Bill Text: CA AB2333 | 2015-2016 | Regular Session | Amended
Bill Title: Theft of merchandise.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2016-11-30 - From committee without further action. [AB2333 Detail]
Download: California-2015-AB2333-Amended.html
BILL NUMBER: AB 2333 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 15, 2016
INTRODUCED BY Assembly Member Achadjian
FEBRUARY 18, 2016
An act to amend Section 4030 490.5
of the Penal Code, relating to jails. t
heft.
LEGISLATIVE COUNSEL'S DIGEST
AB 2333, as amended, Achadjian. Jails: searches.
Theft of merchandise.
Existing law makes petty theft involving merchandise taken from a
merchant's premises punishable by a fine of not less than $50 and not
more than $1,000, and imprisonment in the county jail not exceeding
6 months.
This bill would provide that nothing in that section or any other
law precludes a merchant from offering a person suspected of theft an
opportunity to complete a precomplaint diversion program in lieu of
arrest and criminal prosecution, or informing a person suspected of
theft of the criminal civil remedies available to the merchant.
Existing law generally prohibits strip searches and body cavity
searches of prearraignment detainees arrested for infraction or
misdemeanor offenses. Existing law allows a person who has been
arrested and taken into custody to be subjected to patdown searches,
metal detector searches, and thorough clothing searches in order to
discover and retrieve concealed weapons and contraband substances
prior to being placed in a booking cell.
This bill would make technical, nonsubstantive changes to those
provisions.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 490.5 of the Penal
Code is amended to read:
490.5. (a) Upon a first conviction for petty theft involving
merchandise taken from a merchant's premises or a book or other
library materials taken from a library facility, a person shall be
punished by a mandatory fine of not less than fifty dollars ($50) and
not more than one thousand dollars ($1,000) for each such
violation; and may also be punished by imprisonment in the
county jail, not exceeding six months, or both such
that fine and imprisonment.
(b) When If an unemancipated minor's
willful conduct would constitute petty theft involving merchandise
taken from a merchant's premises or a book or other library materials
taken from a library facility, any a
merchant or library facility who that
has been injured by that conduct may bring a civil action against the
parent or legal guardian having control and custody of the minor.
For the purposes of those actions the misconduct of the unemancipated
minor shall be imputed to the parent or legal guardian having
control and custody of the minor. The parent or legal guardian having
control or custody of an unemancipated minor whose conduct violates
this subdivision shall be jointly and severally liable with the minor
to a merchant or to a library facility for damages of not less than
fifty dollars ($50) nor more than five hundred dollars ($500), plus
costs. In addition to the foregoing damages, the parent or legal
guardian shall be jointly and severally liable with the minor to the
merchant for the retail value of the merchandise if it is not
recovered in a merchantable condition, or to a library facility for
the fair market value of its book or other library materials.
Recovery of these damages may be had in addition to, and is not
limited by, any other provision of law which limits the liability of
a parent or legal guardian for the tortious conduct of a minor. An
action for recovery of damages, pursuant to this subdivision, may be
brought in small claims court if the total damages do not exceed the
jurisdictional limit of that court, or in any other appropriate
court; however, total damages, including the value of the merchandise
or book or other library materials, shall not exceed five hundred
dollars ($500) for each action brought under this section.
The provisions of this subdivision are in addition to other civil
remedies and do not limit merchants or other persons to elect to
pursue other civil remedies, except that the provisions of Section
1714.1 of the Civil Code shall not apply herein.
(c) When If an adult or emancipated
minor has unlawfully taken merchandise from a merchant's premises, or
a book or other library materials from a library facility, the adult
or emancipated minor shall be liable to the merchant or library
facility for damages of not less than fifty dollars ($50) nor more
than five hundred dollars ($500), plus costs. In addition to the
foregoing damages, the adult or emancipated minor shall be liable to
the merchant for the retail value of the merchandise if it is not
recovered in merchantable condition, or to a library facility for the
fair market value of its book or other library materials. An action
for recovery of damages, pursuant to this subdivision, may be brought
in small claims court if the total damages do not exceed the
jurisdictional limit of such court, or in any other appropriate
court. The provisions of this subdivision are in addition to other
civil remedies and do not limit merchants or other persons to elect
to pursue other civil remedies.
(d) In lieu of the fines prescribed by subdivision (a), any person
may be required to perform public services designated by the court,
provided that in no event shall any such person be
required to perform less than the number of hours of such
public service necessary to satisfy the fine assessed by
the court as provided by subdivision (a) at the minimum wage
prevailing in the state at the time of sentencing.
(e) All fines collected under this section shall be collected and
distributed in accordance with Sections 1463 and 1463.1 of the Penal
Code; provided, however, that a county may, by a majority vote of the
members of its board of supervisors, allocate any amount up to, but
not exceeding 50 percent of such fines to the county superintendent
of schools for allocation to local school districts. The fines
allocated shall be administered by the county superintendent of
schools to finance public school programs, which provide counseling
or other educational services designed to discourage shoplifting,
theft, and burglary. Subject to rules and regulations as may
be adopted by the Superintendent of Public Instruction,
each county superintendent of schools shall allocate such
funds to school districts within the county which
that submit project applications designed to
further the educational purposes of this section. The costs of
administration of this section by each county superintendent of
schools shall be paid from the funds allocated to the county
superintendent of schools.
(f) (1) A merchant may detain a person for a reasonable time for
the purpose of conducting an investigation in a reasonable manner
whenever the merchant has probable cause to believe the person to be
detained is attempting to unlawfully take or has unlawfully taken
merchandise from the merchant's premises.
A theater owner may detain a person for a reasonable time for the
purpose of conducting an investigation in a reasonable manner
whenever the theater owner has probable cause to believe the person
to be detained is attempting to operate a video recording device
within the premises of a motion picture theater without the authority
of the owner of the theater.
A person employed by a library facility may detain a person for a
reasonable time for the purpose of conducting an investigation in a
reasonable manner whenever the person employed by a library facility
has probable cause to believe the person to be detained is attempting
to unlawfully remove or has unlawfully removed books or library
materials from the premises of the library facility.
(2) In making the detention a merchant, theater owner, or a person
employed by a library facility may use a reasonable amount of
nondeadly force necessary to protect himself or herself and to
prevent escape of the person detained or the loss of tangible or
intangible property.
(3) During the period of detention any items which
that a merchant or theater owner, or any items
which that a person employed by a
library facility has probable cause to believe are unlawfully taken
from the premises of the merchant or library facility, or recorded on
theater premises, and which that are
in plain view may be examined by the merchant, theater owner, or
person employed by a library facility for the purposes of
ascertaining the ownership thereof.
(4) A merchant, theater owner, a person employed by a library
facility, or an agent thereof, having probable cause to believe the
person detained was attempting to unlawfully take or has taken any
item from the premises, or was attempting to operate a video
recording device within the premises of a motion picture theater
without the authority of the owner of the theater, may request the
person detained to voluntarily surrender the item or recording.
Should the person detained refuse to surrender the recording or item
of which there is probable cause to believe has been recorded on or
unlawfully taken from the premises, or attempted to be recorded or
unlawfully taken from the premises, a limited and reasonable search
may be conducted by those authorized to make the detention in order
to recover the item. Only packages, shopping bags, handbags or other
property in the immediate possession of the person detained, but not
including any clothing worn by the person, may be searched pursuant
to this subdivision. Upon surrender or discovery of the item, the
person detained may also be requested, but may not be required, to
provide adequate proof of his or her true identity.
(5) If any person admitted to a theater in which a motion picture
is to be or is being exhibited, refuses or fails to give or surrender
possession or to cease operation of any video recording device that
the person has brought into or attempts to bring into that theater,
then a theater owner shall have the right to refuse admission to that
person or request that the person leave the premises and shall
thereupon offer to refund and, unless that offer is refused, refund
to that person the price paid by that person for admission to that
theater. If the person thereafter refuses to leave the theater or
cease operation of the video recording device, then the person shall
be deemed to be intentionally interfering with and obstructing those
attempting to carry on a lawful business within the meaning of
Section 602.1.
(6) A peace officer who accepts custody of a person arrested for
an offense contained in this section may, subsequent to the arrest,
search the person arrested and his or her immediate possessions for
any item or items alleged to have been taken.
(7) In any civil action brought by any person resulting from a
detention or arrest by a merchant, it shall be a defense to
such the action that the merchant detaining or
arresting such the person had probable
cause to believe that the person had stolen or attempted to steal
merchandise and that the merchant acted reasonably under all the
circumstances.
In any civil action brought by any person resulting from a
detention or arrest by a theater owner or person employed by a
library facility, it shall be a defense to that action that the
theater owner or person employed by a library facility detaining or
arresting that person had probable cause to believe that the person
was attempting to operate a video recording device within the
premises of a motion picture theater without the authority of the
owner of the theater or had stolen or attempted to steal books or
library materials and that the person employed by a library facility
acted reasonably under all the circumstances.
(g) As used in this section:
(1) "Merchandise" means any personal property, capable of manual
delivery, displayed, held or offered for retail sale by a merchant.
(2) "Merchant" means an owner or operator, and the agent,
consignee, employee, lessee, or officer of an owner or operator, of
any premises used for the retail purchase or sale of any personal
property capable of manual delivery.
(3) "Theater owner" means an owner or operator, and the agent,
employee, consignee, lessee, or officer of an owner or operator, of
any premises used for the exhibition or performance of motion
pictures to the general public.
(4) The terms "book or other library materials" include any book,
plate, picture, photograph, engraving, painting, drawing, map,
newspaper, magazine, pamphlet, broadside, manuscript, document,
letter, public record, microform, sound recording, audiovisual
material in any format, magnetic or other tape, electronic
data-processing record, artifact, or other documentary, written or
printed material regardless of physical form or characteristics, or
any part thereof, belonging to, on loan to, or otherwise in the
custody of a library facility.
(5) The term "library facility" includes any public library; any
library of an educational, historical or eleemosynary institution,
organization or society; any museum; any repository of public
records.
(h) Any library facility shall post at its entrance and exit a
conspicuous sign to read as follows:
"IN ORDER TO PREVENT THE THEFT OF BOOKS AND LIBRARY MATERIALS,
STATE LAW AUTHORIZES THE DETENTION FOR A REASONABLE PERIOD OF ANY
PERSON USING THESE FACILITIES SUSPECTED OF COMMITTING "LIBRARY THEFT"
(PENAL CODE SECTION 490.5)."
(i) Nothing in this section nor any other provision of law
precludes a merchant from offering a person suspected of theft an
opportunity to complete a precomplaint diversion program in lieu of
arrest and criminal prosecution or precludes a merchant from
informing a person suspected of theft of the criminal or civil
remedies available to the merchant.
SECTION 1. Section 4030 of the Penal Code is
amended to read:
4030. (a) (1) The Legislature finds and declares that law
enforcement policies and practices for conducting strip or body
cavity searches of detained persons vary widely throughout
California. Consequently, some people have been arbitrarily subjected
to unnecessary strip and body cavity searches after arrests for
minor misdemeanor and infraction offenses. Some present search
practices violate state and federal constitutional rights to privacy
and freedom from unreasonable searches and seizures.
(2) It is the intent of the Legislature in enacting this section
to protect the state and federal constitutional rights of the people
of California by establishing a statewide policy strictly limiting
strip and body cavity searches.
(b) The provisions of this section shall apply only to
prearraignment detainees arrested for infraction or misdemeanor
offenses and to any minor detained prior to a detention hearing on
the grounds that he or she is a person described in Section 300, 601,
or 602 of the Welfare and Institutions Code alleged to have
committed a misdemeanor or infraction offense. The provisions of this
section shall not apply to a person in the custody of the Secretary
of the Department of Corrections and Rehabilitation or the Director
of the Division of Juvenile Justice in the Department of Corrections
and Rehabilitation.
(c) As used in this section, the following definitions shall
apply:
(1) "Body cavity" only means the stomach or rectal cavity of a
person, and vagina of a female person.
(2) "Physical body cavity search" means physical intrusion into a
body cavity for the purpose of discovering any object concealed in
the body cavity.
(3) "Strip search" means a search which requires a person to
remove or arrange some or all of his or her clothing so as to permit
a visual inspection of the underclothing, breasts, buttocks, or
genitalia of that person.
(4) "Visual body cavity search" means visual inspection of a body
cavity.
(d) Notwithstanding any other law, including Section 40304.5 of
the Vehicle Code, if a person is arrested and taken into custody,
that person may be subjected to patdown searches, metal detector
searches, and thorough clothing searches in order to discover and
retrieve concealed weapons and contraband substances prior to being
placed in a booking cell.
(e) A person who is arrested and held in custody on a misdemeanor
or infraction offense, except those involving weapons, controlled
substances, or violence, or a minor detained prior to a detention
hearing on the grounds that he or she is a person described in
Section 300, 601 or 602 of the Welfare and Institutions Code, except
for those minors alleged to have committed felonies or offenses
involving weapons, controlled substances, or violence, shall not be
subjected to a strip search or visual body cavity search prior to
placement in the general jail population, unless a peace officer has
determined there is reasonable suspicion, based on specific and
articulable facts, to believe that person is concealing a weapon or
contraband, and a strip search will result in the discovery of the
weapon or contraband. A strip search or visual body cavity search, or
both, shall not be conducted without the prior written authorization
of the supervising officer on duty. The authorization shall include
the specific and articulable facts and circumstances upon which the
reasonable suspicion determination was made by the supervisor.
(f) (1) Except pursuant to the provisions of paragraph (2), a
person arrested and held in custody on a misdemeanor or infraction
offense not involving weapons, controlled substances, or violence,
shall not be confined in the general jail population unless all of
the following are true:
(A) The person is not cited and released.
(B) The person is not released on his or her own recognizance
pursuant to Article 9 (commencing with Section 1318) of Chapter 1 of
Title 10 of Part 2.
(C) The person is not able to post bail within a reasonable time,
not less than three hours.
(2) A person shall not be housed in the general jail population
prior to release pursuant to the provisions of paragraph (1) unless a
documented emergency exists and there is no reasonable alternative
to that placement. The person shall be placed in the general
population only upon prior written authorization documenting the
specific facts and circumstances of the emergency. The written
authorization shall be signed by the uniformed supervisor of the
facility or by a uniformed watch commander. A person confined in the
general jail population pursuant to paragraph (1) shall retain all
rights to release on citation, his or her own recognizance, or bail
that were preempted as a consequence of the emergency.
(g) A person who is arrested on a misdemeanor or infraction
offense, or a minor described in subdivision (b), shall not be
subjected to a physical body cavity search except under the authority
of a search warrant issued by a magistrate specifically authorizing
the physical body cavity search.
(h) A copy of the prior written authorization required by
subdivisions (e) and (f) and the search warrant required by
subdivision (g) shall be placed in the agency's records and made
available, on request, to the person searched or his or her
authorized representative. With regard to a strip search or visual or
physical body cavity search, the time, date, and place of the
search, the name and sex of the person conducting the search, and a
statement of the results of the search, including a list of items
removed from the person searched, shall be recorded in the agency's
records and made available, upon request, to the person searched or
his or her authorized representative.
(i) Persons conducting a strip search or a visual body cavity
search shall not touch the breasts, buttocks, or genitalia of the
person being searched.
(j) A physical body cavity search shall be conducted under
sanitary conditions, and only by a physician, nurse practitioner,
registered nurse, licensed vocational nurse, or emergency medical
technician Level II licensed to practice in this state. A physician
engaged in providing health care to detainees and inmates of the
facility may conduct physical body cavity searches.
(k) A person conducting or otherwise present or within sight of
the inmate during a strip search or visual or physical body cavity
search shall be of the same sex as the person being searched, except
for physicians or licensed medical personnel.
( l ) All strip, visual, and physical body
cavity searches shall be conducted in an area of privacy so that the
search cannot be observed by persons not participating in the search.
Persons are considered to be participating in the search if their
official duties relative to search procedure require them to be
present at the time the search is conducted.
(m) A person who knowingly and willfully authorizes or conducts a
strip search or visual or physical body cavity search in violation of
this section is guilty of a misdemeanor.
(n) This section does not limit the common law or statutory rights
of a person regarding an action for damages or injunctive relief, or
preclude the prosecution under another law of a peace officer or
other person who has violated this section.
(o) Any person who suffers damage or harm as a result of a
violation of this section may bring a civil action to recover actual
damages, or one thousand dollars ($1,000), whichever is greater. In
addition, the court may, in its discretion, award punitive damages,
equitable relief as it deems necessary and proper, and costs,
including reasonable attorney's fees.
