Bill Text: CA AB2479 | 2009-2010 | Regular Session | Chaptered
Bill Title: Stalking: surveillance.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2010-09-30 - Chaptered by Secretary of State - Chapter 685, Statutes of 2010. [AB2479 Detail]
Download: California-2009-AB2479-Chaptered.html
BILL NUMBER: AB 2479 CHAPTERED
BILL TEXT
CHAPTER 685
FILED WITH SECRETARY OF STATE SEPTEMBER 30, 2010
APPROVED BY GOVERNOR SEPTEMBER 30, 2010
PASSED THE SENATE AUGUST 27, 2010
PASSED THE ASSEMBLY AUGUST 31, 2010
AMENDED IN SENATE AUGUST 20, 2010
AMENDED IN ASSEMBLY JUNE 1, 2010
AMENDED IN ASSEMBLY MAY 11, 2010
AMENDED IN ASSEMBLY APRIL 28, 2010
INTRODUCED BY Assembly Member Bass
FEBRUARY 19, 2010
An act to amend Section 1708.8 of the Civil Code, and to amend
Section 23103 of, and to add Section 40008 to, the Vehicle Code,
relating to stalking.
LEGISLATIVE COUNSEL'S DIGEST
AB 2479, Bass. Stalking: surveillance.
Under existing law, a defendant who commits an assault against a
plaintiff with the intent to capture any type of visual image, sound
recording, or other physical impression of the plaintiff is liable
for up to 3 times the amount of any general and special damages that
are proximately caused by this act, as well as punitive damages and a
civil fine of not less than $5,000 and not more than $50,000.
This bill would expand these provisions to impose liability when a
defendant falsely imprisons the plaintiff with the intent to capture
any type of visual image, sound recording, or other physical
impression of the plaintiff.
Existing law makes it a crime to willfully interfere with the
driver of a vehicle or with the mechanism thereof so as to affect the
driver's control of the vehicle, to follow another vehicle more
closely than is reasonable and prudent, as specified, and to engage
in reckless driving, as described.
This bill would make it a misdemeanor to violate any of those
provisions with the intent to capture any type of visual image, sound
recording, or other physical impression of another person for a
commercial purpose. The bill would provide that this crime is
punishable by imprisonment in a county jail and a fine of not more
than $2,500, except as specified. The bill would further provide that
a person who commits that act and, in addition, causes a minor to be
placed in a situation in which his or her person or health is
endangered is also guilty of a misdemeanor punishable by imprisonment
in a county jail for not more than one year and a fine of not more
than $5,000, except as specified. Because the bill would create new
crimes, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1708.8 of the Civil Code is amended to read:
1708.8. (a) A person is liable for physical invasion of privacy
when the defendant knowingly enters onto the land of another person
without permission or otherwise committed a trespass in order to
physically invade the privacy of the plaintiff with the intent to
capture any type of visual image, sound recording, or other physical
impression of the plaintiff engaging in a personal or familial
activity and the physical invasion occurs in a manner that is
offensive to a reasonable person.
(b) A person is liable for constructive invasion of privacy when
the defendant attempts to capture, in a manner that is offensive to a
reasonable person, any type of visual image, sound recording, or
other physical impression of the plaintiff engaging in a personal or
familial activity under circumstances in which the plaintiff had a
reasonable expectation of privacy, through the use of a visual or
auditory enhancing device, regardless of whether there is a physical
trespass, if this image, sound recording, or other physical
impression could not have been achieved without a trespass unless the
visual or auditory enhancing device was used.
(c) An assault or false imprisonment committed with the intent to
capture any type of visual image, sound recording, or other physical
impression of the plaintiff is subject to subdivisions (d), (e), and
(h).
(d) A person who commits any act described in subdivision (a),
(b), or (c) is liable for up to three times the amount of any general
and special damages that are proximately caused by the violation of
this section. This person may also be liable for punitive damages,
subject to proof according to Section 3294. If the plaintiff proves
that the invasion of privacy was committed for a commercial purpose,
the defendant shall also be subject to disgorgement to the plaintiff
of any proceeds or other consideration obtained as a result of the
violation of this section. A person who comes within the description
of this subdivision is also subject to a civil fine of not less than
five thousand dollars ($5,000) and not more than fifty thousand
dollars ($50,000).
(e) A person who directs, solicits, actually induces, or actually
causes another person, regardless of whether there is an
employer-employee relationship, to violate any provision of
subdivision (a), (b), or (c) is liable for any general, special, and
consequential damages resulting from each said violation. In
addition, the person that directs, solicits, actually induces, or
actually causes another person, regardless of whether there is an
employer-employee relationship, to violate this section shall be
liable for punitive damages to the extent that an employer would be
subject to punitive damages pursuant to subdivision (b) of Section
3294. A person who comes within the description of this subdivision
is also subject to a civil fine of not less than five thousand
dollars ($5,000) and not more than fifty thousand dollars ($50,000).
(f) (1) The transmission, publication, broadcast, sale, offer for
sale, or other use of any visual image, sound recording, or other
physical impression that was taken or captured in violation of
subdivision (a), (b), or (c) shall not constitute a violation of this
section unless the person, in the first transaction following the
taking or capture of the visual image, sound recording, or other
physical impression, publicly transmitted, published, broadcast, sold
or offered for sale, the visual image, sound recording, or other
physical impression with actual knowledge that it was taken or
captured in violation of subdivision (a), (b), or (c), and provide
compensation, consideration, or remuneration, monetary or otherwise,
for the rights to the unlawfully obtained visual image, sound
recording, or other physical impression.
(2) For the purposes of paragraph (1), "actual knowledge" means
actual awareness, understanding, and recognition, obtained prior to
the time at which the person purchased or acquired the visual image,
sound recording, or other physical impression, that the visual image,
sound recording, or other physical impression was taken or captured
in violation of subdivision (a), (b), or (c). The plaintiff shall
establish actual knowledge by clear and convincing evidence.
(3) Any person that publicly transmits, publishes, broadcasts,
sells or offers for sale, in any form, medium, format or work, a
visual image, sound recording, or other physical impression that was
previously publicly transmitted, published, broadcast, sold or
offered for sale, by another person, is exempt from liability under
this section.
(4) If a person's first public transmission, publication,
broadcast, or sale or offer for sale, of a visual image, sound
recording, or other physical impression that was taken or captured in
violation of subdivision (a), (b), or (c), does not constitute a
violation of this section, that person's subsequent public
transmission, publication, broadcast, sale or offer for sale, in any
form, medium, format or work, of the visual image, sound recording,
or other physical impression, does not constitute a violation of this
section.
(5) This section applies only to a visual image, sound recording,
or other physical impression that is captured or taken in California
in violation of subdivision (a), (b), or (c) after January 1, 2010,
and shall not apply to any visual image, sound recording, or other
physical impression taken or captured outside of California.
(6) Nothing in this subdivision shall be construed to impair or
limit a special motion to strike pursuant to Section 425.16, 425.17,
or 425.18 of the Code of Civil Procedure.
(7) This section shall not be construed to limit all other rights
or remedies of the plaintiff in law or equity, including, but not
limited to, the publication of private facts.
(g) This section shall not be construed to impair or limit any
otherwise lawful activities of law enforcement personnel or employees
of governmental agencies or other entities, either public or private
who, in the course and scope of their employment, and supported by
an articulable suspicion, attempt to capture any type of visual
image, sound recording, or other physical impression of a person
during an investigation, surveillance, or monitoring of any conduct
to obtain evidence of suspected illegal activity or other misconduct,
the suspected violation of any administrative rule or regulation, a
suspected fraudulent conduct, or any activity involving a violation
of law or business practices or conduct of public officials adversely
affecting the public welfare, health or safety.
(h) In any action pursuant to this section, the court may grant
equitable relief, including, but not limited to, an injunction and
restraining order against further violations of subdivision (a), (b),
or (c).
(i) The rights and remedies provided in this section are
cumulative and in addition to any other rights and remedies provided
by law.
(j) It is not a defense to a violation of this section that no
image, recording, or physical impression was captured or sold.
(k) For the purposes of this section, "for a commercial purpose"
means any act done with the expectation of a sale, financial gain, or
other consideration. A visual image, sound recording, or other
physical impression shall not be found to have been, or intended to
have been captured for a commercial purpose unless it is intended to
be, or was in fact, sold, published, or transmitted.
(l) For the purposes of this section, "personal and familial
activity" includes, but is not limited to, intimate details of the
plaintiff's personal life, interactions with the plaintiff's family
or significant others, or other aspects of the plaintiff's private
affairs or concerns. "Personal and familial activity" does not
include illegal or otherwise criminal activity as delineated in
subdivision (g). However, "personal and familial activity" shall
include the activities of victims of crime in circumstances under
which subdivision (a), (b), or (c) would apply.
(m) (1) A proceeding to recover the civil fines specified in
subdivision (d) or (e) may be brought in any court of competent
jurisdiction by a county counsel or city attorney.
(2) Fines collected pursuant to this subdivision shall be
allocated, as follows:
(A) One-half shall be allocated to the prosecuting agency.
(B) One-half shall be deposited in the Arts and Entertainment
Fund, which is hereby created in the State Treasury.
(3) Funds in the Arts and Entertainment Fund created pursuant to
paragraph (2) may be expended by the California Arts Council, upon
appropriation by the Legislature, to issue grants pursuant to the
Dixon-Zenovich-Maddy California Arts Act of 1975 (Chapter 9
(commencing with Section 8750) of Division 1 of Title 2 of the
Government Code).
(4) The rights and remedies provided in this subdivision are
cumulative and in addition to any other rights and remedies provided
by law.
(n) 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. 2. Section 23103 of the Vehicle Code is amended to read:
23103. (a) A person who drives a vehicle upon a highway in
willful or wanton disregard for the safety of persons or property is
guilty of reckless driving.
(b) A person who drives a vehicle in an offstreet parking
facility, as defined in subdivision (c) of Section 12500, in willful
or wanton disregard for the safety of persons or property is guilty
of reckless driving.
(c) Except as otherwise provided in Section 40008, persons
convicted of the offense of reckless driving shall be punished by
imprisonment in a county jail for not less than five days nor more
than 90 days or by a fine of not less than one hundred forty-five
dollars ($145) nor more than one thousand dollars ($1,000), or by
both that fine and imprisonment, except as provided in Section 23104
or 23105.
SEC. 3. Section 40008 is added to the Vehicle Code, to read:
40008. (a) Notwithstanding any other provision of law, except as
otherwise provided in subdivision (c), any person who violates
Section 21701, 21703, or 23103, with the intent to capture any type
of visual image, sound recording, or other physical impression of
another person for a commercial purpose, is guilty of a misdemeanor
and not an infraction and shall be punished by imprisonment in a
county jail for not more than six months and by a fine of not more
than two thousand five hundred dollars ($2,500).
(b) Notwithstanding any other provision of law, except as
otherwise provided in subdivision (c), any person who violates
Section 21701, 21703, or 23103, with the intent to capture any type
of visual image, sound recording, or other physical impression of
another person for a commercial purpose and who causes a minor child
or children to be placed in a situation in which the child's person
or health is endangered, is guilty of a misdemeanor and not an
infraction and shall be punished by imprisonment in a county jail for
not more than one year and by a fine of not more than five thousand
dollars ($5,000).
(c) Pursuant to Section 654 of the Penal Code, an act or omission
described in subdivision (a) or (b) that is punishable in different
ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished
under more than one provision. An acquittal or conviction and
sentence under any one provision bars a prosecution for the same act
or omission under any other provision.
SEC. 4. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
