Bill Text: CA SB676 | 2015-2016 | Regular Session | Chaptered


Bill Title: Disorderly conduct: invasion of privacy.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Passed) 2015-09-09 - Chaptered by Secretary of State. Chapter 291, Statutes of 2015. [SB676 Detail]

Download: California-2015-SB676-Chaptered.html
BILL NUMBER: SB 676	CHAPTERED
	BILL TEXT

	CHAPTER  291
	FILED WITH SECRETARY OF STATE  SEPTEMBER 9, 2015
	APPROVED BY GOVERNOR  SEPTEMBER 9, 2015
	PASSED THE SENATE  AUGUST 27, 2015
	PASSED THE ASSEMBLY  AUGUST 20, 2015
	AMENDED IN ASSEMBLY  JULY 2, 2015
	AMENDED IN SENATE  MAY 5, 2015
	AMENDED IN SENATE  APRIL 20, 2015

INTRODUCED BY   Senator Cannella

                        FEBRUARY 27, 2015

   An act to amend Section 502.01 of, and to add Section 647.8 to,
the Penal Code, relating to disorderly conduct.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 676, Cannella. Disorderly conduct: invasion of privacy.
    Existing law provides that a person who photographs or records by
any means the image of the intimate body part or parts of another
identifiable person, under circumstances where the parties agree or
understand that the image shall remain private, and the person
subsequently distributes the image taken, with the intent to cause
serious emotional distress, and the depicted person suffers serious
emotional distress, is guilty of disorderly conduct, a misdemeanor.
   Under existing law, matter that depicts a person under 18 years of
age personally engaging in or personally simulating sexual conduct,
as defined, and that is in the possession of any city, county, city
and county, or state official or agency is subject to forfeiture
pursuant to a petition for forfeiture brought in the county in which
the matter is located. Existing law provides for forfeiture by a
defendant of illegal telecommunications equipment, or a computer,
computer system, or computer network, and any software or data that
was used in committing specified crimes, including depiction of a
person under 18 years of age personally engaging in or personally
simulating sexual conduct.
   This bill would make the forfeiture provisions described above
applicable to illegal telecommunications equipment, or a computer,
computer system, or computer network, and any software or data, when
used in committing a violation of disorderly conduct related to
invasion of privacy, as specified. The bill would also establish
forfeiture proceedings for matter obtained through disorderly conduct
by invasion of privacy, as specified.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 502.01 of the Penal Code is amended to read:
   502.01.  (a) As used in this section:
   (1) "Property subject to forfeiture" means any property of the
defendant that is illegal telecommunications equipment as defined in
subdivision (g) of Section 502.8, or a computer, computer system, or
computer network, and any software or data residing thereon, if the
telecommunications device, computer, computer system, or computer
network was used in committing a violation of, or conspiracy to
commit a violation of, subdivision (b) of Section 272, Section 288,
288.2, 311.1, 311.2, 311.3, 311.4, 311.5, 311.10, 311.11, 422, 470,
470a, 472, 475, 476, 480, 483.5, 484g, or subdivision (a), (b), or
(d) of Section 484e, subdivision (a) of Section 484f, subdivision (b)
or (c) of Section 484i, subdivision (c) of Section 502, or Section
502.7, 502.8, 529, 529a, or 530.5, 537e, 593d, 593e, 646.9, or
subdivision (j) of Section 647, or was used as a repository for the
storage of software or data obtained in violation of those
provisions. Forfeiture shall not be available for any property used
solely in the commission of an infraction. If the defendant is a
minor, it also includes property of the parent or guardian of the
defendant.
   (2) "Sentencing court" means the court sentencing a person found
guilty of violating or conspiring to commit a violation of
subdivision (b) of Section 272, Section 288, 288.2, 311.1, 311.2,
311.3, 311.4, 311.5, 311.10, 311.11, 422, 470, 470a, 472, 475, 476,
480, 483.5, 484g, or subdivision (a), (b), or (d) of Section 484e,
subdivision (d) of Section 484e, subdivision (a) of Section 484f,
subdivision (b) or (c) of Section 484i, subdivision (c) of Section
502, or Section 502.7, 502.8, 529, 529a, 530.5, 537e, 593d, 593e,
646.9, or subdivision (j) of Section 647, or, in the case of a minor,
found to be a person described in Section 602 of the Welfare and
Institutions Code because of a violation of those provisions, the
juvenile court.
   (3) "Interest" means any property interest in the property subject
to forfeiture.
   (4) "Security interest" means an interest that is a lien,
mortgage, security interest, or interest under a conditional sales
contract.
   (5) "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 are recovered, including, but not limited to,
counterfeited computer diskettes, instruction manuals, or licensing
envelopes, the "value" of those components of computer software
packages shall be equivalent to the retail price or fair market price
of the number of completed computer software packages that could
have been made from those components.
   (b) The sentencing court shall, upon petition by the prosecuting
attorney, at any time following sentencing, or by agreement of all
parties, at the time of sentencing, conduct a hearing to determine
whether any property or property interest is subject to forfeiture
under this section. At the forfeiture hearing, the prosecuting
attorney shall have the burden of establishing, by a preponderance of
the evidence, that the property or property interests are subject to
forfeiture. The prosecuting attorney may retain seized property that
may be subject to forfeiture until the sentencing hearing.
   (c) (1) Prior to the commencement of a forfeiture proceeding, the
law enforcement agency seizing the property subject to forfeiture
shall make an investigation as to any person other than the defendant
who may have an interest in it. At least 30 days before the hearing
to determine whether the property should be forfeited, the
prosecuting agency shall send notice of the hearing to any person who
may have an interest in the property that arose before the seizure.
   (2) A person claiming an interest in the property shall file a
motion for the redemption of that interest at least 10 days before
the hearing on forfeiture, and shall send a copy of the motion to the
prosecuting agency and to the probation department.
   (3) If a motion to redeem an interest has been filed, the
sentencing court shall hold a hearing to identify all persons who
possess valid interests in the property. No person shall hold a valid
interest in the property if, by a preponderance of the evidence, the
prosecuting agency shows that the person knew or should have known
that the property was being used in violation of, or conspiracy to
commit a violation of, subdivision (b) of Section 272, Section 288,
288.2, 311.1, 311.2, 311.3, 311.4, 311.5, 311.10, 311.11, 470, 470a,
472, 475, 476, 480, 483.5, 484g, or subdivision (a), (b), or (d) of
Section 484e, subdivision (a) of Section 484f, subdivision (b) or (c)
of Section 484i, subdivision (c) of Section 502, or Section 502.7,
502.8, 529, 529a, 530.5, 537e, 593d, 593e, 646.9, or subdivision (j)
of Section 647, and that the person did not take reasonable steps to
prevent that use, or if the interest is a security interest, the
person knew or should have known at the time that the security
interest was created that the property would be used for a violation.

   (d) If the sentencing court finds that a person holds a valid
interest in the property, the following provisions shall apply:
   (1) The court shall determine the value of the property.
   (2) The court shall determine the value of each valid interest in
the property.
   (3) If the value of the property is greater than the value of the
interest, the holder of the interest shall be entitled to ownership
of the property upon paying the court the difference between the
value of the property and the value of the valid interest.
   If the holder of the interest declines to pay the amount
determined under paragraph (2), the court may order the property sold
and designate the prosecutor or any other agency to sell the
property. The designated agency shall be entitled to seize the
property and the holder of the interest shall forward any
documentation underlying the interest, including any ownership
certificates for that property, to the designated agency. The
designated agency shall sell the property and pay the owner of the
interest the proceeds, up to the value of that interest.
   (4) If the value of the property is less than the value of the
interest, the designated agency shall sell the property and pay the
owner of the interest the proceeds, up to the value of that interest.

   (e) If the defendant was a minor at the time of the offense, this
subdivision shall apply to property subject to forfeiture that is the
property of the parent or guardian of the minor.
   (1) The prosecuting agency shall notify the parent or guardian of
the forfeiture hearing at least 30 days before the date set for the
hearing.
   (2) The computer or telecommunications device shall not be subject
to forfeiture if the parent or guardian files a signed statement
with the court at least 10 days before the date set for the hearing
that the minor shall not have access to any computer or
telecommunications device owned by the parent or guardian for two
years after the date on which the minor is sentenced.
   (3) If the minor is convicted of a violation of Section 288,
288.2, 311.1, 311.2, 311.3, 311.4, 311.5, 311.10, 311.11, 470, 470a,
472, 476, 480, or subdivision (b) of Section 484e, subdivision (d) of
Section 484e, subdivision (a) of Section 484f, subdivision (b) of
Section 484i, subdivision (c) of Section 502, or Section 502.7,
502.8, 529, 529a, 530.5, or subdivision (j) of Section 647, within
two years after the date on which the minor is sentenced, and the
violation involves a computer or telecommunications device owned by
the parent or guardian, the original property subject to forfeiture,
and the property involved in the new offense, shall be subject to
forfeiture notwithstanding paragraph (2).
   (4) Notwithstanding paragraph (1), (2), or (3), or any other
provision of this chapter, if a minor's parent or guardian makes full
restitution to the victim of a crime enumerated in this chapter in
an amount or manner determined by the court, the forfeiture
provisions of this chapter do not apply to the property of that
parent or guardian if the property was located in the family's
primary residence during the commission of the crime.
   (f) Notwithstanding any other provision of this chapter, the court
may exercise its discretion to deny forfeiture where the court finds
that the convicted defendant, or minor adjudicated to come within
the jurisdiction of the juvenile court, is not likely to use the
property otherwise subject to forfeiture for future illegal acts.
   (g) If the defendant is found to have the only valid interest in
the property subject to forfeiture, it shall be distributed as
follows:
   (1) First, to the victim, if the victim elects to take the
property as full or partial restitution for injury, victim
expenditures, or compensatory damages, as defined in paragraph (1) of
subdivision (e) of Section 502. If the victim elects to receive the
property under this paragraph, the value of the property shall be
determined by the court and that amount shall be credited against the
restitution owed by the defendant. The victim shall not be penalized
for electing not to accept the forfeited property in lieu of full or
partial restitution.
   (2) Second, at the discretion of the court, to one or more of the
following agencies or entities:
   (A) The prosecuting agency.
   (B) The public entity of which the prosecuting agency is a part.
   (C) The public entity whose officers or employees conducted the
investigation resulting in forfeiture.
   (D) Other state and local public entities, including school
districts.
   (E) Nonprofit charitable organizations.
   (h) If the property is to be sold, the court may designate the
prosecuting agency or any other agency to sell the property at
auction. The proceeds of the sale shall be distributed by the court
as follows:
   (1) To the bona fide or innocent purchaser or encumbrancer,
conditional sales vendor, or mortgagee of the property up to the
amount of his or her interest in the property, if the court orders a
distribution to that person.
   (2) The balance, if any, to be retained by the court, subject to
the provisions for distribution under subdivision (g).
  SEC. 2.  Section 647.8 is added to the Penal Code, to read:
   647.8.  (a) Matter that is obtained or distributed in violation of
subdivision (j) of Section 647 and that is in the possession of any
city, county, city and county, or state official or agency is subject
to forfeiture pursuant to this section.
   (b) An action to forfeit matter described in subdivision (a) may
be brought by the Attorney General, the district attorney, county
counsel, or the city attorney. Proceedings shall be initiated by a
petition of forfeiture filed in the superior court of the county in
which the matter is located.
   (c) The prosecuting agency shall make service of process of a
notice regarding that petition upon every individual who may have a
property interest in the alleged proceeds. The notice shall state
that any interested party may file a verified claim with the superior
court stating the amount of his or her claimed interest and an
affirmation or denial of the prosecuting agency's allegation. If the
notice cannot be given by registered mail or personal delivery, the
notice shall be published for at least three successive weeks in a
newspaper of general circulation in the county where the property is
located. All notices shall set forth the time within which a claim of
interest in the property seized is required to be filed.
   (d) (1) Any person claiming an interest in the property or
proceeds may, at any time within 30 days from the date of the first
publication of the notice of seizure, or within 30 days after receipt
of actual notice, file with the superior court of the county in
which the action is pending a verified claim stating his or her
interest in the property or proceeds. A verified copy of the claim
shall be given by the claimant to the Attorney General or district
attorney, county counsel, or city attorney, as appropriate.
   (2) If, at the end of the time set forth in paragraph (1), an
interested person has not filed a claim, the court, upon motion,
shall declare that the person has defaulted upon his or her alleged
interest, and it shall be subject to forfeiture upon proof of
compliance with subdivision (c).
   (e) The burden is on the petitioner to prove beyond a reasonable
doubt that matter is subject to forfeiture pursuant to this section.
   (f) It is not necessary to seek or obtain a criminal conviction
prior to the entry of an order for the destruction of matter pursuant
to this section. Any matter described in subdivision (a) that is in
the possession of any city, county, city and county, or state
official or agency, including found property, or property obtained as
the result of a case in which no trial was had or that has been
disposed of by way of dismissal or otherwise than by way of
conviction may be ordered destroyed.
   (g) A court order for destruction of matter described in
subdivision (a) may be carried out by a police or sheriff's
department or by the Department of Justice. The court order shall
specify the agency responsible for the destruction.
   (h) As used in this section, "matter" means any picture,
photograph, image, motion picture, video tape, film, filmstrip,
negative, slide, photocopy, or other pictorial representation,
recording, or electrical reproduction. "Matter" also means any data
storage media that contains the image at issue, but does not include
the computer, camera, telecommunication or electronic device, unless
the matter consists solely of electronic information stored on a
device that cannot be altered or erased.
   (i) Prior for granting an order for destruction of matter pursuant
to this section, the court may require the petitioner to demonstrate
that the petition covers no more property than necessary to remove
possession of the offending matter.
   (j) It is a defense in any forfeiture proceeding that the matter
seized was lawfully possessed in aid of legitimate scientific or
educational purposes.              
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