of each
installment.
(e) Except for any recommendation for approval as specified in
subdivision (a), the members of the State Board of Equalization shall
not participate in any offer in compromise matters pursuant to this
section.
(f) A taxpayer that has received a compromise under paragraph (2)
of subdivision (c) may be required to enter into any collateral
agreement that is deemed necessary for the protection of the
interests of the state. A collateral agreement may include a
provision that allows the board to reestablish the liability, or any
portion thereof, if the taxpayer has sufficient annual income during
the succeeding five-year period. The board shall establish criteria
for determining "sufficient annual income" for purposes of this
subdivision.
(g) A taxpayer that has received a compromise under paragraph (2)
of subdivision (c) shall file and pay by the due date all
subsequently required use fuel tax returns for a five-year period
from the date the liability is compromised, or until the taxpayer is
no longer required to file use fuel tax returns, whichever period is
earlier.
(h) For amounts to be compromised under this section, the
following conditions shall exist:
(1) The taxpayer shall establish that:
(A) The amount offered in payment is the most that can be expected
to be paid or collected from the taxpayer's present assets or
income.
(B) The taxpayer does not have reasonable prospects of acquiring
increased income or assets that would enable the taxpayer to satisfy
a greater amount of the liability than the amount offered, within a
reasonable period of time.
(2) The board shall have determined that acceptance of the
compromise is in the best interest of the state.
(i) A determination by the board that it would not be in the best
interest of the state to accept an offer in compromise in
satisfaction of a final tax liability shall not be subject to
administrative appeal or judicial review.
(j) When an offer in compromise is either accepted or rejected, or
the terms and conditions of a compromise agreement are fulfilled,
the board shall notify the taxpayer in writing. In the event an offer
is rejected, the amount posted will either be applied to the
liability or refunded, at the discretion of the taxpayer.
(k) When more than one taxpayer is liable for the debt, such as
with spouses or partnerships or other business combinations, the
acceptance of an offer in compromise from one liable taxpayer shall
not relieve the other taxpayers from paying the entire liability.
However, the amount of the liability shall be reduced by the amount
of the accepted offer.
(l) Whenever a compromise of tax or penalties or total tax and
penalties in excess of five hundred dollars ($500) is approved, there
shall be placed on file for at least one year in the office of the
executive director of the board a public record with respect to that
compromise. The public record shall include all of the following
information:
(1) The name of the taxpayer.
(2) The amount of unpaid tax and related penalties, additions to
tax, interest, or other amounts involved.
(3) The amount offered.
(4) A summary of the reason why the compromise is in the best
interest of the state.
The public record shall not include any information that relates
to any trade secrets, patent, process, style of work, apparatus,
business secret, or organizational structure, that if disclosed,
would adversely affect the taxpayer or violate the confidentiality
provisions of Section 9255. No list shall be prepared and no releases
distributed by the board in connection with these statements.
(m) Any compromise made under this section may be rescinded, all
compromised liabilities may be reestablished (without regard to any
statute of limitations that otherwise may be applicable), and no
portion of the amount offered in compromise refunded, if either of
the following occurs:
(1) The board determines that any person did any of the following
acts regarding the making of the offer:
(A) Concealed from the board any property belonging to the estate
of any taxpayer or other person liable for the tax.
(B) Received, withheld, destroyed, mutilated, or falsified any
book, document, or record, or made any false statement, relating to
the estate or financial condition of the taxpayer or other person
liable for the tax.
(2) The taxpayer fails to comply with any of the terms and
conditions relative to the offer.
(n) Any person who, in connection with any offer or compromise
under this section, or offer of that compromise to enter into that
agreement, willfully does either of the following shall be guilty of
a felony and, upon conviction, shall be fined not more than fifty
thousand dollars ($50,000) or imprisoned in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code , or both, together with the costs of investigation
and prosecution:
(1) Conceals from any officer or employee of this state any
property belonging to the estate of a taxpayer or other person liable
in respect of the tax.
(2) Receives, withholds, destroys, mutilates, or falsifies any
book, document, or record, or makes any false statement, relating to
the estate or financial condition of the taxpayer or other person
liable in respect of the tax.
(o) For purposes of this section, "person" means the taxpayer, any
member of the taxpayer's family, any corporation, agent, fiduciary,
or representative of, or any other individual or entity acting on
behalf of, the taxpayer, or any other corporation or entity owned or
controlled by the taxpayer, directly or indirectly, or that owns or
controls the taxpayer, directly or indirectly.
(p) This section shall remain in effect only until January 1,
2013, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2013, deletes or extends
that date.
SEC. 568. Section 9278 of the Revenue and Taxation
Code, as added by Chapter 222 of the Statutes of 2008, is amended to
read:
9278. (a) (1) The executive director and chief counsel of the
board, or their delegates, may compromise any final tax liability in
which the reduction of tax is seven thousand five hundred dollars
($7,500) or less.
(2) Except as provided in paragraph (3), the board, upon
recommendation by its executive director and chief counsel, jointly,
may compromise a final tax liability involving a reduction in tax in
excess of seven thousand five hundred dollars ($7,500). Any
recommendation for approval of an offer in compromise that is not
either approved or disapproved within 45 days of the submission of
the recommendation shall be deemed approved.
(3) The board, itself, may by resolution delegate to the executive
director and the chief counsel, jointly, the authority to compromise
a final tax liability in which the reduction of tax is in excess of
seven thousand five hundred dollars ($7,500), but less than ten
thousand dollars ($10,000).
(b) For purposes of this section, "a final tax liability" means
any final tax liability arising under Part 3 (commencing with Section
8601), or related interest, additions to tax, penalties, or other
amounts assessed under this part.
(c) Offers in compromise shall be considered only for liabilities
that were generated from a business that has been discontinued or
transferred, where the taxpayer making the offer no longer has a
controlling interest or association with the transferred business or
has a controlling interest or association with a similar type of
business as the transferred or discontinued business.
(d) For amounts to be compromised under this section, the
following conditions shall exist:
(1) The taxpayer shall establish that:
(A) The amount offered in payment is the most that can be expected
to be paid or collected from the taxpayer's present assets or
income.
(B) The taxpayer does not have reasonable prospects of acquiring
increased income or assets that would enable the taxpayer to satisfy
a greater amount of the liability than the amount offered, within a
reasonable period of time.
(2) The board shall have determined that acceptance of the
compromise is in the best interest of the state.
(e) A determination by the board that it would not be in the best
interest of the state to accept an offer in compromise in
satisfaction of a final tax liability shall not be subject to
administrative appeal or judicial review.
(f) When an offer in compromise is either accepted or rejected, or
the terms and conditions of a compromise agreement are fulfilled,
the board shall notify the taxpayer in writing. In the event an offer
is rejected, the amount posted will either be applied to the
liability or refunded, at the discretion of the taxpayer.
(g) When more than one taxpayer is liable for the debt, such as
with spouses or partnerships or other business combinations, the
acceptance of an offer in compromise from one liable taxpayer shall
not relieve the other taxpayers from paying the entire liability.
However, the amount of the liability shall be reduced by the amount
of the accepted offer.
(h) Whenever a compromise of tax or penalties or total tax and
penalties in excess of five hundred dollars ($500) is approved, there
shall be placed on file for at least one year in the office of the
executive director of the board a public record with respect to that
compromise. The public record shall include all of the following
information:
(1) The name of the taxpayer.
(2) The amount of unpaid tax and related penalties, additions to
tax, interest, or other amounts involved.
(3) The amount offered.
(4) A summary of the reason why the compromise is in the best
interest of the state.
The public record shall not include any information that relates
to any trade secrets, patent, process, style of work, apparatus,
business secret, or organizational structure, that if disclosed,
would adversely affect the taxpayer or violate the confidentiality
provisions of Section 9255. No list shall be prepared and no releases
distributed by the board in connection with these statements.
(i) Any compromise made under this section may be rescinded, all
compromised liabilities may be reestablished (without regard to any
statute of limitations that otherwise may be applicable), and no
portion of the amount offered in compromise refunded, if either of
the following occurs:
(1) The board determines that any person did any of the following
acts regarding the making of the offer:
(A) Concealed from the board any property belonging to the estate
of any taxpayer or other person liable for the tax.
(B) Received, withheld, destroyed, mutilated, or falsified any
book, document, or record, or made any false statement, relating to
the estate or financial condition of the taxpayer or other person
liable for the tax.
(2) The taxpayer fails to comply with any of the terms and
conditions relative to the offer.
(j) Any person who, in connection with any offer or compromise
under this section, or offer of that compromise to enter into that
agreement, willfully does either of the following shall be guilty of
a felony and, upon conviction, shall be fined not more than fifty
thousand dollars ($50,000) or imprisoned in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code , or both, together with the costs of investigation
and prosecution:
(1) Conceals from any officer or employee of this state any
property belonging to the estate of a taxpayer or other person liable
in respect of the tax.
(2) Receives, withholds, destroys, mutilates, or falsifies any
book, document, or record, or makes any false statement, relating to
the estate or financial condition of the taxpayer or other person
liable in respect of the tax.
(k) For purposes of this section, "person" means the taxpayer, any
member of the taxpayer's family, any corporation, agent, fiduciary,
or representative of, or any other individual or entity acting on
behalf of, the taxpayer, or any other corporation or entity owned or
controlled by the taxpayer, directly or indirectly, or that owns or
controls the taxpayer, directly or indirectly.
(l) This section shall become operative on January 1, 2013.
SEC. 569. Section 14251 of the Revenue and Taxation
Code is amended to read:
14251. All information and records acquired by the Controller or
any of his or her employees are confidential in nature, and except
insofar as may be necessary for the enforcement of this part or as
may be permitted by this article, shall not be disclosed by any of
them.
Except insofar as may be necessary for the enforcement of this
part or as may be permitted by this article, any former or incumbent
Controller or employee of the Controller who discloses any
information acquired by any inspection or examination made pursuant
to this article is guilty of a felony, and upon conviction shall be
imprisoned in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code .
SEC. 570. Section 16910 of the Revenue and Taxation
Code is amended to read:
16910. All information and records acquired by the Controller or
any of his employees are confidential in nature, and, except insofar
as may be necessary for the enforcement of this part or as may be
permitted by this article, shall not be disclosed by any of them.
Except insofar as may be necessary for the enforcement of this
part or as may be permitted by this article, any former or incumbent
Controller or employee of the Controller who discloses any
information acquired by any inspection or examination made pursuant
to this article is guilty of a felony, and upon conviction shall be
imprisoned in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code .
SEC. 571. Section 18631.7 of the Revenue and Taxation
Code is amended to read:
18631.7. (a) Any check casher engaged in the trade or business of
cashing checks that, in the course of that trade or business, cashes
checks other than one-party checks, payroll checks, or government
checks totaling more than ten thousand dollars ($10,000) in one
transaction or two or more transactions for the same person within
the calendar year, shall file an informational return with the
Franchise Tax Board with respect to that transaction or transactions.
(b) The return required in subdivision (a) shall be filed no later
than 90 days after the end of the calendar year and in the form and
manner prescribed by the Franchise Tax Board, and shall, at a
minimum, contain both of the following:
(1) The name, address, taxpayer identification number, and any
other identifying information of the person presenting the check that
the Franchise Tax Board deems necessary.
(2) The amount and date of the transaction or transactions.
(c) For purposes of this section the following definitions apply:
(1) Except as otherwise provided, "check casher" means a check
casher as defined under Section 1789.31 of the Civil Code.
(2) "Checks" includes warrants, drafts, money orders, and other
commercial paper serving the same purposes, including payroll checks,
government checks, and one-party checks.
(3) "Government check" means a check issued by a federal, state,
or local governmental entity and treated as a government check
pursuant to Section 1789.35 of the Civil Code for fee-setting
purposes.
(4) "Payroll check" means a check for wages subject to withholding
pursuant to Section 13020 of the Unemployment Insurance Code and
treated as a payroll check pursuant to Section 1789.35 of the Civil
Code for fee-setting purposes.
(5) "One-party check" means a check drawn upon the maker's account
and presented by the maker.
(d) With respect to a person who fails to file the report required
by this section or fails to include all of the information required
to be shown on that report, both of the following apply:
(1) Sections 6721 and 6724 of the Internal Revenue Code, as those
sections read on January 1, 2005, apply, except that the "Franchise
Tax Board" is substituted for the "secretary" in each place it
appears in those sections.
(2) If the failure was willful, the person, upon conviction, shall
be punished by a fine of not more than twenty-five thousand dollars
($25,000) or, in the case of a corporation, not more than one hundred
thousand dollars ($100,000), by imprisonment in a county jail for
not more than one year, by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code , or by both that fine and imprisonment, together
with the costs of prosecution.
SEC. 572. Section 19705 of the Revenue and Taxation
Code is amended to read:
19705. (a) Any person who does any of the following shall be
guilty of a felony and, upon conviction, shall be fined not more than
fifty thousand dollars ($50,000) or imprisoned in the state
prison pursuant to subdivision (h) of Section 1170 of
the Penal Code , or both, together with the costs of
investigation and prosecution:
(1) Willfully makes and subscribes any return, statement, or other
document, that contains or is verified by a written declaration that
it is made under penalty of perjury, and he or she does not believe
to be true and correct as to every material matter.
(2) Willfully aids or assists in, or procures, counsels, or
advises the preparation or presentation under, or in connection with
any matter arising under, the Personal Income Tax Law or the
Corporation Tax Law, of a return, affidavit, claim, or other
document, that is fraudulent or is false as to any material matter,
whether or not that falsity or fraud is with the knowledge or consent
of the person authorized or required to present that return,
affidavit, claim, or document.
(3) Simulates or falsely or fraudulently executes or signs any
bond, permit, entry, or other document required by the provisions of
the Personal Income Tax Law or the Corporation Tax Law, or by any
regulation pursuant to that law, or procures the same to be falsely
or fraudulently executed or advises, aids in, or connives at that
execution.
(4) Removes, deposits, or conceals, or is concerned in removing,
depositing, or concealing, any goods or commodities for or in respect
whereof any tax is or shall be imposed, or any property upon which
levy is authorized by Chapter 5 (commencing with Section 19201); or
Chapter 8 (commencing with Section 688.010) of Division 1 of, and
Chapter 5 (commencing with Section 706.010) of Division 2 of, Title 9
of the Code of Civil Procedure, with intent to evade or defeat the
assessment or collection of any tax, additions to tax, penalty, or
interest imposed by Part 10 (commencing with Section 17001), Part 11
(commencing with Section 23001), or this part.
(5) In connection with any settlement under Section 19442, or
offer of that settlement, or in connection with any closing agreement
under Section 19441 or offer to enter into that agreement, or
compromise under Section 19443, or offer of that compromise,
willfully does any of the following:
(A) Conceals from any officer or employee of this state any
property belonging to the estate of a taxpayer or other person liable
in respect of the tax.
(B) Receives, withholds, destroys, mutilates, or falsifies any
book, document, or record, or makes any false statement, relating to
the estate or financial condition of the taxpayer or other person
liable in respect of the tax.
(b) In the case of a corporation, the fifty thousand dollars
($50,000) limitation specified in subdivision (a) shall be increased
to two hundred thousand dollars ($200,000).
(c) The fact that an individual's name is signed to a return,
statement, or other document filed, including a return, statement, or
other document filed using electronic technology pursuant to Section
18621.5, shall be prima facie evidence for all purposes that the
return, statement, or other document was actually signed by him or
her.
(d) For purposes of this section, "person" means the taxpayer, any
member of the taxpayer's family, any corporation, agent, fiduciary,
or representative of, or any other individual or entity acting on
behalf of, the taxpayer, or any other corporation or entity owned or
controlled by the taxpayer, directly or indirectly, or which owns or
controls the taxpayer, directly or indirectly.
(e) The changes made to this section by the act adding this
subdivision apply to offers made on or after January 1, 1999.
SEC. 573. Section 19708 of the Revenue and Taxation
Code is amended to read:
19708. Any person required under this part to collect, account
for, and pay over any tax or amount required to be withheld who
willfully fails to collect or truthfully account for and pay over the
tax or amount shall, in addition to other penalties provided by law,
be guilty of a felony, and, upon conviction thereof, shall be fined
not more than two thousand dollars ($2,000) or imprisoned in
the state prison pursuant to subdivision (h) of
Section 1170 of the Penal Code , or both.
SEC. 574. Section 30459.15 of the Revenue and Taxation
Code, as amended by Section 3 of Chapter 222 of the Statutes of 2008,
is amended to read:
30459.15. (a) (1) Beginning on January 1, 2007, the executive
director and chief counsel of the board, or their delegates, may
compromise any final tax liability where the reduction of tax is
seven thousand five hundred dollars ($7,500) or less.
(2) Except as provided in paragraph (3), the board, upon
recommendation by its executive director and chief counsel, jointly,
may compromise a final tax liability involving a reduction in tax in
excess of seven thousand five hundred dollars ($7,500). Any
recommendation for approval of an offer in compromise that is not
either approved or disapproved within 45 days of the submission of
the recommendation shall be deemed approved.
(3) The board, itself, may by resolution delegate to the executive
director and the chief counsel, jointly, the authority to compromise
a final tax liability in which the reduction of tax is in excess of
seven thousand five hundred dollars ($7,500), but less than ten
thousand dollars ($10,000).
(b) For purposes of this section, "a final tax liability" means
any final tax liability arising under Part 13 (commencing with
Section 30001), or related interest, additions to tax, penalties, or
other amounts assessed under this part.
(c) Offers in compromise shall be considered only for liabilities
that were generated by the following:
(1) A business that has been discontinued or transferred, where
the taxpayer making the offer no longer has a controlling interest or
association with the transferred business or has a controlling
interest or association with a similar type of business as the
transferred or discontinued business.
(2) A taxpayer that has purchased untaxed cigarettes or tobacco
products from out-of-state vendors for their own use or consumption.
(3) Notwithstanding paragraph (1) or (2), a qualified final tax
liability may be compromised regardless of whether the business has
been discontinued or transferred or whether the taxpayer has a
controlling interest or association with a similar type of business
as the transferred or discontinued business. All other provisions of
this section that apply to a final tax liability shall also apply to
a qualified final tax liability, and no compromise shall be made
under this subdivision unless all other requirements of this section
are met. For purposes of this subdivision, a "qualified final tax
liability" means either of the following:
(A) That part of a final tax liability, including related
interest, additions to tax, penalties, or other amounts assessed
under this part, arising from a transaction or transactions in which
the board finds no evidence that the taxpayer collected cigarette or
tobacco products tax reimbursement or cigarette or tobacco products
tax reimbursement from the purchaser or other person and which was
determined against the taxpayer under Article 2 (commencing with
Section 30201), Article 3 (commencing with Section 30221), or Article
5 (commencing with Section 30261) of Chapter 4.
(B) That part of a final tax liability for cigarette or tobacco
products tax, including related interest, additions to tax,
penalties, or other amounts assessed under this part, determined
under Article 2 (commencing with Section 30201), Article 3
(commencing with Section 30221), and Article 5 (commencing with
Section 30261) of Chapter 4 against a taxpayer who is a consumer that
is not required to hold a license under Article 1 (commencing with
Section 30140) of Chapter 3.
(4) A qualified final tax liability may not be compromised with
any of the following:
(A) A taxpayer who previously received a compromise under
paragraph (2) for a liability, or a part thereof, arising from a
transaction or transactions that are substantially similar to the
transaction or transactions attributable to the liability for which
the taxpayer is making the offer.
(B) A business that was transferred by a taxpayer who previously
received a compromise under paragraph (2) and who has a controlling
interest or association with the transferred business, when the
liability for which the offer is made is attributable to a
transaction or transactions substantially similar
to the transaction or transactions for which
the taxpayer's liability was previously compromised.
(C) A business in which a taxpayer who previously received a
compromise under paragraph (2) has a controlling interest or
association with a similar type of business for which the taxpayer
received the compromise, when the liability of the business making
the offer arose from a transaction or transactions substantially
similar to the transaction or transactions for which the taxpayer's
liability was previously compromised.
(d) The board may, in its discretion, enter into a written
agreement which permits the taxpayer to pay the compromise in
installments for a period not exceeding one year. The agreement may
provide that such installments shall be paid by electronic funds
transfers or any other means to facilitate the payment of each
installment.
(e) Except for any recommendation for approval as specified in
subdivision (a), the members of the State Board of Equalization shall
not participate in any offer in compromise matters pursuant to this
section.
(f) A taxpayer that has received a compromise under paragraph (2)
of subdivision (c) may be required to enter into any collateral
agreement that is deemed necessary for the protection of the
interests of the state. A collateral agreement may include a
provision that allows the board to reestablish the liability, or any
portion thereof, if the taxpayer has sufficient annual income during
the succeeding five-year period. The board shall establish criteria
for determining "sufficient annual income" for purposes of this
subdivision.
(g) A taxpayer that has received a compromise under paragraph (2)
of subdivision (c) shall file and pay by the due date all
subsequently required cigarette and tobacco products tax reports or
returns for a five-year period from the date the liability is
compromised, or until the taxpayer is no longer required to file
cigarette and tobacco products tax reports or returns, whichever
period is earlier.
(h) Offers in compromise shall not be considered under the
following conditions:
(1) The taxpayer has been convicted of felony tax evasion under
this part during the liability period.
(2) The taxpayer has filed a statement under paragraph (3) of
subdivision (i) and continues to purchase untaxed cigarettes or
tobacco products from out-of-state vendors for their own use or
consumption.
(i) For amounts to be compromised under this section, the
following conditions shall exist:
(1) The taxpayer shall establish that:
(A) The amount offered in payment is the most that can be expected
to be paid or collected from the taxpayer's present assets or
income.
(B) The taxpayer does not have reasonable prospects of acquiring
increased income or assets that would enable the taxpayer to satisfy
a greater amount of the liability than the amount offered, within a
reasonable period of time.
(2) The board shall have determined that acceptance of the
compromise is in the best interest of the state.
(3) For liabilities generated in the manner described in paragraph
(2) of subdivision (c), the taxpayer shall file with the board a
statement, under penalty of perjury, that he or she will no longer
purchase untaxed cigarettes or tobacco products from out-of-state
vendors for his or her own use or consumption.
(j) A determination by the board that it would not be in the best
interest of the state to accept an offer in compromise in
satisfaction of a final tax liability shall not be subject to
administrative appeal or judicial review.
(k) (1) Offers for liabilities with a fraud or evasion penalty
shall require a minimum offer of the unpaid tax and fraud or evasion
penalty.
(2) The minimum offer may be waived if it can be shown that the
taxpayer making the offer was not the person responsible for
perpetrating the fraud or evasion. This authorization to waive only
applies to partnership accounts where the intent to commit fraud or
evasion can be clearly attributed to a partner of the taxpayer.
(l) When an offer in compromise is either accepted or rejected, or
the terms and conditions of a compromise agreement are fulfilled,
the board shall notify the taxpayer in writing. In the event an offer
is rejected, the amount posted will either be applied to the
liability or refunded, at the discretion of the taxpayer.
(m) When more than one taxpayer is liable for the debt, such as
with spouses or partnerships or other business combinations,
including, but not limited to, taxpayers who are liable through dual
determination or successor's liability, the acceptance of an offer in
compromise from one liable taxpayer shall reduce the amount of the
liability of the other taxpayers by the amount of the accepted offer.
(n) Whenever a compromise of tax or penalties or total tax and
penalties in excess of five hundred dollars ($500) is approved, there
shall be placed on file for at least one year in the office of the
executive director of the board a public record with respect to that
compromise. The public record shall include all of the following
information:
(1) The name of the taxpayer.
(2) The amount of unpaid tax and related penalties, additions to
tax, interest, or other amounts involved.
(3) The amount offered.
(4) A summary of the reason why the compromise is in the best
interest of the state.
The public record shall not include any information that relates
to any trade secrets, patent, process, style of work, apparatus,
business secret, or organizational structure, that if disclosed,
would adversely affect the taxpayer or violate the confidentiality
provisions of Section 30455. No list shall be prepared and no
releases distributed by the board in connection with these
statements.
(o) Any compromise made under this section may be rescinded, all
compromised liabilities may be reestablished, without regard to any
statute of limitations that otherwise may be applicable, and no
portion of the amount offered in compromise refunded, if either of
the following occurs:
(1) The board determines that any person did any of the following
acts regarding the making of the offer:
(A) Concealed from the board any property belonging to the estate
of any taxpayer or other person liable for the tax.
(B) Received, withheld, destroyed, mutilated, or falsified any
book, document, or record or made any false statement, relating to
the estate or financial condition of the taxpayer or other person
liable for the tax.
(2) The taxpayer fails to comply with any of the terms and
conditions relative to the offer.
(p) Any person who, in connection with any offer or compromise
under this section, or offer of that compromise to enter into that
agreement, willfully does either of the following shall be guilty of
a felony and, upon conviction, shall be fined not more than fifty
thousand dollars ($50,000) or imprisoned in the state prison
pursuant to subdivision (h) of Section
1170 of the Penal Code , or both, together with the costs of
investigation and prosecution:
(1) Conceals from any officer or employee of this state any
property belonging to the estate of a taxpayer or other person liable
in respect of the tax.
(2) Receives, withholds, destroys, mutilates, or falsifies any
book, document, or record, or makes any false statement, relating to
the estate or financial condition of the taxpayer or other person
liable in respect of the tax.
(q) For purposes of this section, "person" means the taxpayer, any
member of the taxpayer's family, any corporation, agent, fiduciary,
or representative of, or any other individual or entity acting on
behalf of, the taxpayer, or any other corporation or entity owned or
controlled by the taxpayer, directly or indirectly, or that owns or
controls the taxpayer, directly or indirectly.
(r) This section shall remain in effect only until January 1,
2013, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2013, deletes or extends
that date.
SEC. 575. Section 30459.15 of the Revenue and Taxation
Code, as added by Chapter 222 of the Statutes of 2008, is amended to
read:
30459.15. (a) (1) The executive director and chief counsel of the
board, or their delegates, may compromise any final tax liability
where the reduction of tax is seven thousand five hundred dollars
($7,500) or less.
(2) Except as provided in paragraph (3), the board, upon
recommendation by its executive director and chief counsel, jointly,
may compromise a final tax liability involving a reduction in tax in
excess of seven thousand five hundred dollars ($7,500). Any
recommendation for approval of an offer in compromise that is not
either approved or disapproved within 45 days of the submission of
the recommendation shall be deemed approved.
(3) The board, itself, may by resolution delegate to the executive
director and the chief counsel, jointly, the authority to compromise
a final tax liability in which the reduction of tax is in excess of
seven thousand five hundred dollars ($7,500), but less than ten
thousand dollars ($10,000).
(b) For purposes of this section, "a final tax liability" means
any final tax liability arising under Part 13 (commencing with
Section 30001), or related interest, additions to tax, penalties, or
other amounts assessed under this part.
(c) Offers in compromise shall be considered only for liabilities
that were generated by the following:
(1) A business that has been discontinued or transferred, where
the taxpayer making the offer no longer has a controlling interest or
association with the transferred business or has a controlling
interest or association with a similar type of business as the
transferred or discontinued business.
(2) A taxpayer that has purchased untaxed cigarettes or tobacco
products from out-of-state vendors for their own use or consumption.
(d) Offers in compromise shall not be considered under the
following conditions:
(1) The taxpayer has been convicted of felony tax evasion under
this part during the liability period.
(2) The taxpayer has filed a statement under paragraph (3) of
subdivision (e) and continues to purchase untaxed cigarettes or
tobacco products from out-of-state vendors for their own use or
consumption.
(e) For amounts to be compromised under this section, the
following conditions shall exist:
(1) The taxpayer shall establish that:
(A) The amount offered in payment is the most that can be expected
to be paid or collected from the taxpayer's present assets or
income.
(B) The taxpayer does not have reasonable prospects of acquiring
increased income or assets that would enable the taxpayer to satisfy
a greater amount of the liability than the amount offered, within a
reasonable period of time.
(2) The board shall have determined that acceptance of the
compromise is in the best interest of the state.
(3) For liabilities generated in the manner described in paragraph
(2) of subdivision (c), the taxpayer shall file with the board a
statement, under penalty of perjury, that he or she will no longer
purchase untaxed cigarettes or tobacco products from out-of-state
vendors for his or her own use or consumption.
(f) A determination by the board that it would not be in the best
interest of the state to accept an offer in compromise in
satisfaction of a final tax liability shall not be subject to
administrative appeal or judicial review.
(g) (1) Offers for liabilities with a fraud or evasion penalty
shall require a minimum offer of the unpaid tax and fraud or evasion
penalty.
(2) The minimum offer may be waived if it can be shown that the
taxpayer making the offer was not the person responsible for
perpetrating the fraud or evasion. This authorization to waive only
applies to partnership accounts where the intent to commit fraud or
evasion can be clearly attributed to a partner of the taxpayer.
(h) When an offer in compromise is either accepted or rejected, or
the terms and conditions of a compromise agreement are fulfilled,
the board shall notify the taxpayer in writing. In the event an offer
is rejected, the amount posted will either be applied to the
liability or refunded, at the discretion of the taxpayer.
(i) When more than one taxpayer is liable for the debt, such as
with spouses or partnerships or other business combinations,
including, but not limited to, taxpayers who are liable through dual
determination or successor's liability, the acceptance of an offer in
compromise from one liable taxpayer shall reduce the amount of the
liability of the other taxpayers by the amount of the accepted offer.
(j) Whenever a compromise of tax or penalties or total tax and
penalties in excess of five hundred dollars ($500) is approved, there
shall be placed on file for at least one year in the office of the
executive director of the board a public record with respect to that
compromise. The public record shall include all of the following
information:
(1) The name of the taxpayer.
(2) The amount of unpaid tax and related penalties, additions to
tax, interest, or other amounts involved.
(3) The amount offered.
(4) A summary of the reason why the compromise is in the best
interest of the state.
The public record shall not include any information that relates
to any trade secrets, patent, process, style of work, apparatus,
business secret, or organizational structure, that if disclosed,
would adversely affect the taxpayer or violate the confidentiality
provisions of Section 30455. No list shall be prepared and no
releases distributed by the board in connection with these
statements.
(k) Any compromise made under this section may be rescinded, all
compromised liabilities may be reestablished, without regard to any
statute of limitations that otherwise may be applicable, and no
portion of the amount offered in compromise refunded, if either of
the following occurs:
(1) The board determines that any person did any of the following
acts regarding the making of the offer:
(A) Concealed from the board any property belonging to the estate
of any taxpayer or other person liable for the tax.
(B) Received, withheld, destroyed, mutilated, or falsified any
book, document, or record or made any false statement, relating to
the estate or financial condition of the taxpayer or other person
liable for the tax.
(2) The taxpayer fails to comply with any of the terms and
conditions relative to the offer.
(l) Any person who, in connection with any offer or compromise
under this section, or offer of that compromise to enter into that
agreement, willfully does either of the following shall be guilty of
a felony and, upon conviction, shall be fined not more than fifty
thousand dollars ($50,000) or imprisoned in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code , or both, together with the costs of investigation
and prosecution:
(1) Conceals from any officer or employee of this state any
property belonging to the estate of a taxpayer or other person liable
in respect of the tax.
(2) Receives, withholds, destroys, mutilates, or falsifies any
book, document, or record, or makes any false statement, relating to
the estate or financial condition of the taxpayer or other person
liable in respect of the tax.
(m) For purposes of this section, "person" means the taxpayer, any
member of the taxpayer's family, any corporation, agent, fiduciary,
or representative of, or any other individual or entity acting on
behalf of, the taxpayer, or any other corporation or entity owned or
controlled by the taxpayer, directly or indirectly, or that owns or
controls the taxpayer, directly or indirectly.
(n) This section shall become operative on January 1, 2013.
SEC. 576. Section 32471.5 of the Revenue and Taxation
Code, as amended by Section 4 of Chapter 222 of the Statutes of 2008,
is amended to read:
32471.5. (a) (1) Beginning on January 1, 2007, the executive
director and chief counsel of the board, or their delegates, may
compromise any final tax liability where the reduction of tax is
seven thousand five hundred dollars ($7,500) or less.
(2) Except as provided in paragraph (3), the board, upon
recommendation by its executive director and chief counsel, jointly,
may compromise a final tax liability involving a reduction in tax in
excess of seven thousand five hundred dollars ($7,500). Any
recommendation for approval of an offer in compromise that is not
either approved or disapproved within 45 days of the submission of
the recommendation shall be deemed approved.
(3) The board, itself, may by resolution delegate to the executive
director and the chief counsel, jointly, the authority to compromise
a final tax liability in which the reduction of tax is in excess of
seven thousand five hundred dollars ($7,500), but less than ten
thousand dollars ($10,000).
(b) For purposes of this section, "a final tax liability" means
any final tax liability arising under Part 14 (commencing with
Section 32001), or related interest, additions to tax, penalties, or
other amounts assessed under this part.
(c) (1) Offers in compromise shall be considered only for
liabilities that were generated by a business that has been
discontinued or transferred, where the taxpayer making the offer no
longer has a controlling interest or association with the transferred
business or has a controlling interest or association with a similar
type of business as the transferred or discontinued business.
(2) Notwithstanding paragraph (1), a qualified final tax liability
may be compromised regardless of whether the business has been
discontinued or transferred or whether the taxpayer has a controlling
interest or association with a similar type of business as the
transferred or discontinued business. All other provisions of this
section that apply to a final tax liability shall also apply to a
qualified final tax liability, and no compromise shall be made under
this subdivision unless all other requirements of this section are
met. For purposes of this subdivision, a "qualified final tax
liability" means that part of a final tax liability, including
related interest, additions to tax, penalties, or other amounts
assessed under this part, arising from a transaction or transactions
in which the board finds no evidence that the taxpayer collected
reimbursement or tax reimbursement from the purchaser or other person
and which was determined against the taxpayer under Article 2
(commencing with Section 32271), Article 3 (commencing with Section
32291), or Article 4 (commencing with Section 32301) of Chapter 6.
(3) A qualified final tax liability may not be compromised with
any of the following:
(A) A taxpayer who previously received a compromise under
paragraph (2) for a liability, or a part thereof, arising from a
transaction or transactions that are substantially similar to the
transaction or transactions attributable to the liability for which
the taxpayer is making the offer.
(B) A business that was transferred by a taxpayer who previously
received a compromise under paragraph (2) and who has a controlling
interest or association with the transferred business, when the
liability for which the offer is made is attributable to a
transaction or transactions substantially similar to the transaction
or transactions for which the taxpayer's liability was previously
compromised.
(C) A business in which a taxpayer who previously received a
compromise under paragraph (2) has a controlling interest or
association with a similar type of business for which the taxpayer
received the compromise, when the liability of the business making
the offer arose from a transaction or transactions substantially
similar to the transaction or transactions for which the taxpayer's
liability was previously compromised.
(d) The board may, in its discretion, enter into a written
agreement which permits the taxpayer to pay the compromise in
installments for a period not exceeding one year. The agreement may
provide that such installments shall be paid by electronic funds
transfers or any other means to facilitate the payment of each
installment.
(e) Except for any recommendation for approval as specified in
subdivision (a), the members of the State Board of Equalization shall
not participate in any offer in compromise matters pursuant to this
section.
(f) A taxpayer that has received a compromise under paragraph (2)
of subdivision (c) may be required to enter into any collateral
agreement that is deemed necessary for the protection of the
interests of the state. A collateral agreement may include a
provision that allows the board to reestablish the liability, or any
portion thereof, if the taxpayer has sufficient annual income during
the succeeding five-year period. The board shall establish criteria
for determining "sufficient annual income" for purposes of this
subdivision.
(g) A taxpayer that has received a compromise under paragraph (2)
of subdivision (c) shall file and pay by the due date all
subsequently required tax returns and reports for a five-year period
from the date the liability is compromised, or until the taxpayer is
no longer required to file tax returns and reports, whichever period
is earlier.
(h) Offers in compromise shall not be considered where the
taxpayer has been convicted of felony tax evasion under this part
during the liability period.
(i) For amounts to be compromised under this section, the
following conditions shall exist:
(1) The taxpayer shall establish that:
(A) The amount offered in payment is the most that can be expected
to be paid or collected from the taxpayer's present assets or
income.
(B) The taxpayer does not have reasonable prospects of acquiring
increased income or assets that would enable the taxpayer to satisfy
a greater amount of the liability than the amount offered, within a
reasonable period of time.
(2) The board shall have determined that acceptance of the
compromise is in the best interest of the state.
(j) A determination by the board that it would not be in the best
interest of the state to accept an offer in compromise in
satisfaction of a final tax liability shall not be subject to
administrative appeal or judicial review.
(k) (1) Offers for liabilities with a fraud or evasion penalty
shall require a minimum offer of the unpaid tax and fraud or evasion
penalty.
(2) The minimum offer may be waived if it can be shown that the
taxpayer making the offer was not the person responsible for
perpetrating the fraud or evasion. This authorization to waive only
applies to partnership accounts where the intent to commit fraud or
evasion can be clearly attributed to a partner of the taxpayer.
(l) When an offer in compromise is either accepted or rejected, or
the terms and conditions of a compromise agreement are fulfilled,
the board shall notify the taxpayer in writing. In the event an offer
is rejected, the amount posted will either be applied to the
liability or refunded, at the discretion of the taxpayer.
(m) When more than one taxpayer is liable for the debt, such as
with spouses or partnerships or other business combinations,
including, but not limited to, taxpayers who are liable through dual
determination or successor's liability, the acceptance of an offer in
compromise from one liable taxpayer shall reduce the amount of the
liability of the other taxpayers by the amount of the accepted offer.
(n) Whenever a compromise of tax or penalties or total tax and
penalties in excess of five hundred dollars ($500) is approved, there
shall be placed on file for at least one year in the office of the
executive director of the board a public record with respect to that
compromise. The public record shall include all of the following
information:
(1) The name of the taxpayer.
(2) The amount of unpaid tax and related penalties, additions to
tax, interest, or other amounts involved.
(3) The amount offered.
(4) A summary of the reason why the compromise is in the best
interest of the state.
The public record shall not include any information that relates
to any trade secrets, patent, process, style of work, apparatus,
business secret, or organizational structure, that if disclosed,
would adversely affect the taxpayer or violate the confidentiality
provisions of Section 32455. No list shall be prepared and no
releases distributed by the board in connection with these
statements.
(o) Any compromise made under this section may be rescinded, all
compromised liabilities may be reestablished, without regard to any
statute of limitations that otherwise may be applicable, and no
portion of the amount offered in compromise refunded, if either of
the following occurs:
(1) The board determines that any person did any of the following
acts regarding the making of the offer:
(A) Concealed from the board any property belonging to the estate
of any taxpayer or other person liable for the tax.
(B) Received, withheld, destroyed, mutilated, or falsified any
book, document, or record or made any false statement, relating to
the estate or financial condition of the taxpayer or other person
liable for the tax.
(2) The taxpayer fails to comply with any of the terms and
conditions relative to the offer.
(p) Any person who, in connection with any offer or compromise
under this section, or offer of that compromise to enter into that
agreement, willfully does either of the following shall be guilty of
a felony and, upon conviction, shall be fined not more than fifty
thousand dollars ($50,000) or imprisoned in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code , or both, together with the costs of investigation
and prosecution:
(1) Conceals from any officer or employee of this state any
property belonging to the estate of a taxpayer or other person liable
in respect of the tax.
(2) Receives, withholds, destroys, mutilates, or falsifies any
book, document, or record, or makes any false statement, relating to
the estate or financial condition of the taxpayer or other person
liable in respect of the tax.
(q) For purposes of this section, "person" means the taxpayer, any
member of the taxpayer's family, any corporation, agent, fiduciary,
or representative of, or any other individual or entity acting on
behalf of, the taxpayer, or any other corporation or entity owned or
controlled by the taxpayer, directly or indirectly, or that owns or
controls the taxpayer, directly or indirectly.
(r) This section shall remain in effect only until January
1, 2013, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2013, deletes or extends
that date.
SEC. 577. Section 32471.5 of the Revenue and Taxation
Code, as added by Chapter 222 of the Statutes of 2008, is amended to
read:
32471.5. (a) (1) The executive director and chief counsel of the
board, or their delegates, may compromise any final tax liability
where the reduction of tax is seven thousand five hundred dollars
($7,500) or less.
(2) Except as provided in paragraph (3), the board, upon
recommendation by its executive director and chief counsel, jointly,
may compromise a final tax liability involving a reduction in tax in
excess of seven thousand five hundred dollars ($7,500). Any
recommendation for approval of an offer in compromise that is not
either approved or disapproved within 45 days of the submission of
the recommendation shall be deemed approved.
(3) The board, itself, may by resolution delegate to the executive
director and the chief counsel, jointly, the authority to compromise
a final tax liability in which the reduction of tax is in excess of
seven thousand five hundred dollars ($7,500), but less than ten
thousand dollars ($10,000).
(b) For purposes of this section, "a final tax liability" means
any final tax liability arising under Part 14 (commencing with
Section 32001), or related interest, additions to tax, penalties, or
other amounts assessed under this part.
(c) Offers in compromise shall be considered only for liabilities
that were generated by a business that has been discontinued or
transferred, where the taxpayer making the offer no longer has a
controlling interest or association with the transferred business or
has a controlling interest or association with a similar type of
business as the transferred or discontinued business.
(d) Offers in compromise shall not be considered where the
taxpayer has been convicted of felony tax evasion under this part
during the liability period.
(e) For amounts to be compromised under this section, the
following conditions shall exist:
(1) The taxpayer shall establish that:
(A) The amount offered in payment is the most that can be expected
to be paid or collected from the taxpayer's present assets or
income.
(B) The taxpayer does not have reasonable prospects of acquiring
increased income or assets that would enable the taxpayer to satisfy
a greater amount of the liability than the amount offered, within a
reasonable period of time.
(2) The board shall have determined that acceptance of the
compromise is in the best interest of the state.
(f) A determination by the board that it would not be in the best
interest of the state to accept an offer in compromise in
satisfaction of a final tax liability shall not be subject to
administrative appeal or judicial review.
(g) (1) Offers for liabilities with a fraud or evasion penalty
shall require a minimum offer of the unpaid tax and fraud or evasion
penalty.
(2) The minimum offer may be waived if it can be shown that the
taxpayer making the offer was not the person responsible for
perpetrating the fraud or evasion. This authorization to waive only
applies to partnership accounts where the intent to commit fraud or
evasion can be clearly attributed to a partner of the taxpayer.
(h) When an offer in compromise is either accepted or rejected, or
the terms and conditions of a compromise agreement are fulfilled,
the board shall notify the taxpayer in writing. In the event an offer
is rejected, the amount posted will either be applied to the
liability or refunded, at the discretion of the taxpayer.
(i) When more than one taxpayer is liable for the debt, such as
with spouses or partnerships or other business combinations,
including, but not limited to, taxpayers who are liable through dual
determination or successor's liability, the acceptance of an offer in
compromise from one liable taxpayer shall reduce the amount of the
liability of the other taxpayers by the amount of the accepted offer.
(j) Whenever a compromise of tax or penalties or total tax and
penalties in excess of five hundred dollars ($500) is approved, there
shall be placed on file for at least one year in the office of the
executive director of the board a public record with respect to that
compromise. The public record shall include all of the following
information:
(1) The name of the taxpayer.
(2) The amount of unpaid tax and related penalties, additions to
tax, interest, or other amounts involved.
(3) The amount offered.
(4) A summary of the reason why the compromise is in the best
interest of the state.
The public record shall not include any information that relates
to any trade secrets, patent, process, style of work, apparatus,
business secret, or organizational structure, that if disclosed,
would adversely affect the taxpayer or violate the confidentiality
provisions of Section 32455. No list shall be prepared and no
releases distributed by the board in connection with these
statements.
(k) Any compromise made under this section may be rescinded, all
compromised liabilities may be reestablished, without regard to any
statute of limitations that otherwise may be applicable, and no
portion of the amount offered in compromise refunded, if either of
the following occurs:
(1) The board determines that any person did any of the following
acts regarding the making of the offer:
(A) Concealed from the board any property belonging to the estate
of any taxpayer or other person liable for the tax.
(B) Received, withheld, destroyed, mutilated, or falsified any
book, document, or record or made any false statement, relating to
the estate or financial condition of the taxpayer or other person
liable for the tax.
(2) The taxpayer fails to comply with any of the terms and
conditions relative to the offer.
(l) Any person who, in connection with any offer or compromise
under this section, or offer of that compromise to enter into that
agreement, willfully does either of the following shall be guilty of
a felony and, upon conviction, shall be fined not more than fifty
thousand dollars ($50,000) or imprisoned in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code , or both, together with the costs of investigation
and prosecution:
(1) Conceals from any officer or employee of this state any
property belonging to the estate of a taxpayer or other person liable
in respect of the tax.
(2) Receives, withholds, destroys, mutilates, or falsifies any
book, document, or record, or makes any false statement, relating to
the estate or financial condition of the taxpayer or other person
liable in respect of the tax.
(m) For purposes of this section, "person" means the taxpayer, any
member of the taxpayer's family, any corporation, agent, fiduciary,
or representative of, or any other individual or entity acting on
behalf of, the taxpayer, or any other corporation or entity owned or
controlled by the taxpayer, directly or indirectly, or that owns or
controls the taxpayer, directly or indirectly.
(n) This section shall become operative on January 1, 2013.
SEC. 578. Section 32555 of the Revenue and Taxation
Code is amended to read:
32555. Every person convicted of a felony for a violation of any
of the provisions of this part for which another punishment is not
specifically provided for in this part shall be punished by a fine of
not more than ten thousand dollars ($10,000) or by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code , or by both such fine
and imprisonment.
SEC. 579. Section 38800 of the Revenue and Taxation
Code is amended to read:
38800. (a) (1) Beginning on January 1, 2007, the executive
director and chief counsel of the board, or their delegates, may
compromise any final tax liability where the reduction of tax is
seven thousand five hundred dollars ($7,500) or less.
(2) Except as provided in paragraph (3), the board, upon
recommendation by its executive director and chief counsel, jointly,
may compromise a final tax liability involving a reduction in tax in
excess of seven thousand five hundred dollars ($7,500). Any
recommendation for approval of an offer in compromise that is not
either approved or disapproved within 45 days of the submission of
the recommendation shall be deemed approved.
(3) The board, itself, may by resolution delegate to the executive
director and the chief counsel, jointly, the authority to compromise
a final tax liability in which the reduction of tax is in excess of
seven thousand five hundred dollars ($7,500), but less than ten
thousand dollars ($10,000).
(b) For purposes of this section, "a final tax liability" means
any final tax liability arising under Part 18.5 (commencing with
Section 38101), or related interest, additions to tax, penalties, or
other amounts assessed under this part.
(c) Offers in compromise shall be considered only for liabilities
that were generated from persons who no longer harvest timber, or
property owners that no longer harvest their property, except where
the taxpayer making the offer has their primary residence located on
the property that generated the timber tax liability.
(d) Offers in compromise shall not be considered where the
taxpayer has been convicted of felony tax evasion under this part
during the liability period.
(e) For amounts to be compromised under this section, the
following conditions shall exist:
(1) The taxpayer shall establish that:
(A) The amount offered in payment is the most that can be expected
to be paid or collected from the taxpayer's present assets or
income.
(B) The taxpayer does not have reasonable prospects of acquiring
increased income or assets that would enable the taxpayer to satisfy
a greater amount of the liability than the amount offered, within a
reasonable period of time.
(2) The board shall have determined that acceptance of the
compromise is in the best interest of the state.
(f) A determination by the board that it would not be in the best
interest of the state to accept an offer in compromise in
satisfaction of a final tax liability shall not be subject to
administrative appeal or judicial review.
(g) (1) Offers for liabilities with a fraud or evasion penalty
shall require a minimum offer of the unpaid tax and fraud or evasion
penalty.
(2) The minimum offer may be waived if it can be shown that the
taxpayer making the offer was not the person responsible for
perpetrating the fraud or evasion. This authorization to waive only
applies to partnership accounts where the intent to commit fraud or
evasion can be clearly attributed to a partner of the taxpayer.
(h) When an offer in compromise is either accepted or rejected, or
the terms and conditions of a compromise agreement are fulfilled,
the board shall notify the taxpayer in writing. In the event an offer
is rejected, the amount posted will either be applied to the
liability or refunded, at the discretion of the taxpayer.
(i) When more than one taxpayer is liable for the debt, such as
with spouses or partnerships or other business combinations,
including, but not limited to, taxpayers who are liable through dual
determination or successor's liability, the acceptance of an offer in
compromise from one liable taxpayer shall reduce the amount of the
liability of the other taxpayers by the amount of the accepted offer.
(j) Whenever a compromise of tax or penalties or total tax and
penalties in excess of five hundred dollars ($500) is approved, there
shall be placed on file for at least one year in the office of the
executive director of the board a public record with respect to that
compromise. The public record shall include all of the following
information:
(1) The name of the taxpayer.
(2) The amount of unpaid tax and related penalties, additions to
tax, interest, or other amounts involved.
(3) The amount offered.
(4) A summary of the reason why the compromise is in the best
interest of the state.
The public record shall not include any information that relates
to any trade secrets, patent, process, style of work, apparatus,
business secret, or organizational structure, that if disclosed,
would adversely affect the taxpayer or violate the confidentiality
provisions of Section 38705. No list shall be prepared and no
releases distributed by the board in connection with these
statements.
(k) Any compromise made under this section may be rescinded, all
compromised liabilities may be reestablished, without regard to any
statute of limitations that otherwise may be applicable, and no
portion of the amount offered in compromise refunded, if either of
the following occurs:
(1) The board determines that any person did any of the following
acts regarding the making of the offer:
(A) Concealed from the board any property belonging to the estate
of any taxpayer or other person liable for the tax.
(B) Received, withheld, destroyed, mutilated, or falsified any
book, document, or record or made any false statement, relating to
the estate or financial condition of the taxpayer or other person
liable for the tax.
(2) The taxpayer fails to comply with any of the terms and
conditions relative to the offer.
(l) Any person who, in connection with any offer or compromise
under this section, or offer of that compromise to enter into that
agreement, willfully does either of the following shall be guilty of
a felony and, upon conviction, shall be fined not more than fifty
thousand dollars ($50,000) or imprisoned in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code , or both, together with the costs of investigation
and prosecution:
(1) Conceals from any officer or employee of this state any
property belonging to the estate of a taxpayer or other person liable
in respect of the tax.
(2) Receives, withholds, destroys, mutilates, or falsifies any
book, document, or record, or makes any false statement, relating to
the estate or financial condition of the taxpayer or other person
liable in respect of the tax.
(m) For purposes of this section, "person" means the taxpayer, any
member of the taxpayer's family, any corporation, agent, fiduciary,
or representative of, or any other individual or entity acting on
behalf of, the taxpayer, or any other corporation or entity owned or
controlled by the taxpayer, directly or indirectly, or that owns or
controls the taxpayer, directly or indirectly.
SEC. 580. Section 40211.5 of the Revenue and Taxation
Code is amended to read:
40211.5. (a) (1) Beginning on January 1, 2007, the executive
director and chief counsel of the board, or their delegates, may
compromise any final surcharge liability where the reduction of
surcharges is seven thousand five hundred dollars ($7,500) or less.
(2) Except as provided in paragraph (3), the board, upon
recommendation by its executive director and chief counsel, jointly,
may compromise a final surcharge liability involving a reduction in
surcharges in excess of seven thousand five hundred dollars ($7,500).
Any recommendation for approval of an offer in compromise that is
not either approved or disapproved within 45 days of the submission
of the recommendation shall be deemed approved.
(3) The board, itself, may by resolution delegate to the executive
director and the chief counsel, jointly, the authority to compromise
a final surcharge liability in which the reduction of surcharges is
in excess of seven thousand five hundred dollars ($7,500), but less
than ten thousand dollars ($10,000).
(b) For purposes of this section, "a final surcharge liability"
means any final surcharge liability arising under Part 19 (commencing
with Section 40001), or related interest, additions to surcharges,
penalties, or other amounts assessed under this part.
(c) Offers in compromise shall be considered only for liabilities
that were generated from a business that has been discontinued or
transferred, where the surcharge payer making the offer no longer has
a controlling interest or association with the transferred business
or has a controlling interest or association with a similar type of
business as the transferred or discontinued business.
(d) Offers in compromise shall not be considered where the
surcharge payer has been convicted of felony tax evasion under this
part during the liability period.
(e) For amounts to be compromised under this section, the
following conditions shall exist:
(1) The surcharge payer shall establish that:
(A) The amount offered in payment is the most that can be expected
to be paid or collected from the surcharge payer's present assets or
income.
(B) The surcharge payer does not have reasonable prospects of
acquiring increased income or assets that would enable the surcharge
payer to satisfy a greater amount of the liability than the amount
offered, within a reasonable period of time.
(2) The board shall have determined that acceptance of the
compromise is in the best interest of the state.
(f) A determination by the board that it would not be in the best
interest of the state to accept an offer in compromise in
satisfaction of a final surcharge liability shall not be subject to
administrative appeal or judicial review.
(g) (1) Offers for liabilities with a fraud or evasion penalty
shall require a minimum offer of the unpaid surcharge and fraud or
evasion penalty.
(2) The minimum offer may be waived if it can be shown that the
surcharge payer making the offer was not the person responsible for
perpetrating the fraud or evasion. This authorization to waive only
applies to partnership accounts where the intent to commit fraud or
evasion can be clearly attributed to a partner of the surcharge
payer.
(h) When an offer in compromise is either accepted or rejected, or
the terms and conditions of a compromise agreement are fulfilled,
the board shall notify the surcharge payer in writing. In the event
an offer is rejected, the amount posted will either be applied to the
liability or refunded, at the discretion of the surcharge payer.
(i) When more than one surcharge payer is liable for the debt,
such as with spouses or partnerships or other business combinations,
including, but not limited to, surcharge payers who are liable
through dual determination or successor's liability, the acceptance
of an offer in compromise from one liable surcharge payer shall
reduce the amount of the liability of the other surcharge payers by
the amount of the accepted offer.
(j) Whenever a compromise of surcharges or penalties or total
surcharges and penalties in excess of five hundred dollars ($500) is
approved, there shall be placed on file for at least one year in the
office of the executive director of the board a public record with
respect to that compromise. The public record shall include all of
the following information:
(1) The name of the surcharge payer.
(2) The amount of unpaid surcharges and related penalties,
additions to surcharges, interest, or other amounts involved.
(3) The amount offered.
(4) A summary of the reason why the compromise is in the best
interest of the state.
The public record shall not include any information that relates
to any trade secrets, patent, process, style of work, apparatus,
business secret, or organizational structure, that if disclosed,
would adversely affect the surcharge payer or violate the
confidentiality provisions of Section 40175. No list shall be
prepared and no releases distributed by the board in connection with
these statements.
(k) Any compromise made under this section may be rescinded, all
compromised liabilities may be reestablished, without regard to any
statute of limitations that otherwise may be applicable, and no
portion of the amount offered in compromise refunded, if either of
the following occurs:
(1) The board determines that any person did any of the following
acts regarding the making of the offer:
(A) Concealed from the board any property belonging to the estate
of any surcharge payer or other person liable for the surcharge.
(B) Received, withheld, destroyed, mutilated, or falsified any
book, document, or record or made any false statement, relating to
the estate or financial condition of the surcharge payer or other
person liable for the surcharge.
(2) The surcharge payer fails to comply with any of the terms and
conditions relative to the offer.
(l) Any person who, in connection with any offer or compromise
under this section, or offer of that compromise to enter into that
agreement, willfully does either of the following shall be guilty of
a felony and, upon conviction, shall be fined not more than fifty
thousand dollars ($50,000) or imprisoned in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code , or both, together with the costs of investigation
and prosecution:
(1) Conceals from any officer or employee of this state any
property belonging to the estate of a surcharge payer or other person
liable in respect of the surcharge.
(2) Receives, withholds, destroys, mutilates, or falsifies any
book, document, or record, or makes any false statement, relating to
the estate or financial condition of the surcharge payer or other
person liable in respect of the surcharge.
(m) For purposes of this section, "person" means the taxpayer, any
member of the surcharge payer's family, any corporation, agent,
fiduciary, or representative of, or any other individual or entity
acting on behalf of, the surcharge payer, or any other corporation or
entity owned or controlled by the surcharge payer, directly or
indirectly, or that owns or controls the surcharge payer, directly or
indirectly.
SEC. 581. Section 41171.5 of the Revenue and Taxation
Code, as amended by Section 5 of Chapter 222 of the Statutes of 2008,
is amended to read:
41171.5. (a) (1) Beginning on January 1, 2007, the executive
director and chief counsel of the board, or their delegates, may
compromise any final surcharge liability where the reduction of
surcharges is seven thousand five hundred dollars ($7,500) or less.
(2) Except as provided in paragraph (3), the board, upon
recommendation by its executive director and chief counsel, jointly,
may compromise a final surcharge liability involving a reduction in
surcharges in excess of seven thousand five hundred dollars ($7,500).
Any recommendation for approval of an offer in compromise that is
not either approved or disapproved within 45 days of the submission
of the recommendation shall be deemed approved.
(3) The board, itself, may by resolution delegate to the executive
director and the chief counsel, jointly, the authority to compromise
a final surcharge liability in which the reduction of surcharges is
in excess of seven thousand five hundred dollars ($7,500), but less
than ten thousand dollars ($10,000).
(b) For purposes of this section, "a final surcharge liability"
means any final surcharge liability arising under Part 20 (commencing
with Section 41001), or related interest, additions to surcharges,
penalties, or other amounts assessed under this part.
(c) (1) Offers in compromise shall be considered only for
liabilities that were generated from a business that has been
discontinued or transferred, where the surcharge payer making the
offer no longer has a controlling interest or association with the
transferred business or has a controlling interest or association
with a similar type of business as the transferred or discontinued
business.
(2) Notwithstanding paragraph (1), a qualified final surcharge
liability may be compromised regardless of whether the business has
been discontinued or transferred or whether the surcharge payer has a
controlling interest or association with a similar type of business
as the transferred or discontinued business. All other provisions of
this section that apply to a final surcharge liability shall also
apply to a qualified final surcharge liability, and no compromise
shall be made under this subdivision unless all other requirements of
this section are met. For purposes of this subdivision, a "qualified
final surcharge liability" means either of the following:
(A) That part of a final surcharge liability, including related
interest, additions to surcharge, penalties, or other amounts
assessed under this part, arising from a transaction or transactions
in which the board finds no evidence that the service supplier
collected the surcharge from the service user or other person and
which was determined against the service supplier under Article 3
(commencing with Section 41070), Article 4 (commencing with Section
41080), or Article 5 (commencing with Section 41085) of Chapter 4.
(B) That part of a final surcharge liability, including related
interest, additions to surcharge, penalties, or other amounts
assessed under this part, determined under Article 3 (commencing with
Section 41070), Article 4 (commencing with Section 41080), and
Article 5 (commencing with Section 41085) of Chapter 4 against a
service user who is a consumer that is not required to register with
the board under Article 3 (commencing with section 41040) of Chapter
2.
(3) A qualified final surcharge liability may not be compromised
with any of the following:
(A) A surcharge payer who previously received a compromise under
paragraph (2) for a liability, or a part thereof, arising from a
transaction or transactions that are substantially similar to the
transaction or transactions attributable to the liability for which
the surcharge payer is making the offer.
(B) A business that was transferred by a surcharge payer who
previously received a compromise under paragraph (2) and who has a
controlling interest or association with the transferred business,
when the liability for which the offer is made is attributable to a
transaction or transactions substantially similar to the transaction
or transactions for which the surcharge payer's liability was
previously compromised.
(C) A business in which a surcharge payer who previously received
a compromise under paragraph (2) has a controlling interest or
association with a similar type of business for which the surcharge
payer received the compromise, when the liability of the business
making the offer arose from a transaction or transactions
substantially similar to the transaction or transactions for which
the surcharge payer's liability was previously compromised.
(d) The
board may, in its discretion, enter into a written agreement which
permits the surcharge payer to pay the compromise in installments for
a period not exceeding one year. The agreement may provide that such
installments shall be paid by electronic funds transfers or any
other means to facilitate the payment of each installment.
(e) Except for any recommendation for approval as specified in
subdivision (a), the members of the State Board of Equalization shall
not participate in any offer in compromise matters pursuant to this
section.
(f) A surcharge payer that has received a compromise under
paragraph (2) of subdivision (c) may be required to enter into any
collateral agreement that is deemed necessary for the protection of
the interests of the state. A collateral agreement may include a
provision that allows the board to reestablish the liability, or any
portion thereof, if the surcharge payer has sufficient annual income
during the succeeding five-year period. The board shall establish
criteria for determining "sufficient annual income" for purposes of
this subdivision.
(g) A surcharge payer that has received a compromise under
paragraph (2) of subdivision (c) shall file and pay by the due date
all subsequently required emergency telephone users surcharge returns
for a five-year period from the date the liability is compromised,
or until the surcharge payer is no longer required to file emergency
telephone users surcharge returns, whichever period is earlier.
(h) Offers in compromise shall not be considered where the
surcharge payer has been convicted of felony tax evasion under this
part during the liability period.
(i) For amounts to be compromised under this section, the
following conditions shall exist:
(1) The surcharge payer shall establish that:
(A) The amount offered in payment is the most that can be expected
to be paid or collected from the surcharge payer's present assets or
income.
(B) The surcharge payer does not have reasonable prospects of
acquiring increased income or assets that would enable the surcharge
payer to satisfy a greater amount of the liability than the amount
offered, within a reasonable period of time.
(2) The board shall have determined that acceptance of the
compromise is in the best interest of the state.
(j) A determination by the board that it would not be in the best
interest of the state to accept an offer in compromise in
satisfaction of a final surcharge liability shall not be subject to
administrative appeal or judicial review.
(k) (1) Offers for liabilities with a fraud or evasion penalty
shall require a minimum offer of the unpaid surcharge and fraud or
evasion penalty.
(2) The minimum offer may be waived if it can be shown that the
surcharge payer making the offer was not the person responsible for
perpetrating the fraud or evasion. This authorization to waive only
applies to partnership accounts where the intent to commit fraud or
evasion can be clearly attributed to a partner of the surcharge
payer.
(l) When an offer in compromise is either accepted or rejected, or
the terms and conditions of a compromise agreement are fulfilled,
the board shall notify the surcharge payer in writing. In the event
an offer is rejected, the amount posted will either be applied to the
liability or refunded, at the discretion of the surcharge payer.
(m) When more than one surcharge payer is liable for the debt,
such as with spouses or partnerships or other business combinations,
including, but not limited to, surcharge payers who are liable
through dual determination or successor's liability, the acceptance
of an offer in compromise from one liable surcharge payer shall
reduce the amount of the liability of the other surcharge payers by
the amount of the accepted offer.
(n) Whenever a compromise of surcharges or penalties or total
surcharges and penalties in excess of five hundred dollars ($500) is
approved, there shall be placed on file for at least one year in the
office of the executive director of the board a public record with
respect to that compromise. The public record shall include all of
the following information:
(1) The name of the surcharge payer.
(2) The amount of unpaid surcharges and related penalties,
additions to surcharges, interest, or other amounts involved.
(3) The amount offered.
(4) A summary of the reason why the compromise is in the best
interest of the state.
The public record shall not include any information that relates
to any trade secrets, patent, process, style of work, apparatus,
business secret, or organizational structure, that if disclosed,
would adversely affect the surcharge payer or violate the
confidentiality provisions of Section 41131. No list shall be
prepared and no releases distributed by the board in connection with
these statements.
(o) Any compromise made under this section may be rescinded, all
compromised liabilities may be reestablished, without regard to any
statute of limitations that otherwise may be applicable, and no
portion of the amount offered in compromise refunded, if either of
the following occurs:
(1) The board determines that any person did any of the following
acts regarding the making of the offer:
(A) Concealed from the board any property belonging to the estate
of any surcharge payer or other person liable for the surcharge.
(B) Received, withheld, destroyed, mutilated, or falsified any
book, document, or record or made any false statement, relating to
the estate or financial condition of the surcharge payer or other
person liable for the surcharge.
(2) The surcharge payer fails to comply with any of the terms and
conditions relative to the offer.
(p) Any person who, in connection with any offer or compromise
under this section, or offer of that compromise to enter into that
agreement, willfully does either of the following shall be guilty of
a felony and, upon conviction, shall be fined not more than fifty
thousand dollars ($50,000) or imprisoned in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code , or both, together with the costs of investigation
and prosecution:
(1) Conceals from any officer or employee of this state any
property belonging to the estate of a surcharge payer or other person
liable in respect of the surcharge.
(2) Receives, withholds, destroys, mutilates, or falsifies any
book, document, or record, or makes any false statement, relating to
the estate or financial condition of the surcharge payer or other
person liable in respect of the surcharge.
(q) For purposes of this section, "person" means the surcharge
payer, any member of the surcharge payer's family, any corporation,
agent, fiduciary, or representative of, or any other individual or
entity acting on behalf of, the surcharge payer, or any other
corporation or entity owned or controlled by the surcharge payer,
directly or indirectly, or that owns or controls the surcharge payer,
directly or indirectly.
(r) This section shall remain in effect only until January 1,
2013, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2013, deletes or extends
that date.
SEC. 582. Section 41171.5 of the Revenue and Taxation
Code, as added by Chapter 222 of the Statutes of 2008, is amended to
read:
41171.5. (a) (1) The executive director and chief counsel of the
board, or their delegates, may compromise any final surcharge
liability where the reduction of surcharges is seven thousand five
hundred dollars ($7,500) or less.
(2) Except as provided in paragraph (3), the board, upon
recommendation by its executive director and chief counsel, jointly,
may compromise a final surcharge liability involving a reduction in
surcharges in excess of seven thousand five hundred dollars ($7,500).
Any recommendation for approval of an offer in compromise that is
not either approved or disapproved within 45 days of the submission
of the recommendation shall be deemed approved.
(3) The board, itself, may by resolution delegate to the executive
director and the chief counsel, jointly, the authority to compromise
a final surcharge liability in which the reduction of surcharges is
in excess of seven thousand five hundred dollars ($7,500), but less
than ten thousand dollars ($10,000).
(b) For purposes of this section, "a final surcharge liability"
means any final surcharge liability arising under Part 20 (commencing
with Section 41001), or related interest, additions to surcharges,
penalties, or other amounts assessed under this part.
(c) Offers in compromise shall be considered only for liabilities
that were generated from a business that has been discontinued or
transferred, where the surcharge payer making the offer no longer has
a controlling interest or association with the transferred business
or has a controlling interest or association with a similar type of
business as the transferred or discontinued business.
(d) Offers in compromise shall not be considered where the
surcharge payer has been convicted of felony tax evasion under this
part during the liability period.
(e) For amounts to be compromised under this section, the
following conditions shall exist:
(1) The surcharge payer shall establish that:
(A) The amount offered in payment is the most that can be expected
to be paid or collected from the surcharge payer's present assets or
income.
(B) The surcharge payer does not have reasonable prospects of
acquiring increased income or assets that would enable the surcharge
payer to satisfy a greater amount of the liability than the amount
offered, within a reasonable period of time.
(2) The board shall have determined that acceptance of the
compromise is in the best interest of the state.
(f) A determination by the board that it would not be in the best
interest of the state to accept an offer in compromise in
satisfaction of a final surcharge liability shall not be subject to
administrative appeal or judicial review.
(g) (1) Offers for liabilities with a fraud or evasion penalty
shall require a minimum offer of the unpaid surcharge and fraud or
evasion penalty.
(2) The minimum offer may be waived if it can be shown that the
surcharge payer making the offer was not the person responsible for
perpetrating the fraud or evasion. This authorization to waive only
applies to partnership accounts where the intent to commit fraud or
evasion can be clearly attributed to a partner of the surcharge
payer.
(h) When an offer in compromise is either accepted or rejected, or
the terms and conditions of a compromise agreement are fulfilled,
the board shall notify the surcharge payer in writing. In the event
an offer is rejected, the amount posted will either be applied to the
liability or refunded, at the discretion of the surcharge payer.
(i) When more than one surcharge payer is liable for the debt,
such as with spouses or partnerships or other business combinations,
including, but not limited to, surcharge payers who are liable
through dual determination or successor's liability, the acceptance
of an offer in compromise from one liable surcharge payer shall
reduce the amount of the liability of the other surcharge payers by
the amount of the accepted offer.
(j) Whenever a compromise of surcharges or penalties or total
surcharges and penalties in excess of five hundred dollars ($500) is
approved, there shall be placed on file for at least one year in the
office of the executive director of the board a public record with
respect to that compromise. The public record shall include all of
the following information:
(1) The name of the surcharge payer.
(2) The amount of unpaid surcharges and related penalties,
additions to surcharges, interest, or other amounts involved.
(3) The amount offered.
(4) A summary of the reason why the compromise is in the best
interest of the state.
The public record shall not include any information that relates
to any trade secrets, patent, process, style of work, apparatus,
business secret, or organizational structure, that if disclosed,
would adversely affect the surcharge payer or violate the
confidentiality provisions of Section 41131. No list shall be
prepared and no releases distributed by the board in connection with
these statements.
(k) Any compromise made under this section may be rescinded, all
compromised liabilities may be reestablished, without regard to any
statute of limitations that otherwise may be applicable, and no
portion of the amount offered in compromise refunded, if either of
the following occurs:
(1) The board determines that any person did any of the following
acts regarding the making of the offer:
(A) Concealed from the board any property belonging to the estate
of any surcharge payer or other person liable for the surcharge.
(B) Received, withheld, destroyed, mutilated, or falsified any
book, document, or record or made any false statement, relating to
the estate or financial condition of the surcharge payer or other
person liable for the surcharge.
(2) The surcharge payer fails to comply with any of the terms and
conditions relative to the offer.
(l) Any person who, in connection with any offer or compromise
under this section, or offer of that compromise to enter into that
agreement, willfully does either of the following shall be guilty of
a felony and, upon conviction, shall be fined not more than fifty
thousand dollars ($50,000) or imprisoned in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code , or both, together with the costs of investigation
and prosecution:
(1) Conceals from any officer or employee of this state any
property belonging to the estate of a surcharge payer or other person
liable in respect of the surcharge.
(2) Receives, withholds, destroys, mutilates, or falsifies any
book, document, or record, or makes any false statement, relating to
the estate or financial condition of the surcharge payer or other
person liable in respect of the surcharge.
(m) For purposes of this section, "person" means the surcharge
payer, any member of the surcharge payer's family, any corporation,
agent, fiduciary, or representative of, or any other individual or
entity acting on behalf of, the surcharge payer, or any other
corporation or entity owned or controlled by the surcharge payer,
directly or indirectly, or that owns or controls the surcharge payer,
directly or indirectly.
(n) This section shall become operative on January 1, 2013.
SEC. 583. Section 43522.5 of the Revenue and Taxation
Code is amended to read:
43522.5. (a) (1) Beginning on January 1, 2007, the executive
director and chief counsel of the board, or their delegates, may
compromise any final tax liability where the reduction of tax is
seven thousand five hundred dollars ($7,500) or less.
(2) Except as provided in paragraph (3), the board, upon
recommendation by its executive director and chief counsel, jointly,
may compromise a final tax liability involving a reduction in tax in
excess of seven thousand five hundred dollars ($7,500). Any
recommendation for approval of an offer in compromise that is not
either approved or disapproved within 45 days of the submission of
the recommendation shall be deemed approved.
(3) The board, itself, may by resolution delegate to the executive
director and the chief counsel, jointly, the authority to compromise
a final tax liability in which the reduction of tax is in excess of
seven thousand five hundred dollars ($7,500), but less than ten
thousand dollars ($10,000).
(b) For purposes of this section, "a final tax liability" means
any final tax liability arising under Part 22 (commencing with
Section 43001), or related interest, additions to tax, penalties, or
other amounts assessed under this part.
(c) Offers in compromise shall be considered only for liabilities
that were generated from a business that has been discontinued or
transferred, where the taxpayer making the offer no longer has a
controlling interest or association with the transferred business or
has a controlling interest or association with a similar type of
business as the transferred or discontinued business.
(d) Offers in compromise shall not be considered where the
taxpayer has been convicted of felony tax evasion under this part
during the liability period.
(e) For amounts to be compromised under this section, the
following conditions shall exist:
(1) The taxpayer shall establish that:
(A) The amount offered in payment is the most that can be expected
to be paid or collected from the taxpayer's present assets or
income.
(B) The taxpayer does not have reasonable prospects of acquiring
increased income or assets that would enable the taxpayer to satisfy
a greater amount of the liability than the amount offered, within a
reasonable period of time.
(2) The board shall have determined that acceptance of the
compromise is in the best interest of the state.
(f) A determination by the board that it would not be in the best
interest of the state to accept an offer in compromise in
satisfaction of a final tax liability shall not be subject to
administrative appeal or judicial review.
(g) (1) Offers for liabilities with a fraud or evasion penalty
shall require a minimum offer of the unpaid tax and fraud or evasion
penalty.
(2) The minimum offer may be waived if it can be shown that the
taxpayer making the offer was not the person responsible for
perpetrating the fraud or evasion. This authorization to waive only
applies to partnership accounts where the intent to commit fraud or
evasion can be clearly attributed to a partner of the taxpayer.
(h) When an offer in compromise is either accepted or rejected, or
the terms and conditions of a compromise agreement are fulfilled,
the board shall notify the taxpayer in writing. In the event an offer
is rejected, the amount posted will either be applied to the
liability or refunded, at the discretion of the taxpayer.
(i) When more than one taxpayer is liable for the debt, such as
with spouses or partnerships or other business combinations,
including, but not limited to, taxpayers who are liable through dual
determination or successor's liability, the acceptance of an offer in
compromise from one liable taxpayer shall reduce the amount of the
liability of the other taxpayers by the amount of the accepted offer.
(j) Whenever a compromise of tax or penalties or total tax and
penalties in excess of five hundred dollars ($500) is approved, there
shall be placed on file for at least one year in the office of the
executive director of the board a public record with respect to that
compromise. The public record shall include all of the following
information:
(1) The name of the taxpayer.
(2) The amount of unpaid tax and related penalties, additions to
tax, interest, or other amounts involved.
(3) The amount offered.
(4) A summary of the reason why the compromise is in the best
interest of the state.
The public record shall not include any information that relates
to any trade secrets, patent, process, style of work, apparatus,
business secret, or organizational structure, that if disclosed,
would adversely affect the taxpayer or violate the confidentiality
provisions of Section 43651. No list shall be prepared and no
releases distributed by the board in connection with these
statements.
(k) Any compromise made under this section may be rescinded, all
compromised liabilities may be reestablished, without regard to any
statute of limitations that otherwise may be applicable, and no
portion of the amount offered in compromise refunded, if either of
the following occurs:
(1) The board determines that any person did any of the following
acts regarding the making of the offer:
(A) Concealed from the board any property belonging to the estate
of any taxpayer or other person liable for the tax.
(B) Received, withheld, destroyed, mutilated, or falsified any
book, document, or record or made any false statement, relating to
the estate or financial condition of the taxpayer or other person
liable for the tax.
(2) The taxpayer fails to comply with any of the terms and
conditions relative to the offer.
(l) Any person who, in connection with any offer or compromise
under this section, or offer of that compromise to enter into that
agreement, willfully does either of the following shall be guilty of
a felony and, upon conviction, shall be fined not more than fifty
thousand dollars ($50,000) or imprisoned in the state prison
pursuant to subdivision (h) of Section 1170
of the Penal Code , or both, together with the costs of
investigation and prosecution:
(1) Conceals from any officer or employee of this state any
property belonging to the estate of a taxpayer or other person liable
in respect of the tax.
(2) Receives, withholds, destroys, mutilates, or falsifies any
book, document, or record, or makes any false statement, relating to
the estate or financial condition of the taxpayer or other person
liable in respect of the tax.
(m) For purposes of this section, "person" means the taxpayer, any
member of the taxpayer's family, any corporation, agent, fiduciary,
or representative of, or any other individual or entity acting on
behalf of, the taxpayer, or any other corporation or entity owned or
controlled by the taxpayer, directly or indirectly, or that owns or
controls the taxpayer, directly or indirectly.
SEC. 584. Section 43606 of the Revenue and Taxation
Code is amended to read:
43606. Every person convicted of a felony for a violation of any
of the provisions of this part for which another punishment is not
specifically provided for in this part shall be punished by a fine of
not more than five thousand dollars ($5,000), by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code , or by both that fine
and imprisonment.
SEC. 585. Section 45867.5 of the Revenue and Taxation
Code is amended to read:
45867.5. (a) (1) Beginning on January 1, 2007, the executive
director and chief counsel of the board, or their delegates, may
compromise any final fee liability where the reduction of fees is
seven thousand five hundred dollars ($7,500) or less.
(2) Except as provided in paragraph (3), the board, upon
recommendation by its executive director and chief counsel, jointly,
may compromise a final fee liability involving a reduction in fees in
excess of seven thousand five hundred dollars ($7,500). Any
recommendation for approval of an offer in compromise that is not
either approved or disapproved within 45 days of the submission of
the recommendation shall be deemed approved.
(3) The board, itself, may by resolution delegate to the executive
director and the chief counsel, jointly, the authority to compromise
a final fee liability in which the reduction of fees is in excess of
seven thousand five hundred dollars ($7,500), but less than ten
thousand dollars ($10,000).
(b) For purposes of this section, "a final fee liability" means
any final fee liability arising under Part 23 (commencing with
Section 45001), or related interest, additions to fees, penalties, or
other amounts assessed under this part.
(c) Offers in compromise shall be considered only for liabilities
that were generated from a business that has been discontinued or
transferred, where the fee payer making the offer no longer has a
controlling interest or association with the transferred business or
has a controlling interest or association with a similar type of
business as the transferred or discontinued business.
(d) Offers in compromise shall not be considered where the fee
payer has been convicted of felony tax evasion under this part during
the liability period.
(e) For amounts to be compromised under this section, the
following conditions shall exist:
(1) The fee payer shall establish that:
(A) The amount offered in payment is the most that can be expected
to be paid or collected from the fee payer's present assets or
income.
(B) The fee payer does not have reasonable prospects of acquiring
increased income or assets that would enable the fee payer to satisfy
a greater amount of the liability than the amount offered, within a
reasonable period of time.
(2) The board shall have determined that acceptance of the
compromise is in the best interest of the state.
(f) A determination by the board that it would not be in the best
interest of the state to accept an offer in compromise in
satisfaction of a final fee liability shall not be subject to
administrative appeal or judicial review.
(g) (1) Offers for liabilities with a fraud or evasion penalty
shall require a minimum offer of the unpaid fee and fraud or evasion
penalty.
(2) The minimum offer may be waived if it can be shown that the
fee payer making the offer was not the person responsible for
perpetrating the fraud or evasion. This authorization to waive only
applies to partnership accounts where the intent to commit fraud or
evasion can be clearly attributed to a partner of the fee payer.
(h) When an offer in compromise is either accepted or rejected, or
the terms and conditions of a compromise agreement are fulfilled,
the board shall notify the fee payer in writing. In the event an
offer is rejected, the amount posted will either be applied to the
liability or refunded, at the discretion of the fee payer.
(i) When more than one fee payer is liable for the debt, such as
with spouses or partnerships or other business combinations,
including, but not limited to, fee payers who are liable through dual
determination or successor's liability, the acceptance of an offer
in compromise from one liable fee payer shall reduce the amount of
the liability of the other fee payers by the amount of the accepted
offer.
(j) Whenever a compromise of fees or penalties or total fees and
penalties in excess of five hundred dollars ($500) is approved, there
shall be placed on file for at least one year in the office of the
executive director of the board a public record with respect to that
compromise. The public record shall include all of the following
information:
(1) The name of the fee payer.
(2) The amount of unpaid fees and related penalties, additions to
fee, interest, or other amounts involved.
(3) The amount offered.
(4) A summary of the reason why the compromise is in the best
interest of the state.
The public record shall not include any information that relates
to any trade secrets, patent, process, style of work, apparatus,
business secret, or
organizational structure, that if disclosed, would adversely affect
the fee payer or violate the confidentiality provisions of Section
45855. No list shall be prepared and no releases distributed by the
board in connection with these statements.
(k) Any compromise made under this section may be rescinded, all
compromised liabilities may be reestablished, without regard to any
statute of limitations that otherwise may be applicable, and no
portion of the amount offered in compromise refunded, if either of
the following occurs:
(1) The board determines that any person did any of the following
acts regarding the making of the offer:
(A) Concealed from the board any property belonging to the estate
of any fee payer or other person liable for the fee.
(B) Received, withheld, destroyed, mutilated, or falsified any
book, document, or record or made any false statement, relating to
the estate or financial condition of the fee payer or other person
liable for the fee.
(2) The fee payer fails to comply with any of the terms and
conditions relative to the offer.
(l) Any person who, in connection with any offer or compromise
under this section, or offer of that compromise to enter into that
agreement, willfully does either of the following shall be guilty of
a felony and, upon conviction, shall be fined not more than fifty
thousand dollars ($50,000) or imprisoned in the state prison
pursuant to subdivision (h) of Section
1170 of the Penal Code , or both, together with the costs of
investigation and prosecution:
(1) Conceals from any officer or employee of this state any
property belonging to the estate of a fee payer or other person
liable in respect of the fee.
(2) Receives, withholds, destroys, mutilates, or falsifies any
book, document, or record, or makes any false statement, relating to
the estate or financial condition of the fee payer or other person
liable in respect of the fee.
(m) For purposes of this section, "person" means the fee payer,
any member of the fee payer's family, any corporation, agent,
fiduciary, or representative of, or any other individual or entity
acting on behalf of, the fee payer, or any other corporation or
entity owned or controlled by the fee payer, directly or indirectly,
or that owns or controls the fee payer, directly or indirectly.
SEC. 586. Section 45955 of the Revenue and Taxation
Code is amended to read:
45955. Every person convicted of a felony for a violation of any
provision of this part for which another punishment is not
specifically provided for in this part shall be punished by a fine of
not more than five thousand dollars ($5,000), by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code , or by both that fine
and imprisonment.
SEC. 587. Section 46628 of the Revenue and Taxation
Code, as amended by Section 6 of Chapter 222 of the Statutes of 2008,
is amended to read:
46628. (a) (1) Beginning on January 1, 2007, the executive
director and chief counsel of the board, or their delegates, may
compromise any final fee liability where the reduction of fees is
seven thousand five hundred dollars ($7,500) or less.
(2) Except as provided in paragraph (3), the board, upon
recommendation by its executive director and chief counsel, jointly,
may compromise a final fee liability involving a reduction in fees in
excess of seven thousand five hundred dollars ($7,500). Any
recommendation for approval of an offer in compromise that is not
either approved or disapproved within 45 days of the submission of
the recommendation shall be deemed approved.
(3) The board, itself, may by resolution delegate to the executive
director and the chief counsel, jointly, the authority to compromise
a final fee liability in which the reduction of fees is in excess of
seven thousand five hundred dollars ($7,500), but less than ten
thousand dollars ($10,000).
(b) For purposes of this section, "a final fee liability" means
any final fee liability arising under Part 24 (commencing with
Section 46001), or related interest, additions to fees, penalties, or
other amounts assessed under this part.
(c) (1) Offers in compromise shall be considered only for
liabilities that were generated from a business that has been
discontinued or transferred, where the feepayer making the offer no
longer has a controlling interest or association with the transferred
business or has a controlling interest or association with a similar
type of business as the transferred or discontinued business.
(2) Notwithstanding paragraph (1), a qualified final fee liability
may be compromised regardless of whether the business has been
discontinued or transferred or whether the feepayer has a controlling
interest or association with a similar type of business as the
transferred or discontinued business. All other provisions of this
section that apply to a final fee liability shall also apply to a
qualified final fee liability, and no compromise shall be made under
this subdivision unless all other requirements of this section are
met. For purposes of this subdivision, a "qualified final fee
liability" means any of the following:
(A) That part of a final fee liability, including related
interest, additions to fee, penalties, or other amounts assessed
under this part, arising from a transaction or transactions in which
the board finds no evidence that the marine terminal operator or
operator of a pipeline collected the oil spill prevention and
administration fee from the owner of the petroleum products or crude
oil or other person and which was determined against the feepayer
under Article 2 (commencing with Section 46201), Article 3
(commencing with Section 46251), or Article 5 (commencing with
Section 46351) of Chapter 3.
(B) A final fee liability, including related interest, additions
to fee, penalties, or other amounts assessed under this part, arising
under Article 6 (commencing with Section 46451) of Chapter 4.
(C) That part of a final fee liability, including related
interest, additions to fee, penalties, or other amounts assessed
under this part, determined under Article 2 (commencing with Section
46201), Article 3 (commencing with Section 46251), and Article 5
(commencing with Section 46351) of Chapter 3 against an owner of
crude oil or petroleum products that is not required to register with
the board under Article 2 (commencing with section 46101) of Chapter
2.
(3) A qualified final fee liability may not be compromised with
any of the following:
(A) A feepayer who previously received a compromise under
paragraph (2) for a liability, or a part thereof, arising from a
transaction or transactions that are substantially similar to the
transaction or transactions attributable to the liability for which
the feepayer is making the offer.
(B) A business that was transferred by a feepayer who previously
received a compromise under paragraph (2) and who has a controlling
interest or association with the transferred business, when the
liability for which the offer is made is attributable to a
transaction or transactions substantially similar to the transaction
or transactions for which the feepayer's liability was previously
compromised.
(C) A business in which a feepayer who previously received a
compromise under paragraph (2) has a controlling interest or
association with a similar type of business for which the feepayer
received the compromise, when the liability of the business making
the offer arose from a transaction or transactions substantially
similar to the transaction or transactions for which the feepayer's
liability was previously compromised.
(d) The board may, in its discretion, enter into a written
agreement which permits the feepayer to pay the compromise in
installments for a period not exceeding one year. The agreement may
provide that such installments shall be paid by electronic funds
transfers or any other means to facilitate the payment of each
installment.
(e) Except for any recommendation for approval as specified in
subdivision (a), the members of the State Board of Equalization shall
not participate in any offer in compromise matters pursuant to this
section.
(f) A feepayer that has received a compromise under paragraph (2)
of subdivision (c) may be required to enter into any collateral
agreement that is deemed necessary for the protection of the
interests of the state. A collateral agreement may include a
provision that allows the board to reestablish the liability, or any
portion thereof, if the feepayer has sufficient annual income during
the succeeding five-year period. The board shall establish criteria
for determining "sufficient annual income" for purposes of this
subdivision.
(g) A feepayer that has received a compromise under paragraph (2)
of subdivision (c) shall file and pay by the due date all
subsequently required oil spill prevention and administration fee
returns for a five-year period from the date the liability is
compromised, or until the feepayer is no longer required to file oil
spill prevention and administration fee returns, whichever period is
earlier.
(h) Offers in compromise shall not be considered where the
feepayer has been convicted of felony tax evasion under this part
during the liability period.
(i) For amounts to be compromised under this section, the
following conditions shall exist:
(1) The feepayer shall establish that:
(A) The amount offered in payment is the most that can be expected
to be paid or collected from the feepayer's present assets or
income.
(B) The feepayer does not have reasonable prospects of acquiring
increased income or assets that would enable the feepayer to satisfy
a greater amount of the liability than the amount offered, within a
reasonable period of time.
(2) The board shall have determined that acceptance of the
compromise is in the best interest of the state.
(j) A determination by the board that it would not be in the best
interest of the state to accept an offer in compromise in
satisfaction of a final fee liability shall not be subject to
administrative appeal or judicial review.
(k) (1) Offers for liabilities with a fraud or evasion penalty
shall require a minimum offer of the unpaid fee and fraud or evasion
penalty.
(2) The minimum offer may be waived if it can be shown that the
feepayer making the offer was not the person responsible for
perpetrating the fraud or evasion. This authorization to waive only
applies to partnership accounts where the intent to commit fraud or
evasion can be clearly attributed to a partner of the feepayer.
(l) When an offer in compromise is either accepted or rejected, or
the terms and conditions of a compromise agreement are fulfilled,
the board shall notify the feepayer in writing. In the event an offer
is rejected, the amount posted will either be applied to the
liability or refunded, at the discretion of the feepayer.
(m) When more than one feepayer is liable for the debt, such as
with spouses or partnerships or other business combinations,
including, but not limited to, feepayers who are liable through dual
determination or successor's liability, the acceptance of an offer in
compromise from one liable feepayer shall reduce the amount of the
liability of the other feepayers by the amount of the accepted offer.
(n) Whenever a compromise of fees or penalties or total fees and
penalties in excess of five hundred dollars ($500) is approved, there
shall be placed on file for at least one year in the office of the
executive director of the board a public record with respect to that
compromise. The public record shall include all of the following
information:
(1) The name of the feepayer.
(2) The amount of unpaid fees and related penalties, additions to
fees, interest, or other amounts involved.
(3) The amount offered.
(4) A summary of the reason why the compromise is in the best
interest of the state.
The public record shall not include any information that relates
to any trade secrets, patent, process, style of work, apparatus,
business secret, or organizational structure, that if disclosed,
would adversely affect the feepayer or violate the confidentiality
provisions of Section 40175. No list shall be prepared and no
releases distributed by the board in connection with these
statements.
(o) Any compromise made under this section may be rescinded, all
compromised liabilities may be reestablished, without regard to any
statute of limitations that otherwise may be applicable, and no
portion of the amount offered in compromise refunded, if either of
the following occurs:
(1) The board determines that any person did any of the following
acts regarding the making of the offer:
(A) Concealed from the board any property belonging to the estate
of any feepayer or other person liable for the fee.
(B) Received, withheld, destroyed, mutilated, or falsified any
book, document, or record or made any false statement, relating to
the estate or financial condition of the feepayer or other person
liable for the fee.
(2) The feepayer fails to comply with any of the terms and
conditions relative to the offer.
(p) Any person who, in connection with any offer or compromise
under this section, or offer of that compromise to enter into that
agreement, willfully does either of the following shall be guilty of
a felony and, upon conviction, shall be fined not more than fifty
thousand dollars ($50,000) or imprisoned in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code , or both, together with the costs of investigation
and prosecution:
(1) Conceals from any officer or employee of this state any
property belonging to the estate of a feepayer or other person liable
in respect of the fee.
(2) Receives, withholds, destroys, mutilates, or falsifies any
book, document, or record, or makes any false statement, relating to
the estate or financial condition of the feepayer or other person
liable in respect of the fee.
(q) For purposes of this section, "person" means the feepayer, any
member of the feepayer's family, any corporation, agent, fiduciary,
or representative of, or any other individual or entity acting on
behalf of, the feepayer, or any other corporation or entity owned or
controlled by the feepayer, directly or indirectly, or that owns or
controls the feepayer, directly or indirectly.
(r) This section shall remain in effect only until January 1,
2013, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2013, deletes or extends
that date.
SEC. 588. Section 46628 of the Revenue and Taxation
Code, as added by Chapter 222 of the Statutes of 2008, is amended to
read:
46628. (a) (1) The executive director and chief counsel of the
board, or their delegates, may compromise any final fee liability
where the reduction of fees is seven thousand five hundred dollars
($7,500) or less.
(2) Except as provided in paragraph (3), the board, upon
recommendation by its executive director and chief counsel, jointly,
may compromise a final fee liability involving a reduction in fees in
excess of seven thousand five hundred dollars ($7,500). Any
recommendation for approval of an offer in compromise that is not
either approved or disapproved within 45 days of the submission of
the recommendation shall be deemed approved.
(3) The board, itself, may by resolution delegate to the executive
director and the chief counsel, jointly, the authority to compromise
a final fee liability in which the reduction of fees is in excess of
seven thousand five hundred dollars ($7,500), but less than ten
thousand dollars ($10,000).
(b) For purposes of this section, "a final fee liability" means
any final fee liability arising under Part 24 (commencing with
Section 46001), or related interest, additions to fees, penalties, or
other amounts assessed under this part.
(c) Offers in compromise shall be considered only for liabilities
that were generated from a business that has been discontinued or
transferred, where the feepayer making the offer no longer has a
controlling interest or association with the transferred business or
has a controlling interest or association with a similar type of
business as the transferred or discontinued business.
(d) Offers in compromise shall not be considered where the
feepayer has been convicted of felony tax evasion under this part
during the liability period.
(e) For amounts to be compromised under this section, the
following conditions shall exist:
(1) The feepayer shall establish that:
(A) The amount offered in payment is the most that can be expected
to be paid or collected from the feepayer's present assets or
income.
(B) The feepayer does not have reasonable prospects of acquiring
increased income or assets that would enable the feepayer to satisfy
a greater amount of the liability than the amount offered, within a
reasonable period of time.
(2) The board shall have determined that acceptance of the
compromise is in the best interest of the state.
(f) A determination by the board that it would not be in the best
interest of the state to accept an offer in compromise in
satisfaction of a final fee liability shall not be subject to
administrative appeal or judicial review.
(g) (1) Offers for liabilities with a fraud or evasion penalty
shall require a minimum offer of the unpaid fee and fraud or evasion
penalty.
(2) The minimum offer may be waived if it can be shown that the
feepayer making the offer was not the person responsible for
perpetrating the fraud or evasion. This authorization to waive only
applies to partnership accounts where the intent to commit fraud or
evasion can be clearly attributed to a partner of the feepayer.
(h) When an offer in compromise is either accepted or rejected, or
the terms and conditions of a compromise agreement are fulfilled,
the board shall notify the feepayer in writing. In the event an offer
is rejected, the amount posted will either be applied to the
liability or refunded, at the discretion of the feepayer.
(i) When more than one feepayer is liable for the debt, such as
with spouses or partnerships or other business combinations,
including, but not limited to, feepayers who are liable through dual
determination or successor's liability, the acceptance of an offer in
compromise from one liable feepayer shall reduce the amount of the
liability of the other feepayers by the amount of the accepted offer.
(j) Whenever a compromise of fees or penalties or total fees and
penalties in excess of five hundred dollars ($500) is approved, there
shall be placed on file for at least one year in the office of the
executive director of the board a public record with respect to that
compromise. The public record shall include all of the following
information:
(1) The name of the feepayer.
(2) The amount of unpaid fees and related penalties, additions to
fees, interest, or other amounts involved.
(3) The amount offered.
(4) A summary of the reason why the compromise is in the best
interest of the state.
The public record shall not include any information that relates
to any trade secrets, patent, process, style of work, apparatus,
business secret, or organizational structure, that if disclosed,
would adversely affect the feepayer or violate the confidentiality
provisions of Section 40175. No list shall be prepared and no
releases distributed by the board in connection with these
statements.
(k) Any compromise made under this section may be rescinded, all
compromised liabilities may be reestablished, without regard to any
statute of limitations that otherwise may be applicable, and no
portion of the amount offered in compromise refunded, if either of
the following occurs:
(1) The board determines that any person did any of the following
acts regarding the making of the offer:
(A) Concealed from the board any property belonging to the estate
of any feepayer or other person liable for the fee.
(B) Received, withheld, destroyed, mutilated, or falsified any
book, document, or record or made any false statement, relating to
the estate or financial condition of the feepayer or other person
liable for the fee.
(2) The feepayer fails to comply with any of the terms and
conditions relative to the offer.
(l) Any person who, in connection with any offer or compromise
under this section, or offer of that compromise to enter into that
agreement, willfully does either of the following shall be guilty of
a felony and, upon conviction, shall be fined not more than fifty
thousand dollars ($50,000) or imprisoned in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code , or both, together with the costs of investigation
and prosecution:
(1) Conceals from any officer or employee of this state any
property belonging to the estate of a feepayer or other person liable
in respect of the fee.
(2) Receives, withholds, destroys, mutilates, or falsifies any
book, document, or record, or makes any false statement, relating to
the estate or financial condition of the feepayer or other person
liable in respect of the fee.
(m) For purposes of this section, "person" means the feepayer, any
member of the feepayer's family, any corporation, agent, fiduciary,
or representative of, or any other individual or entity acting on
behalf of, the feepayer, or any other corporation or entity owned or
controlled by the feepayer, directly or indirectly, or that owns or
controls the feepayer, directly or indirectly.
(n) This section shall become operative on January 1, 2013.
SEC. 589. Section 46705 of the Revenue and Taxation
Code is amended to read:
46705. Every person convicted of a felony for a violation of this
part for which another punishment is not specifically provided for
in this part shall be punished by a fine of not more than five
thousand dollars ($5,000), by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170 of
the Penal Code , or by both that fine and imprisonment in the
discretion of the court, together with the cost of investigation and
prosecution.
SEC. 590. Section 50156.18 of the Revenue and Taxation
Code, as amended by Section 7 of Chapter 222 of the Statutes of 2008,
is amended to read:
50156.18. (a) (1) Beginning January 1, 2003, the executive
director and chief counsel of the board, or their delegates, may
compromise any final fee liability in which the reduction of the fee
is seven thousand five hundred dollars ($7,500) or less.
(2) Except as provided in paragraph (3), the board, upon
recommendation by its executive director and chief counsel, jointly,
may compromise a final fee liability involving a reduction in the fee
in excess of seven thousand five hundred dollars ($7,500). Any
recommendation for approval of an offer in compromise that is not
either approved or disapproved within 45 days of the submission of
the recommendation shall be deemed approved.
(3) The board, itself, may by resolution delegate to the executive
director and the chief counsel, jointly, the authority to compromise
a final fee liability in which the reduction of the fee is in excess
of seven thousand five hundred dollars ($7,500), but less than ten
thousand dollars ($10,000).
(b) For purposes of this section, "a final fee liability" means
any final fee liability arising under Part 26 (commencing with
Section 50101), or related interest, additions to the fee, penalties,
or other amounts assessed under this part.
(c) (1) Offers in compromise shall be considered only for
liabilities that were generated from a business that has been
discontinued or transferred, where the feepayer making the offer no
longer has a controlling interest or association with the transferred
business or has a controlling interest or association with a similar
type of business as the transferred or discontinued business.
(2) Notwithstanding paragraph (1), a qualified final fee liability
may be compromised regardless of whether the business has been
discontinued or transferred or whether the feepayer has a controlling
interest or association with a similar type of business as the
transferred or discontinued business. All other provisions of this
section that apply to a final fee liability shall also apply to a
qualified final fee liability, and no compromise shall be made under
this subdivision unless all other requirements of this section are
met. For purposes of this subdivision, a "qualified final fee
liability" means that part of a final fee liability, including
related interest, additions to fee, penalties, or other amounts
assessed under this part, arising from a transaction or transactions
in which the board finds no evidence that the owner of the
underground storage tank collected underground storage tank
maintenance fee reimbursement from the operator of the underground
storage tank or other person and which was determined against the
feepayer under Article 2 (commencing with Section 50113) or Article 3
(commencing with Section 50114) of Chapter 3.
(3) A qualified final fee liability may not be compromised with
any of the following:
(A) A feepayer who previously received a compromise under
paragraph (2) for a liability, or a part thereof, arising from a
transaction or transactions that are substantially similar to the
transaction or transactions attributable to the liability for which
the feepayer is making the offer.
(B) A business that was transferred by a feepayer who previously
received a compromise under paragraph (2) and who has a controlling
interest or association with the transferred business, when the
liability for which the offer is made is attributable to a
transaction or transactions substantially similar to the transaction
or transactions for which the feepayer's liability was previously
compromised.
(C) A business in which a feepayer who previously received a
compromise under paragraph (2) has a controlling interest or
association with a similar type of business for which the feepayer
received the compromise, when the liability of the business making
the offer arose from a transaction or transactions substantially
similar to the transaction or transactions for which the feepayer's
liability was previously compromised.
(d) The board may, in its discretion, enter into a written
agreement which permits the feepayer to pay the compromise in
installments for a period not exceeding one year. The agreement may
provide that such installments shall be paid by
electronic funds transfers or any other
means to facilitate the payment of each installment.
(e) Except for any recommendation for approval as specified in
subdivision (a), the members of the State Board of Equalization shall
not participate in any offer in compromise matters pursuant to this
section.
(f) A feepayer that has received a compromise under paragraph (2)
of subdivision (c) may be required to enter into any collateral
agreement that is deemed necessary for the protection of the
interests of the state. A collateral agreement may include a
provision that allows the board to reestablish the liability, or any
portion thereof, if the feepayer has sufficient annual income during
the succeeding five-year period. The board shall establish criteria
for determining "sufficient annual income" for purposes of this
subdivision.
(g) A feepayer that has received a compromise under paragraph (2)
of subdivision (c) shall file and pay by the due date all
subsequently required underground storage tank maintenance fee
returns for a five-year period from the date the liability is
compromised, or until the feepayer is no longer required to file
underground storage tank maintenance fee returns, whichever period is
earlier.
(h) For amounts to be compromised under this section, the
following conditions shall exist:
(1) The feepayer shall establish that:
(A) The amount offered in payment is the most that can be expected
to be paid or collected from the feepayer's present assets or
income.
(B) The feepayer does not have reasonable prospects of acquiring
increased income or assets that would enable the feepayer to satisfy
a greater amount of the liability than the amount offered, within a
reasonable period of time.
(2) The board shall have determined that acceptance of the
compromise is in the best interest of the state.
(i) A determination by the board that it would not be in the best
interest of the state to accept an offer in compromise in
satisfaction of a final fee liability shall not be subject to
administrative appeal or judicial review.
(j) When an offer in compromise is either accepted or rejected, or
the terms and conditions of a compromise agreement are fulfilled,
the board shall notify the feepayer in writing. In the event an offer
is rejected, the amount posted will either be applied to the
liability or refunded, at the discretion of the feepayer.
(k) When more than one feepayer is liable for the debt, such as
with spouses or partnerships or other business combinations, the
acceptance of an offer in compromise from one liable feepayer shall
not relieve the other feepayers from paying the entire liability.
However, the amount of the liability shall be reduced by the amount
of the accepted offer.
(l) Whenever a compromise of the fee or penalties or total fees
and penalties in excess of five hundred dollars ($500) is approved,
there shall be placed on file for at least one year in the office of
the executive director of the board a public record with respect to
that compromise. The public record shall include all of the following
information:
(1) The name of the feepayer.
(2) The amount of unpaid fees and related penalties, additions to
fees, interest, or other amounts involved.
(3) The amount offered.
(4) A summary of the reason why the compromise is in the best
interest of the state.
The public record shall not include any information that relates
to any trade secrets, patent, process, style of work, apparatus,
business secret, or organizational structure, that if disclosed,
would adversely affect the feepayer or violate the confidentiality
provisions of Chapter 8 of Article 2 (commencing with Section 50156).
No list shall be prepared and no releases distributed by the board
in connection with these statements.
(m) Any compromise made under this section may be rescinded, all
compromised liabilities may be reestablished (without regard to any
statute of limitations that otherwise may be applicable), and no
portion of the amount offered in compromise refunded, if either of
the following occurs:
(1) The board determines that any person did any of the following
acts regarding the making of the offer:
(A) Concealed from the board any property belonging to the estate
of any feepayer or other person liable for the fee.
(B) Received, withheld, destroyed, mutilated, or falsified any
book, document, or record or made any false statement, relating to
the estate or financial condition of the feepayer or other person
liable for the fee.
(2) The feepayer fails to comply with any of the terms and
conditions relative to the offer.
(n) Any person who, in connection with any offer or compromise
under this section, or offer of that compromise to enter into that
agreement, willfully does either of the following shall be guilty of
a felony and, upon conviction, shall be fined not more than fifty
thousand dollars ($50,000) or imprisoned in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code , or both, together with the costs of investigation
and prosecution:
(1) Conceals from any officer or employee of this state any
property belonging to the estate of a feepayer or other person liable
in respect of the fee.
(2) Receives, withholds, destroys, mutilates, or falsifies any
book, document, or record, or makes any false statement, relating to
the estate or financial condition of the feepayer or other person
liable in respect of the fee.
(o) For purposes of this section, "person" means the feepayer, any
member of the feepayer's family, any corporation, agent, fiduciary,
or representative of, or any other individual or entity acting on
behalf of, the feepayer, or any other corporation or entity owned or
controlled by the feepayer, directly or indirectly, or that owns or
controls the feepayer, directly or indirectly.
(p) This section shall remain in effect only until January 1,
2013, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2013, deletes or extends
that date.
SEC. 591. Section 50156.18 of the Revenue and Taxation
Code, as added by Chapter 222 of the Statutes of 2008, is amended to
read:
50156.18. (a) (1) The executive director and chief counsel of the
board, or their delegates, may compromise any final fee liability in
which the reduction of the fee is seven thousand five hundred
dollars ($7,500) or less.
(2) Except as provided in paragraph (3), the board, upon
recommendation by its executive director and chief counsel, jointly,
may compromise a final fee liability involving a reduction in the fee
in excess of seven thousand five hundred dollars ($7,500). Any
recommendation for approval of an offer in compromise that is not
either approved or disapproved within 45 days of the submission of
the recommendation shall be deemed approved.
(3) The board, itself, may by resolution delegate to the executive
director and the chief counsel, jointly, the authority to compromise
a final fee liability in which the reduction of the fee is in excess
of seven thousand five hundred dollars ($7,500), but less than ten
thousand dollars ($10,000).
(b) For purposes of this section, "a final fee liability" means
any final fee liability arising under Part 26 (commencing with
Section 50101), or related interest, additions to the fee, penalties,
or other amounts assessed under this part.
(c) Offers in compromise shall be considered only for liabilities
that were generated from a business that has been discontinued or
transferred, where the feepayer making the offer no longer has a
controlling interest or association with the transferred business or
has a controlling interest or association with a similar type of
business as the transferred or discontinued business.
(d) For amounts to be compromised under this section, the
following conditions shall exist:
(1) The feepayer shall establish that:
(A) The amount offered in payment is the most that can be expected
to be paid or collected from the feepayer's present assets or
income.
(B) The feepayer does not have reasonable prospects of acquiring
increased income or assets that would enable the feepayer to satisfy
a greater amount of the liability than the amount offered, within a
reasonable period of time.
(2) The board shall have determined that acceptance of the
compromise is in the best interest of the state.
(e) A determination by the board that it would not be in the best
interest of the state to accept an offer in compromise in
satisfaction of a final fee liability shall not be subject to
administrative appeal or judicial review.
(f) When an offer in compromise is either accepted or rejected, or
the terms and conditions of a compromise agreement are fulfilled,
the board shall notify the feepayer in writing. In the event an offer
is rejected, the amount posted will either be applied to the
liability or refunded, at the discretion of the feepayer.
(g) When more than one feepayer is liable for the debt, such as
with spouses or partnerships or other business combinations, the
acceptance of an offer in compromise from one liable feepayer shall
not relieve the other feepayers from paying the entire liability.
However, the amount of the liability shall be reduced by the amount
of the accepted offer.
(h) Whenever a compromise of the fee or penalties or total fees
and penalties in excess of five hundred dollars ($500) is approved,
there shall be placed on file for a least one year in the office of
the executive director of the board a public record with respect to
that compromise. The public record shall include all of the following
information:
(1) The name of the feepayer.
(2) The amount of unpaid fees and related penalties, additions to
fees, interest, or other amounts involved.
(3) The amount offered.
(4) A summary of the reason why the compromise is in the best
interest of the state.
The public record shall not include any information that relates
to any trade secrets, patent, process, style of work, apparatus,
business secret, or organizational structure, that if disclosed,
would adversely affect the feepayer or violate the confidentiality
provisions of Chapter 8 of Article 2 (commencing with Section 50156).
No list shall be prepared and no releases distributed by the board
in connection with these statements.
(i) Any compromise made under this section may be rescinded, all
compromised liabilities may be reestablished (without regard to any
statute of limitations that otherwise may be applicable), and no
portion of the amount offered in compromise refunded, if either of
the following occurs:
(1) The board determines that any person did any of the following
acts regarding the making of the offer:
(A) Concealed from the board any property belonging to the estate
of any feepayer or other person liable for the fee.
(B) Received, withheld, destroyed, mutilated, or falsified any
book, document, or record or made any false statement, relating to
the estate or financial condition of the feepayer or other person
liable for the fee.
(2) The feepayer fails to comply with any of the terms and
conditions relative to the offer.
(j) Any person who, in connection with any offer or compromise
under this section, or offer of that compromise to enter into that
agreement, willfully does either of the following shall be guilty of
a felony and, upon conviction, shall be fined not more than fifty
thousand dollars ($50,000) or imprisoned in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code , or both, together with the costs of investigation
and prosecution:
(1) Conceals from any officer or employee of this state any
property belonging to the estate of a feepayer or other person liable
in respect of the fee.
(2) Receives, withholds, destroys, mutilates, or falsifies any
book, document, or record, or makes any false statement, relating to
the estate or financial condition of the feepayer or other person
liable in respect of the fee.
(k) For purposes of this section, "person" means the feepayer, any
member of the feepayer's family, any corporation, agent, fiduciary,
or representative of, or any other individual or entity acting on
behalf of, the feepayer, or any other corporation or entity owned or
controlled by the feepayer, directly or indirectly, or that owns or
controls the feepayer, directly or indirectly.
(l) This section shall become operative on January 1, 2013.
SEC. 592. Section 55332.5 of the Revenue and Taxation
Code, as amended by Section 8 of Chapter 222 of the Statutes of 2008,
is amended to read:
55332.5. (a) (1) Beginning on January 1, 2007, the executive
director and chief counsel of the board, or their delegates, may
compromise any final fee liability where the reduction of fees is
seven thousand five hundred dollars ($7,500) or less.
(2) Except as provided in paragraph (3), the board, upon
recommendation by its executive director and chief counsel, jointly,
may compromise a final fee liability involving a reduction in fees in
excess of seven thousand five hundred dollars ($7,500). Any
recommendation for approval of an offer in compromise that is not
either approved or disapproved within 45 days of the submission of
the recommendation shall be deemed approved.
(3) The board, itself, may by resolution delegate to the executive
director and the chief counsel, jointly, the authority to compromise
a final fee liability in which the reduction of fees is in excess of
seven thousand five hundred dollars ($7,500), but less than ten
thousand dollars ($10,000).
(b) For purposes of this section, "a final fee liability" means
any final fee liability arising under Part 30 (commencing with
Section 55001), or related interest, additions to fees, penalties, or
other amounts assessed under this part.
(c) (1) Offers in compromise shall be considered only for
liabilities that were generated from a business that has been
discontinued or transferred, where the feepayer making the offer no
longer has a controlling interest or association with the transferred
business or has a controlling interest or association with a similar
type of business as the transferred or discontinued business.
(2) Notwithstanding paragraph (1), a qualified final fee liability
may be compromised regardless of whether the business has been
discontinued or transferred or whether the feepayer has a controlling
interest or association with a similar type of business as the
transferred or discontinued business. All other provisions of this
section that apply to a final fee liability shall also apply to a
qualified final fee liability, and no compromise shall be made under
this subdivision unless all other requirements of this section are
met. For purposes of this subdivision, a "qualified final fee
liability" means that part of a final fee liability, including
related interest, additions to fee, penalties, or other amounts
assessed under this part, arising from a transaction or transactions
in which the board finds no evidence that the feepayer collected the
fee from the purchaser or other person and which was determined
against the feepayer under Article 2 (commencing with Section 55061)
or Article 3 (commencing with Section 55081) of Chapter 3.
(3) A qualified final fee liability may not be compromised with
any of the following:
(A) A feepayer who previously received a compromise under
paragraph (2) for a liability, or a part thereof, arising from a
transaction or transactions that are substantially similar to the
transaction or transactions attributable to the liability for which
the feepayer is making the offer.
(B) A business that was transferred by a feepayer who previously
received a compromise under paragraph (2) and who has a controlling
interest or association with the transferred business, when the
liability for which the offer is made is attributable to a
transaction or transactions substantially similar to the transaction
or transactions for which the feepayer's liability was previously
compromised.
(C) A business in which a feepayer who previously received a
compromise under paragraph (2) has a controlling interest or
association with a similar type of business for which the feepayer
received the compromise, when the liability of the business making
the offer arose from a transaction or transactions substantially
similar to the transaction or transactions for which the feepayer's
liability was previously compromised.
(d) The board may, in its discretion, enter into a written
agreement which permits the feepayer to pay the compromise in
installments for a period not exceeding one year. The agreement may
provide that such installments shall be paid by electronic funds
transfers or any other means to facilitate the payment of each
installment.
(e) Except for any recommendation for approval as specified in
subdivision (a), the members of the State Board of Equalization shall
not participate in any offer in compromise matters pursuant to this
section.
(f) A feepayer that has received a compromise under paragraph (2)
of subdivision (c) may be required to enter into any collateral
agreement that is deemed necessary for the protection of the
interests of the state. A collateral agreement may include a
provision that allows the board to reestablish the liability, or any
portion thereof, if the feepayer has sufficient annual income during
the succeeding five-year period. The board shall establish criteria
for determining "sufficient annual income" for purposes of this
subdivision.
(g) A feepayer that has received a compromise under paragraph (2)
of subdivision (c) shall file and pay by the due date all
subsequently required returns for a five-year period from the date
the liability is compromised, or until the feepayer is no longer
required to file returns, whichever period is earlier.
(h) Offers in compromise shall not be considered where the
feepayer has been convicted of felony tax evasion under this part
during the liability period.
(i) For amounts to be compromised under this section, the
following conditions shall exist:
(1) The feepayer shall establish that:
(A) The amount offered in payment is the most that can be expected
to be paid or collected from the feepayer's present assets or
income.
(B) The feepayer does not have reasonable prospects of acquiring
increased income or assets that would enable the feepayer to satisfy
a greater amount of the liability than the amount offered, within a
reasonable period of time.
(2) The board shall have determined that acceptance of the
compromise is in the best interest of the state.
(j) A determination by the board that it would not be in the best
interest of the state to accept an offer in compromise in
satisfaction of a final fee liability shall not be subject to
administrative appeal or judicial review.
(k) (1) Offers for liabilities with a fraud or evasion penalty
shall require a minimum offer of the unpaid fee and fraud or evasion
penalty.
(2) The minimum offer may be waived if it can be shown that the
feepayer making the offer was not the person responsible for
perpetrating the fraud or evasion. This authorization to waive only
applies to partnership accounts where the intent to commit fraud or
evasion can be clearly attributed to a partner of the feepayer.
( l ) When an offer in compromise is either accepted or
rejected, or the terms and conditions of a compromise agreement are
fulfilled, the board shall notify the feepayer in writing. In the
event an offer is rejected, the amount posted will either be applied
to the liability or refunded, at the discretion of the feepayer.
(m) When more than one feepayer is liable for the debt, such as
with spouses or partnerships or other business combinations,
including, but not limited to, feepayers who are liable through dual
determination or successor's liability, the acceptance of an offer in
compromise from one liable feepayer shall reduce the amount of the
liability of the other feepayers by the amount of the accepted offer.
(n) Whenever a compromise of fees or penalties or total fees and
penalties in excess of five hundred dollars ($500) is approved, there
shall be placed on file for at least one year in the office of the
executive director of the board a public record with respect to that
compromise. The public record shall include all of the following
information:
(1) The name of the feepayer.
(2) The amount of unpaid fees and related penalties, additions to
fees, interest, or other amounts involved.
(3) The amount offered.
(4) A summary of the reason why the compromise is in the best
interest of the state.
The public record shall not include any information that relates
to any trade secrets, patent, process, style of work, apparatus,
business secret, or organizational structure, that if disclosed,
would adversely affect the feepayer or violate the confidentiality
provisions of Section 55381. No list shall be prepared and no
releases distributed by the board in connection with these
statements.
(o) Any compromise made under this section may be rescinded, all
compromised liabilities may be reestablished, without regard to any
statute of limitations that otherwise may be applicable, and no
portion of the amount offered in compromise refunded, if either of
the following occurs:
(1) The board determines that any person did any of the following
acts regarding the making of the offer:
(A) Concealed from the board any property belonging to the estate
of any feepayer or other person liable for the fee.
(B) Received, withheld, destroyed, mutilated, or falsified any
book, document, or record or made any false statement, relating to
the estate or financial condition of the feepayer or other person
liable for the fee.
(2) The feepayer fails to comply with any of the terms and
conditions relative to the offer.
(p) Any person who, in connection with any offer or compromise
under this section, or offer of that compromise to enter into that
agreement, willfully does either of the following shall be guilty of
a felony and, upon conviction, shall be fined not more than fifty
thousand dollars ($50,000) or imprisoned in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code , or both, together with the costs of investigation
and prosecution:
(1) Conceals from any officer or employee of this state any
property belonging to the estate of a feepayer or other person liable
in respect of the fee.
(2) Receives, withholds, destroys, mutilates, or falsifies any
book, document, or record, or makes any false statement, relating to
the estate fee.
(q) For purposes of this section, "person" means the feepayer, any
member of the feepayer's family, any corporation, agent, fiduciary,
or representative of, or any other individual or entity acting on
behalf of, the feepayer, or any other corporation or entity owned or
controlled by the feepayer, directly or indirectly, or that owns or
controls the feepayer, directly or indirectly.
(r) This section shall remain in effect only until January 1,
2013, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2013, deletes or extends
that date.
SEC. 593. Section 55332.5 of the Revenue and Taxation
Code, as added by Chapter 222 of the Statutes of 2008, is amended to
read:
55332.5. (a) (1) The executive director and chief counsel of the
board, or their delegates, may compromise any final fee liability
where the reduction of fees is seven thousand five hundred dollars
($7,500) or less.
(2) Except as provided in paragraph (3), the board, upon
recommendation by its executive director and chief counsel, jointly,
may compromise a final fee liability involving a reduction in fees in
excess of seven thousand five hundred dollars ($7,500). Any
recommendation for approval of an offer in compromise that is not
either approved or disapproved within 45 days of the submission of
the recommendation shall be deemed approved.
(3) The board, itself, may by resolution delegate to the executive
director and the chief counsel, jointly, the authority to compromise
a final fee liability in which the reduction of fees is in excess of
seven thousand five hundred dollars ($7,500), but less than ten
thousand dollars ($10,000).
(b) For purposes of this section, "a final fee liability" means
any final fee liability arising under Part 30 (commencing with
Section 55001), or related interest, additions to fees, penalties, or
other amounts assessed under this part.
(c) Offers in compromise shall be considered only for liabilities
that were generated from a business that has been discontinued or
transferred, where the feepayer making the offer no longer has a
controlling interest or association with the transferred business or
has a controlling interest or association with a similar type of
business as the transferred or discontinued business.
(d) Offers in compromise shall not be considered where the
feepayer has been convicted of felony tax evasion under this part
during the liability period.
(e) For amounts to be compromised under this section, the
following conditions shall exist:
(1) The feepayer shall establish that:
(A) The amount offered in payment is the most that can be expected
to be paid or collected from the feepayer's present assets or
income.
(B) The feepayer does not have reasonable prospects of acquiring
increased income or assets that would enable the feepayer to satisfy
a greater amount of the liability than the amount offered, within a
reasonable period of time.
(2) The board shall have determined that acceptance of the
compromise is in the best interest of the state.
(f) A determination by the board that it would not be in the best
interest of the state to accept an offer in compromise in
satisfaction of a final fee liability shall not be subject to
administrative appeal or judicial review.
(g) (1) Offers for liabilities with a fraud or evasion penalty
shall require a minimum offer of the unpaid fee and fraud or evasion
penalty.
(2) The minimum offer may be waived if it can be shown that the
feepayer making the offer was not the person responsible for
perpetrating the fraud or evasion. This authorization to waive only
applies to partnership accounts where the intent to commit fraud or
evasion can be clearly attributed to a partner of the feepayer.
(h) When an offer in compromise is either accepted or rejected, or
the terms and conditions of a compromise agreement are fulfilled,
the board shall notify the
feepayer in writing. In the event an offer is rejected, the amount
posted will either be applied to the liability or refunded, at the
discretion of the feepayer.
(i) When more than one feepayer is liable for the debt, such as
with spouses or partnerships or other business combinations,
including, but not limited to, feepayers who are liable through dual
determination or successor's liability, the acceptance of an offer in
compromise from one liable feepayer shall reduce the amount of the
liability of the other feepayers by the amount of the accepted offer.
(j) Whenever a compromise of fees or penalties or total fees and
penalties in excess of five hundred dollars ($500) is approved, there
shall be placed on file for at least one year in the office of the
executive director of the board a public record with respect to that
compromise. The public record shall include all of the following
information:
(1) The name of the feepayer.
(2) The amount of unpaid fees and related penalties, additions to
fees, interest, or other amounts involved.
(3) The amount offered.
(4) A summary of the reason why the compromise is in the best
interest of the state.
The public record shall not include any information that relates
to any trade secrets, patent, process, style of work, apparatus,
business secret, or organizational structure, that if disclosed,
would adversely affect the feepayer or violate the confidentiality
provisions of Section 55381. No list shall be prepared and no
releases distributed by the board in connection with these
statements.
(k) Any compromise made under this section may be rescinded, all
compromised liabilities may be reestablished, without regard to any
statute of limitations that otherwise may be applicable, and no
portion of the amount offered in compromise refunded, if either of
the following occurs:
(1) The board determines that any person did any of the following
acts regarding the making of the offer:
(A) Concealed from the board any property belonging to the estate
of any feepayer or other person liable for the fee.
(B) Received, withheld, destroyed, mutilated, or falsified any
book, document, or record or made any false statement, relating to
the estate or financial condition of the feepayer or other person
liable for the fee.
(2) The feepayer fails to comply with any of the terms and
conditions relative to the offer.
(l) Any person who, in connection with any offer or compromise
under this section, or offer of that compromise to enter into that
agreement, willfully does either of the following shall be guilty of
a felony and, upon conviction, shall be fined not more than fifty
thousand dollars ($50,000) or imprisoned in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code , or both, together with the costs of investigation
and prosecution:
(1) Conceals from any officer or employee of this state any
property belonging to the estate of a feepayer or other person liable
in respect of the fee.
(2) Receives, withholds, destroys, mutilates, or falsifies any
book, document, or record, or makes any false statement, relating to
the estate fee.
(m) For purposes of this section, "person" means the feepayer, any
member of the feepayer's family, any corporation, agent, fiduciary,
or representative of, or any other individual or entity acting on
behalf of, the feepayer, or any other corporation or entity owned or
controlled by the feepayer, directly or indirectly, or that owns or
controls the feepayer, directly or indirectly.
(n) This section shall become operative on January 1, 2013.
SEC. 594. Section 55363 of the Revenue and Taxation
Code is amended to read:
55363. Any person who willfully evades or attempts in any manner
to evade or defeat the payment of the fee imposed by this part is
guilty of a felony punishable by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170 of
the Penal Code for 16 months, 2, or 3 years and a fine of not
more than five thousand dollars ($5,000).
SEC. 595. Section 60637 of the Revenue and Taxation
Code, as amended by Section 9 of Chapter 222 of the Statutes of 2008,
is amended to read:
60637. (a) (1) Beginning on January 1, 2007, the executive
director and chief counsel of the board, or their delegates, may
compromise any final tax liability where the reduction of tax is
seven thousand five hundred dollars ($7,500) or less.
(2) Except as provided in paragraph (3), the board, upon
recommendation by its executive director and chief counsel, jointly,
may compromise a final tax liability involving a reduction in tax in
excess of seven thousand five hundred dollars ($7,500). Any
recommendation for approval of an offer in compromise that is not
either approved or disapproved within 45 days of the submission of
the recommendation shall be deemed approved.
(3) The board, itself, may by resolution delegate to the executive
director and the chief counsel, jointly, the authority to compromise
a final tax liability in which the reduction of tax is in excess of
seven thousand five hundred dollars ($7,500), but less than ten
thousand dollars ($10,000).
(b) For purposes of this section, "a final tax liability" means
any final tax liability arising under Part 31 (commencing with
Section 60001), or related interest, additions to tax, penalties, or
other amounts assessed under this part.
(c) (1) Offers in compromise shall be considered only for
liabilities that were generated from a business that has been
discontinued or transferred, where the taxpayer making the offer no
longer has a controlling interest or association with the transferred
business or has a controlling interest or association with a similar
type of business as the transferred or discontinued business.
(2) Notwithstanding paragraph (1), a qualified final tax liability
may be compromised regardless of whether the business has been
discontinued or transferred or whether the taxpayer has a controlling
interest or association with a similar type of business as the
transferred or discontinued business. All other provisions of this
section that apply to a final tax liability shall also apply to a
qualified final tax liability, and no compromise shall be made under
this subdivision unless all other requirements of this section are
met. For purposes of this subdivision, a "qualified final tax
liability" means any of the following:
(A) That part of a final tax liability, including related
interest, additions to tax, penalties, or other amounts assessed
under this part, arising from a transaction or transactions in which
the board finds no evidence that the supplier collected diesel fuel
tax reimbursement from the purchaser or other person and which was
determined by the board against the taxpayer under Article 2
(commencing with Section 60301), Article 3 (commencing with Section
60310), Article 5 (commencing with Section 60350), or Article 6
(commencing with Section 60360) of Chapter 6.
(B) A final tax liability, including related interest, additions
to tax, penalties, or other amounts assessed under this part, arising
under Article 6 (commencing with Section 60471) of Chapter 7.
(C) That part of a final tax liability for diesel fuel tax,
including related interest, additions to tax, penalties, or other
amounts assessed under this part, determined under Article 2
(commencing with Section 60301), Article 3 (commencing with Section
60310), Article 5 (commencing with Section 60350) and Article 6
(commencing with Section 60360) of Chapter 6 against an exempt bus
operator, government entity, or qualified highway vehicle operator
who used dyed diesel fuel on the highway.
(3) A qualified final tax liability may not be compromised with
any of the following:
(A) A taxpayer who previously received a compromise under
paragraph (2) for a liability, or a part thereof, arising from a
transaction or transactions that are substantially similar to the
transaction or transactions attributable to the liability for which
the taxpayer is making the offer.
(B) A business that was transferred by a taxpayer who previously
received a compromise under paragraph (2) and who has a controlling
interest or association with the transferred business, when the
liability for which the offer is made is attributable to a
transaction or transactions substantially similar to the transaction
or transactions for which the taxpayer's liability was previously
compromised.
(C) A business in which a taxpayer who previously received a
compromise under paragraph (2) has a controlling interest or
association with a similar type of business for which the taxpayer
received the compromise, when the liability of the business making
the offer arose from a transaction or transactions substantially
similar to the transaction or transactions for which the taxpayer's
liability was previously compromised.
(d) The board may, in its discretion, enter into a written
agreement which permits the taxpayer to pay the compromise in
installments for a period not exceeding one year. The agreement may
provide that such installments shall be paid by electronic funds
transfers or any other means to facilitate the payment of each
installment.
(e) Except for any recommendation for approval as specified in
subdivision (a), the members of the State Board of Equalization shall
not participate in any offer in compromise matters pursuant to this
section.
(f) A taxpayer that has received a compromise under paragraph (2)
of subdivision (c) may be required to enter into any collateral
agreement that is deemed necessary for the protection of the
interests of the state. A collateral agreement may include a
provision that allows the board to reestablish the liability, or any
portion thereof, if the taxpayer has sufficient annual income during
the succeeding five-year period. The board shall establish criteria
for determining "sufficient annual income" for purposes of this
subdivision.
(g) A taxpayer that has received a compromise under paragraph (2)
of subdivision (c) shall file and pay by the due date all
subsequently required returns for a five-year period from the date
the liability is compromised, or until the taxpayer is no longer
required to file returns, whichever period is earlier.
(h) Offers in compromise shall not be considered where the
taxpayer has been convicted of felony tax evasion under this part
during the liability period.
(i) For amounts to be compromised under this section, the
following conditions shall exist:
(1) The taxpayer shall establish that:
(A) The amount offered in payment is the most that can be expected
to be paid or collected from the taxpayer's present assets or
income.
(B) The taxpayer does not have reasonable prospects of acquiring
increased income or assets that would enable the taxpayer to satisfy
a greater amount of the liability than the amount offered, within a
reasonable period of time.
(2) The board shall have determined that acceptance of the
compromise is in the best interest of the state.
(j) A determination by the board that it would not be in the best
interest of the state to accept an offer in compromise in
satisfaction of a final tax liability shall not be subject to
administrative appeal or judicial review.
(k) (1) Offers for liabilities with a fraud or evasion penalty
shall require a minimum offer of the unpaid tax and fraud or evasion
penalty.
(2) The minimum offer may be waived if it can be shown that the
taxpayer making the offer was not the person responsible for
perpetrating the fraud or evasion. This authorization to waive only
applies to partnership accounts where the intent to commit fraud or
evasion can be clearly attributed to a partner of the taxpayer.
(l) When an offer in compromise is either accepted or rejected, or
the terms and conditions of a compromise agreement are fulfilled,
the board shall notify the taxpayer in writing. In the event an offer
is rejected, the amount posted will either be applied to the
liability or refunded, at the discretion of the taxpayer.
(m) When more than one taxpayer is liable for the debt, such as
with spouses or partnerships or other business combinations,
including, but not limited to, taxpayers who are liable through dual
determination or successor's liability, the acceptance of an offer in
compromise from one liable taxpayer shall reduce the amount of the
liability of the other taxpayers by the amount of the accepted offer.
(n) Whenever a compromise of tax or penalties or total tax and
penalties in excess of five hundred dollars ($500) is approved, there
shall be placed on file for at least one year in the office of the
executive director of the board a public record with respect to that
compromise. The public record shall include all of the following
information:
(1) The name of the taxpayer.
(2) The amount of unpaid tax and related penalties, additions to
tax, interest, or other amounts involved.
(3) The amount offered.
(4) A summary of the reason why the compromise is in the best
interest of the state.
The public record shall not include any information that relates
to any trade secrets, patent, process, style of work, apparatus,
business secret, or organizational structure, that if disclosed,
would adversely affect the taxpayer or violate the confidentiality
provisions of Section 60609. No list shall be prepared and no
releases distributed by the board in connection with these
statements.
(o) Any compromise made under this section may be rescinded, all
compromised liabilities may be reestablished, without regard to any
statute of limitations that otherwise may be applicable, and no
portion of the amount offered in compromise refunded, if either of
the following occurs:
(1) The board determines that any person did any of the following
acts regarding the making of the offer:
(A) Concealed from the board any property belonging to the estate
of any taxpayer or other person liable for the tax.
(B) Received, withheld, destroyed, mutilated, or falsified any
book, document, or record or made any false statement, relating to
the estate or financial condition of the taxpayer or other person
liable for the tax.
(2) The taxpayer fails to comply with any of the terms and
conditions relative to the offer.
(p) Any person who, in connection with any offer or compromise
under this section, or offer of that compromise to enter into that
agreement, willfully does either of the following shall be guilty of
a felony and, upon conviction, shall be fined not more than fifty
thousand dollars ($50,000) or imprisoned in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code , or both, together with the costs of investigation
and prosecution:
(1) Conceals from any officer or employee of this state any
property belonging to the estate of a taxpayer or other person liable
in respect of the tax.
(2) Receives, withholds, destroys, mutilates, or falsifies any
book, document, or record, or makes any false statement, relating to
the estate or financial condition of the taxpayer or other person
liable in respect of the tax.
(q) For purposes of this section, "person" means the taxpayer, any
member of the taxpayer's family, any corporation, agent, fiduciary,
or representative of, or any other individual or entity acting on
behalf of, the taxpayer, or any other corporation or entity owned or
controlled by the taxpayer, directly or indirectly, or that owns or
controls the taxpayer, directly or indirectly.
(r) This section shall remain in effect only until January 1,
2013, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2013, deletes or extends
that date.
SEC. 596. Section 60637 of the Revenue and Taxation
Code, as added by Chapter 222 of the Statutes of 2008, is amended to
read:
60637. (a) (1) The executive director and chief counsel of the
board, or their delegates, may compromise any final tax liability
where the reduction of tax is seven thousand five hundred dollars
($7,500) or less.
(2) Except as provided in paragraph (3), the board, upon
recommendation by its executive director and chief counsel, jointly,
may compromise a final tax liability involving a reduction in tax in
excess of seven thousand five hundred dollars ($7,500). Any
recommendation for approval of an offer in compromise that is not
either approved or disapproved within 45 days of the submission of
the recommendation shall be deemed approved.
(3) The board, itself, may by resolution delegate to the executive
director and the chief counsel, jointly, the authority to compromise
a final tax liability in which the reduction of tax is in excess of
seven thousand five hundred dollars ($7,500), but less than ten
thousand dollars ($10,000).
(b) For purposes of this section, "a final tax liability" means
any final tax liability arising under Part 31 (commencing with
Section 60001), or related interest, additions to tax, penalties, or
other amounts assessed under this part.
(c) Offers in compromise shall be considered only for liabilities
that were generated from a business that has been discontinued or
transferred, where the taxpayer making the offer no longer has a
controlling interest or association with the transferred business or
has a controlling interest or association with a similar type of
business as the transferred or discontinued business.
(d) Offers in compromise shall not be considered where the
taxpayer has been convicted of felony tax evasion under this part
during the liability period.
(e) For amounts to be compromised under this section, the
following conditions shall exist:
(1) The taxpayer shall establish that:
(A) The amount offered in payment is the most that can be expected
to be paid or collected from the taxpayer's present assets or
income.
(B) The taxpayer does not have reasonable prospects of acquiring
increased income or assets that would enable the taxpayer to satisfy
a greater amount of the liability than the amount offered, within a
reasonable period of time.
(2) The board shall have determined that acceptance of the
compromise is in the best interest of the state.
(f) A determination by the board that it would not be in the best
interest of the state to accept an offer in compromise in
satisfaction of a final tax liability shall not be subject to
administrative appeal or judicial review.
(g) (1) Offers for liabilities with a fraud or evasion penalty
shall require a minimum offer of the unpaid tax and fraud or evasion
penalty.
(2) The minimum offer may be waived if it can be shown that the
taxpayer making the offer was not the person responsible for
perpetrating the fraud or evasion. This authorization to waive only
applies to partnership accounts where the intent to commit fraud or
evasion can be clearly attributed to a partner of the taxpayer.
(h) When an offer in compromise is either accepted or rejected, or
the terms and conditions of a compromise agreement are fulfilled,
the board shall notify the taxpayer in writing. In the event an offer
is rejected, the amount posted will either be applied to the
liability or refunded, at the discretion of the taxpayer.
(i) When more than one taxpayer is liable for the debt, such as
with spouses or partnerships or other business combinations,
including, but not limited to, taxpayers who are liable through dual
determination or successor's liability, the acceptance of an offer in
compromise from one liable taxpayer shall reduce the amount of the
liability of the other taxpayers by the amount of the accepted offer.
(j) Whenever a compromise of tax or penalties or total tax and
penalties in excess of five hundred dollars ($500) is approved, there
shall be placed on file for at least one year in the office of the
executive director of the board a public record with respect to that
compromise. The public record shall include all of the following
information:
(1) The name of the taxpayer.
(2) The amount of unpaid tax and related penalties, additions to
tax, interest, or other amounts involved.
(3) The amount offered.
(4) A summary of the reason why the compromise is in the best
interest of the state.
The public record shall not include any information that relates
to any trade secrets, patent, process, style of work, apparatus,
business secret, or organizational structure, that if disclosed,
would adversely affect the taxpayer or violate the confidentiality
provisions of Section 60609. No list shall be prepared and no
releases distributed by the board in connection with these
statements.
(k) Any compromise made under this section may be rescinded, all
compromised liabilities may be reestablished, without regard to any
statute of limitations that otherwise may be applicable, and no
portion of the amount offered in compromise refunded, if either of
the following occurs:
(1) The board determines that any person did any of the following
acts regarding the making of the offer:
(A) Concealed from the board any property belonging to the estate
of any taxpayer or other person liable for the tax.
(B) Received, withheld, destroyed, mutilated, or falsified any
book, document, or record or made any false statement, relating to
the estate or financial condition of the taxpayer or other person
liable for the tax.
(2) The taxpayer fails to comply with any of the terms and
conditions relative to the offer.
(l) Any person who, in connection with any offer or compromise
under this section, or offer of that compromise to enter into that
agreement, willfully does either of the following shall be guilty of
a felony and, upon conviction, shall be fined not more than fifty
thousand dollars ($50,000) or imprisoned in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code , or both, together with the costs of investigation
and prosecution:
(1) Conceals from any officer or employee of this state any
property belonging to the estate of a taxpayer or other person liable
in respect of the tax.
(2) Receives, withholds, destroys, mutilates, or falsifies any
book, document, or record, or makes any false statement, relating to
the estate or financial condition of the taxpayer or other person
liable in respect of the tax.
(m) For purposes of this section, "person" means the taxpayer, any
member of the taxpayer's family, any corporation, agent, fiduciary,
or representative of, or any other individual or entity acting on
behalf of, the taxpayer, or any other corporation or entity owned or
controlled by the taxpayer, directly or indirectly, or that owns or
controls the taxpayer, directly or indirectly.
(n) This section shall become operative on January 1, 2013.
SEC. 597. Section 2118.5 of the Unemployment Insurance
Code is amended to read:
2118.5. Any person required by this code to collect, account for,
and pay over any tax or amount required to be withheld who willfully
fails to collect or truthfully account for and pay over the tax or
amount shall, in addition to other penalties provided by law, be
guilty of a felony and, upon conviction thereof, shall be fined an
amount not more than twenty thousand dollars ($20,000), or imprisoned
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code , or both the fine and
imprisonment, at the discretion of the court.
SEC. 598. Section 2478 of the Vehicle Code is amended
to read:
2478. (a) Any person who is found guilty of violating Section
2470, 2472, 2474, or 2476, or the rules and regulations promulgated
under those provisions, is subject to imprisonment in the county jail
for not more than one year, or a fine of not more than one thousand
dollars ($1,000), or both that imprisonment and fine.
(b) If the conviction is a second or subsequent conviction of a
violation described in subdivision (a), or the violation is committed
with intent to defraud or mislead, the person is subject to
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code ,
or a fine of not more than ten thousand dollars ($10,000), or both
that imprisonment and fine.
SEC. 599. Section 2800.4 of the Vehicle Code is amended
to read:
2800.4. Whenever a person willfully flees or attempts to elude a
pursuing peace officer in violation of Section 2800.1, and the person
operating the pursued vehicle willfully drives that vehicle on a
highway in a direction opposite to that in which the traffic lawfully
moves upon that highway, the person upon conviction is punishable by
imprisonment for not less than six months nor more than one year in
a county jail or by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code , or by a fine of not less than one thousand dollars
($1,000) nor more than ten thousand dollars ($10,000), or by both
that fine and imprisonment.
SEC. 600. Section 4463 of the Vehicle Code is amended
to read:
4463. (a) A person who, with intent to prejudice, damage, or
defraud, commits any of the following acts is guilty of a felony and
upon conviction thereof shall be punished by imprisonment in
the state prison pursuant to subdivision (h) of
Section 1170 of the Penal Code for 16 months or two or three
years, or by imprisonment in a county jail for not more than one
year:
(1) Alters, forges, counterfeits, or falsifies a certificate of
ownership, registration card, certificate, license, license plate,
device issued pursuant to Section 4853, special plate, or permit
provided for by this code or a comparable certificate of ownership,
registration card, certificate, license, license plate, device
comparable to that issued pursuant to Section 4853, special plate, or
permit provided for by a foreign jurisdiction, or alters, forges,
counterfeits, or falsifies the document, device, or plate with intent
to represent it as issued by the department, or alters, forges,
counterfeits, or falsifies with fraudulent intent an endorsement of
transfer on a certificate of ownership or other document evidencing
ownership, or with fraudulent intent displays or causes or permits to
be displayed or have in his or her possession a blank, incomplete,
canceled, suspended, revoked, altered, forged, counterfeit, or false
certificate of ownership, registration card, certificate, license,
license plate, device issued pursuant to Section 4853, special plate,
or permit.
(2) Utters, publishes, passes, or attempts to pass, as true and
genuine, a false, altered, forged, or counterfeited matter listed in
paragraph (1) knowing it to be false, altered, forged, or
counterfeited.
(b) A person who, with intent to prejudice, damage, or defraud,
commits any of the following acts is guilty of a misdemeanor, and
upon conviction thereof shall be punished by imprisonment in a county
jail for six months, a fine of not less than five hundred dollars
($500) and not more than one thousand dollars ($1,000), or both that
fine and imprisonment, which penalty shall not be suspended:
(1) Forges, counterfeits, or falsifies a disabled person placard
or a comparable placard relating to parking privileges for disabled
persons provided for by a foreign jurisdiction, or forges,
counterfeits, or falsifies a disabled person placard with intent to
represent it as issued by the department.
(2) Passes, or attempts to pass, as true and genuine, a false,
forged, or counterfeit disabled person placard knowing it to be
false, forged, or counterfeited.
(3) Acquires, possesses, sells, or offers for sale a genuine or
counterfeit disabled person placard.
(c) A person who, with fraudulent intent, displays or causes or
permits to be displayed a forged, counterfeit, or false disabled
person placard, is subject to the issuance of a notice of parking
violation imposing a civil penalty of not less than two hundred fifty
dollars ($250) and not more than one thousand dollars ($1,000), for
which enforcement shall be governed by the procedures set forth in
Article 3 (commencing with Section 40200) of Chapter 1 of Division 17
or is guilty of a misdemeanor punishable by imprisonment in a county
jail for six months, a fine of not less than two hundred fifty
dollars ($250) and not more than one thousand dollars ($1,000), or
both that fine and imprisonment, which penalty shall not be
suspended.
(d) For purposes of subdivision (b) or (c), "disabled person
placard" means a placard issued pursuant to Section 22511.55 or
22511.59.
(e) A person who, with intent to prejudice, damage, or defraud,
commits any of the following acts is guilty of an infraction, and
upon conviction thereof shall be punished by a fine of not less than
one hundred dollars ($100) and not more than two hundred fifty
dollars ($250) for a first offense, not less than two hundred fifty
dollars ($250) and not more than five hundred dollars ($500) for a
second offense, and not less than five hundred dollars ($500) and not
more than one thousand dollars ($1,000) for a third or subsequent
offense, which penalty shall not be suspended:
(1) Forges, counterfeits, or falsifies a Clean Air Sticker or a
comparable clean air sticker relating to high occupancy vehicle lane
privileges provided for by a foreign jurisdiction, or forges,
counterfeits, or falsifies a Clean Air Sticker with intent to
represent it as issued by the department.
(2) Passes, or attempts to pass, as true and genuine, a false,
forged, or counterfeit Clean Air Sticker knowing it to be false,
forged, or counterfeited.
(3) Acquires, possesses, sells, or offers for sale a counterfeit
Clean Air Sticker.
(4) Acquires, possesses, sells, or offers for sale a genuine Clean
Air Sticker separate from the vehicle for which the department
issued that sticker.
(f) As used in this section, "Clean Air Sticker" means a label or
decal issued pursuant to Sections 5205.5 and 21655.9.
SEC. 601. Section 10501 of the Vehicle Code is amended
to read:
10501. (a) It is unlawful for any person to make or file a false
or fraudulent report of theft of a vehicle required to be registered
under this code with any law enforcement agency with intent to
deceive.
(b) If a person has been previously convicted of a violation of
subdivision (a), he or she is punishable by imprisonment in
the state prison pursuant to subdivision (h) of
Section 1170 of the Penal Code for 16 months, or two or three
years, or in a county jail for not to exceed one year.
SEC. 602. Section 10752 of the Vehicle Code is amended
to read:
10752. (a) No person shall, with intent to prejudice, damage,
injure, or defraud, acquire, possess, sell, or offer for sale any
genuine or counterfeit manufacturer's serial or identification number
from or for, or purporting to be from or for, a vehicle or component
part thereof.
(b) No person shall, with intent to prejudice, damage, injure, or
defraud, acquire, possess, sell, or offer for sale any genuine or
counterfeit serial or identification number issued by the department,
the Department of the California Highway Patrol, or the vehicle
registration and titling agency of any foreign jurisdiction which is
from or for, or purports to be from or for, a vehicle or component
part thereof.
(c) Every person convicted of a violation of subdivision (a) or
(b) shall be punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Pe
nal Code , or in the county jail for not less than
90 days nor more than one year, and by a fine of not less than two
hundred fifty dollars ($250) nor more than five thousand dollars
($5,000).
SEC. 603. Section 10801 of the Vehicle Code is amended
to read:
10801. Any person who knowingly and intentionally owns or
operates a chop shop is guilty of a public offense and, upon
conviction, shall be punished by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170 of
the Penal Code for two, three, or four years, or by a fine of
not more than fifty thousand dollars ($50,000), or by both the fine
and imprisonment, or by up to one year in the county jail, or by a
fine of not more than one thousand dollars ($1,000), or by both the
fine and imprisonment.
SEC. 604. Section 10802 of the Vehicle Code is amended
to read:
10802. Any person who knowingly alters, counterfeits, defaces,
destroys, disguises, falsifies, forges, obliterates, or removes
vehicle identification numbers, with the intent to misrepresent the
identity or prevent the identification of motor vehicles or motor
vehicle parts, for the purpose of sale, transfer, import, or export,
is guilty of a public offense and, upon conviction, shall be punished
by imprisonment in the state prison pursuant
to subdivision (h) of Section 1170 of the Pen al Code
for 16 months, or two or three years, or by a fine of not more
than twenty-five thousand dollars ($25,000), or by both the fine and
imprisonment, or by up to one year in the county jail, or by a fine
of not more than one thousand dollars ($1,000), or by both the fine
and imprisonment.
SEC. 605. Section 10803 of the Vehicle Code is amended
to read:
10803. (a) Any person who buys with the intent to resell,
disposes of, sells, or transfers, more than one motor vehicle or
parts from more than one motor vehicle, with the knowledge that the
vehicle identification numbers of the motor vehicles or motor vehicle
parts have been altered, counterfeited, defaced, destroyed,
disguised, falsified, forged, obliterated, or removed for the purpose
of misrepresenting the identity or preventing the identification of
the motor vehicles or motor vehicle parts, is guilty of a public
offense and, upon conviction, shall be punished by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code for two, four,
or six years, or by a fine of not more than sixty thousand dollars
($60,000), or by both the fine and imprisonment, or by up to one year
in the county jail, or by a fine of not more than one thousand
dollars ($1,000), or by both the fine and imprisonment.
(b) Any person who possesses, for the purpose of sale, transfer,
import, or export, more than one motor vehicle or parts from more
than one motor vehicle, with the knowledge that the vehicle
identification numbers of the motor vehicles or motor vehicle parts
have been altered, counterfeited, defaced, destroyed, disguised,
falsified, forged, obliterated, or removed for the purpose of
misrepresenting the identity or preventing the identification of the
motor vehicles or motor vehicle parts, is guilty of a public offense
and, upon conviction, shall be punished by imprisonment in
the state prison pursuant to subdivision (h) of
Section 1170 of the Penal Code for 16 months, or two or three
years, or by a fine of not more than thirty thousand dollars
($30,000), or by both the fine and imprisonment, or by imprisonment
in the county jail not exceeding one year or by a fine of not more
than one thousand dollars ($1,000) or by both the fine and
imprisonment.
SEC. 606. Section 10851 of the Vehicle Code is amended
to read:
10851. (a) Any person who drives or takes a vehicle not his or
her own, without the consent of the owner thereof, and with intent
either to permanently or temporarily deprive the owner thereof of his
or her title to or possession of the vehicle, whether with or
without intent to steal the vehicle, or any person who is a party or
an accessory to or an accomplice in the driving or unauthorized
taking or stealing, is guilty of a public offense and, upon
conviction thereof, shall be punished by imprisonment in a county
jail for not more than one year or in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code or by a fine of not more than five thousand dollars
($5,000), or by both the fine and imprisonment.
(b) If the vehicle is (1) an ambulance, as defined in subdivision
(a) of Section 165, (2) a distinctively marked vehicle of a law
enforcement agency or fire department, taken while the ambulance or
vehicle is on an emergency call and this fact is known to the person
driving or taking, or any person who is party or an accessory to or
an accomplice in the driving or unauthorized taking or stealing, or
(3) a vehicle which has been modified for the use of a disabled
veteran or any other disabled person and which displays a
distinguishing license plate or placard issued pursuant to Section
22511.5 or 22511.9 and this fact is known or should reasonably have
been known to the person driving or taking, or any person who is
party or an accessory in the driving or unauthorized taking or
stealing, the offense is a felony punishable by imprisonment
in the state prison pursuant to subdivision (h) of
Section 1170 of the Penal Code for two, three, or four years or
by a fine of not more than ten thousand dollars ($10,000), or by
both the fine and imprisonment.
(c) In any prosecution for a violation of subdivision (a) or (b),
the consent of the owner of a vehicle to its taking or driving shall
not in any case be presumed or implied because of the owner's consent
on a previous occasion to the taking or driving of the vehicle by
the same or a different person.
(d) The existence of any fact which makes subdivision (b)
applicable shall be alleged in the accusatory pleading, and either
admitted by the defendant in open court, or found to be true by the
jury trying the issue of guilt or by the court where guilt is
established by plea of guilty or nolo contendere or by trial by the
court sitting without a jury.
(e) Any person who has been convicted of one or more previous
felony violations of this section, or felony grand theft of a vehicle
in violation of subdivision (d) of Section 487 of the Penal Code,
former subdivision (3) of Section 487 of the Penal Code, as that
section read prior to being amended by Section 4 of Chapter 1125 of
the Statutes of 1993, or Section 487h of the Penal Code, is
punishable as set forth in Section 666.5 of the Penal Code. The
existence of any fact that would bring a person under Section 666.5
of the Penal Code shall be alleged in the information or indictment
and either admitted by the defendant in open court, or found to be
true by the jury trying the issue of guilt or by the court where
guilt is established by plea of guilty or nolo contendere, or by
trial by the court sitting without a jury.
(f) This section shall become operative on January 1, 1997.
SEC. 607. Section 21464 of the Vehicle Code is amended
to read:
21464. (a) A person, without lawful authority, may not deface,
injure, attach any material or substance to, knock down, or remove,
nor may a person shoot at, any official traffic control device,
traffic guidepost, traffic signpost, motorist callbox, or historical
marker placed or erected as authorized or required by law, nor may a
person without lawful authority deface, injure, attach any material
or substance to, or remove, nor may a person shoot at, any
inscription, shield, or insignia on any device, guide, or marker.
(b) A person may not use, and a vehicle, other than an authorized
emergency vehicle or a public transit passenger vehicle, may not be
equipped with, any device, including, but not limited to, a mobile
infrared transmitter, that is capable of sending a signal that
interrupts or changes the sequence patterns of an official traffic
control signal unless that device or use is authorized by the
Department of Transportation pursuant to Section 21350 or by local
authorities pursuant to Section 21351.
(c) A person may not buy, possess, manufacture, install, sell,
offer for sale, or otherwise distribute a device described in
subdivision (b), including, but not limited to, a mobile infrared
transmitter (MIRT), unless the purchase, possession, manufacture,
installation, sale, offer for sale, or distribution is for the use of
the device by a peace officer or other person authorized to operate
an authorized emergency vehicle or a public transit passenger
vehicle, in the scope of his or her duties.
(d) Any willful violation of subdivision (a), (b), or (c) that
results in injury to, or the death of, a person is punishable by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code , or by
imprisonment in a county jail for a period of not more than six
months, and by a fine of not less than five thousand dollars ($5,000)
nor more than ten thousand dollars ($10,000).
(e) Any willful violation of subdivision (a), (b), or (c) that
does not result in injury to, or the death of, a person is punishable
by a fine of not more than five thousand dollars ($5,000).
(f) The court shall allow the offender to perform community
service designated by the court in lieu of all or part of any fine
imposed under this section.
SEC. 608. Section 21651 of the Vehicle Code is amended
to read:
21651. (a) Whenever a highway has been divided into two or more
roadways by means of intermittent barriers or by means of a dividing
section of not less than two feet in width, either unpaved or
delineated by curbs, double-parallel lines, or other markings on the
roadway, it is unlawful to do either of the following:
(1) To drive any vehicle over, upon, or across the dividing
section.
(2) To make any left, semicircular, or U-turn with the vehicle on
the divided highway, except through an opening in the barrier
designated and intended by public authorities for the use of vehicles
or through a plainly marked opening in the dividing section.
(b) It is unlawful to drive any vehicle upon a highway, except to
the right of an intermittent barrier or a dividing section which
separates two or more opposing lanes of traffic. Except as otherwise
provided in subdivision (c), a violation of this subdivision is a
misdemeanor.
(c) Any willful violation of subdivision (b) which results in
injury to, or death of, a person shall be punished by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code , or imprisonment in a
county jail for a period of not more than six months.
SEC. 609. Section 23104 of the Vehicle Code is amended
to read:
23104. (a) Except as provided in subdivision (b), whenever
reckless driving of a vehicle proximately causes bodily injury to a
person other than the driver, the person driving the vehicle shall,
upon conviction thereof, be punished by imprisonment in the county
jail for not less than 30 days nor more than six months or by a fine
of not less than two hundred twenty dollars ($220) nor more than one
thousand dollars ($1,000), or by both the fine and imprisonment.
(b) A person convicted of reckless driving that proximately
causes great bodily injury, as defined in Section 12022.7 of the
Penal Code, to a person other than the driver, who previously has
been convicted of a violation of Section 23103, 23104, 23105, 23109,
23109.1, 23152, or 23153, shall be punished by imprisonment
in the state prison pursuant to subdivision (h) of
Section 1170 of the Penal Code , by imprisonment in the county
jail for not less than 30 days nor more than six months or by a fine
of not less than two hundred twenty dollars ($220) nor more than one
thousand dollars ($1,000) or by both the fine and imprisonment.
SEC. 610. Section 23105 of the Vehicle Code is amended
to read:
23105. (a) A person convicted of reckless driving in violation of
Section 23103 that proximately causes one or more of the injuries
specified in subdivision (b) to a person other than the driver, shall
be punished by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
, or by imprisonment in a county jail for not less than 30 days
nor more than six months, or by a fine of not less than two hundred
twenty dollars ($220) nor more than one thousand dollars ($1,000), or
by both that fine and imprisonment.
(b) This section applies to all of the following injuries:
(1) A loss of consciousness.
(2) A concussion.
(3) A bone fracture.
(4) A protracted loss or impairment of function of a bodily member
or organ.
(5) A wound requiring extensive suturing.
(6) A serious disfigurement.
(7) Brain injury.
(8) Paralysis.
(c) This section does not preclude or prohibit prosecution under
any other provision of law.
SEC. 611. Section 23109 of the Vehicle Code is amended
to read:
23109. (a) A person shall not engage in a motor vehicle speed
contest on a highway. As used in this section, a motor vehicle speed
contest includes a motor vehicle race against another vehicle, a
clock, or other timing device. For purposes of this section, an event
in which the time to cover a prescribed route of more than 20 miles
is measured, but where the vehicle does not exceed the speed limits,
is not a speed contest.
(b) A person shall not aid or abet in any motor vehicle speed
contest on any highway.
(c) A person shall not engage in a motor vehicle exhibition of
speed on a highway, and a person shall not aid or abet in a motor
vehicle exhibition of speed on any highway.
(d) A person shall not, for the purpose of facilitating or aiding
or as an incident to any motor vehicle speed contest or exhibition
upon a highway, in any manner obstruct or place a barricade or
obstruction or assist or participate in placing a barricade or
obstruction upon any highway.
(e) (1) A person convicted of a violation of subdivision (a) shall
be punished by imprisonment in a county jail for not less than 24
hours nor more than 90 days or by a fine of not less than three
hundred fifty-five dollars ($355) nor more than one thousand dollars
($1,000), or by both that fine and imprisonment. That person shall
also be required to perform 40 hours of community service. The court
may order the privilege to operate a motor vehicle suspended for 90
days to six months, as provided in paragraph (8) of subdivision (a)
of Section 13352. The person's privilege to operate a motor vehicle
may be restricted for 90 days to six months to necessary travel to
and from that person's place of employment and, if driving a motor
vehicle is necessary to perform the duties of the person's
employment, restricted to driving in that person's scope of
employment. This subdivision does not interfere with the court's
power to grant probation in a suitable case.
(2) If a person is convicted of a violation of subdivision (a) and
that violation proximately causes bodily injury to a person other
than the driver, the person convicted shall be punished by
imprisonment in a county jail for not less than 30 days nor more than
six months or by a fine of not less than five hundred dollars ($500)
nor more than one thousand dollars ($1,000), or by both that fine
and imprisonment.
(f) (1) If a person is convicted of a violation of subdivision (a)
for an offense that occurred within five years of the date of a
prior offense that resulted in a conviction of a violation of
subdivision (a), that person shall be punished by imprisonment in a
county jail for not less than four days nor more than six months, and
by a fine of not less than five hundred dollars ($500) nor more than
one thousand dollars ($1,000).
(2) If the perpetration of the most recent offense within the
five-year period described in paragraph (1) proximately causes bodily
injury to a person other than the driver, a person convicted of that
second violation shall be imprisoned in a county jail for not less
than 30 days nor more than six months and by a fine of not less than
five hundred dollars ($500) nor more than one thousand dollars
($1,000).
(3) If the perpetration of the most recent offense within the
five-year period described in paragraph (1) proximately causes
serious bodily injury, as defined in paragraph (4) of subdivision (f)
of Section 243 of the Penal Code, to a person other than the driver,
a person convicted of that second violation shall be imprisoned
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code , or in a county jail for
not less than 30 days nor more than one year, and by a fine of not
less than five hundred dollars ($500) nor more than one thousand
dollars ($1,000).
(4) The court shall order the privilege to operate a motor vehicle
of a person convicted under paragraph (1), (2), or (3) suspended for
a period of six months, as provided in paragraph (9) of subdivision
(a) of Section 13352. In lieu of the suspension, the person's
privilege to operate a motor vehicle may be restricted for six months
to necessary travel to and from that person's place of employment
and, if driving a motor vehicle is necessary to perform the duties of
the person's employment, restricted to driving in that person's
scope of employment.
(5) This subdivision does not interfere with the court's power to
grant probation in a suitable case.
(g) If the court grants probation to a person subject to
punishment under subdivision (f), in addition to subdivision (f) and
any other terms and conditions imposed by the court, which may
include a fine, the court shall impose as a condition of probation
that the person be confined in a county jail for not less than 48
hours nor more than six months. The court shall order the person's
privilege to operate a motor vehicle to be suspended for a period of
six months, as provided in paragraph (9) of subdivision (a) of
Section 13352 or restricted pursuant to subdivision (f).
(h) If a person is convicted of a violation of subdivision (a) and
the vehicle used in the violation is registered to that person, the
vehicle may be impounded at the registered owner's expense for not
less than one day nor more than 30 days.
(i) A person who violates subdivision (b), (c), or (d) shall upon
conviction of that violation be punished by imprisonment in a county
jail for not more than 90 days, by a fine of not more than five
hundred dollars ($500), or by both that fine and imprisonment.
(j) If a person's privilege to operate a motor vehicle is
restricted by a court pursuant to this section, the court shall
clearly mark the restriction and the dates of the restriction on that
person's driver's license and promptly notify the Department of
Motor Vehicles of the terms of the restriction in a manner prescribed
by the department. The Department of Motor Vehicles shall place that
restriction in the person's records in the Department of Motor
Vehicles and enter the restriction on a license subsequently issued
by the Department of Motor Vehicles to that person during the period
of the restriction.
(k) The court may order that a person convicted under this
section, who is to be punished by imprisonment in a county jail, be
imprisoned on days other than days of regular employment of the
person, as determined by the court.
( l ) This section shall be known and may be cited as
the Louis Friend Memorial Act.
SEC. 612. Section 23109.1 of the Vehicle Code is
amended to read:
23109.1. (a) A person convicted of engaging in a motor vehicle
speed contest in violation of subdivision (a) of Section 23109 that
proximately causes one or more of the injuries specified in
subdivision (b) to a person other than the driver, shall be punished
by imprisonment in the state prison pursuant
to subdivision (h) of Section 1170 of the Penal Code , or by
imprisonment in a county jail for not less than 30 days nor more than
six months, or by a fine of not less than five hundred dollars
($500) nor more than one thousand dollars ($1,000), or by both that
fine and imprisonment.
(b) This section applies to all of the following injuries:
(1) A loss of consciousness.
(2) A concussion.
(3) A bone fracture.
(4) A protracted loss or impairment of function of a bodily member
or organ.
(5) A wound requiring extensive suturing.
(6) A serious disfigurement.
(7) Brain injury.
(8) Paralysis.
(c) This section does not preclude or prohibit prosecution under
any other provision of law.
SEC. 613. Section 23110 of the Vehicle Code is amended
to read:
23110. (a) Any person who throws any substance at a vehicle or
any occupant thereof on a highway is guilty of a misdemeanor.
(b) Any person who with intent to do great bodily injury
maliciously and willfully throws or projects any rock, brick, bottle,
metal or other missile, or projects any other substance capable of
doing serious bodily harm at such vehicle or occupant thereof is
guilty of a felony and upon conviction shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code .
SEC. 614. Section 23550 of the Vehicle Code is amended
to read:
23550. (a) If a person is convicted of a violation of Section
23152 and the offense occurred within 10 years of three or more
separate violations of Section 23103, as specified in Section
23103.5, or Section 23152 or 23153, or any combination thereof, that
resulted in convictions, that person shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code , or in a
county jail for not less than 180 days nor more than one year, and by
a fine of not less than three hundred ninety dollars ($390) nor more
than one thousand dollars ($1,000). The person's privilege to
operate a motor vehicle shall be revoked by the Department of Motor
Vehicles pursuant to paragraph (7) of subdivision (a) of Section
13352. The court shall require the person to surrender the driver's
license to the court in accordance with Section 13550.
(b) A person convicted of a violation of Section 23152 punishable
under this section shall be designated as a habitual traffic offender
for a period of three years, subsequent to the conviction. The
person shall be advised of this designation pursuant to subdivision
(b) of Section 13350.
SEC. 615. Section 42000 of the Vehicle Code is amended
to read:
42000. Unless a different penalty is expressly provided by this
code, every person convicted of a felony for a violation of any
provision of this code 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 pursuant to subdivision (h) of Section 1170 of
the Penal Code, or by both such fine and imprisonment.
SEC. 616. Section 13387 of the Water Code is amended to
read:
13387. (a) Any person who knowingly or negligently does any of
the following is subject to criminal penalties as provided in
subdivisions (b), (c), and (d):
(1) Violates Section 13375 or 13376.
(2) Violates any waste discharge requirements or dredged or fill
material permit issued pursuant to this chapter or any water quality
certification issued pursuant to Section 13160.
(3) Violates any order or prohibition issued pursuant to Section
13243 or 13301, if the activity subject to the order or prohibition
is subject to regulation under this chapter.
(4) Violates any requirement of Section 301, 302, 306, 307, 308,
318, 401, or 405 of the Clean Water Act (33 U.S.C. Sec. 1311, 1312,
1316, 1317, 1318, 1328, 1341, or 1345), as amended.
(5) Introduces into a sewer system or into a publicly owned
treatment works any pollutant or hazardous substances that the person
knew or reasonably should have known could cause personal injury or
property damage.
(6) Introduces any pollutant or hazardous substance into a sewer
system or into a publicly owned treatment works, except in accordance
with any applicable pretreatment requirements, which causes the
treatment works to violate waste discharge requirements.
(b) Any person who negligently commits any of the violations set
forth in subdivision (a) shall, upon conviction, be punished by a
fine of not less than five thousand dollars ($5,000), nor more than
twenty-five thousand dollars ($25,000), for each day in which the
violation occurs, by imprisonment for not more than one year in a
county jail, or by both that fine and imprisonment. If a conviction
of a person is for a violation committed after a first conviction of
the person under this subdivision, subdivision (c), or subdivision
(d), punishment shall be by a fine of not more than fifty thousand
dollars ($50,000) for each day in which the violation occurs, by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code for 16, 20,
or 24 months, or by both that fine and imprisonment.
(c) Any person who knowingly commits any of the violations set
forth in subdivision (a) shall, upon conviction, be punished by a
fine of not less than five thousand dollars ($5,000), nor more than
fifty thousand dollars ($50,000), for each day in which the violation
occurs, by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code ,
or by both that fine and imprisonment. If a conviction of a person
is for a violation committed after a first conviction of the person
under this subdivision or subdivision (d), punishment shall be by a
fine of not more than one hundred thousand dollars ($100,000) for
each day in which the violation occurs, by imprisonment in
the state prison pursuant to subdivision (h) of
Section 1170 of the Penal Code for two, four, or six years, or
by both that fine and imprisonment.
(d) (1) Any person who knowingly commits any of the violations set
forth in subdivision (a), and who knows at the time that the person
thereby places another person in imminent danger of death or serious
bodily injury, shall, upon conviction, be punished by a fine of not
more than two hundred fifty thousand dollars ($250,000), imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code for 5, 10, or 15 years,
or by both that fine and imprisonment. A person that is an
organization shall, upon conviction under this subdivision, be
subject to a fine of not more than one million dollars ($1,000,000).
If a conviction of a person is for a violation committed after a
first conviction of the person under this subdivision, the punishment
shall be by a fine of not more than five hundred thousand dollars
($500,000), by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
for 10, 20, or 30 years, or by both that fine and imprisonment.
A person that is an organization shall, upon conviction for a
violation committed after a first conviction of the person under this
subdivision, be subject to a fine of not more than two million
dollars ($2,000,000). Any fines imposed pursuant to this subdivision
shall be in addition to any fines imposed pursuant to subdivision
(c).
(2) In determining whether a defendant who is an individual knew
that the defendant's conduct placed another person in imminent danger
of death or serious bodily injury, the defendant is responsible only
for actual awareness or actual belief that the defendant possessed,
and knowledge possessed by a person other than the defendant, but not
by the defendant personally, cannot be attributed to the defendant.
(e) Any person who knowingly makes any false statement,
representation, or certification in any record, report, plan, notice
to comply, or other document filed with a regional board or the state
board, or who knowingly falsifies, tampers with, or renders
inaccurate any monitoring device or method required under this
division shall be punished by a fine of not more than twenty-five
thousand dollars ($25,000), by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170 of
the Penal Code for 16, 20, or 24 months, or by both that fine
and imprisonment. If a conviction of a person is for a violation
committed after a first conviction of the person under this
subdivision, punishment shall be by a fine of not more than
twenty-five thousand dollars ($25,000) per day of violation, by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code for two,
three, or four years, or by both that fine and imprisonment.
(f) For purposes of this section, a single operational upset which
leads to simultaneous violations of more than one pollutant
parameter shall be treated as a single violation.
(g) For purposes of this section, "organization," "serious bodily
injury," "person," and "hazardous substance" shall have the same
meaning as in Section 309(c) of the Clean Water Act (33 U.S.C. Sec.
1319(c)), as amended.
(h) (1) Subject to paragraph (2), funds collected pursuant to this
section shall be deposited in the State Water Pollution Cleanup and
Abatement Account.
(2) (A) Notwithstanding any other provision of law, fines
collected for a violation of a water quality certification in
accordance with paragraph (2) of subdivision (a) or for a violation
of Section 401 of the Clean Water Act (33 U.S.C. Sec. 1341) in
accordance with paragraph (4) of subdivision (a) shall be deposited
in the Water Discharge Permit Fund and separately accounted for in
that fund.
(B) The funds described in subparagraph (A) shall be expended by
the state board, upon appropriation by the Legislature, to assist
regional boards, and other public agencies with authority to clean up
waste or abate the effects of the waste, in cleaning up or abating
the effects of the waste on waters of the state, or for the purposes
authorized in Section 13443.
SEC. 617. Section 871.5 of the Welfare and Institutions
Code is amended to read:
871.5. (a) Except as authorized by law, or when authorized by the
person in charge of any county juvenile hall, ranch, camp, or
forestry camp, or by an officer of any juvenile hall or camp
empowered by the person in charge to give that authorization, any
person who knowingly brings or sends into, or who knowingly assists
in bringing into, or sending into, any county juvenile hall, ranch,
camp, or forestry camp, or any person who while confined in any of
those institutions possesses therein, any controlled substance, the
possession of which is prohibited by Division 10 (commencing with
Section 11000) of the Health and Safety Code, any firearm, weapon, or
explosive of any kind, or any tear gas or tear gas weapon shall be
punished by imprisonment in a county jail for not more than one year
or by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code .
(b) Except as otherwise authorized in the manner provided in
subdivision (a), any person who knowingly uses tear gas or uses a
tear gas weapon in an institution or camp specified in subdivision
(a) is guilty of a felony.
(c) A sign shall be posted at the entrance of each county juvenile
hall, ranch, camp, or forestry camp specifying the conduct
prohibited by this section and the penalties therefor.
(d) Except as otherwise authorized in the manner provided in
subdivision (a), any person who knowingly brings or sends into, or
who knowingly assists in bringing into, or sending into, any county
juvenile hall, ranch, camp, or forestry camp, or any person who while
confined in such an institution knowingly possesses therein, any
alcoholic beverage shall be guilty of a misdemeanor.
(e) This section shall not be construed to preclude or in any way
limit the applicability of any other law proscribing a course of
conduct also proscribed by this section.
SEC. 618. Section 1001.5 of the Welfare and
Institutions Code is amended to read:
1001.5. (a) Except when authorized by law, or when authorized by
the person in charge of an institution or camp administered by the
Youth Authority, or by an officer of the institution or camp
empowered by the person in charge of the institution or camp to give
that authorization, any person who knowingly brings or sends into, or
who knowingly assists in bringing into, or sending into, any
institution or camp, or the grounds belonging to any institution or
camp, administered by the Youth Authority, or any person who, while
confined in the institution or camp knowingly possesses therein, any
controlled substance, the possession of which is prohibited by
Division 10 (commencing with Section 11000) of the Health and Safety
Code; any alcoholic beverage; any firearm, weapon or explosive of any
kind; or any tear gas or tear gas weapon shall be punished by
imprisonment in a county jail for not more than one year or by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code .
(b) Except as otherwise authorized in the manner provided in
subdivision (a), any person who knowingly uses tear gas or uses a
tear gas weapon in any institution or camp specified in subdivision
(a) is guilty of a felony.
(c) This section shall not be construed to preclude or in any way
limit the applicability of any other law proscribing a course of
conduct also proscribed by this section.
SEC. 619. Section 1710.5 is added to the Welfare and
Institutions Code, to read:
1710.5. Notwithstanding any other law, on and after July 1, 2011,
a county may enter into a memorandum of understanding with the state
to provide for the admission of minors adjudicated for an offense
listed under subdivision (b) of Section 707 to the Division of
Juvenile Justice.
SEC. 620. Section 1731.5 of the Welfare and
Institutions Code is amended to read:
1731.5. (a) After certification to the Governor as provided in
this article, a court may commit to the Division of Juvenile
Facilities any person who meets all of the following:
(1) Is convicted of an offense described in subdivision (b) of
Section 707 or subdivision (c) of Section 290.008 of the Penal Code.
(2) Is found to be less than 21 years of age at the time of
apprehension.
(3) Is not sentenced to death, imprisonment for life, with or
without the possibility of parole, whether or not pursuant to Section
190 of the Penal Code, imprisonment for 90 days or less, or the
payment of a fine, or after having been directed to pay a fine,
defaults in the payment thereof, and is subject to imprisonment for
more than 90 days under the judgment.
(4) Is not granted probation, or was granted probation and that
probation is revoked and terminated.
(b) The Division of Juvenile Facilities shall accept a person
committed to it pursuant to this article if it believes that the
person can be materially benefitted by its reformatory and
educational discipline, and if it has adequate facilities to provide
that care.
(c) Any person under 18 years of age who is not committed to the
division pursuant to this section may be transferred to the authority
by the Secretary of the Department of Corrections and Rehabilitation
with the approval of the Chief Deputy Secretary for the Division of
Juvenile Justice. In sentencing a person under 18 years of age, the
court may order that the person shall be transferred to the custody
of the Division of Juvenile Facilities pursuant to this subdivision.
If the court makes this order and the division fails to accept
custody of the person, the person shall be returned to court for
resentencing. The transfer shall be solely for the purposes of
housing the inmate, allowing participation in the programs available
at the institution by the inmate, and allowing division parole
supervision of the inmate, who, in all other aspects shall be deemed
to be committed to the Department of Corrections and Rehabilitation
and shall remain subject to the jurisdiction of the Secretary of the
Department of Corrections and Rehabilitation and the Board of Parole
Hearings. Notwithstanding subdivision (b) of Section 2900 of the
Penal Code, the secretary, with the concurrence of the chief deputy
secretary, may designate a facility under the jurisdiction of the
chief deputy secretary as a place of reception for any person
described in this subdivision.
The chief deputy secretary shall have the same powers with respect
to an inmate transferred pursuant to this subdivision as if the
inmate had been committed or transferred to the Division of Juvenile
Facilities either under the Arnold-Kennick Juvenile Court Law or
subdivision (a).
The duration of the transfer shall extend until any of the
following occurs:
(1) The chief deputy secretary orders the inmate returned to the
Department of Corrections and Rehabilitation.
(2) The inmate is ordered discharged by the Board of Parole
Hearings.
(3) The inmate reaches 18 years of age. However, if the inmate's
period of incarceration would be completed on or before the inmate's
21st birthday, the chief deputy secretary may continue to house the
inmate until the period of incarceration is completed.
(d) Except for counties that have entered into a memorandum of
understanding pursuant to Section 1710.5, on and after July 1, 2011,
the Division of Juvenile Justice shall no longer accept any juvenile
offender commitments from the juvenile courts.
SEC. 621. Section 1768.7 of the Welfare and
Institutions Code is amended to read:
1768.7. (a) Any person committed to the authority who escapes or
attempts to escape from the institution or facility in which he or
she is confined, who escapes or attempts to escape while being
conveyed to or from such an institution or facility, who escapes or
attempts to escape while outside or away from such an institution or
facility under custody of Youth Authority officials, officers, or
employees, or who, with intent to abscond from the custody of the
Youth Authority, fails to return to such an institution or facility
at the prescribed time while outside or away from the institution or
facility on furlough or temporary release, is guilty of a felony.
(b) Any offense set forth in subdivision (a) which is accomplished
by force or violence is punishable by imprisonment in the state
prison for a term of two, four, or six years. Any offense set forth
in subdivision (a) which is accomplished without force or violence is
punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
for a term of 16 months, two or three years or in the county
jail not exceeding one year.
(c) For purposes of this section, "committed to the authority"
means a commitment to the Youth Authority pursuant to Section 731 or
1731.5; a remand to the custody of the Youth Authority pursuant to
Section 707.2; a placement at the Youth Authority pursuant to Section
704, 1731.6, or 1753.1; or a transfer to the custody of the Youth
Authority pursuant to subdivision (c) of Section 1731.5.
SEC. 622. Section 1768.85 of the Welfare and
Institutions Code is amended to read:
1768.85. (a) Every person confined under the jurisdiction of the
Department of the Youth Authority who commits a battery by gassing
upon the person of any peace officer, as defined in Chapter 4.5
(commencing with Section 830) of Title 3 of Part 2, or employee of
the institution is guilty of aggravated battery and shall be punished
by imprisonment in a county jail or by imprisonment in the
state prison pursuant to subdivision (h) of Section
1170 of the Penal Code for two, three, or four years.
(b) For purposes of this section, "gassing" means intentionally
placing or throwing, or causing to be placed or thrown, upon the
person of another, any human excrement or other bodily fluids or
bodily substances or any mixture containing human excrement or other
bodily fluids or bodily substances that results in actual contact
with the person's skin or membranes.
(c) The person in charge of the institution under the jurisdiction
of the Department of the Youth Authority shall use every available
means to immediately investigate all reported or suspected violations
of subdivision (a), including, but not limited to, the use of
forensically acceptable means of preserving and testing the suspected
gassing substance to confirm the presence of human excrement or
other bodily fluids or bodily substances. If there is probable cause
to believe that a ward has violated subdivision (a), the chief
medical officer of the institution under the jurisdiction of the
Department of the Youth Authority, or his or her designee, may, when
he or she deems it medically necessary to protect the health of an
officer or employee who may have been subject to a violation of this
section, order the ward to receive an examination or test for
hepatitis or tuberculosis or both hepatitis and tuberculosis on
either a voluntary or involuntary basis immediately after the event,
and periodically thereafter as determined to be necessary by the
medical officer in order to ensure that further hepatitis or
tuberculosis transmission does not occur. These decisions shall be
consistent with an occupational exposure as defined by the Center for
Disease Control and Prevention. The results of any examination or
test shall be provided to the officer or employee who has been
subject to a reported or suspected violation of this section. Nothing
in this subdivision shall be construed to otherwise supersede the
operation of Title 8 (commencing with Section 7500). Any person
performing tests, transmitting test results, or disclosing
information pursuant to this section shall be immune from civil
liability for any action taken in accordance with this section.
(d) The person in charge of the institution under the jurisdiction
of the Department of the Youth Authority shall refer all reports for
which there is probable cause to believe that the inmate has
violated subdivision (a) to the local district attorney for
prosecution.
(e) The Department of the Youth Authority shall report to the
Legislature, by January 1, 2003, its findings and recommendations on
gassing incidents at the department's facilities and the medical
testing authorized by this section. The report shall include, but not
be limited to, all of the following:
(1) The total number of gassing incidents at each youth
correctional facility up to the date of the report.
(2) The disposition of each gassing incident, including the
administrative penalties imposed, the number of incidents that are
prosecuted, and the results of those prosecutions, including any
penalties imposed.
(3) A profile of the wards who commit the batteries by gassing,
including the number of wards who have one or more prior serious or
violent felony convictions.
(4) Efforts that the department has taken to limit these
incidents, including staff training and the use of protective
clothing and goggles.
(5) The results and costs of the medical testing authorized by
this section.
(f) Nothing in this section shall preclude prosecution under both
this section and any other provision of law.
SEC. 623. Section 3002 of the Welfare and Institutions
Code is amended to read:
3002. Every person committed pursuant to this chapter or former
Chapter 11 (commencing with Section 6399) of Title 7 of the Penal
Code who escapes or attempts to escape from lawful custody is guilty
of a crime punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code . This section does not apply to unauthorized
absence from a halfway house.
SEC. 624. Section 7326 of the Welfare and Institutions
Code is amended to read:
7326. Any person who willfully assists any judicially committed
or remanded patient of a state hospital or other public or private
mental health facility to escape, to attempt to escape therefrom, or
to resist being returned from a leave of absence shall be punished by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code , a fine of
not more than ten thousand dollars ($10,000), or both such
imprisonment and fine; or by imprisonment in a county jail for a
period of not more than one year, a fine of not more than two
thousand dollars ($2,000), or both such imprisonment and fine.
SEC. 625. Section 8100 of the Welfare and Institutions
Code, as amended by Section 16 of Chapter 1326 of the Statutes of
1992, is amended to read:
8100. (a) A person shall not have in his or her possession or
under his or her custody or control, or purchase or receive, or
attempt to purchase or receive, any firearms whatsoever or any other
deadly weapon, if on or after January 1, 1992, he or she has been
admitted to a facility and is receiving inpatient treatment and, in
the opinion of the attending health professional who is primarily
responsible for the patient's treatment of a mental disorder, is a
danger to self or others, as specified by Section 5150, 5250, or
5300, even though the patient has consented to that treatment. A
person is not subject to this subdivision once he or she is
discharged from the facility.
(b) (1) A person shall not have in his or her possession or under
his or her custody or control, or purchase or receive, or attempt to
purchase or receive, any firearms whatsoever or any other deadly
weapon for a period of six months whenever, on or after January 1,
1992, he or she communicates to a licensed psychotherapist, as
defined in subdivisions (a) to (e), inclusive, of Section 1010 of the
Evidence Code, a serious threat of physical violence against a
reasonably identifiable victim or victims. The six-month period shall
commence from the date that the licensed psychotherapist reports to
the local law enforcement agency the identity of the person making
the communication. The prohibition provided for in this subdivision
shall not apply unless the licensed psychotherapist notifies a local
law enforcement agency of the threat by that person. The person,
however, may own, possess, have custody or control over, or receive
or purchase any firearm if a superior court, pursuant to paragraph
(3) and upon petition of the person, has found, by a preponderance of
the evidence, that the person is likely to use firearms or other
deadly weapons in a safe and lawful manner.
(2) Upon receipt of the report from the local law enforcement
agency pursuant to subdivision (c) of Section 8105, the Department of
Justice shall notify by certified mail, return receipt requested, a
person subject to this subdivision of the following:
(A) That he or she is prohibited from possessing, having custody
or control over, receiving, or purchasing any firearm or other deadly
weapon for a period of six months commencing from the date that the
licensed psychotherapist reports to the local law enforcement agency
the identity of the person making the communication. The notice shall
state the date when the prohibition commences and ends.
(B) That he or she may petition a court, as provided in this
subdivision, for an order permitting the person to own, possess,
control, receive, or purchase a firearm.
(3) Any person who is subject to paragraph (1) may petition the
superior court of his or her county of residence for an order that he
or she may own, possess, have custody or control over, receive, or
purchase firearms. At the time the petition is filed, the clerk of
the court shall set a hearing date and notify the person, the
Department of Justice, and
the district attorney. The people of the State of California shall
be the respondent in the proceeding and shall be represented by the
district attorney. Upon motion of the district attorney, or upon its
own motion, the superior court may transfer the petition to the
county in which the person resided at the time of the statements, or
the county in which the person made the statements. Within seven days
after receiving notice of the petition, the Department of Justice
shall file copies of the reports described in Section 8105 with the
superior court. The reports shall be disclosed upon request to the
person and to the district attorney. The district attorney shall be
entitled to a continuance of the hearing to a date of not less than
14 days after the district attorney is notified of the hearing date
by the clerk of the court. The court, upon motion of the petitioner
establishing that confidential information is likely to be discussed
during the hearing that would cause harm to the person, shall conduct
the hearing in camera with only the relevant parties present, unless
the court finds that the public interest would be better served by
conducting the hearing in public. Notwithstanding any other provision
of law, declarations, police reports, including criminal history
information, and any other material and relevant evidence that is not
excluded under Section 352 of the Evidence Code, shall be admissible
at the hearing under this paragraph. If the court finds by a
preponderance of the evidence that the person would be likely to use
firearms in a safe and lawful manner, the court shall order that the
person may have custody or control over, receive, possess, or
purchase firearms. A copy of the order shall be submitted to the
Department of Justice. Upon receipt of the order, the department
shall delete any reference to the prohibition against firearms from
the person's state summary criminal history information.
(c) "Discharge," for the purposes of this section, does not
include a leave of absence from a facility.
(d) "Attending health care professional," as used in this section,
means the licensed health care professional primarily responsible
for the person's treatment who is qualified to make the decision that
the person has a mental disorder and has probable cause to believe
that the person is a danger to self or others.
(e) "Deadly weapon," as used in this section and in Sections 8101,
8102, and 8103, means any weapon, the possession or concealed
carrying of which is prohibited by Section 12020 of the Penal Code.
(f) "Danger to self," as used in subdivision (a), means a
voluntary person who has made a serious threat of, or attempted,
suicide with the use of a firearm or other deadly weapon.
(g) A violation of subdivision (a) of, or paragraph (1) of
subdivision (b) of, this section shall be a public offense,
punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
, or in a county jail for not more than one year, by a fine not
exceeding one thousand dollars ($1,000), or by both that
imprisonment and fine.
(h) The prohibitions set forth in this section shall be in
addition to those set forth in Section 8103.
(i) Any person admitted and receiving treatment prior to January
1, 1992, shall be governed by this section, as amended by Chapter
1090 of the Statutes of 1990, until discharged from the facility.
SEC. 626. Section 8100 of the Welfare and Institutions
Code, as amended by Section 103 of Chapter 178 of the Statutes of
2010, is amended to read:
8100. (a) A person shall not have in his or her possession or
under his or her custody or control, or purchase or receive, or
attempt to purchase or receive, any firearms whatsoever or any other
deadly weapon, if on or after January 1, 1992, he or she has been
admitted to a facility and is receiving inpatient treatment and, in
the opinion of the attending health professional who is primarily
responsible for the patient's treatment of a mental disorder, is a
danger to self or others, as specified by Section 5150, 5250, or
5300, even though the patient has consented to that treatment. A
person is not subject to this subdivision once he or she is
discharged from the facility.
(b) (1) A person shall not have in his or her possession or under
his or her custody or control, or purchase or receive, or attempt to
purchase or receive, any firearms whatsoever or any other deadly
weapon for a period of six months whenever, on or after January 1,
1992, he or she communicates to a licensed psychotherapist, as
defined in subdivisions (a) to (e), inclusive, of Section 1010 of the
Evidence Code, a serious threat of physical violence against a
reasonably identifiable victim or victims. The six-month period shall
commence from the date that the licensed psychotherapist reports to
the local law enforcement agency the identity of the person making
the communication. The prohibition provided for in this subdivision
shall not apply unless the licensed psychotherapist notifies a local
law enforcement agency of the threat by that person. The person,
however, may own, possess, have custody or control over, or receive
or purchase any firearm if a superior court, pursuant to paragraph
(3) and upon petition of the person, has found, by a preponderance of
the evidence, that the person is likely to use firearms or other
deadly weapons in a safe and lawful manner.
(2) Upon receipt of the report from the local law enforcement
agency pursuant to subdivision (c) of Section 8105, the Department of
Justice shall notify by certified mail, return receipt requested, a
person subject to this subdivision of the following:
(A) That he or she is prohibited from possessing, having custody
or control over, receiving, or purchasing any firearm or other deadly
weapon for a period of six months commencing from the date that the
licensed psychotherapist reports to the local law enforcement agency
the identity of the person making the communication. The notice shall
state the date when the prohibition commences and ends.
(B) That he or she may petition a court, as provided in this
subdivision, for an order permitting the person to own, possess,
control, receive, or purchase a firearm.
(3) Any person who is subject to paragraph (1) may petition the
superior court of his or her county of residence for an order that he
or she may own, possess, have custody or control over, receive, or
purchase firearms. At the time the petition is filed, the clerk of
the court shall set a hearing date and notify the person, the
Department of Justice, and the district attorney. The people of the
State of California shall be the respondent in the proceeding and
shall be represented by the district attorney. Upon motion of the
district attorney, or upon its own motion, the superior court may
transfer the petition to the county in which the person resided at
the time of the statements, or the county in which the person made
the statements. Within seven days after receiving notice of the
petition, the Department of Justice shall file copies of the reports
described in Section 8105 with the superior court. The reports shall
be disclosed upon request to the person and to the district attorney.
The district attorney shall be entitled to a continuance of the
hearing to a date of not less than 14 days after the district
attorney is notified of the hearing date by the clerk of the court.
The court, upon motion of the petitioner establishing that
confidential information is likely to be discussed during the hearing
that would cause harm to the person, shall conduct the hearing in
camera with only the relevant parties present, unless the court finds
that the public interest would be better served by conducting the
hearing in public. Notwithstanding any other provision of law,
declarations, police reports, including criminal history information,
and any other material and relevant evidence that is not excluded
under Section 352 of the Evidence Code, shall be admissible at the
hearing under this paragraph. If the court finds by a preponderance
of the evidence that the person would be likely to use firearms in a
safe and lawful manner, the court shall order that the person may
have custody or control over, receive, possess, or purchase firearms.
A copy of the order shall be submitted to the Department of Justice.
Upon receipt of the order, the department shall delete any reference
to the prohibition against firearms from the person's state summary
criminal history information.
(c) "Discharge," for the purposes of this section, does not
include a leave of absence from a facility.
(d) "Attending health care professional," as used in this section,
means the licensed health care professional primarily responsible
for the person's treatment who is qualified to make the decision that
the person has a mental disorder and has probable cause to believe
that the person is a danger to self or others.
(e) "Deadly weapon," as used in this section and in Sections 8101,
8102, and 8103, means any weapon, the possession or concealed
carrying of which is prohibited by any provision listed in Section
16590 of the Penal Code.
(f) "Danger to self," as used in subdivision (a), means a
voluntary person who has made a serious threat of, or attempted,
suicide with the use of a firearm or other deadly weapon.
(g) A violation of subdivision (a) of, or paragraph (1) of
subdivision (b) of, this section shall be a public offense,
punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
, or in a county jail for not more than one year, by a fine not
exceeding one thousand dollars ($1,000), or by both that imprisonment
and fine.
(h) The prohibitions set forth in this section shall be in
addition to those set forth in Section 8103.
(i) Any person admitted and receiving treatment prior to January
1, 1992, shall be governed by this section, as amended by Chapter
1090 of the Statutes of 1990, until discharged from the facility.
SEC. 627. Section 8101 of the Welfare and Institutions
Code is amended to read:
8101. (a) Any person who shall knowingly supply, sell, give, or
allow possession or control of a deadly weapon to any person
described in Section 8100 or 8103 shall be punishable by imprisonment
in the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code , or in a county jail for
a period of not exceeding one year, by a fine of not exceeding one
thousand dollars ($1,000), or by both the fine and imprisonment.
(b) Any person who shall knowingly supply, sell, give, or allow
possession or control of a firearm to any person described in Section
8100 or 8103 shall be punished by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170 of
the Penal Code for two, three, or four years.
(c) "Deadly weapon," as used in this section has the meaning
prescribed by Section 8100.
SEC. 628. Section 8103 of the Welfare and Institutions
Code is amended to read:
8103. (a) (1) No person who after October 1, 1955, has been
adjudicated by a court of any state to be a danger to others as a
result of a mental disorder or mental illness, or who has been
adjudicated to be a mentally disordered sex offender, shall purchase
or receive, or attempt to purchase or receive, or have in his or her
possession, custody, or control any firearm or any other deadly
weapon unless there has been issued to the person a certificate by
the court of adjudication upon release from treatment or at a later
date stating that the person may possess a firearm or any other
deadly weapon without endangering others, and the person has not,
subsequent to the issuance of the certificate, again been adjudicated
by a court to be a danger to others as a result of a mental disorder
or mental illness.
(2) The court shall immediately notify the Department of Justice
of the court order finding the individual to be a person described in
paragraph (1). The court shall also notify the Department of Justice
of any certificate issued as described in paragraph (1).
(b) (1) No person who has been found, pursuant to Section 1026 of
the Penal Code or the law of any other state or the United States,
not guilty by reason of insanity of murder, mayhem, a violation of
Section 207, 209, or 209.5 of the Penal Code in which the victim
suffers intentionally inflicted great bodily injury, carjacking or
robbery in which the victim suffers great bodily injury, a violation
of Section 451 or 452 of the Penal Code involving a trailer coach, as
defined in Section 635 of the Vehicle Code, or any dwelling house, a
violation of paragraph (1) or (2) of subdivision (a) of Section 262
or paragraph (2) or (3) of subdivision (a) of Section 261 of the
Penal Code, a violation of Section 459 of the Penal Code in the first
degree, assault with intent to commit murder, a violation of Section
220 of the Penal Code in which the victim suffers great bodily
injury, a violation of Section 12303.1, 12303.2, 12303.3, 12308,
12309, or 12310 of the Penal Code, or of a felony involving death,
great bodily injury, or an act which poses a serious threat of bodily
harm to another person, or a violation of the law of any other state
or the United States that includes all the elements of any of the
above felonies as defined under California law, shall purchase or
receive, or attempt to purchase or receive, or have in his or her
possession or under his or her custody or control any firearm or any
other deadly weapon.
(2) The court shall immediately notify the Department of Justice
of the court order finding the person to be a person described in
paragraph (1).
(c) (1) No person who has been found, pursuant to Section 1026 of
the Penal Code or the law of any other state or the United States,
not guilty by reason of insanity of any crime other than those
described in subdivision (b) shall purchase or receive, or attempt to
purchase or receive, or shall have in his or her possession,
custody, or control any firearm or any other deadly weapon unless the
court of commitment has found the person to have recovered sanity,
pursuant to Section 1026.2 of the Penal Code or the law of any other
state or the United States.
(2) The court shall immediately notify the Department of Justice
of the court order finding the person to be a person described in
paragraph (1). The court shall also notify the Department of Justice
when it finds that the person has recovered his or her sanity.
(d) (1) No person found by a court to be mentally incompetent to
stand trial, pursuant to Section 1370 or 1370.1 of the Penal Code or
the law of any other state or the United States, shall purchase or
receive, or attempt to purchase or receive, or shall have in his or
her possession, custody, or control any firearm or any other deadly
weapon, unless there has been a finding with respect to the person of
restoration to competence to stand trial by the committing court,
pursuant to Section 1372 of the Penal Code or the law of any other
state or the United States.
(2) The court shall immediately notify the Department of Justice
of the court order finding the person to be mentally incompetent as
described in paragraph (1). The court shall also notify the
Department of Justice when it finds that the person has recovered his
or her competence.
(e) (1) No person who has been placed under conservatorship by a
court, pursuant to Section 5350 or the law of any other state or the
United States, because the person is gravely disabled as a result of
a mental disorder or impairment by chronic alcoholism shall purchase
or receive, or attempt to purchase or receive, or shall have in his
or her possession, custody, or control any firearm or any other
deadly weapon while under the conservatorship if, at the time the
conservatorship was ordered or thereafter, the court which imposed
the conservatorship found that possession of a firearm or any other
deadly weapon by the person would present a danger to the safety of
the person or to others. Upon placing any person under
conservatorship, and prohibiting firearm or any other deadly weapon
possession by the person, the court shall notify the person of this
prohibition.
(2) The court shall immediately notify the Department of Justice
of the court order placing the person under conservatorship and
prohibiting firearm or any other deadly weapon possession by the
person as described in paragraph (1). The notice shall include the
date the conservatorship was imposed and the date the conservatorship
is to be terminated. If the conservatorship is subsequently
terminated before the date listed in the notice to the Department of
Justice or the court subsequently finds that possession of a firearm
or any other deadly weapon by the person would no longer present a
danger to the safety of the person or others, the court shall
immediately notify the Department of Justice.
(3) All information provided to the Department of Justice pursuant
to paragraph (2) shall be kept confidential, separate, and apart
from all other records maintained by the Department of Justice, and
shall be used only to determine eligibility to purchase or possess
firearms or other deadly weapons. Any person who knowingly furnishes
that information for any other purpose is guilty of a misdemeanor.
All the information concerning any person shall be destroyed upon
receipt by the Department of Justice of notice of the termination of
conservatorship as to that person pursuant to paragraph (2).
(f) (1) No person who has been (A) taken into custody as provided
in Section 5150 because that person is a danger to himself, herself,
or to others, (B) assessed within the meaning of Section 5151, and
(C) admitted to a designated facility within the meaning of Sections
5151 and 5152 because that person is a danger to himself, herself, or
others, shall own, possess, control, receive, or purchase, or
attempt to own, possess, control, receive, or purchase any firearm
for a period of five years after the person is released from the
facility. A person described in the preceding sentence, however, may
own, possess, control, receive, or purchase, or attempt to own,
possess, control, receive, or purchase any firearm if the superior
court has, pursuant to paragraph (5), found that the People of the
State of California have not met their burden pursuant to paragraph
(6).
(2) (A) For each person subject to this subdivision, the facility
shall immediately, on the date of admission, submit a report to the
Department of Justice, on a form prescribed by the Department of
Justice, containing information that includes, but is not limited to,
the identity of the person and the legal grounds upon which the
person was admitted to the facility.
Any report submitted pursuant to this paragraph shall be
confidential, except for purposes of the court proceedings described
in this subdivision and for determining the eligibility of the person
to own, possess, control, receive, or purchase a firearm.
(B) Commencing July 1, 2012, facilities shall submit reports
pursuant to this paragraph exclusively by electronic means, in a
manner prescribed by the Department of Justice.
(3) Prior to, or concurrent with, the discharge, the facility
shall inform a person subject to this subdivision that he or she is
prohibited from owning, possessing, controlling, receiving, or
purchasing any firearm for a period of five years. Simultaneously,
the facility shall inform the person that he or she may request a
hearing from a court, as provided in this subdivision, for an order
permitting the person to own, possess, control, receive, or purchase
a firearm. The facility shall provide the person with a form for a
request for a hearing. The Department of Justice shall prescribe the
form. Where the person requests a hearing at the time of discharge,
the facility shall forward the form to the superior court unless the
person states that he or she will submit the form to the superior
court.
(4) The Department of Justice shall provide the form upon request
to any person described in paragraph (1). The Department of Justice
shall also provide the form to the superior court in each county. A
person described in paragraph (1) may make a single request for a
hearing at any time during the five-year period. The request for
hearing shall be made on the form prescribed by the department or in
a document that includes equivalent language.
(5) Any person who is subject to paragraph (1) who has requested a
hearing from the superior court of his or her county of residence
for an order that he or she may own, possess, control, receive, or
purchase firearms shall be given a hearing. The clerk of the court
shall set a hearing date and notify the person, the Department of
Justice, and the district attorney. The People of the State of
California shall be the plaintiff in the proceeding and shall be
represented by the district attorney. Upon motion of the district
attorney, or on its own motion, the superior court may transfer the
hearing to the county in which the person resided at the time of his
or her detention, the county in which the person was detained, or the
county in which the person was evaluated or treated. Within seven
days after the request for a hearing, the Department of Justice shall
file copies of the reports described in this section with the
superior court. The reports shall be disclosed upon request to the
person and to the district attorney. The court shall set the hearing
within 30 days of receipt of the request for a hearing. Upon showing
good cause, the district attorney shall be entitled to a continuance
not to exceed 14 days after the district attorney was notified of the
hearing date by the clerk of the court. If additional continuances
are granted, the total length of time for continuances shall not
exceed 60 days. The district attorney may notify the county mental
health director of the hearing who shall provide information about
the detention of the person that may be relevant to the court and
shall file that information with the superior court. That information
shall be disclosed to the person and to the district attorney. The
court, upon motion of the person subject to paragraph (1)
establishing that confidential information is likely to be discussed
during the hearing that would cause harm to the person, shall conduct
the hearing in camera with only the relevant parties present, unless
the court finds that the public interest would be better served by
conducting the hearing in public. Notwithstanding any other law,
declarations, police reports, including criminal history information,
and any other material and relevant evidence that is not excluded
under Section 352 of the Evidence Code shall be admissible at the
hearing under this section.
(6) The people shall bear the burden of showing by a preponderance
of the evidence that the person would not be likely to use firearms
in a safe and lawful manner.
(7) If the court finds at the hearing set forth in paragraph (5)
that the people have not met their burden as set forth in paragraph
(6), the court shall order that the person shall not be subject to
the five-year prohibition in this section on the ownership, control,
receipt, possession or purchase of firearms. A copy of the order
shall be submitted to the Department of Justice. Upon receipt of the
order, the Department of Justice shall delete any reference to the
prohibition against firearms from the person's state mental health
firearms prohibition system information.
(8) Where the district attorney declines or fails to go forward in
the hearing, the court shall order that the person shall not be
subject to the five-year prohibition required by this subdivision on
the ownership, control, receipt, possession, or purchase of firearms.
A copy of the order shall be submitted to the Department of Justice.
Upon receipt of the order, the Department of Justice shall, within
15 days, delete any reference to the prohibition against firearms
from the person's state mental health firearms prohibition system
information.
(9) Nothing in this subdivision shall prohibit the use of reports
filed pursuant to this section to determine the eligibility of
persons to own, possess, control, receive, or purchase a firearm if
the person is the subject of a criminal investigation, a part of
which involves the ownership, possession, control, receipt, or
purchase of a firearm.
(g) (1) No person who has been certified for intensive treatment
under Section 5250, 5260, or 5270.15 shall own, possess, control,
receive, or purchase, or attempt to own, possess, control, receive,
or purchase any firearm for a period of five years.
Any person who meets the criteria contained in subdivision (e) or
(f) who is released from intensive treatment shall nevertheless, if
applicable, remain subject to the prohibition contained in
subdivision (e) or (f).
(2) (A) For each person certified for intensive treatment under
paragraph (1), the facility shall immediately submit a report to the
Department of Justice, on a form prescribed by the department,
containing information regarding the person, including, but not
limited to, the legal identity of the person and the legal grounds
upon which the person was certified. Any report submitted pursuant to
this paragraph shall only be used for the purposes specified in
paragraph (2) of subdivision (f).
(B) Commencing July 1, 2012, facilities shall submit reports
pursuant to this paragraph exclusively by electronic means, in a
manner prescribed by the Department of Justice.
(3) Prior to, or concurrent with, the discharge of each person
certified for intensive treatment under paragraph (1), the facility
shall inform the person of that information specified in paragraph
(3) of subdivision (f).
(4) Any person who is subject to paragraph (1) may petition the
superior court of his or her county of residence for an order that he
or she may own, possess, control, receive, or purchase firearms. At
the time the petition is filed, the clerk of the court shall set a
hearing date and notify the person, the Department of Justice, and
the district attorney. The People of the State of California shall be
the respondent in the proceeding and shall be represented by the
district attorney. Upon motion of the district attorney, or on its
own motion, the superior court may transfer the petition to the
county in which the person resided at the time of his or her
detention, the county in which the person was detained, or the county
in which the person was evaluated or treated. Within
seven days after receiving notice of
the petition, the Department of Justice shall file copies of the
reports described in this section with the superior court. The
reports shall be disclosed upon request to the person and to the
district attorney. The district attorney shall be entitled to a
continuance of the hearing to a date of not less than 14 days after
the district attorney was notified of the hearing date by the clerk
of the court. The district attorney may notify the county mental
health director of the petition, and the county mental health
director shall provide information about the detention of the person
that may be relevant to the court and shall file that information
with the superior court. That information shall be disclosed to the
person and to the district attorney. The court, upon motion of the
person subject to paragraph (1) establishing that confidential
information is likely to be discussed during the hearing that would
cause harm to the person, shall conduct the hearing in camera with
only the relevant parties present, unless the court finds that the
public interest would be better served by conducting the hearing in
public. Notwithstanding any other provision of law, any declaration,
police reports, including criminal history information, and any other
material and relevant evidence that is not excluded under Section
352 of the Evidence Code, shall be admissible at the hearing under
this section. If the court finds by a preponderance of the evidence
that the person would be likely to use firearms in a safe and lawful
manner, the court may order that the person may own, control,
receive, possess, or purchase firearms. A copy of the order shall be
submitted to the Department of Justice. Upon receipt of the order,
the Department of Justice shall delete any reference to the
prohibition against firearms from the person's state mental health
firearms prohibition system information.
(h) For all persons identified in subdivisions (f) and (g),
facilities shall report to the Department of Justice as specified in
those subdivisions, except facilities shall not report persons under
subdivision (g) if the same persons previously have been reported
under subdivision (f).
Additionally, all facilities shall report to the Department of
Justice upon the discharge of persons from whom reports have been
submitted pursuant to subdivision (f) or (g). However, a report shall
not be filed for persons who are discharged within 31 days after the
date of admission.
(i) Every person who owns or possesses or has under his or her
custody or control, or purchases or receives, or attempts to purchase
or receive, any firearm or any other deadly weapon in violation of
this section shall be punished by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170 of
the Penal Code or in a county jail for not more than one year.
(j) "Deadly weapon," as used in this section, has the meaning
prescribed by Section 8100.
SEC. 629. Section 10980 of the Welfare and Institutions
Code is amended to read:
10980. (a) Any person who, willfully and knowingly, with the
intent to deceive, makes a false statement or representation or
knowingly fails to disclose a material fact in order to obtain aid
under the provisions of this division or who, knowing he or she is
not entitled thereto, attempts to obtain aid or to continue to
receive aid to which he or she is not entitled, or to receive a
larger amount than that to which he or she is legally entitled, is
guilty of a misdemeanor, punishable by imprisonment in the county
jail for a period of not more than six months, by a fine of not more
than five hundred dollars ($500), or by both imprisonment and fine.
(b) Any person who knowingly makes more than one application for
aid under the provisions of this division with the intent of
establishing multiple entitlements for any person for the same period
or who makes an application for that aid for a fictitious or
nonexistent person or by claiming a false identity for any person is
guilty of a felony, punishable by imprisonment in the state
prison pursuant to subdivision (h) of Section 1170 of
the Penal Code for a period of 16 months, two years, or three
years, by a fine of not more than five thousand dollars ($5,000), or
by both that imprisonment and fine; or by imprisonment in the county
jail for a period of not more than one year, or by a fine of not more
than one thousand dollars ($1,000), or by both imprisonment and
fine.
(c) Whenever any person has, willfully and knowingly, with the
intent to deceive, by means of false statement or representation, or
by failing to disclose a material fact, or by impersonation or other
fraudulent device, obtained or retained aid under the provisions of
this division for himself or herself or for a child not in fact
entitled thereto, the person obtaining this aid shall be punished as
follows:
(1) If the total amount of the aid obtained or retained is nine
hundred fifty dollars ($950) or less, by imprisonment in the county
jail for a period of not more than six months, by a fine of not more
than five hundred dollars ($500), or by both imprisonment and fine.
(2) If the total amount of the aid obtained or retained is more
than nine hundred fifty dollars ($950), by imprisonment in
the state prison pursuant to subdivision
(h) of Section 1170 of the Penal Code for a period of 16
months, two years, or three years, by a fine of not more than five
thousand dollars ($5,000), or by both that imprisonment and fine; or
by imprisonment in the county jail for a period of not more than one
year, by a fine of not more than one thousand dollars ($1,000), or by
both imprisonment and fine.
(d) Any person who knowingly uses, transfers, acquires, or
possesses blank authorizations to participate in the federal
Supplemental Nutrition Assistance Program in any manner not
authorized by Chapter 10 (commencing with Section 18900) of Part 6
with the intent to defraud is guilty of a felony, punishable by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code
for a period of 16 months, two years, or three years, by a fine of
not more than five thousand dollars ($5,000), or by both that
imprisonment and fine.
(e) Any person who counterfeits or alters or knowingly uses,
transfers, acquires, or possesses counterfeited or altered
authorizations to participate in the federal Supplemental Nutrition
Assistance Program or to receive food stamps or electronically
transferred benefits in any manner not authorized by the Food Stamp
Act of 1964 (Public Law 88-525 and all amendments thereto) or the
Food and Nutrition Act of 2008 (7 U.S.C. Sec. 2011 et seq.) or the
federal regulations pursuant to the act is guilty of forgery.
(f) Any person who fraudulently appropriates food stamps,
electronically transferred benefits, or authorizations to participate
in the federal Supplemental Nutrition Assistance Program with which
he or she has been entrusted pursuant to his or her duties as a
public employee is guilty of embezzlement of public funds.
(g) Any person who knowingly uses, transfers, sells, purchases, or
possesses food stamps, electronically transferred benefits, or
authorizations to participate in the federal Supplemental Nutrition
Assistance Program in any manner not authorized by Chapter 10
(commencing with Section 18900), of Part 6, or by the federal Food
Stamp Act of 1977 (Public Law 95-113 and all amendments thereto) or
the Food and Nutrition Act of 2008 (7 U.S.C. Sec. 2011 et seq.) (1)
is guilty of a misdemeanor if the face value of the food stamp
benefits or the authorizations to participate is nine hundred fifty
dollars ($950) or less, and shall be punished by imprisonment in the
county jail for a period of not more than six months, by a fine of
not more than five hundred dollars ($500), or by both imprisonment
and fine, or (2) is guilty of a felony if the face value of the food
stamps or the authorizations to participate exceeds nine hundred
fifty dollars ($950), and shall be punished by imprisonment
in the state prison pursuant to subdivision (h) of
Section 1170 of the Penal Code for a period of 16 months, two
years, or three years, by a fine of not more than five thousand
dollars ($5,000), or by both that imprisonment and fine, or by
imprisonment in the county jail for a period of not more than one
year, or by a fine of not more than one thousand dollars ($1,000), or
by both imprisonment and fine.
(h) (1) If the violation of subdivision (f) or (g) is committed by
means of an electronic transfer of benefits, in addition and
consecutive to the penalties for the violation, or attempted
violation, of those subdivisions, the court shall impose the
following punishment:
(A) If the electronic transfer of benefits exceeds fifty thousand
dollars ($50,000), an additional term pursuant to subdivision
(h) of Section 1170 of the Penal Code of one year in
state prison .
(B) If the electronic transfer of benefits exceeds one hundred
fifty thousand dollars ($150,000), an additional term pursuant
to subdivision (h) of Section 1170 of the Penal Code of two
years in state prison .
(C) If the electronic transfer of benefits exceeds one million
dollars ($1,000,000), an additional term pursuant to subdivision
(h) of Section 1170 of the Penal Code of three years
in state prison .
(D) If the electronic transfer of benefits exceeds two million
five hundred thousand dollars ($2,500,000), an additional term of
four years.
(2) In any accusatory pleading involving multiple charges of
violations of subdivision (f) or (g), or both, committed by means of
an electronic transfer of benefits, the additional terms provided in
paragraph (1) may be imposed if the aggregate losses to the victims
from all violations exceed the amounts specified in this paragraph
and arise from a common scheme or plan.
(i) A person who is punished by an additional term of imprisonment
under another provision of law for a violation of subdivision (f) or
(g) shall not receive an additional term of imprisonment under
subdivision (h).
SEC. 630. Section 14107.2 of the Welfare and
Institutions Code is amended to read:
14107.2. (a) Any person who solicits or receives any
remuneration, including, but not restricted to, any kickback, bribe,
or rebate, directly or indirectly, overtly or covertly, in cash or in
valuable consideration of any kind, either:
(1) In return for the referral, or promised referral, of any
individual to a person for the furnishing or arranging for the
furnishing of any service or merchandise for which payment may be
made, in whole or in part, under this chapter or Chapter 8
(commencing with Section 14200); or
(2) In return for the purchasing, leasing, ordering, or arranging
for or recommending the purchasing, leasing, or ordering of any
goods, facility, service or merchandise for which payment may be
made, in whole or in part, under this chapter or Chapter 8
(commencing with Section 14200), is punishable upon a first
conviction by imprisonment in a county jail for not longer than one
year or state prison imprisonment pursuant to
subdivision (h) of Section 1170 of the Penal Code , or by a
fine not exceeding ten thousand dollars ($10,000), or by both that
imprisonment and fine. A second or subsequent conviction shall be
punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
.
(b) Any person who offers or pays any remuneration, including, but
not restricted to, any kickback, bribe, or rebate, directly or
indirectly, overtly or covertly, in cash or in valuable consideration
of any kind, either:
(1) To refer any individual to a person for the furnishing or
arranging for furnishing of any service or merchandise for which
payment may be made, in whole or in part, under this chapter or
Chapter 8 (commencing with Section 14200); or
(2) To purchase, lease, order, or arrange for or recommend the
purchasing, leasing, or ordering of any goods, facility, service, or
merchandise for which payment may be made, in whole or in part, under
this chapter or Chapter 8 (commencing with Section 14200), is
punishable upon a first conviction by imprisonment in a county jail
for not longer than one year or state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code ,
or by a fine not exceeding ten thousand dollars ($10,000), or by
both that imprisonment and fine. A second or subsequent conviction
shall be punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code .
(c) Subdivisions (a) and (b) shall not apply to the following:
(1) Any amount paid by an employer to an employee, who has a bona
fide employment relationship with that employer, for employment with
provision of covered items or services.
(2) A discount or other reduction in price obtained by a provider
of services or other entity under this chapter or Chapter 8
(commencing with Section 14200), if the reduction in price is
properly disclosed and reflected in the costs claimed or charges made
by the provider or entity under this chapter or Chapter 8
(commencing with Section 14200). This paragraph shall not apply to
consultant pharmaceutical services rendered to nursing facilities nor
to all categories of intermediate care facilities for the
developmentally disabled.
(3) The practices or transactions between a federally qualified
health center, as defined in Section 1396d(l)(2)(B) of Title 42 of
the United States Code, and any individual or entity shall be
permitted only to the extent sanctioned or permitted by federal law.
(4) The provision of nonmonetary remuneration in the form of
hardware, software, or information technology and training services,
as described in subsections (x) and (y) of Section 1001.952 of Title
42 of the Code of Federal Regulations, as amended October 4, 2007, as
published in the Federal Register (72 Fed. Reg. 56631, 56644), and
subsequently amended versions.
(d) For purposes of this section, "kickback" means a rebate or
anything of value or advantage, present or prospective, or any
promise or undertaking to give any rebate or thing of value or
advantage, with a corrupt intent to unlawfully influence the person
to whom it is given in actions undertaken by that person in his or
her public, professional, or official capacity.
(e) The enforcement remedies provided under this section are not
exclusive and shall not preclude the use of any other criminal or
civil remedy.
SEC. 631. Section 14107.3 of the Welfare and
Institutions Code is amended to read:
14107.3. Any person who knowingly and willfully charges,
solicits, accepts, or receives, in addition to any amount payable
under this chapter, any gift, money, contribution, donation, or other
consideration as a precondition to providing services or merchandise
to a Medi-Cal beneficiary for any service or merchandise in the
Medi-Cal program's scope of benefits in addition to a claim submitted
to the Medi-Cal program under this chapter or Chapter 8 (commencing
with Section 14200), except either:
(1) To collect payments due under a contractual or legal
entitlement pursuant to subdivision (b) of Section 14000; or
(2) To bill a long-term care patient or representative for the
amount of the patient's share of the cost; or
(3) As provided under Section 14019.3, is punishable upon a first
conviction by imprisonment in the county jail for not longer than
one year or state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code , or by a
fine not to exceed ten thousand dollars ($10,000), or both such
imprisonment and fine. A second or subsequent conviction shall be
punishable by imprisonment in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
.
SEC. 632. Section 14107.4 of the Welfare and
Institutions Code is amended to read:
14107.4. (a) Any person who, with the intent to defraud,
certifies as true and correct any cost report, submitted by a
hospital to a state agency for reimbursement pursuant to Section
14170, who knowingly fails to disclose in writing on the cost report
any significant beneficial interest, as defined in subdivision (d),
which the owners of the provider, or members of the provider
governing board, or employees of the provider, or independent
contractor of the provider, have in the contractors or vendors to the
providers, is guilty of a public offense.
(b) Any person who, with the intent to defraud, knowingly causes
any material false information to be included in any cost report
submitted by a hospital to a state agency for reimbursement pursuant
to Section 14170 shall be guilty of an offense punishable by
imprisonment in the state prison pursuant to
subdivision (h) of Section 1170 of the Penal Code , or by a
fine not exceeding ten thousand dollars ($10,000), or by a fine and
imprisonment, or by imprisonment in the county jail not exceeding one
year, or by a fine not exceeding five thousand dollars ($5,000), or
by both a fine and imprisonment.
(c) The provider's chief executive officer shall certify that any
cost report submitted by a hospital to a state agency for
reimbursement pursuant to Section 14170 shall be true and correct. In
the case of a hospital which is operated as a unit of a coordinated
group of health facilities and under common management, either the
hospital's chief executive officer or administrator, or the chief
financial officer of the operating region of which the hospital is a
part, shall certify to the accuracy of the report.
(d) As used in this section, "significant beneficial interest"
means any financial interest that is equal to or greater than
twenty-five thousand dollars ($25,000) of ownership interest or 5
percent of the whole ownership or any other contractual or
compensatory arrangement with vendors or contractors or immediate
family members of vendors or contractors. "Immediate family" means
spouse, son, daughter, father, mother, father-in-law, mother-in-law,
daughter-in-law, or son-in-law. Interests held by these persons
specified in subdivision (a) and members of these person's immediate
family should be combined and included as a single interest.
(e) Any person who violates the provisions of subdivision (a) is
punishable by imprisonment in the county jail for a period not to
exceed one year or in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code ,
or by fine not to exceed five thousand dollars ($5,000), or by both
such fine and imprisonment.
SEC. 633. Section 17410 of the Welfare and Institutions
Code is amended to read:
17410. Any person who with the intent to defraud, buys or
receives a voucher, invoice, or similar document issued for services
or merchandise under this part without furnishing such services or
merchandise is punishable either by imprisonment in the county jail
for a period of not more than one year, by a fine of not exceeding
one thousand dollars ($1,000), or by both such
that imprisonment and fine, or by imprisonment in
the state prison pursuant to subdivision (h)
of Section 1170 of the Penal Code for a period of not more
than one year, by a fine of not exceeding ten thousand dollars
($10,000), or by both such that
imprisonment and fine.
SEC. 635. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution for certain costs that may be incurred by a local agency
or school district because, in that regard, 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.
However, if the Commission on State Mandates determines that this
act contains other costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division 4 of
Title 2 of the Government Code.
SEC. 636. This act will become operative no earlier
than July 1, 2011, and only upon creation of a community corrections
grant program to assist in implementing this act and upon an
appropriation to fund the grant program.
SEC. 637. In addition to any amounts provided in the
Budget Act of 2011, an appropriation of one thousand dollars ($1,000)
is provided to the Department of Corrections and Rehabilitation for
purposes of state operations in the 2011-12 fiscal year, payable form
the General Fund.
SEC. 638. This act addresses the fiscal emergency
declared by the Governor by proclamation on January 20, 2011,
pursuant to subdivision (f) of Section 10 of Article IV of the
California Constitution.
SEC. 639. This act is a bill providing for
appropriations related to the Budget Bill within the meaning of
subdivision (e) of Section 12 of Article IV of the California
Constitution, has been identified as related to the budget in the
Budget Bill, and shall take effect immediately
SEC. 640. This act is an urgency statute necessary for
the immediate preservation of the public peace, health, or safety
within the meaning of Article IV of the Constitution and shall go
into immediate effect. The facts constituting the necessity are:
In order to obtain savings related to the budget for the 2011-12
fiscal year at the earliest possible time, it is necessary for this
act to take effect immediately.
SECTION 1. It is the intent of the Legislature
to enact statutory changes relating to the Budget Act of 2011.
