Bill Text: CA SB982 | 2009-2010 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

---

Bill Title: Deceased Child Victims' Protection and Privacy Act.

Spectrum: Slight Partisan Bill (Republican 3-1)

Status: (Engrossed - Dead) 2010-08-11 - In Assembly. Read first time. Held at Desk. [SB982 Detail]

Download: California-2009-SB982-Amended.html

---

BILL NUMBER: SB 982	AMENDED
	BILL TEXT

	AMENDED IN SENATE  MAY 3, 2010

INTRODUCED BY   Senator Hollingsworth
    (   Principal coauthor:   Assembly Member
  Fletcher   ) 
    (   Coauthor:   Senator   Ducheny
  ) 

                        FEBRUARY 8, 2010

    An act to amend Section 1872.8 of the Insurance Code,
relating to insurance.   An act to add Section 130 to
the Code of Civil Procedure, relating to victims' rights, and
declaring the urgency thereof, to take effect immediately. 


	LEGISLATIVE COUNSEL'S DIGEST


   SB 982, as amended, Hollingsworth.  Insurance: fraud
prevention.   Deceased child victim of crime: autopsy
information and privacy.  
   Existing law prohibits the making of a copy, reproduction, or
facsimile of any kind of photographs, negatives, or print of the
body, or any portion of the body, of a deceased person taken by or
for the coroner at the scene of death or in the course of a
postmortem exam or autopsy made by or caused to be made by the
coroner, except for use in a criminal proceeding in this state that
relates to the death of that person, or except as a court of this
state permits, as specified.  
   This bill would prohibit, upon the request of the family of a
deceased person who was under 18 years of age when he or she was a
victim of a crime that caused his or her death, the disclosure of the
autopsy report and evidence associated with the examination of the
victim, except as specified.  
   Because the bill would impose additional duties on local
officials, such as the county coroner, the district attorney, or the
public defender, relating to preventing the disclosure of this
information, 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, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.  
   This bill would declare that it is to take effect immediately as
an urgency statute.  
   Existing law requires an insurer doing business in this state to
pay an annual special purpose assessment to be determined by the
commissioner, but not to exceed $1.00 annually, for each vehicle
insured under an insurance policy it issues in this state, in order
to fund increased investigation and prosecution of fraudulent
automobile insurance claims and economic automobile theft. 

   This bill would make technical, nonsubstantive changes to those
provisions. 
   Vote:  majority   2/3  . Appropriation:
no. Fiscal committee:  no   yes  .
State-mandated local program:  no   yes .



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

   SECTION 1.    This act shall be known and may be
cited as the Deceased Child Victims' Protection and Privacy Act.

   SEC. 2.    The Legislature hereby finds and declares
all of the following:  
   (a) (1) Thousands of Californians are murdered each year, a
statistic that has remained steady for over 30 years. The emotional
pain suffered by the families of these lost victims is unimaginable.
That pain is relived through criminal proceedings, which serve as a
troubling reminder of the suffering that loved ones endured before
their lives were taken.  
   (2) No document is more telling of the specific nature of a victim'
s injuries than the autopsy report crafted by a medical examiner. For
the family of a crime victim, the writing and diagrams contain the
details of a loved one's last experiences in this world.  
   (3) While criminal proceedings and certain civil actions may
require the use of those documents to satisfy the needs of a
particular suit, there is no compelling interest in public production
and distribution of these documents.  
   (4) Both the California and United States Constitutions have been
construed to vest privacy rights in the families of deceased victims,
prohibiting the unnecessary disclosure of that information. 

   (b) The purpose of this act is to protect the privacy of the
families of deceased victims by allowing them to request that autopsy
reports not be subject to public records act requests.  
   (c) This act is intended to limit the unnecessary dissemination of
autopsy and private medical information concerning a murdered child
by acknowledging a family's right to privacy in those documents when
there is no compelling interest in disclosure. This act allows
families to request that the autopsy report of the victim be sealed
from public inspection. This act does not affect the dissemination of
the reports to law enforcement agents or prosecutors, and it does
not affect their obligations to provide that information to
defendants, with a protective order, in compliance with state and
federal discovery obligations. This act does not affect the ability
of civil litigants, in a suit related to the death of the victim,
from subpoenaing those records after a showing of good cause to the
trial court. 
   SEC. 3.    Section 130 is added to the  
Code of Civil Procedure   , to read:  
   130.  (a) Notwithstanding any other law, upon the request of the
family of a deceased victim of a crime who was under 18 years of age
at the time of the crime that caused his or her death, the autopsy
report and evidence associated with the examination of the victim
shall be sealed and not disclosed, except as provided in this
subdivision.
   (1) Nothing in this section shall prohibit the use of autopsy
reports and evidence during criminal court proceedings.
   (2) Disclosure of all autopsy information and evidence to law
enforcement or prosecutorial agencies is not limited by this section.

   (3) Disclosure to the defendant and the defense team in the course
of criminal proceedings or related habeas proceedings is not limited
by this section, except that the defendant and defense team are
prohibited from disseminating all autopsy information and evidence
outside of the defense team, except during criminal court
proceedings.
   (4) Civil litigants, in a cause of action related to the victim's
death, may obtain copies of autopsy reports and evidence with a court
order upon a showing of good cause and proper notice under Section
129.
   (5) Nothing in this section shall abrogate the rights of victims,
their authorized representatives, or insurance carriers to request
the release of information pursuant to subdivision (f) of Section
6254 of the Government Code. However, if a seal has been requested,
an insurance carrier receiving items pursuant to a request under that
subdivision is prohibited from disclosing the requested items except
as necessary in the normal course of business. An insurance carrier
shall not, under any circumstances, disclose items received pursuant
to subdivision (f) of Section 6254 of the Government Code to the
general public.
   (6) This provision may not be invoked by a family member who has
been charged with or convicted of any act in furtherance of the
victim's death.
   (b) For purposes of this section:
   (1) "Evidence" means any object, writing, diagram, recording,
computer file, photograph, video, DVD, CD, film, digital device or
other item which was collected during or serves to document the
autopsy of an individual.
   (2) "Family" means the biological or adoptive parent, foster
parent, spouse, registered domestic partner, child, sibling, or
closest living relative of the deceased. 
   SEC. 4.    If the Commission on State Mandates
determines that this act contains costs mandated by the state,
reimbursement to local agencies and school districts for those costs
shall be made pursuant to Part 7 (commencing with Section 17500) of
Division 4 of Title 2 of the Government Code. 
   SEC. 5.    This act is an urgency statute necessary
for the immediate preservation of the public peace, health, or safety
within the meaning of Article IV of the Constitution and shall go
into immediate effect. The facts constituting the necessity are:
 
   In order to prevent, as soon as possible, autopsy information
concerning deceased children from being made available to the public,
it is necessary that this act take effect immediately. 

  SECTION 1.    Section 1872.8 of the Insurance Code
is amended to read:
   1872.8.  (a) An insurer doing business in this state shall pay an
annual special purpose assessment to be determined by the
commissioner, but not to exceed one dollar ($1) annually, for each
vehicle insured under an insurance policy it issues in this state, in
order to fund increased investigation and prosecution of fraudulent
automobile insurance claims and economic automobile theft.
Thirty-four percent of those funds received from ninety-five cents
($0.95) of the special purpose assessment per insured vehicle shall
be distributed to the Fraud Division for enhanced investigative
efforts, 15 percent of that ninety-five cents ($0.95) shall be
deposited in the Motor Vehicle Account for appropriation to the
Department of the California Highway Patrol for enhanced prevention
and investigative efforts to deter economic automobile theft, and 51
percent of that ninety-five cents ($0.95) shall be distributed to
district attorneys for purposes of investigation and prosecution of
automobile insurance fraud cases, including fraud involving economic
automobile theft.
   (b) (1) The commissioner shall award funds to district attorneys
according to population. The commissioner may alter this distribution
formula as necessary to achieve the most effective distribution of
funds. A local district attorney desiring a portion of those funds
shall submit to the commissioner an application detailing the
proposed use of any moneys that may be provided. The application
shall include a detailed accounting of assessment funds received and
expended in prior years, including, at a minimum, all of the
following:
   (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 results achieved as a consequence of expenditures made,
including the number of investigations, arrests, complaints filed,
convictions, and the amounts originally claimed in cases prosecuted
compared to payments actually made in those cases.
   (D) Other relevant information as the commissioner may reasonably
require.
   A district attorney who fails to submit an application by the
deadline set by the commissioner shall be subject to loss of
distribution of the moneys. The commissioner may consider
recommendations and advice of the Fraud Division and the Commissioner
of the California Highway Patrol in allocating moneys to local
district attorneys. A district attorney that receives funds shall
submit an annual report to the commissioner, which may be made
public, as to the success of the program administered. The report
shall provide information and statistics on the number of active
investigations, arrests, indictments, and convictions. Both the
application for moneys and the distribution of moneys shall be public
documents. The commissioner shall conduct a fiscal audit of the
programs administered under this subdivision at least once every
three years. The costs of a fiscal audit shall be shared equally
between the department and the district attorney. Information
submitted to the commissioner pursuant to this section concerning
criminal investigations, whether active or inactive, shall be
confidential. If the commissioner determines that a district attorney
is unable or unwilling to investigate and prosecute automobile
insurance fraud claims as provided by this subdivision or Section
1874.8, the commissioner may discontinue the distribution of funds
allocated for that county and may redistribute those funds to other
eligible district attorneys.
   (2) The Department of the California Highway Patrol shall submit
to the commissioner, for informational purposes only, a report
detailing the department's proposed use of funds under this section
and an annual report in the same format as required of district
attorneys under paragraph (1).
   (c) The remaining five cents ($0.05) shall be spent for enhanced
automobile insurance fraud investigation by the Fraud Division.
   (d) Except for funds to be deposited in the Motor Vehicle Account
for allocation to the Department of the California Highway Patrol for
purposes of the Motor Vehicle Theft Prevention Act (Chapter 5
(commencing with Section 10900) of Division 4 of the Vehicle Code),
the funds received under this section shall be deposited in the
Insurance Fund and be expended and distributed when appropriated by
the Legislature.
   (e) In the course of its investigations, the Fraud Division shall
pursue aggressively all reported incidents of probable fraud and, in
addition, shall forward to the appropriate disciplinary body the
names of individuals licensed under the Business and Professions Code
who are suspected of actively engaging in fraudulent activity along
with all relevant supporting evidence.
   (f) As used in this section, "economic automobile theft" means
automobile theft perpetrated for financial gain, including, but not
limited to, the following:
   (1) Theft of a motor vehicle for financial gain.
   (2) Reporting that a motor vehicle has been stolen for the purpose
of filing a false insurance claim.
   (3) Engaging in an act prohibited by Chapter 3.5 (commencing with
Section 10801) of Division 4 of the Vehicle Code.
   (4) Switching of vehicle identification numbers to obtain title to
a stolen motor vehicle.