BILL NUMBER: SB 717 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 25, 2013
INTRODUCED BY Senator DeSaulnier
Senators DeSaulnier and Correa
FEBRUARY 22, 2013
An act to amend Section 782 of the Evidence Code
1524 of the Penal Code , relating to
evidence search warrants, and declaring the urgency
thereof, to take effect immediately .
LEGISLATIVE COUNSEL'S DIGEST
SB 717, as amended, DeSaulnier. Credibility of witnesses:
sexual conduct evidence. Search warrants: driving
under the influence.
Existing law provides that a search warrant may only be issued
upon probable cause, supported by affidavit, naming or describing the
person to be searched or searched for, and particularly describing
the property, thing, or things and the place to be searched. Existing
law also states the grounds upon which a search warrant may be
issued, including, among other grounds, when the property or things
to be seized consist of any item or constitute any evidence that
tends to show a felony has been committed, or tends to show that a
particular person has committed a felony, or when there is a warrant
to arrest a person.
This bill would additionally authorize the issuance of a search
warrant to authorize a blood draw from a person in a medically
approved manner when there is probable cause to believe the person
has violated specified provisions related to driving under the
influence, and the person has refused an officer's request to submit
to, or has failed to complete, a chemical test or tests, as
specified.
This bill would declare that it is to take effect immediately as
an urgency statute.
Existing law sets forth the procedure required in any prosecution
for rape or other specified offenses, with certain exceptions, if
evidence of sexual conduct of the complaining witness, as defined, is
offered to attack the credibility of the complaining witness.
This bill would expand the offenses included within the term
"sexual conduct" to include commercial sexual conduct, as specified,
and would make conforming changes to those provisions.
Vote: majority 2/3 . Appropriation:
no. Fiscal committee: no. State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1524 of the Penal
Code is amended to read:
1524. (a) A search warrant may be issued upon any of the
following grounds:
(1) When the property was stolen or embezzled.
(2) When the property or things were used as the means of
committing a felony.
(3) When the property or things are in the possession of any
person with the intent to use them as a means of committing a public
offense, or in the possession of another to whom he or she may have
delivered them for the purpose of concealing them or preventing them
from being discovered.
(4) When the property or things to be seized consist of any item
or constitute any evidence that tends to show a felony has been
committed, or tends to show that a particular person has committed a
felony.
(5) When the property or things to be seized consist of evidence
that tends to show that sexual exploitation of a child, in violation
of Section 311.3, or possession of matter depicting sexual conduct of
a person under the age of 18 years of age
, in violation of Section 311.11, has occurred or is occurring.
(6) When there is a warrant to arrest a person.
(7) When a provider of electronic communication service or remote
computing service has records or evidence, as specified in Section
1524.3, showing that property was stolen or embezzled constituting a
misdemeanor, or that property or things are in the possession of any
person with the intent to use them as a means of committing a
misdemeanor public offense, or in the possession of another to whom
he or she may have delivered them for the purpose of concealing them
or preventing their discovery.
(8) When the property or things to be seized include an item or
any evidence that tends to show a violation of Section 3700.5 of the
Labor Code, or tends to show that a particular person has violated
Section 3700.5 of the Labor Code.
(9) When the property or things to be seized include a firearm or
any other deadly weapon at the scene of, or at the premises occupied
or under the control of the person arrested in connection with, a
domestic violence incident involving a threat to human life or a
physical assault as provided in Section 18250. This section does not
affect warrantless seizures otherwise authorized by Section 18250.
(10) When the property or things to be seized include a firearm or
any other deadly weapon that is owned by, or in the possession of,
or in the custody or control of, a person described in subdivision
(a) of Section 8102 of the Welfare and Institutions Code.
(11) When the property or things to be seized include a firearm
that is owned by, or in the possession of, or in the custody or
control of, a person who is subject to the prohibitions regarding
firearms pursuant to Section 6389 of the Family Code, if a prohibited
firearm is possessed, owned, in the custody of, or controlled by a
person against whom a protective order has been issued pursuant to
Section 6218 of the Family Code, the person has been lawfully served
with that order, and the person has failed to relinquish the firearm
as required by law.
(12) When the information to be received from the use of a
tracking device constitutes evidence that tends to show that either a
felony, a misdemeanor violation of the Fish and Game Code, or a
misdemeanor violation of the Public Resources Code has been committed
or is being committed, tends to show that a particular person has
committed a felony, a misdemeanor violation of the Fish and Game
Code, or a misdemeanor violation of the Public Resources Code, or is
committing a felony, a misdemeanor violation of the Fish and Game
Code, or a misdemeanor violation of the Public Resources Code, or
will assist in locating an individual who has committed or is
committing a felony, a misdemeanor violation of the Fish and Game
Code, or a misdemeanor violation of the Public Resources Code. A
tracking device search warrant issued pursuant to this paragraph
shall be executed in a manner meeting the requirements specified in
subdivision (b) of Section 1534.
(13) When there is probable cause to believe a person has violated
Section 23140, 23152, or 23153 of the Vehicle Code and the person
has refused an officer's request to submit to, or has failed to
complete, a chemical test or tests pursuant to Section 23612 of the
Vehicle Code, to authorize a blood draw from the person in a
medically approved manner.
(b) The property, things, person, or persons described in
subdivision (a) may be taken on the warrant from any place, or from
any person in whose possession the property or things may be.
(c) Notwithstanding subdivision (a) or (b), no search warrant
shall issue for any documentary evidence in the possession or under
the control of any person who is a lawyer as defined in Section 950
of the Evidence Code, a physician as defined in Section 990 of the
Evidence Code, a psychotherapist as defined in Section 1010 of the
Evidence Code, or a member of the clergy as defined in Section 1030
of the Evidence Code, and who is not reasonably suspected of engaging
or having engaged in criminal activity related to the documentary
evidence for which a warrant is requested unless the following
procedure has been complied with:
(1) At the time of the issuance of the warrant, the court shall
appoint a special master in accordance with subdivision (d) to
accompany the person who will serve the warrant. Upon service of the
warrant, the special master shall inform the party served of the
specific items being sought and that the party shall have the
opportunity to provide the items requested. If the party, in the
judgment of the special master, fails to provide the items requested,
the special master shall conduct a search for the items in the areas
indicated in the search warrant.
(2) (A) If the party who has been served states that an item or
items should not be disclosed, they shall be sealed by the special
master and taken to court for a hearing.
(B) At the hearing, the party searched shall be entitled to raise
any issues that may be raised pursuant to Section 1538.5 as well as a
claim that the item or items are privileged, as provided by law. The
hearing shall be held in the superior court. The court shall provide
sufficient time for the parties to obtain counsel and make any
motions or present any evidence. The hearing shall be held within
three days of the service of the warrant unless the court makes a
finding that the expedited hearing is impracticable. In that case the
matter shall be heard at the earliest possible time.
(C) If an item or items are taken to court for a hearing, any
limitations of time prescribed in Chapter 2 (commencing with Section
799) of Title 3 of Part 2 shall be tolled from the time of the
seizure until the final conclusion of the hearing, including any
associated writ or appellate proceedings.
(3) The warrant shall, whenever practicable, be served during
normal business hours. In addition, the warrant shall be served upon
a party who appears to have possession or control of the items
sought. If, after reasonable efforts, the party serving the warrant
is unable to locate the person, the special master shall seal and
return to the court, for determination by the court, any item that
appears to be privileged as provided by law.
(d) (1) As used in this section, a "special master" is an attorney
who is a member in good standing of the California State Bar and who
has been selected from a list of qualified attorneys that is
maintained by the State Bar particularly for the purposes of
conducting the searches described in this section. These attorneys
shall serve without compensation. A special master shall be
considered a public employee, and the governmental entity that caused
the search warrant to be issued shall be considered the employer of
the special master and the applicable public entity, for purposes of
Division 3.6 (commencing with Section 810) of Title 1 of the
Government Code, relating to claims and actions against public
entities and public employees. In selecting the special master, the
court shall make every reasonable effort to ensure that the person
selected has no relationship with any of the parties involved in the
pending matter. Any information obtained by the special master shall
be confidential and may not be divulged except in direct response to
inquiry by the court.
(2) In any case in which the magistrate determines that, after
reasonable efforts have been made to obtain a special master, a
special master is not available and would not be available within a
reasonable period of time, the magistrate may direct the party
seeking the order to conduct the search in the manner described in
this section in lieu of the special master.
(e) Any search conducted pursuant to this section by a special
master may be conducted in a manner that permits the party serving
the warrant or his or her designee to accompany the special master as
he or she conducts his or her search. However, that party or his or
her designee may not participate in the search nor shall he or she
examine any of the items being searched by the special master except
upon agreement of the party upon whom the warrant has been served.
(f) As used in this section, "documentary evidence" includes, but
is not limited to, writings, documents, blueprints, drawings,
photographs, computer printouts, microfilms, X-rays, files, diagrams,
ledgers, books, tapes, audio and video recordings, films, and papers
of any type or description.
(g) No warrant shall issue for any item or items described in
Section 1070 of the Evidence Code.
(h) Notwithstanding any other law, no claim of attorney work
product as described in Chapter 4 (commencing with Section 2018.010)
of Title 4 of Part 4 of the Code of Civil Procedure shall be
sustained where there is probable cause to believe that the lawyer is
engaging or has engaged in criminal activity related to the
documentary evidence for which a warrant is requested unless it is
established at the hearing with respect to the documentary evidence
seized under the warrant that the services of the lawyer were not
sought or obtained to enable or aid anyone to commit or plan to
commit a crime or a fraud.
(i) Nothing in this section is intended to limit an attorney's
ability to request an in camera hearing pursuant to the holding of
the Supreme Court of California in People v. Superior Court (Laff)
(2001) 25 Cal.4th 703.
(j) In addition to any other circumstance permitting a magistrate
to issue a warrant for a person or property in another county, when
the property or things to be seized consist of any item or constitute
any evidence that tends to show a violation of Section 530.5, the
magistrate may issue a warrant to search a person or property located
in another county if the person whose identifying information was
taken or used resides in the same county as the issuing court.
(k) This section shall not be construed to create a cause of
action against any foreign or California corporation, its officers,
employees, agents, or other specified persons for providing location
information.
SEC. 2. 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 ensure the public is protected from persons driving
under the influence at the earliest possible time, it is necessary
that this act take effect immediately.
SECTION 1. Section 782 of the Evidence Code is
amended to read:
782. (a) In any of the circumstances described in subdivision
(c), if evidence of sexual conduct of the complaining witness is
offered to attack the credibility of the complaining witness under
Section 780, the following procedure shall be followed:
(1) A written motion shall be made by the party seeking to
introduce the evidence to the court, with notice to all parties,
stating that the party has an offer of proof of the relevancy of the
evidence proposed to be presented in attacking the credibility of the
complaining witness.
(2) The written motion shall be accompanied by an affidavit in
which the offer of proof shall be stated. The affidavit shall be
filed under seal and only unsealed by the court to determine if the
offer of proof is sufficient to order a hearing pursuant to paragraph
(3). After that determination, the affidavit shall be resealed by
the court.
(3) If the court finds that the offer of proof is sufficient, the
court shall order a hearing out of the presence of the jury, if any,
and at the hearing allow the questioning of the complaining witness
regarding the offer of proof.
(4) At the conclusion of the hearing, if the court finds that the
evidence proposed to be offered of sexual conduct of the complaining
witness is relevant pursuant to Section 780, and is not inadmissible
pursuant to Section 352, the court may make an order stating what
part of the evidence may be introduced by the proffering party, and
the nature of the questions to be permitted. The proffering party may
then offer evidence pursuant to the order of the court.
(5) An affidavit resealed by the court pursuant to paragraph (2)
shall remain sealed, unless the proffering party raises an issue on
appeal or collateral review relating to the offer of proof contained
in the sealed document. If the proffering party raises that issue on
appeal, the court shall allow the Attorney General and appellate
counsel for the defendant access to the sealed affidavit. If the
issue is raised on collateral review, the court shall allow the
district attorney and defendant's counsel access to the sealed
affidavit. The use of the information contained in the affidavit
shall be limited solely to the pending proceeding.
(b) As used in this section:
(1) "Complaining witness" means either of the following:
(A) The alleged victim of the crime charged, the prosecution of
which is subject to this section, pursuant to paragraph (1) of
subdivision (c).
(B) An alleged victim offering testimony pursuant to paragraph (2)
or (3) of subdivision (c).
(2) "Sexual conduct" includes commercial sexual conduct,
including, but not limited to, that described in subdivisions (b) and
(c) of Section 236.1, 266, 266h, 266i, 266j, 267, 311.1, 311.2,
311.3, 311.4, 311.5, 311.6, 518, or 647 of the Penal Code.
(c) The procedure provided by subdivision (a) shall apply in any
of the following circumstances:
(1) In a prosecution under Section 236.1, 261, 262, 264.1, 266,
266h, 266i, 266j, 267, 286, 288, 288a, 288.5, 289, 311.1, 311.2,
311.3, 311.4, 311.5, 311.6, 518, or 647 of the Penal Code, or for
assault with intent to commit, attempt to commit, or conspiracy to
commit any crime defined in any of those sections, except if the
crime is alleged to have occurred in a local detention facility, as
defined in Section 6031.4 of the Penal Code, or in the state prison,
as defined in Section 4504 of the Penal Code.
(2) When an alleged victim testifies pursuant to subdivision (b)
of Section 1101 as a victim of a crime listed in Section 236.1,
243.4, 261, 261.5, 266, 266h, 266i, 266j, 267, 269, 285, 286, 288,
288a, 288.5, 289, 311.1, 311.2, 311.3, 311.4, 311.5, 311.6, 314, 518,
647, or 647.6 of the Penal Code, except if the crime is alleged to
have occurred in a local detention facility, as defined in Section
6031.4 of the Penal Code, or in the state prison, as defined in
Section 4504 of the Penal Code.
(3) When an alleged victim of a sexual offense testifies pursuant
to Section 1108, except if the crime is alleged to have occurred in a
local detention facility, as defined in Section 6031.4 of the Penal
Code, or in the state prison, as defined in Section 4504 of the Penal
Code.