California Senate Bill SB795 Introduced / Bill

 BILL NUMBER: SB 795INTRODUCED BILL TEXT INTRODUCED BY Committee on Public Safety (Senators Hancock (Chair), Anderson, Leno, Liu, McGuire, Monning, and Stone) MARCH 10, 2015 An act to amend Sections 384a, 849, 4030, and 4504 of the Penal Code, and to repeal Section 1403 of the Welfare and Institutions Code, relating to public safety. LEGISLATIVE COUNSEL'S DIGEST SB 795, as introduced, Committee on Public Safety. Public Safety Omnibus. (1) Existing law, when a person is arrested without a warrant, requires the person, if not otherwise released and without unnecessary delay, to be taken before the nearest or most accessible magistrate in the county in which the offense is triable, unless certain exemptions apply, including that the person was arrested for intoxication only and no further proceedings are desirable. This bill would exempt a person from the requirement of, without unnecessary delay, being taken before the nearest or most accessible magistrate in the county in which the offense is triable if the person is arrested for driving under the influence of alcohol or drugs and the person is delivered to a hospital for medical treatment that prohibits immediate delivery before a magistrate. (2) Existing law establishes a statewide policy strictly limiting strip and body cavity searches of prearrangement detainees arrested for infraction or misdemeanor offenses and of minors detained prior to a detention hearing on the grounds that he or she is alleged to have committed a misdemeanor or infraction offense. Existing law provides that if a person is arrested and taken into custody, that person may be subjected to patdown searches, metal detector searches, and thorough clothing searches in order to discover and retrieve concealed weapons and contraband substances prior to being placed in a booking cell. This bill would provide that if a person is arrested and taken into custody that person may also be subjected to a body scanner search. (3) Existing law, the Interstate Compact for Juveniles, adopted by this state and effective until January 1, 2016, establishes an interstate commission of the compacting states to, among other things, oversee, supervise, and coordinate the interstate movement of juveniles. This bill would delete the repeal date of these provisions, and would thereby extend the operation of the provisions indefinitely. (4) This bill would make other technical, nonsubstantive changes. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 384a of the Penal Code is amended to read: 384a.  Every person who within the State of California   (a)     (1)     A person shall not  willfully or negligently  cuts, destroys, mutilates, or removes any tree or shrub, or fern or herb or bulb or cactus or flower, or huckleberry or redwood greens, or portion of any tree or shrub, or fern or herb or bulb or cactus or flower, or huckleberry or redwood greens,   cut, destroy, mutilate, or remove plant material that is  growing upon state or county highway  rights-of-way, or who removes leaf mold thereon, except that the provisions of this section shall not be construed to apply to any employee of the state or of any political subdivision thereof engaged in work upon any state, county, or public road or highway while performing work under the supervision of the state or of any political subdivision thereof, and every person who willfully or negligently cuts, destroys, mutilates, or removes any tree or shrub, or fern or herb or bulb or cactus or flower, or huckleberry or redwood greens, or portions of any tree or shrub, or fern or herb or bulb or cactus or flower, or huckleberry or redwood greens, growing upon public land or upon land not his or her own, or leaf mold on the surface of public land, or upon land not his or her own, without a written permit from the owner of the land signed by the owner or the owner's authorized agent, and every person who knowingly sells, offers, or exposes for sale, or transports for sale, any tree or shrub, or fern or herb or bulb or cactus or flower, or huckleberry or redwood greens, or portion of any tree or shrub, or fern or herb or bulb or cactus or flower, or huckleberry or redwood greens, or leaf mold, so cut or removed from state or county highway rights-of-way, or removed from public land or from land not owned by the person who cut or removed the same without the written permit from the owner of the land, signed by the owner or the owner's authorized agent, is guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not more than one thousand dollars ($1,000), by imprisonment in a county jail for not more than six months, or by both fine and imprisonment.   rights-of-way.   (2) A person shall not willfully or negligently cut, destroy, mutilate, or remove plant material that is growing upon public land or upon land that is not his or hers without a written permit from the owner of the land, signed by the owner of the land or the owner's authorized agent, as provided in subdivision (c).   (3) A person shall not knowingly sell, offer or expose for sale, or transport for sale plant material that is cut or removed in violation of this subdivision.   (b) For purposes of this section, "plant material" means a tree, shrub, fern, herb, bulb, cactus, flower, huckleberry, or redwood green, or a portion of any of those, or the leaf mold on those plants. "Plant material" does not include a tree, shrub, fern, herb, bulb, cactus, flower, or greens declared by law to be a public nuisance.   The   (c)     (1)     The  written permit required  under this section   by paragraph (2) of subdivision (a)  shall be signed by the landowner, or the landowner's authorized agent, and acknowledged before a notary public, or other person authorized by law to take acknowledgments. The permit shall contain the number and species of trees and amount of  shrubs or ferns or herbs or bulbs or cacti or flowers, or huckleberry or redwood greens, or portions of any tree or shrub,   plant material,  and shall contain the legal description of the real property as usually found in deeds and conveyances of the land on which cutting or  removal, or both,   removal  shall take place. One copy of the permit shall be filed in the office of the sheriff of the county in which the land described in the permit is located. The permit shall be filed prior to  the  commencement of cutting  of the trees or shrub or fern or herb or bulb or cactus or flower or huckleberry or redwood green or portions of any tree or shrub   or removal of plant material  authorized by the permit.  The   (2)     The  permit required by this section need not be notarized or filed with the  office of the  sheriff  of the county where trees are to be removed when five or less trees or   when  five or less pounds of shrubs or boughs are to be cut or removed.  Any   (d)     A  county or state fire  warden, or   warden;  personnel of the Department of Forestry and Fire Protection  ,  as designated by the Director of Forestry and Fire  Protection, and   Protection;  personnel of the United States Forest Service  ,  as designated by the Regional Forester, Region 5, of the United States Forest  Service,   Service;  or  any   a  peace officer of the State of California, may enforce the provisions of this section and may confiscate any and all  such shrubs, trees, ferns or herbs or bulbs or cacti or flowers, or huckleberry or redwood greens or leaf mold, or parts thereof   plant material  unlawfully cut or removed or knowingly sold, offered, or exposed or transported for sale as provided in this section.  This section does not apply to any tree or shrub, or fern or herb or bulb or cactus or flower, or greens declared by law to be a public nuisance.   This   (e)     This  section does not apply to  the   any of the following:   (1) An employee of the state or of a political subdivision of the state who is engaged in work upon a state, county, or public road or highway while performing work under the supervision of the state or a political subdivision of the state.   (2)     A person engaged in the  necessary cutting or trimming of any trees, shrubs, or ferns or herbs or bulbs or cacti or flowers, or greens if done   plant material  for the purpose of protecting or maintaining an electric powerline, telephone line, or other property of a public utility.  This section does not apply to persons   (3)     A person  engaged in logging  operations, or in suppressing fires.   operations or fire suppression.   (f) A violation of this section shall be a misdemeanor, punishable by a fine of mot more than one thousand dollars ($1,000), by imprisonment in a county jail for not more than six months, or by both that fine and imprisonment.  SEC. 2. Section 849 of the Penal Code is amended to read: 849. (a) When an arrest is made without a warrant by a peace officer or private person, the person arrested, if not otherwise  released, shall,   and  without unnecessary delay,  shall  be taken before the nearest or most accessible magistrate in the county in which the offense is triable, and a complaint stating the charge against the arrested person shall be laid before  such   the  magistrate. (b)  Any   A  peace officer may release from custody, instead of taking  such   the  person before a magistrate,  any   a  person arrested without a warrant  whenever   in the following circumstances  : (1)  He or she   The officer  is satisfied that there are insufficient grounds for making a criminal complaint against the person arrested. (2) The person arrested was arrested for intoxication only, and no further proceedings are desirable. (3) The person was arrested only for being under the influence of a controlled substance or drug and  such   the  person is delivered to a facility or hospital for treatment and no further proceedings are desirable.  (4) The person was arrested for driving under the influence of alcohol or drugs and the person is delivered to a hospital for medical treatment that prohibits immediate delivery before a magistrate.  (c)  Any   The  record of arrest of a person released pursuant to paragraphs (1) and (3) of subdivision (b) shall include a record of release. Thereafter,  such   the  arrest shall not be deemed an arrest, but a detention only. SEC. 3. Section 4030 of the Penal Code is amended to read: 4030. (a)  (1)    The Legislature finds and declares that law enforcement policies and practices for conducting strip or body cavity searches of detained persons vary widely throughout California. Consequently, some people have been arbitrarily subjected to unnecessary strip and body cavity searches after arrests for minor misdemeanor and infraction offenses. Some present search practices violate state and federal constitutional rights to privacy and freedom from unreasonable searches and seizures.  It   (2)     It  is the intent of the Legislature in enacting this section to protect the state and federal constitutional rights of the people of California by establishing a statewide policy strictly limiting strip and body cavity searches. (b) The provisions of this section shall apply only to  prearraignment   prearrangement  detainees arrested for infraction or misdemeanor offenses and to any minor detained prior to a detention hearing on the grounds that he or she is a person described in Section 300, 601, or 602 of the Welfare and Institutions Code alleged to have committed a misdemeanor or infraction offense. The provisions of this section shall not apply to  any   a  person in the custody of the  Director   Secretary  of the Department of Corrections  and Rehabilitation  or the Director of  the Youth Authority.   the Division of Juvenile Justice in the Department of Corrections and Rehabilitation.   (c) As used in this section, "strip search" means a search which requires a person to remove or arrange some or all of his or her clothing so as to permit a visual inspection of the underclothing, breasts, buttocks, or genitalia of such person.   (d)   (c)  As used in this section  the following definitions shall apply  : (1) "Body cavity" only means the stomach or rectal cavity of a person, and vagina of a female person.  (2) "Visual body cavity search" means visual inspection of a body cavity.   (3)   (2)  "Physical body cavity search" means physical intrusion into a body cavity for the purpose of discovering any object concealed in the body cavity.  (3) "Stip search" means a search that requires a person to remove or arrange some or all of his or her clothing so as to permit a visual inspection of the underclothing, breasts, buttocks, or genitalia of that person.   (4) "Visual body cavity search" means visual inspection of a body cavity.   (e)   (d)  Notwithstanding any other  provision of  law, including Section 40304.5 of the Vehicle Code, when a person is arrested and taken into custody, that person may be subjected to patdown searches, metal detector searches,  body scanners,  and thorough clothing searches in order to discover and retrieve concealed weapons and contraband substances prior to being placed in a booking cell.  (f) No person   (e)     A person  arrested and held in custody on a misdemeanor or infraction offense, except those involving weapons, controlled  substances or violence nor any   substances, or violence, or a  minor detained prior to a detention hearing on the grounds that he or she is a person described in Section 300, 601 or 602 of the Welfare and Institutions Code, except for those minors alleged to have committed felonies or offenses involving weapons, controlled  substances   substances,  or violence, shall  not  be subjected to a strip search or visual body cavity search prior to placement in the general jail population, unless a peace officer has determined there is reasonable  suspicion   suspicion,  based on specific and articulable  facts   facts,  to believe  such   that  person is concealing a weapon or  contraband,   contraband  and a strip search will result in the discovery of the weapon or contraband.  No   A  strip search or visual body cavity  search or both may   search,   or both, shall not  be conducted without the prior written authorization of the supervising officer on duty. The authorization shall include the specific and articulable facts and circumstances upon which the reasonable suspicion determination was made by the supervisor.  (g)   (f)  (1) Except pursuant to the provisions of paragraph (2),  no   a  person arrested and held in custody on a misdemeanor or infraction offense not involving weapons, controlled  substances   substances,  or violence, shall  not  be confined in the general jail population unless all of the following are true: (i) The person is not cited and released. (ii) The person is not released on his or her own recognizance pursuant to Article 9 (commencing with Section 1318) of Chapter 1 of Title 10 of Part 2. (iii) The person is not able to post bail within a reasonable  time   time,  not less than three hours. (2)  No   A  person  may   shall not  be housed in the general jail population prior to release pursuant to the provisions of paragraph (1) unless a documented emergency exists and there is no reasonable alternative to  such   that  placement.  Such   The  person shall be placed in the general population only upon prior written authorization documenting the specific facts and circumstances of the emergency. The written authorization shall be signed by the uniformed supervisor of the facility or by a uniformed watch commander.  Any   A  person confined in the general jail population pursuant to paragraph (1) shall retain all rights to release on citation, his or her own recognizance, or bail  which   that  were preempted as a consequence of the emergency.  (h) No   (g)     A  person arrested on a misdemeanor or infraction offense,  nor any   or a  minor described in subdivision (b), shall  not  be subjected to a physical body cavity search except under the authority of a search warrant issued by a magistrate specifically authorizing the physical body cavity search.  (i)   (h)  A copy of the prior written authorization required by subdivisions  (e) and  (f)  and (g)  and the search warrant required by subdivision  (h)   (g)  shall be placed in the agency's records and made available, on request, to the person searched or his or her authorized representative. With regard to  any  a  strip,  visual   visual,  or body search, the time,  date   date,  and place of the search, the name and sex of the person conducting the  search   search,  and a statement of the results of the search, including a list of  any  items removed from the person searched, shall be recorded in the agency's records and made available, upon request, to the person searched or his or her authorized representative.  (j)   (i)  Persons conducting a strip search or a visual body cavity search shall not touch the breasts, buttocks, or genitalia of the person being searched.  (k)   (j)  A physical body cavity search shall be conducted under sanitary conditions, and only by a physician, nurse practitioner, registered nurse, licensed vocational  nurse   nurse,  or emergency medical technician Level II licensed to practice in this state.  Any   A  physician engaged in providing health care to detainees and inmates of the facility may conduct physical body cavity searches.  (  l  ) All persons  (k)    A person  conducting or otherwise present during a strip search or visual or physical body cavity search shall be of the same sex as the person being searched, except for physicians or licensed medical personnel.  (m)   (   l  )  All strip,  visual   visual,  and physical body cavity searches shall be conducted in an area of privacy so that the search cannot be observed by persons not participating in the search. Persons are considered to be participating in the search if their official duties relative to search procedure require them to be present at the time the search is conducted.  (n)   (m)  A person who knowingly and willfully authorizes or conducts a strip,  visual   visual,  or physical body cavity search in violation of this section is guilty of a misdemeanor.  (o)   (n)  Nothing in this section shall be construed as limiting  any   the  common law or statutory rights of  any   a  person regarding  any   an  action for damages or injunctive relief, or as precluding the prosecution under another  provision of  law of  any   a  peace officer or other person who has violated this section.  (p)   (o)  Any person who suffers damage or harm as a result of a violation of this section may bring a civil action to recover actual damages, or one thousand dollars ($1,000), whichever is greater. In addition, the court may, in its discretion, award punitive damages, equitable relief as it deems necessary and proper, and costs, including reasonable attorney's fees. SEC. 4. Section 4504 of the Penal Code is amended to read: 4504. For purposes of this chapter: (a) A person is deemed confined in a "state prison" if he  or she  is confined in any of the prisons and institutions specified in Section 5003 by order made pursuant to law, including, but not limited to, commitments to the Department of Corrections  or the Department of the Youth Authority,   and Rehabilitation or the Department of Corrections and Rehabilitation, Division of Juvenile Justice,  regardless of the purpose of  such   the  confinement and regardless of the validity of the order directing  such   the  confinement, until a judgment of a competent court setting aside  such   the  order becomes final. (b) A person is deemed "confined in" a prison although, at the time of the offense, he  or she  is temporarily outside its walls or bounds for the purpose of serving on a work  detail or   detail,  for the purpose of confinement in a local correctional institution pending  trial   trial,  or for any other purpose for which a prisoner may be allowed temporarily outside the walls or bounds of the  prison, but a   prison. A  prisoner who has been released on parole is not deemed "confined in" a prison for purposes of this chapter. SEC. 5. Section 1403 of the Welfare and Institutions Code is repealed.  1403. This chapter shall remain in effect only until January 1, 2016, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2016, deletes or extends that date.