Bill Text: CA SB174 | 2009-2010 | Regular Session | Introduced
Bill Title: Public safety and welfare.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2009-08-06 - Chaptered by Secretary of State. Chapter 35, Statutes of 2009. [SB174 Detail]
Download: California-2009-SB174-Introduced.html
BILL NUMBER: SB 174 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Strickland
FEBRUARY 14, 2009
An act to amend Section 21606.5 of the Business and Professions
Code, to amend Section 1670.7 of the Civil Code, to amend Section
1219 of the Code of Civil Procedure, to amend Section 27388 of the
Government Code, to amend Sections 290.46, 484b, 1094, 12076, and
12650 of the Penal Code, and to amend Section 1767.35 of the Welfare
and Institutions Code, relating to public safety.
LEGISLATIVE COUNSEL'S DIGEST
SB 174, as introduced, Strickland. Public safety.
Existing law generally regulates public safety.
This bill would make various technical and nonsubstantive changes
to provisions related to, among other things, junk dealers, real
estate fraud, sex offenders, and weapons.
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 21606.5 of the Business and Professions Code is
amended to read:
21606.5. Every junk dealer or recycler shall, during normal
business hours, allow periodic inspection of any premises maintained
and any junk thereon for the purpose of determining compliance with
the recordkeeping requirements of this article, and shall during
those hours produce his or her records of sales and purchases, except
as provided in subparagraph (A) (B) of
paragraph (3) (6) of subdivision (a)
of Section 21608.5, and all property purchased incident to those
transactions which is in the possession of the junk dealer or
recycler for inspection by any of the following persons:
(a) An officer holding a warrant authorizing him or her to search
for personal property.
(b) A person appointed by the sheriff of a county or appointed by
the head of the police department of a city.
(c) An officer holding a court order directing him or her to
examine the records or property.
(d) The amendments to this section made by the act adding this
subdivision shall become operative on December 1, 2008.
SEC. 2. Section 1670.7 of the Civil Code is amended to read:
1670.7. Any provision of a contract that purports to allow a
deduction from a person's wages for the cost of emigrating and
transporting that person to the United Sates
States is void as against public policy.
SEC. 3. Section 1219 of the Code of Civil Procedure is amended to
read:
1219. (a) Except as provided in subdivisions
subdivision (b) and (c) , when the
contempt consists of the omission to perform an act which is yet in
the power of the person to perform, he or she may be imprisoned until
he or she has performed it, and in that case the act shall be
specified in the warrant of commitment.
(b) Notwithstanding any other law, no court may imprison or
otherwise confine or place in custody the victim of a sexual assault
or domestic violence crime for contempt when the contempt consists of
refusing to testify concerning that sexual assault or domestic
violence crime.
(c) As used in this section, the following terms have the
following meanings:
(1) "Sexual assault" means any act made punishable by Section 261,
262, 264.1, 285, 286, 288, 288a, or 289 of the Penal Code.
(2) "Domestic violence" means "domestic violence" as defined in
Section 6211 of the Family Code.
SEC. 4. Section 27388 of the Government Code is amended to read:
27388. (a) In addition to any other recording fees specified in
this code, upon the adoption of a resolution by the county board of
supervisors, a fee of up to three dollars ($3) shall be paid at the
time of recording of every real estate instrument, paper, or notice
required or permitted by law to be recorded within that county,
except those expressly exempted from payment of recording fees. "Real
estate instrument" is defined for the purpose of this section as a
deed of trust, an assignment of deed of trust, a reconveyance, a
request for notice, a notice of default, a substitution of trustee, a
notice of trustee sale, and a notice of recision
rescission of declaration of default. "Real estate
instrument" does not include any deed, instrument, or writing subject
to the imposition of a documentary transfer tax as defined in
Section 11911 of the Revenue and Taxation Code, nor any document
required to facilitate the transfer subject to the documentary
transfer tax. The fees, after deduction of any actual and necessary
administrative costs incurred by the county in carrying out this
section, shall be paid quarterly to the county auditor or director of
finance, to be placed in the Real Estate Fraud Prosecution Trust
Fund. The amount deducted for administrative costs shall not exceed
10 percent of the fees paid pursuant to this section.
(b) Money placed in the Real Estate Fraud Prosecution Trust Fund
shall be expended to fund programs to enhance the capacity of local
police and prosecutors to deter, investigate, and prosecute real
estate fraud crimes. After deduction of the actual and necessary
administrative costs referred to in subdivision (a), 60 percent of
the funds shall be distributed to district attorneys subject to
review pursuant to subdivision (d), and 40 percent of the funds shall
be distributed to local law enforcement agencies within the county
in accordance with subdivision (c). In those counties where the
investigation of real estate fraud is done exclusively by the
district attorney, after deduction of the actual and necessary
administrative costs referred to in subdivision (a), 100 percent of
the funds shall be distributed to the district attorney, subject to
review pursuant to subdivision (d). The funds so distributed shall be
expended for the exclusive purpose of deterring, investigating, and
prosecuting real estate fraud crimes.
(c) The county auditor or director of finance shall distribute
funds in the Real Estate Fraud Prosecution Trust Fund to eligible law
enforcement agencies within the county pursuant to subdivision (b),
as determined by a Real Estate Fraud Prosecution Trust Fund Committee
composed of the district attorney, the county chief administrative
officer, the chief officer responsible for consumer protection within
the county, and the chief law enforcement officer of one law
enforcement agency receiving funding from the Real Estate Fraud
Prosecution Trust Fund, the latter being selected by a majority of
the other three members of the committee. The chief law enforcement
officer shall be a nonvoting member of the committee and shall serve
a one-year term, which may be renewed. Members may appoint
representatives of their offices to serve on the committee. If a
county lacks a chief officer responsible for consumer protection, the
county board of supervisors may appoint an appropriate
representative to serve on the committee. The committee shall
establish and publish deadlines and written procedures for local law
enforcement agencies within the county to apply for the use of funds
and shall review applications and make determinations by majority
vote as to the award of funds using the following criteria:
(1) Each law enforcement agency that seeks funds shall submit a
written application to the committee setting forth in detail the
agency's proposed use of the funds.
(2) In order to qualify for receipt of funds, each law enforcement
agency submitting an application shall provide written evidence that
the agency either:
(A) Has a unit, division, or section devoted to the investigation
or prosecution of real estate fraud, or both, and the unit, division,
or section has been in existence for at least one year prior to the
application date.
(B) Has on a regular basis, during the three years immediately
preceding the application date, accepted for investigation or
prosecution, or both, and assigned to specific persons employed by
the agency, cases of suspected real estate fraud, and actively
investigated and prosecuted those cases.
(3) The committee's determination to award funds to a law
enforcement agency shall be based on, but not be limited to, (A) the
number of real estate fraud cases filed in the prior year; (B) the
number of real estate fraud cases investigated in the prior year; (C)
the number of victims involved in the cases filed; and (D) the total
aggregated monetary loss suffered by victims, including individuals,
associations, institutions, or corporations, as a result of the real
estate fraud cases filed, and those under active investigation by
that law enforcement agency.
(4) Each law enforcement agency that, pursuant to this section,
has been awarded funds in the previous year, upon reapplication for
funds to the committee in each successive year, in addition to any
information the committee may require in paragraph (3), shall be
required to submit a detailed accounting of funds received and
expended in the prior year. The accounting shall include (A) the
amount of funds received and expended; (B) the uses to which those
funds were put, including payment of salaries and expenses, purchase
of equipment and supplies, and other expenditures by type; (C) the
number of filed complaints, investigations, arrests, and convictions
that resulted from the expenditure of the funds; and (D) other
relevant information the committee may reasonably require.
(d) The county board of supervisors shall annually review the
effectiveness of the district attorney in deterring, investigating,
and prosecuting real estate fraud crimes based upon information
provided by the district attorney in an annual report. The district
attorney shall submit the annual report to the board and to the
Legislative Analyst's Office on or before September 1 of each year.
The Legislative Analyst's Office shall compile the results and report
to the Legislature, detailing both:
(1) Facts, based upon, but not limited to, (A) the number of real
estate fraud cases filed in the prior year; (B) the number of real
estate fraud cases investigated in the prior year; (C) the number of
victims involved in the cases filed; (D) the number of convictions
obtained in the prior year; and (E) the total aggregated monetary
loss suffered by victims, including individuals, associations,
institutions, corporations, and other relevant public entities,
according to the number of cases filed, investigations, prosecutions,
and convictions obtained.
(2) An accounting of funds received and expended in the prior
year, which shall include (A) the amount of funds received and
expended; (B) the uses to which those funds were put, including
payment of salaries and expenses, purchase of equipment and supplies,
and other expenditures by type; (C) the number of filed complaints,
investigations, prosecutions, and convictions that resulted from the
expenditure of funds; and (D) other relevant information provided at
the discretion of the district attorney.
(e) A county in which a district attorney fails to submit an
annual report to the Legislative Analyst's Office pursuant to the
requirements of subdivision (d) shall not expend funds held in that
county's Real Estate Fraud Prosecution Trust Fund until the district
attorney has submitted an annual report for the county's most recent
full fiscal year.
(f) Annual reports submitted to the Legislative Analyst's Office
pursuant to subdivision (d) shall be made in a standard form and
manner determined by the Legislative Analyst's Office, in
consultation with participating law enforcement agencies.
(g) The intent of the Legislature in enacting this section is to
have an impact on real estate fraud involving the largest number of
victims. To the extent possible, an emphasis should be placed on
fraud against individuals whose residences are in danger of, or are
in, foreclosure as defined under subdivision (b) of Section 1695.1 of
the Civil Code. Case filing decisions continue to be in the
discretion of the prosecutor.
(h) A district attorney's office or a local enforcement agency
that has undertaken investigations and prosecutions that will
continue into a subsequent program year may receive nonexpended funds
from the previous fiscal year subsequent to the annual submission of
information detailing the accounting of funds received and expended
in the prior year.
(i) No money collected pursuant to this section shall be expended
to offset a reduction in any other source of funds. Funds from the
Real Estate Fraud Prosecution Trust Fund shall be used only in
connection with criminal investigations or prosecutions involving
recorded real estate documents.
SEC. 5. Section 290.46 of the Penal Code, as amended by Section
1.5 of Chapter 599 of the Statutes of 2008, 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).
(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) , or (d) 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.
(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) On or before July 1, 2006, and every year thereafter, the
Department of Justice shall make a report to the Legislature
concerning the operation of this section.
(o) A designated law enforcement entity and its employees shall be
immune from liability for good faith conduct under this section.
(p) 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. 6. 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 the county jail not exceeding one year, or by
both such fine and such imprisonment if the amount diverted is in
excess of one thousand dollars ($1,000). If the amount diverted is
less than one thousand dollars ($1,000) or
less , the person shall be guilty of a misdemeanor.
SEC. 7. Section 1094 of the Penal Code is amended to read:
1094. When the state of the pleadings requires it, or in any
other case, for good reasons, and in the sound discretion of the
Court, the order prescribed in the last section
Section 1093 may be departed from.
SEC. 8. 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 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
in Sacramento .
(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 for a term of 8, 12, or 18 months.
(2) The record of applicant information shall be transmitted to
the Department of Justice in Sacramento 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 California 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 California 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 ()
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.
() 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. 9. Section 12650 of the Penal Code is amended to read:
12650. "Stun gun" as used in this chapter shall include
means any item, except a taser
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.
SEC. 10. Section 1767.35 of the Welfare and Institutions Code is
amended to read:
1767.35. Commencing on September 1, 2007, any parolee under the
jurisdiction of the Division of Juvenile Parole Operations shall be
returned to custody upon the suspension, cancellation, or revocation
of parole as follows:
(a) To the custody of the Division of Juvenile Facilities if the
parolee is under the jurisdiction of the division for the commission
of an offense described in subdivision (b) of Section 707 or an
offense described in subdivision (c) of Section 290.008 of the Penal
Code.
(b) To the county of commitment if the parolee is under the
jurisdiction of the division for the commission of an offense not
described in subdivision (b) of Section 707 or paragraph (3)
of subdivision (d) of Section 290 subdivision (c) of
Section 290.008 of the Penal Code. If a ward subject to this
subdivision is detained by the Division of Juvenile Parole Operations
for the purpose of initiating proceedings to suspend, cancel, or
revoke the ward's parole, the division shall notify the court and
probation department of the committing county within 48 hours of the
ward's detention that the ward is subject to parole violation
proceedings. Within 15 days of a parole violation notice from the
division, the committing court shall conduct a reentry disposition
hearing for the ward. Pending the hearing, the ward may be detained
by the division, provided that the division shall deliver the ward to
the custody of the probation department in the county of commitment
not more than three judicial days nor less than two judicial days
prior to the reentry disposition hearing. At the hearing, at which
the ward shall be entitled to representation by counsel, the court
shall consider the alleged violation of parole, the risks and needs
presented by the ward, and the reentry disposition programs and
sanctions that are available for the ward, and enter a disposition
order consistent with these considerations and the protection of the
public. The ward shall be fully
informed by the court of the terms, conditions,
responsibilities, and sanctions that are relevant to the reentry plan
that is adopted by the court. Upon delivery to the custody of the
probation department for local proceedings under this subdivision,
the Division of Juvenile Facilities and the Board of Parole Hearings
shall have no further jurisdiction or parole supervision
responsibility for a ward subject to this subdivision. The procedure
of the reentry disposition hearing, including the detention status of
the ward in the event continuances are ordered by the court, shall
be consistent with the rules, rights, and procedures applicable to
delinquency disposition hearings, as described in Article 17
(commencing with Section 675) of Chapter 2 of Part 1 of Division 2.
