BILL NUMBER: AB 1706 AMENDED
BILL TEXT
AMENDED IN SENATE JULY 9, 2007
AMENDED IN SENATE JUNE 20, 2007
AMENDED IN SENATE JUNE 12, 2007
AMENDED IN ASSEMBLY MAY 2, 2007
INTRODUCED BY Committee on Public Safety (Solorio (Chair),
Aghazarian (Vice Chair), Anderson, De La Torre, Leno, Ma, and
Portantino)
FEBRUARY 27, 2007
An act to amend Sections 1522, 1568.09, 1569.17, and 1596.871 of
the Health and Safety Code, and to amend Sections 289.5, 290.01,
296.2, 311.11, 646.9, 801.1, 803, 1202.7, 1417.8, 3000.07, 3004, and
3060.6 of, to add Sections 290.001, 290.002, 290.003, 290.004,
290.005, 290.006, 290.007, 290.008, 290.009, 290.010, 290.011,
290.012, 290.013, 290.014, 290.015, 290.016, 290.017, 290.018,
290.019, 290.020, 290.021, 290.022, and 290.023 to, and to repeal and
add Section 290 to, the Penal Code, relating to sex offenders, and
declaring the urgency thereof, to take effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
AB 1706, as amended, Committee on Public Safety. Sex offenders:
registration.
Existing law requires persons who have been convicted of specified
crimes, and other persons as required by a court, to register as a
sex offender. Existing law sets forth the procedure for doing so.
This bill would reorganize and renumber the provisions that set
forth that procedure, and would make conforming technical changes in
related provisions of law.
This bill would declare that it is to take effect immediately as
an urgency statute.
Vote: 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 1522 of the Health and Safety Code is amended
to read:
1522. The Legislature recognizes the need to generate timely and
accurate positive fingerprint identification of applicants as a
condition of issuing licenses, permits, or certificates of approval
for persons to operate or provide direct care services in a community
care facility, foster family home, or a certified family home of a
licensed foster family agency. Therefore, the Legislature supports
the use of the fingerprint live-scan technology, as identified in the
long-range plan of the Department of Justice for fully automating
the processing of fingerprints and other data by the year 1999,
otherwise known as the California Crime Information Intelligence
System (CAL-CII), to be used for applicant fingerprints. It is the
intent of the Legislature in enacting this section to require the
fingerprints of those individuals whose contact with community care
clients may pose a risk to the clients' health and safety. An
individual shall be required to obtain either a criminal record
clearance or a criminal record exemption from the State Department of
Social Services before his or her initial presence in a community
care facility.
(a) (1) Before issuing a license or special permit to any person
or persons to operate or manage a community care facility, the State
Department of Social Services shall secure from an appropriate law
enforcement agency a criminal record to determine whether the
applicant or any other person specified in subdivision (b) has ever
been convicted of a crime other than a minor traffic violation or
arrested for any crime specified in Section 290 of the Penal Code,
for violating Section 245 or 273.5, of the Penal Code, subdivision
(b) of Section 273a of the Penal Code, or, prior to January 1, 1994,
paragraph (2) of Section 273a of the Penal Code, or for any crime for
which the department cannot grant an exemption if the person was
convicted and the person has not been exonerated.
(2) The criminal history information shall include the full
criminal record, if any, of those persons, and subsequent arrest
information pursuant to Section 11105.2 of the Penal Code.
(3) Except during the 2003-04, 2004-05, 2005-06, 2006-07, and
2007-08 fiscal years, neither the Department of Justice nor the State
Department of Social Services may charge a fee for the
fingerprinting of an applicant for a license or special permit to
operate a facility providing nonmedical board, room, and care for six
or less children or for obtaining a criminal record of the applicant
pursuant to this section.
(4) The following shall apply to the criminal record information:
(A) If the State Department of Social Services finds that the
applicant, or any other person specified in subdivision (b), has been
convicted of a crime other than a minor traffic violation, the
application shall be denied, unless the director grants an exemption
pursuant to subdivision (g).
(B) If the State Department of Social Services finds that the
applicant, or any other person specified in subdivision (b) is
awaiting trial for a crime other than a minor traffic violation, the
State Department of Social Services may cease processing the
application until the conclusion of the trial.
(C) If no criminal record information has been recorded, the
Department of Justice shall provide the applicant and the State
Department of Social Services with a statement of that fact.
(D) If the State Department of Social Services finds after
licensure that the licensee, or any other person specified in
paragraph (2) of subdivision (b), has been convicted of a crime other
than a minor traffic violation, the license may be revoked, unless
the director grants an exemption pursuant to subdivision (g).
(E) An applicant and any other person specified in subdivision (b)
shall submit fingerprint images and related information to the
Department of Justice for the purpose of searching the criminal
records of the Federal Bureau of Investigation, in addition to the
criminal records search required by this subdivision. If an applicant
and all other persons described in subdivision (b) meet all of the
conditions for licensure, except receipt of the Federal Bureau of
Investigation's criminal offender record information search response
for the applicant or any of the persons described in subdivision (b),
the department may issue a license if the applicant and each person
described in subdivision (b) has signed and submitted a statement
that he or she has never been convicted of a crime in the United
States, other than a traffic infraction, as defined in paragraph (1)
of subdivision (a) of Section 42001 of the Vehicle Code. If, after
licensure, the department determines that the licensee or any other
person specified in subdivision (b) has a criminal record, the
license may be revoked pursuant to Section 1550. The department may
also suspend the license pending an administrative hearing pursuant
to Section 1550.5.
(F) The State Department of Social Services shall develop
procedures to provide the individual's state and federal criminal
history information with the written notification of his or her
exemption denial or revocation based on the criminal record. Receipt
of the criminal history information shall be optional on the part of
the individual, as set forth in the agency's procedures. The
procedure shall protect the confidentiality and privacy of the
individual's record, and the criminal history information shall not
be made available to the employer.
(G) Notwithstanding any other provision of law, the department is
authorized to provide an individual with a copy of his or her state
or federal level criminal offender record information search response
as provided to that department by the Department of Justice if the
department has denied a criminal background clearance based on this
information and the individual makes a written request to the
department for a copy specifying an address to which it is to be
sent. The state or federal level criminal offender record information
search response shall not be modified or altered from its form or
content as provided by the Department of Justice and shall be
provided to the address specified by the individual in their written
request. The department shall retain a copy of the individual's
written request and the response and date provided.
(b) (1) In addition to the applicant, this section shall be
applicable to criminal convictions of the following persons:
(A) Adults responsible for administration or direct supervision of
staff.
(B) Any person, other than a client, residing in the facility.
(C) Any person who provides client assistance in dressing,
grooming, bathing, or personal hygiene. Any nurse assistant or home
health aide meeting the requirements of Section 1338.5 or 1736.6,
respectively, who is not employed, retained, or contracted by the
licensee, and who has been certified or recertified on or after July
1, 1998, shall be deemed to meet the criminal record clearance
requirements of this section. A certified nurse assistant and
certified home health aide who will be providing client assistance
and who falls under this exemption shall provide one copy of his or
her current certification, prior to providing care, to the community
care facility. The facility shall maintain the copy of the
certification on file as long as care is being provided by the
certified nurse assistant or certified home health aide at the
facility. Nothing in this paragraph restricts the right of the
department to exclude a certified nurse assistant or certified home
health aide from a licensed community care facility pursuant to
Section 1558.
(D) Any staff person, volunteer, or employee who has contact with
the clients.
(E) If the applicant is a firm, partnership, association, or
corporation, the chief executive officer or other person serving in
like capacity.
(F) Additional officers of the governing body of the applicant, or
other persons with a financial interest in the applicant, as
determined necessary by the department by regulation. The criteria
used in the development of these regulations shall be based on the
person's capability to exercise substantial influence over the
operation of the facility.
(2) The following persons are exempt from the requirements
applicable under paragraph (1):
(A) A medical professional as defined in department regulations
who holds a valid license or certification from the person's
governing California medical care regulatory entity and who is not
employed, retained, or contracted by the licensee if all of the
following apply:
(i) The criminal record of the person has been cleared as a
condition of licensure or certification by the person's governing
California medical care regulatory entity.
(ii) The person is providing time-limited specialized clinical
care or services.
(iii) The person is providing care or services within the person's
scope of practice.
(iv) The person is not a community care facility licensee or an
employee of the facility.
(B) A third-party repair person or similar retained contractor if
all of the following apply:
(i) The person is hired for a defined, time-limited job.
(ii) The person is not left alone with clients.
(iii) When clients are present in the room in which the
repairperson or contractor is working, a staff person who has a
criminal record clearance or exemption is also present.
(C) Employees of a licensed home health agency and other members
of licensed hospice interdisciplinary teams who have a contract with
a client or resident of the facility and are in the facility at the
request of that client or resident's legal decisionmaker. The
exemption does not apply to a person who is a community care facility
licensee or an employee of the facility.
(D) Clergy and other spiritual caregivers who are performing
services in common areas of the community care facility or who are
advising an individual client at the request of, or with the
permission of, the client or legal decisionmaker, are exempt from
fingerprint and criminal background check requirements imposed by
community care licensing. This exemption does not apply to a person
who is a community care licensee or employee of the facility.
(E) Members of fraternal, service, or similar organizations who
conduct group activities for clients if all of the following apply:
(i) Members are not left alone with clients.
(ii) Members do not transport clients off the facility premises.
(iii) The same organization does not conduct group activities for
clients more often than defined by the department's regulations.
(3) In addition to the exemptions in paragraph (2), the following
persons in foster family homes, certified family homes, and small
family homes are exempt from the requirements applicable under
paragraph (1):
(A) Adult friends and family of the licensed or certified foster
parent, who come into the home to visit for a length of time no
longer than defined by the department in regulations, provided that
the adult friends and family of the licensee are not left alone with
the foster children. However, the licensee, acting as a reasonable
and prudent parent, as defined in paragraph (2) of subdivision (a) of
Section 362.04 of the Welfare and Institutions Code, may allow his
or her adult friends and family to provide short-term care to the
foster child and act as an appropriate occasional short-term
babysitter for the child.
(B) Parents of a foster child's friends when the foster child is
visiting the friend's home and the friend, licensed or certified
foster parent, or both are also present. However, the licensee,
acting as a reasonable and prudent parent, may allow the parent of
the foster child's friends to act as an appropriate short-term
babysitter for the child without the friend being present.
(C) Individuals who are engaged by any licensed or certified
foster parent to provide short-term care to the child for periods not
to exceed 24 hours. Caregivers shall use a reasonable and prudent
parent standard in selecting appropriate individuals to act as
appropriate occasional short-term babysitters.
(4) In addition to the exemptions specified in paragraph (2), the
following persons in adult day care and adult day support centers are
exempt from the requirements applicable under paragraph (1):
(A) Unless contraindicated by the client's individualized program
plan (IPP) or needs and service plan, a spouse, significant other,
relative, or close friend of a client, or an attendant or a
facilitator for a client with a developmental disability if the
attendant or facilitator is not employed, retained, or contracted by
the licensee. This exemption applies only if the person is visiting
the client or providing direct care and supervision to the client.
(B) A volunteer if all of the following applies:
(i) The volunteer is supervised by the licensee or a facility
employee with a criminal record clearance or exemption.
(ii) The volunteer is never left alone with clients.
(iii) The volunteer does not provide any client assistance with
dressing, grooming, bathing, or personal hygiene other than washing
of hands.
(5) (A) In addition to the exemptions specified in paragraph (2),
the following persons in adult residential and social rehabilitation
facilities, unless contraindicated by the client's individualized
program plan (IPP) or needs and services plan, are exempt from the
requirements applicable under paragraph (1): a spouse, significant
other, relative, or close friend of a client, or an attendant or a
facilitator for a client with a developmental disability if the
attendant or facilitator is not employed, retained, or contracted by
the licensee. This exemption applies only if the person is visiting
the client or providing direct care and supervision to that client.
(B) Nothing in this subdivision shall prevent a licensee from
requiring a criminal record clearance of any individual exempt from
the requirements of this section, provided that the individual has
client contact.
(6) Any person similar to those described in this subdivision, as
defined by the department in regulations.
(c) (1) Subsequent to initial licensure, any person specified in
subdivision (b) and not exempted from fingerprinting shall, as a
condition to of employment, residence,
or presence in a community care facility, be fingerprinted and sign a
declaration under penalty of perjury regarding any prior criminal
convictions. The licensee shall submit fingerprint images and related
information to the Department of Justice and the Federal Bureau of
Investigation, through the Department of Justice, for a state and
federal level criminal offender record information search, or to
comply with paragraph (1) of subdivision (h), prior to the person's
employment, residence, or initial presence in the community care
facility. These fingerprint images and related information shall be
sent by electronic transmission in a manner approved by the State
Department of Social Services and the Department of Justice for the
purpose of obtaining a permanent set of fingerprints, and shall be
submitted to the Department of Justice by the licensee. A licensee's
failure to submit fingerprint images and related information to the
Department of Justice for the purpose of obtaining a permanent set of
fingerprints, and shall be submitted to the Department of Justice by
the licensee. A licensee's failure to submit fingerprints to the
Department of Justice or to comply with paragraph (1) of subdivision
(h), as required in this section, shall result in the citation of a
deficiency and the immediate assessment of civil penalties in the
amount of one hundred dollars ($100) per violation, per day for a
maximum of five days, unless the violation is a second or subsequent
violation within a 12-month period in which case the civil penalties
shall be in the amount of one hundred dollars ($100) per violation
for a maximum of 30 days, and shall be grounds for disciplining the
licensee pursuant to Section 1550. The department may assess civil
penalties for continued violations as permitted by Section 1548. The
fingerprint images and related information shall then be submitted to
the Department of Justice for processing. Upon request of the
licensee, who shall enclose a self-addressed stamped postcard for
this purpose, the Department of Justice shall verify receipt of the
fingerprints.
(2) Within 14 calendar days of the receipt of the fingerprint
images, the Department of Justice shall notify the State Department
of Social Services of the criminal record information, as provided
for in subdivision (a). If no criminal record information has been
recorded, the Department of Justice shall provide the licensee and
the State Department of Social Services with a statement of that fact
within 14 calendar days of receipt of the fingerprint images.
Documentation of the individual's clearance or exemption shall be
maintained by the licensee and be available for inspection. If new
fingerprint images are required for processing, the Department of
Justice shall, within 14 calendar days from the date of receipt of
the fingerprints, notify the licensee that the fingerprints were
illegible, the Department of Justice shall notify the State
Department of Social Services, as required by Section 1522.04, and
shall also notify the licensee by mail, within 14 days of electronic
transmission of the fingerprints to the Department of Justice, if the
person has no criminal history recorded. A violation of the
regulations adopted pursuant to Section 1522.04 shall result in the
citation of a deficiency and an immediate assessment of civil
penalties in the amount of one hundred dollars ($100) per violation,
per day for a maximum of five days, unless the violation is a second
or subsequent violation within a 12-month period in which case the
civil penalties shall be in the amount of one hundred dollars ($100)
per violation for a maximum of 30 days, and shall be grounds for
disciplining the licensee pursuant to Section 1550. The department
may assess civil penalties for continued violations as permitted by
Section 1548.
(3) Except for persons specified in paragraph (2) of subdivision
(b), the licensee shall endeavor to ascertain the previous employment
history of persons required to be fingerprinted under this
subdivision. If it is determined by the State Department of Social
Services, on the basis of the fingerprint images and related
information submitted to the Department of Justice, that the person
has been convicted of, or is awaiting trial for, a sex offense
against a minor, or has been convicted for an offense specified in
Section 243.4, 273a, 273d, 273g, or 368 of the Penal Code, or a
felony, the State Department of Social Services shall notify the
licensee to act immediately to terminate the person's employment,
remove the person from the community care facility, or bar the person
from entering the community care facility. The State Department of
Social Services may subsequently grant an exemption pursuant to
subdivision (g). If the conviction or arrest was for another crime,
except a minor traffic violation, the licensee shall, upon
notification by the State Department of Social Services, act
immediately to either (A) terminate the person's employment, remove
the person from the community care facility, or bar the person from
entering the community care facility; or (B) seek an exemption
pursuant to subdivision (g). The State Department of Social Services
shall determine if the person shall be allowed to remain in the
facility until a decision on the exemption is rendered. A licensee's
failure to comply with the department's prohibition of employment,
contact with clients, or presence in the facility as required by this
paragraph shall be grounds for disciplining the licensee pursuant to
Section 1550.
(4) The department may issue an exemption on its own motion
pursuant to subdivision (g) if the person's criminal history
indicates that the person is of good character based on the age,
seriousness, and frequency of the conviction or convictions. The
department, in consultation with interested parties, shall develop
regulations to establish the criteria to grant an exemption pursuant
to this paragraph.
(5) Concurrently with notifying the licensee pursuant to paragraph
(3), the department shall notify the affected individual of his or
her right to seek an exemption pursuant to subdivision (g). The
individual may seek an exemption only if the licensee terminates the
person's employment or removes the person from the facility after
receiving notice from the department pursuant to paragraph (3).
(d) (1) Before issuing a license, special permit, or certificate
of approval to any person or persons to operate or manage a foster
family home or certified family home as described in Section 1506,
the State Department of Social Services or other approving authority
shall secure from an appropriate law enforcement agency a criminal
record to determine whether the applicant or any person specified in
subdivision (b) has ever been convicted of a crime other than a minor
traffic violation or arrested for any crime specified in Section 290
of the Penal Code, for violating Section 245 or 273.5, subdivision
(b) of Section 273a or, prior to January 1, 1994, paragraph (2) of
Section 273a of the Penal Code, or for any crime for which the
department cannot grant an exemption if the person was convicted and
the person has not been exonerated.
(2) The criminal history information shall include the full
criminal record, if any, of those persons.
(3) Neither the Department of Justice nor the State Department of
Social Services may charge a fee for the fingerprinting of an
applicant for a license, special permit, or certificate of approval
described in this subdivision. The record, if any, shall be taken
into consideration when evaluating a prospective applicant.
(4) The following shall apply to the criminal record information:
(A) If the applicant or other persons specified in subdivision (b)
have convictions that would make the applicant's home unfit as a
foster family home or a certified family home, the license, special
permit, or certificate of approval shall be denied.
(B) If the State Department of Social Services finds that the
applicant, or any person specified in subdivision (b) is awaiting
trial for a crime other than a minor traffic violation, the State
Department of Social Services or other approving authority may cease
processing the application until the conclusion of the trial.
(C) For the purposes of this subdivision, a criminal record
clearance provided under Section 8712 of the Family Code may be used
by the department or other approving agency.
(D) An applicant for a foster family home license or for
certification as a family home, and any other person specified in
subdivision (b), shall submit a set of fingerprint images and related
information to the Department of Justice and the Federal Bureau of
Investigation, through the Department of Justice, for a state and
federal level criminal offender record information search, in
addition to the criminal records search required by subdivision (a).
If an applicant meets all other conditions for licensure, except
receipt of the Federal Bureau of Investigation's criminal history
information for the applicant and all persons described in
subdivision (b), the department may issue a license, or the foster
family agency may issue a certificate of approval, if the applicant,
and each person described in subdivision (b), has signed and
submitted a statement that he or she has never been convicted of a
crime in the United States, other than a traffic infraction, as
defined in paragraph (1) of subdivision (a) of Section 42001 of the
Vehicle Code. If, after licensure or certification, the department
determines that the licensee, certified foster parent, or any person
specified in subdivision (b) has a criminal record, the license may
be revoked pursuant to Section 1550 and the certificate of approval
revoked pursuant to subdivision (b) of Section 1534. The department
may also suspend the license pending an administrative hearing
pursuant to Section 1550.5.
(5) Any person specified in this subdivision shall, as a part of
the application, be fingerprinted and sign a declaration under
penalty of perjury regarding any prior criminal convictions or
arrests for any crime against a child, spousal or cohabitant abuse
or, any crime for which the department cannot grant an exemption if
the person was convicted and shall submit these fingerprints to the
licensing agency or other approving authority.
(6) (A) The foster family agency shall obtain fingerprint images
and related information from certified home applicants and from
persons specified in subdivision (b) and shall submit them directly
to the Department of Justice by electronic transmission in a manner
approved by the State Department of Social Services and the
Department of Justice. A foster family home licensee or foster family
agency shall submit these fingerprint images and related information
to the Department of Justice and the Federal Bureau of
Investigation, through the Department of Justice, for a state and
federal level criminal offender record information search, or to
comply with paragraph (1) of subdivision (b) prior to the person's
employment, residence, or initial presence in the foster family home
or certified family home. A foster family agency's failure to submit
fingerprint images and related information to the Department of
Justice, or comply with paragraph (1) of subdivision (h), as required
in this section, shall result in a citation of a deficiency, and the
immediate civil penalties of one hundred dollars ($100) per
violation, per day for a maximum of five days, unless the violation
is a second or subsequent violation within a 12-month period in which
case the civil penalties shall be in the amount of one hundred
dollars ($100) per violation for a maximum of 30 days, and shall be
grounds for disciplining the licensee pursuant to Section 1550. A
violation of the regulation adopted pursuant to Section 1522.04 shall
result in the citation of a deficiency and an immediate assessment
of civil penalties in the amount of one hundred dollars ($100) per
violation, per day for a maximum of five days, unless the violation
is a second or subsequent violation within a 12-month period in which
case the civil penalties shall be in the amount of one hundred
dollars ($100) per violation for a maximum of 30 days, and shall be
grounds for disciplining the foster family agency pursuant to Section
1550. A licensee's
failure to submit fingerprint images and related information to the
Department of Justice, or comply with paragraph (1) of subdivision
(h), as required in this section, may result in the citation of a
deficiency and immediate civil penalties of one hundred dollars
($100) per violation. A licensee's violation of regulations adopted
pursuant to Section 1522.04 may result in the citation of a
deficiency and an immediate assessment of civil penalties in the
amount of one hundred dollars ($100) per violation. The State
Department of Social Services may assess penalties for continued
violations, as permitted by Section 1548. The fingerprint images
shall then be submitted to the Department of Justice for processing.
(B) Upon request of the licensee, who shall enclose a
self-addressed envelope for this purpose, the Department of Justice
shall verify receipt of the fingerprints. Within five working days of
the receipt of the criminal record or information regarding criminal
convictions from the Department of Justice, the department shall
notify the applicant of any criminal arrests or convictions. If no
arrests or convictions are recorded, the Department of Justice shall
provide the foster family home licensee or the foster family agency
with a statement of that fact concurrent with providing the
information to the State Department of Social Services.
(7) If the State Department of Social Services finds that the
applicant, or any other person specified in subdivision (b), has been
convicted of a crime other than a minor traffic violation, the
application shall be denied, unless the director grants an exemption
pursuant to subdivision (g).
(8) If the State Department of Social Services finds after
licensure or the granting of the certificate of approval that the
licensee, certified foster parent, or any other person specified in
paragraph (2) of subdivision (b), has been convicted of a crime other
than a minor traffic violation, the license or certificate of
approval may be revoked by the department or the foster family
agency, whichever is applicable, unless the director grants an
exemption pursuant to subdivision (g). A licensee's failure to comply
with the department's prohibition of employment, contact with
clients, or presence in the facility as required by paragraph (3) of
subdivision (c) shall be grounds for disciplining the licensee
pursuant to Section 1550.
(e) The State Department of Social Services may not use a record
of arrest to deny, revoke, or terminate any application, license,
employment, or residence unless the department investigates the
incident and secures evidence, whether or not related to the incident
of arrest, that is admissible in an administrative hearing to
establish conduct by the person that may pose a risk to the health
and safety of any person who is or may become a client. The State
Department of Social Services is authorized to obtain any arrest or
conviction records or reports from any law enforcement agency as
necessary to the performance of its duties to inspect, license, and
investigate community care facilities and individuals associated with
a community care facility.
(f) (1) For purposes of this section or any other provision of
this chapter, a conviction means a plea or verdict of guilty or a
conviction following a plea of nolo contendere. Any action that the
State Department of Social Services is permitted to take following
the establishment of a conviction may be taken when the time for
appeal has elapsed, when the judgment of conviction has been affirmed
on appeal, or when an order granting probation is made suspending
the imposition of sentence, notwithstanding a subsequent order
pursuant to Sections 1203.4 and 1203.4a of the Penal Code permitting
the person to withdraw his or her plea of guilty and to enter a plea
of not guilty, or setting aside the verdict of guilty, or dismissing
the accusation, information, or indictment. For purposes of this
section or any other provision of this chapter, the record of a
conviction, or a copy thereof certified by the clerk of the court or
by a judge of the court in which the conviction occurred, shall be
conclusive evidence of the conviction. For purposes of this section
or any other provision of this chapter, the arrest disposition report
certified by the Department of Justice, or documents admissible in a
criminal action pursuant to Section 969b of the Penal Code, shall be
prima facie evidence of the conviction, notwithstanding any other
provision of law prohibiting the admission of these documents in a
civil or administrative action.
(2) For purposes of this section or any other provision of this
chapter, the department shall consider criminal convictions from
another state or federal court as if the criminal offense was
committed in this state.
(g) (1) After review of the record, the director may grant an
exemption from disqualification for a license or special permit as
specified in paragraphs (1) and (4) of subdivision (a), or for a
license, special permit, or certificate of approval as specified in
paragraphs (4) and (5) of subdivision (d), or for employment,
residence, or presence in a community care facility as specified in
paragraphs (3), (4), and (5) of subdivision (c), if the director has
substantial and convincing evidence to support a reasonable belief
that the applicant and the person convicted of the crime, if other
than the applicant, are of good character as to justify issuance of
the license or special permit or granting an exemption for purposes
of subdivision (c). Except as otherwise provided in this subdivision,
an exemption may not be granted pursuant to this subdivision if the
conviction was for any of the following offenses:
(A) (i) An offense specified in Section 220, 243.4, or 264.1,
subdivision (a) of Section 273a or, prior to January 1, 1994,
paragraph (1) of Section 273a, Section 273d, 288, or 289, subdivision
(c) of Section 290, or Section 368 of the Penal Code, or was a
conviction of another crime against an individual specified in
subdivision (c) of Section 667.5 of the Penal Code.
(ii) Notwithstanding clause (i), the director may grant an
exemption regarding the conviction for an offense described in
paragraph (1), (2), (7), or (8) of subdivision (c) of Section 667.5
of the Penal Code, if the employee or prospective employee has been
rehabilitated as provided in Section 4852.03 of the Penal Code, has
maintained the conduct required in Section 4852.05 of the Penal Code
for at least 10 years, and has the recommendation of the district
attorney representing the employee's county of residence, or if the
employee or prospective employee has received a certificate of
rehabilitation pursuant to Chapter 3.5 (commencing with Section
4852.01) of Title 6 of Part 3 of the Penal Code.
(B) A felony offense specified in Section 729 of the Business and
Professions Code or Section 206 or 215, subdivision (a) of Section
347, subdivision (b) of Section 417, or subdivision (a) of Section
451 of the Penal Code.
(2) The department may not prohibit a person from being employed
or having contact with clients in a facility on the basis of a denied
criminal record exemption request or arrest information unless the
department complies with the requirements of Section 1558.
(h) (1) For purposes of compliance with this section, the
department may permit an individual to transfer a current criminal
record clearance, as defined in subdivision (a), from one facility to
another, as long as the criminal record clearance has been processed
through a state licensing district office, and is being transferred
to another facility licensed by a state licensing district office.
The request shall be in writing to the State Department of Social
Services, and shall include a copy of the person's driver's license
or valid identification card issued by the Department of Motor
Vehicles, or a valid photo identification issued by another state or
the United States government if the person is not a California
resident. Upon request of the licensee, who shall enclose a
self-addressed envelope for this purpose, the State Department of
Social Services shall verify whether the individual has a clearance
that can be transferred.
(2) The State Department of Social Services shall hold criminal
record clearances in its active files for a minimum of two years
after an employee is no longer employed at a licensed facility in
order for the criminal record clearance to be transferred.
(3) The following shall apply to a criminal record clearance or
exemption from the department or a county office with
department-delegated licensing authority:
(A) A county office with department-delegated licensing authority
may accept a clearance or exemption from the department.
(B) The department may accept a clearance or exemption from any
county office with department-delegated licensing authority.
(C) A county office with department-delegated licensing authority
may accept a clearance or exemption from any other county office with
department-delegated licensing authority.
(4) With respect to notifications issued by the Department of
Justice pursuant to Section 11105.2 of the Penal Code concerning an
individual whose criminal record clearance was originally processed
by the department or a county office with department-delegated
licensing authority, all of the following shall apply:
(A) The Department of Justice shall process a request from the
department or a county office with department-delegated licensing
authority to receive the notice only if all of the following
conditions are met:
(i) The request shall be submitted to the Department of Justice by
the agency to be substituted to receive the notification.
(ii) The request shall be for the same applicant type as the type
for which the original clearance was obtained.
(iii) The request shall contain all prescribed data elements and
format protocols pursuant to a written agreement between the
department and the Department of Justice.
(B) (i) On or before January 7, 2005, the department shall notify
the Department of Justice of all county offices that have
department-delegated licensing authority.
(ii) The department shall notify the Department of Justice within
15 calendar days of the date on which a new county office receives
department-delegated licensing authority or a county's delegated
licensing authority is rescinded.
(C) The Department of Justice shall charge the department or a
county office with department-delegated licensing authority a fee for
each time a request to substitute the recipient agency is received
for purposes of this paragraph. This fee shall not exceed the cost of
providing the service.
(i) The full criminal record obtained for purposes of this section
may be used by the department or by a licensed adoption agency as a
clearance required for adoption purposes.
(j) If a licensee or facility is required by law to deny
employment or to terminate employment of any employee based on
written notification from the state department that the employee has
a prior criminal conviction or is determined unsuitable for
employment under Section 1558, the licensee or facility shall not
incur civil liability or unemployment insurance liability as a result
of that denial or termination.
(k) The State Department of Social Services may charge a fee for
the costs of processing electronic fingerprint images and related
information.
(l) Amendments to this section made in the 1999 portion of the
1999-2000 Regular Session shall be implemented commencing 60 days
after the effective date of the act amending this section in the 1999
portion of the 1999-2000 Regular Session, except that those
provisions for the submission of fingerprints for searching the
records of the Federal Bureau of Investigation shall be implemented
90 days after the effective date of that act.
SEC. 2. Section 1568.09 of the Health and Safety Code is amended
to read:
1568.09. It is the intent of the Legislature in enacting this
section to require the electronic fingerprint images of those
individuals whose contact with residents of residential care
facilities for persons with a chronic, life-threatening illness may
pose a risk to the residents' health and safety.
It is the intent of the Legislature, in enacting this section, to
require the electronic fingerprint images of those individuals whose
contact with community care clients may pose a risk to the clients'
health and safety. An individual shall be required to obtain either a
criminal record clearance or a criminal record exemption from the
State Department of Social Services before his or her initial
presence in a residential care facility for persons with chronic,
life-threatening illness.
(a) (1) Before issuing a license to any person or persons to
operate or manage a residential care facility, the department shall
secure from an appropriate law enforcement agency a criminal record
to determine whether the applicant or any other person specified in
subdivision (b) has ever been convicted of a crime other than a minor
traffic violation or arrested for any crime specified in Section 290
of the Penal Code, for violating Section 245 or 273.5, subdivision
(b) of Section 273a or, prior to January 1, 1994, paragraph (2) of
Section 273a of the Penal Code, or for any crime for which the
department cannot grant an exemption if the person was convicted and
the person has not been exonerated.
(2) The criminal history information shall include the full
criminal record if any, of those persons, and subsequent arrest
information pursuant to Section 11105.2 of the Penal Code.
(3) The following shall apply to the criminal record information:
(A) If the State Department of Social Services finds that the
applicant or any other person specified in subdivision (b) has been
convicted of a crime, other than a minor traffic violation, the
application shall be denied, unless the director grants an exemption
pursuant to subdivision (f).
(B) If the State Department of Social Services finds that the
applicant, or any other person specified in subdivision (b) is
awaiting trial for a crime other than a minor traffic violation, the
State Department of Social Services may cease processing the
application until the conclusion of the trial.
(C) If no criminal record information has been recorded, the
Department of Justice shall provide the applicant and the State
Department of Social Services with a statement of that fact.
(D) If the State Department of Social Services finds after
licensure that the licensee, or any other person specified in
paragraph (2) of subdivision (b), has been convicted of a crime other
than a minor traffic violation, the license may be revoked, unless
the director grants an exemption pursuant to subdivision (f).
(E) An applicant and any other person specified in subdivision (b)
shall submit fingerprint images and related information to the
Department of Justice and the Federal Bureau of Investigation,
through the Department of Justice, for a state and federal level
criminal offender record information search, in addition to the
search required by this subdivision. If an applicant meets all other
conditions for licensure, except receipt of the Federal Bureau of
Investigation's criminal history information for the applicant and
persons listed in subdivision (b), the department may issue a license
if the applicant and each person described by subdivision (b) has
signed and submitted a statement that he or she has never been
convicted of a crime in the United States, other than a traffic
infraction as defined in paragraph (1) of subdivision (a) of Section
42001 of the Vehicle Code. If, after licensure, the department
determines that the licensee or person specified in subdivision (b)
has a criminal record, the license may be revoked pursuant to
subdivision (a) of Section 1568.082. The department may also suspend
the license pending an administrative hearing pursuant to subdivision
(b) of Section 1568.082.
(b) In addition to the applicant, the provisions of this section
shall be applicable to criminal convictions of the following persons:
(1) Adults responsible for administration or direct supervision of
staff of the facility.
(2) Any person, other than a resident, residing in the facility.
(3) Any person who provides resident assistance in dressing,
grooming, bathing, or personal hygiene. Any nurse assistant or home
health aide meeting the requirements of Section 1338.5 or 1736.6,
respectively, who is not employed, retained, or contracted by the
licensee, and who has been certified or recertified on or after July
1, 1998, shall be deemed to meet the criminal record clearance
requirements of this section. A certified nurse assistant and
certified home health aide who will be providing client assistance
and who falls under this exemption shall provide one copy of his or
her current certification, prior to providing care, to the
residential care facility for persons with chronic, life-threatening
illness. The facility shall maintain the copy of the certification on
file as long as care is being provided by the certified nurse
assistant or certified home health aide at the facility. Nothing in
this paragraph restricts the right of the department to exclude a
certified nurse assistant or certified home health aide from a
licensed residential care facility for persons with chronic,
life-threatening illness pursuant to Section 1568.092.
(4) (A) Any staff person, volunteer, or employee who has contact
with the residents.
(B) A volunteer shall be exempt from the requirements of this
subdivision if he or she is a relative, significant other, or close
friend of a client receiving care in the facility and the volunteer
does not provide direct care and supervision of residents. A
volunteer who provides direct care and supervision shall be exempt if
the volunteer is a resident's spouse, significant other, close
friend, or family member and provides direct care and supervision to
that resident only at the request of the resident. The department may
define in regulations persons similar to those described in this
subparagraph who may be exempt from the requirements of this
subdivision.
(5) If the applicant is a firm, partnership, association, or
corporation, the chief executive officer or other person serving in
that capacity.
(6) Additional officers of the governing body of the applicant, or
other persons with a financial interest in the applicant, as
determined necessary by the department by regulation. The criteria
used in the development of these regulations shall be based on the
person's capability to exercise substantial influence over the
operation of the facility.
(c) (1) (A) Subsequent to initial licensure, any person specified
in subdivision (b) and not exempted from fingerprinting shall, as a
condition to of employment, residence,
or presence in a residential care facility, be fingerprinted and sign
a declaration under penalty of perjury regarding any prior criminal
convictions. The licensee shall submit fingerprint images and related
information to the Department of Justice and the Federal Bureau of
Investigation, through the Department of Justice, for a state and
federal level criminal offender record information search, or to
comply with paragraph (1) of subdivision (g), prior to the person's
employment, residence, or initial presence in the residential care
facility.
(B) These fingerprint images and related information shall be
electronically submitted to the Department of Justice in a manner
approved by the State Department of Social Services and the
Department of Justice, for the purpose of obtaining a permanent set
of fingerprints. A licensee's failure to submit fingerprint images
and related information to the Department of Justice, or to comply
with paragraph (1) of subdivision (g), as required in this section,
shall result in the citation of a deficiency and an immediate
assessment of civil penalties in the amount of one hundred dollars
($100) per violation, per day for a maximum of five days, unless the
violation is a second or subsequent violation within a 12-month
period in which case the civil penalties shall be in the amount of
one hundred dollars ($100) per violation for a maximum of 30 days,
and shall be grounds for disciplining the licensee pursuant to
Section 1568.082. The State Department of Social Services may assess
civil penalties for continued violations as allowed in Section
1568.0822. The fingerprint images and related information shall then
be submitted to the Department of Justice for processing. The
licensee shall maintain and make available for inspection
documentation of the individual's clearance or exemption.
(2) A violation of the regulations adopted pursuant to Section
1522.04 shall result in the citation of a deficiency and an immediate
assessment of civil penalties in the amount of one hundred dollars
($100) per violation per day for a maximum of five days, unless the
violation is a second or subsequent violation within a 12-month
period in which case the civil penalties shall be in the amount of
one hundred dollars ($100) per violation for a maximum of 30 days,
and shall be grounds for disciplining the licensee pursuant to
Section 1568.082. The department may assess civil penalties for
continued violations as permitted by Section 1568.0822.
(3) Within 14 calendar days of the receipt of the fingerprint
images, the Department of Justice shall notify the State Department
of Social Services of the criminal record information, as provided
for in this subdivision. If no criminal record information has been
recorded, the Department of Justice shall provide the licensee and
the State Department of Social Services with a statement of that fact
within 14 calendar days of receipt of the fingerprint images. If new
fingerprint images are required for processing, the Department of
Justice shall, within 14 calendar days from the date of receipt of
the fingerprint images, notify the licensee that the fingerprint
images were illegible. The Department of Justice shall notify the
department, as required by Section 1522.04, and shall notify the
licensee by mail within 14 days of electronic transmission of the
fingerprint images to the Department of Justice, if the person has no
criminal history record.
(4) Except for persons specified in paragraph (2) of subdivision
(b), the licensee shall endeavor to ascertain the previous employment
history of persons required to be fingerprinted under this
subdivision. If it is determined by the State Department of Social
Services, on the basis of the fingerprint images submitted to the
Department of Justice, that the person has been convicted of a sex
offense against a minor, an offense specified in Section 243.4, 273a,
273d, 273g, or 368 of the Penal Code, or a felony, the department
shall notify the licensee to act immediately to terminate the person'
s employment, remove the person from the residential care facility,
or bar the person from entering the residential care facility. The
department may subsequently grant an exemption pursuant to
subdivision (f). If the conviction was for another crime, except a
minor traffic violation, the licensee shall, upon notification by the
department, act immediately to either (1) terminate the person's
employment, remove the person from the residential care facility, or
bar the person from entering the residential care facility; or (2)
seek an exemption pursuant to subdivision (f). The department shall
determine if the person shall be allowed to remain in the facility
until a decision on the exemption is rendered. A licensee's failure
to comply with the department's prohibition of employment, contact
with clients, or presence in the facility as required by this
paragraph shall result in a citation of deficiency and an immediate
assessment of civil penalties by the department against the licensee,
in the amount of one hundred dollars ($100) per violation, per day
for a maximum of five days, unless the violation is a second or
subsequent violation within a 12-month period in which case the civil
penalties shall be in the amount of one hundred dollars ($100) per
violation for a maximum of 30 days, and shall be grounds for
disciplining the licensee pursuant to Section 1568.082.
(5) The department may issue an exemption on its own motion
pursuant to subdivision (f) if the person's criminal history
indicates that the person is of good character based on the age,
seriousness, and frequency of the conviction or convictions. The
department, in consultation with interested parties, shall develop
regulations to establish the criteria to grant an exemption pursuant
to this paragraph.
(6) Concurrently with notifying the licensee pursuant to paragraph
(4), the department shall notify the affected individual of his or
her right to seek an exemption pursuant to subdivision (f). The
individual may seek an exemption only if the licensee terminates the
person's employment or removes the person from the facility after
receiving notice from the department pursuant to paragraph (4).
(d) (1) For purposes of this section or any other provision of
this chapter, a conviction means a plea or verdict of guilty or a
conviction following a plea of nolo contendere. Any action that the
department is permitted to take following the establishment of a
conviction may be taken when the time for appeal has elapsed, when
the judgment of conviction has been affirmed on appeal, or when an
order granting probation is made suspending the imposition of the
sentence, notwithstanding a subsequent order pursuant to Sections
1203.4 and 1203.4a of the Penal Code permitting that person to
withdraw his or her plea of guilty and to enter a plea of not guilty,
setting aside the verdict of guilty, or dismissing the accusation,
information, or indictment. For purposes of this chapter, the record
of a conviction, or a copy thereof certified by the clerk of the
court or by a judge of the court in which the conviction occurred,
shall be conclusive evidence of the conviction. For purposes of this
section or any other provision of this chapter, the arrest
disposition report certified by the Department of Justice, or
documents admissible in a criminal action pursuant to Section 969b of
the Penal Code, shall be prima facie evidence of the conviction,
notwithstanding any other provision of law prohibiting the admission
of these documents in a civil or administrative action.
(2) For purposes of this section or any other provision of this
chapter, the department shall consider criminal convictions from
another state or federal court as if the criminal offense was
committed in this state.
(e) The
State Department of Social Services may not use a record of arrest to
deny, revoke, or terminate any application, license, employment, or
residence unless the department investigates the incident and secures
evidence, whether or not related to the incident of arrest, that is
admissible in an administrative hearing to establish conduct by the
person that may pose a risk to the health and safety of any person
who is or may become a client. The State Department of Social
Services is authorized to obtain any arrest or conviction records or
reports from any law enforcement agency as necessary to the
performance of its duties to inspect, license, and investigate
community care facilities and individuals associated with a community
care facility.
(f) (1) After review of the record, the director may grant an
exemption from disqualification for a license as specified in
paragraphs (1) and (4) of subdivision (a), or for employment,
residence, or presence in a residential care facility as specified in
paragraphs (4), (5), and (6) of subdivision (c) if the director has
substantial and convincing evidence to support a reasonable belief
that the applicant and the person convicted of the crime, if other
than the applicant, are of such good character as to justify issuance
of the license or special permit or granting an exemption for
purposes of subdivision (c). However, an exemption may not be granted
pursuant to this subdivision if the conviction was for any of the
following offenses:
(A) An offense specified in Section 220, 243.4, or 264.1,
subdivision (a) of Section 273a or, prior to January 1, 1994,
paragraph (1) of Section 273a, Section 273d, 288, or 289, subdivision
(c) of Section 290, or Section 368 of the Penal Code, or was a
conviction of another crime against an individual specified in
subdivision (c) of Section 667.5 of the Penal Code.
(B) A felony offense specified in Section 729 of the Business and
Professional Professions Code or
Section 206 or 215, subdivision (a) of Section 347, subdivision (b)
of Section 417, or subdivision (a) of Section 451 of the Penal Code.
(2) The department may not prohibit a person from being employed
or having contact with clients in a facility on the basis of a denied
criminal record exemption request or arrest information unless the
department complies with the requirements of Section 1568.092.
(g) (1) For purposes of compliance with this section, the
department may permit an individual to transfer a current criminal
record clearance, as defined in subdivision (a), from one facility to
another, as long as the criminal record clearance has been processed
through a state licensing district office, and is being transferred
to another facility licensed by a state licensing district office.
The request shall be in writing to the department, and shall include
a copy of the person's driver's license or valid identification card
issued by the Department of Motor Vehicles, or a valid photo
identification issued by another state or the United States
government if the person is not a California resident. Upon request
of the licensee, who shall enclose a self-addressed stamped envelope
for this purpose, the department shall verify whether the individual
has a clearance that can be transferred.
(2) The State Department of Social Services shall hold criminal
record clearances in its active files for a minimum of two years
after an employee is no longer employed at a licensed facility in
order for the criminal record clearance to be transferred.
(h) If a licensee or facility is required by law to deny
employment or to terminate employment of any employee based on
written notification from the state department that the employee has
a prior criminal conviction or is determined unsuitable for
employment under Section 1568.092, the licensee or facility shall not
incur civil liability or unemployment insurance liability as a
result of that denial or termination.
(i) (1) The Department of Justice shall charge a fee sufficient to
cover its cost in providing services to comply with the 14-day
requirement contained in subdivision (c) for provision to the
department of criminal record information.
(2) Paragraph (1) shall cease to be implemented when the
department adopts emergency regulations pursuant to Section 1522.04,
and shall become inoperative when permanent regulations are adopted
under that section.
(j) Notwithstanding any other provision of law, the department may
provide an individual with a copy of his or her state or federal
level criminal offender record information search response as
provided to that department by the Department of Justice if the
department has denied a criminal background clearance based on this
information and the individual makes a written request to the
department for a copy specifying an address to which it is to be
sent. The state or federal level criminal offender record information
search response shall not be modified or altered from its form or
content as provided by the Department of Justice and shall be
provided to the address specified by the individual in his or her
written request. The department shall retain a copy of the individual'
s written request and the response and date provided.
SEC. 3. Section 1569.17 of the Health and Safety Code is amended
to read:
1569.17. The Legislature recognizes the need to generate timely
and accurate positive fingerprint identification of applicants as a
condition of issuing licenses, permits, or certificates of approval
for persons to operate or provide direct care services in a
residential care facility for the elderly. It is the intent of the
Legislature in enacting this section to require the fingerprints of
those individuals whose contact with clients of residential care
facilities for the elderly may pose a risk to the clients' health and
safety. An individual shall be required to obtain either a criminal
record clearance or a criminal record exemption from the State
Department of Social Services before his or her initial presence in a
residential care facility for the elderly.
(a) (1) Before issuing a license to any person or persons to
operate or manage a residential care facility for the elderly, the
department shall secure from an appropriate law enforcement agency a
criminal record to determine whether the applicant or any other
person specified in subdivision (b) has ever been convicted of a
crime other than a minor traffic violation or arrested for any crime
specified in Section 290 of the Penal Code, for violating Section 245
or 273.5, subdivision (b) of Section 273a or, prior to January 1,
1994, paragraph (2) of Section 273a of the Penal Code, or for any
crime for which the department cannot grant an exemption if the
person was convicted and the person has not been exonerated.
(2) The criminal history information shall include the full
criminal record, if any, of those persons, and subsequent arrest
information pursuant to Section 11105.2 of the Penal Code.
(3) The following shall apply to the criminal record information:
(A) If the State Department of Social Services finds that the
applicant or any other person specified in subdivision (b) has been
convicted of a crime, other than a minor traffic violation, the
application shall be denied, unless the director grants an exemption
pursuant to subdivision (f).
(B) If the State Department of Social Services finds that the
applicant, or any other person specified in subdivision (b) is
awaiting trial for a crime other than a minor traffic violation, the
State Department of Social Services may cease processing the
application until the conclusion of the trial.
(C) If no criminal record information has been recorded, the
Department of Justice shall provide the applicant and the State
Department of Social Services with a statement of that fact.
(D) If the State Department of Social Services finds after
licensure that the licensee, or any other person specified in
paragraph (2) of subdivision (b), has been convicted of a crime other
than a minor traffic violation, the license may be revoked, unless
the director grants an exemption pursuant to subdivision (f).
(E) An applicant and any other person specified in subdivision (b)
shall submit fingerprint images and related information to the
Department of Justice and the Federal Bureau of Investigation,
through the Department of Justice, for a state and federal level
criminal offender record information search, in addition to the
search required by subdivision (a). If an applicant meets all other
conditions for licensure, except receipt of the Federal Bureau of
Investigation's criminal history information for the applicant and
persons listed in subdivision (b), the department may issue a license
if the applicant and each person described by subdivision (b) has
signed and submitted a statement that he or she has never been
convicted of a crime in the United States, other than a traffic
infraction as defined in paragraph (1) of subdivision (a) of Section
42001 of the Vehicle Code. If, after licensure, the department
determines that the licensee or person specified in subdivision (b)
has a criminal record, the license may be revoked pursuant to Section
1569.50. The department may also suspend the license pending an
administrative hearing pursuant to Sections 1569.50 and 1569.51.
(b) In addition to the applicant, the provisions of this section
shall apply to criminal convictions of the following persons:
(1) (A) Adults responsible for administration or direct
supervision of staff.
(B) Any person, other than a client, residing in the facility.
Residents of unlicensed independent senior housing facilities that
are located in contiguous buildings on the same property as a
residential care facility for the elderly shall be exempt from these
requirements.
(C) Any person who provides client assistance in dressing,
grooming, bathing, or personal hygiene. Any nurse assistant or home
health aide meeting the requirements of Section 1338.5 or 1736.6,
respectively, who is not employed, retained, or contracted by the
licensee, and who has been certified or recertified on or after July
1, 1998, shall be deemed to meet the criminal record clearance
requirements of this section. A certified nurse assistant and
certified home health aide who will be providing client assistance
and who falls under this exemption shall provide one copy of his or
her current certification, prior to providing care, to the
residential care facility for the elderly. The facility shall
maintain the copy of the certification on file as long as the care is
being provided by the certified nurse assistant or certified home
health aide at the facility. Nothing in this paragraph restricts the
right of the department to exclude a certified nurse assistant or
certified home health aide from a licensed residential care facility
for the elderly pursuant to Section 1569.58.
(D) Any staff person, volunteer, or employee who has contact with
the clients.
(E) If the applicant is a firm, partnership, association, or
corporation, the chief executive officer or other person serving in a
similar capacity.
(F) Additional officers of the governing body of the applicant or
other persons with a financial interest in the applicant, as
determined necessary by the department by regulation. The criteria
used in the development of these regulations shall be based on the
person's capability to exercise substantial influence over the
operation of the facility.
(2) The following persons are exempt from requirements applicable
under paragraph (1):
(A) A spouse, relative, significant other, or close friend of a
client shall be exempt if this person is visiting the client or
provides direct care and supervision to that client only.
(B) A volunteer to whom all of the following apply:
(i) The volunteer is at the facility during normal waking hours.
(ii) The volunteer is directly supervised by the licensee or a
facility employee with a criminal record clearance or exemption.
(iii) The volunteer spends no more than 16 hours per week at the
facility.
(iv) The volunteer does not provide clients with assistance in
dressing, grooming, bathing, or personal hygiene.
(v) The volunteer is not left alone with clients in care.
(C) A third-party contractor retained by the facility if the
contractor is not left alone with clients in care.
(D) A third-party contractor or other business professional
retained by a client and at the facility at the request or by
permission of that client. These individuals may not be left alone
with other clients.
(E) Licensed or certified medical professionals are exempt from
fingerprint and criminal background check requirements imposed by
community care licensing. This exemption does not apply to a person
who is a community care facility licensee or an employee of the
facility.
(F) Employees of licensed home health agencies and members of
licensed hospice interdisciplinary teams who have contact with a
resident of a residential care facility at the request of the
resident or resident's legal decisionmaker are exempt from
fingerprint and criminal background check requirements imposed by
community care licensing. This exemption does not apply to a person
who is a community care facility licensee or an employee of the
facility.
(G) Clergy and other spiritual caregivers who are performing
services in common areas of the residential care facility, or who are
advising an individual resident at the request of, or with
permission of, the resident, are exempt from fingerprint and criminal
background check requirements imposed by community care licensing.
This exemption does not apply to a person who is a community care
facility licensee or an employee of the facility.
(H) Any person similar to those described in this subdivision, as
defined by the department in regulations.
(I) Nothing in this paragraph shall prevent a licensee from
requiring a criminal record clearance of any individual exempt from
the requirements of this section, provided that the individual has
client contact.
(c) (1) (A) Subsequent to initial licensure, any person required
to be fingerprinted pursuant to subdivision (b) shall, as a condition
to of employment, residence, or
presence in a residential facility for the elderly, be fingerprinted
and sign a declaration under penalty of perjury regarding any prior
criminal convictions. The licensee shall submit these fingerprint
images and related information to the Department of Justice and the
Federal Bureau of Investigation, through the Department of Justice,
for a state and federal level criminal offender record information
search, or to comply with paragraph (1) of subdivision (g) prior to
the person's employment, residence, or initial presence in the
residential care facility for the elderly.
(B) These fingerprint images and related information shall be
electronically transmitted in a manner approved by the State
Department of Social Services and the Department of Justice. A
licensee's failure to submit fingerprint images and related
information to the Department of Justice, or to comply with paragraph
(1) of subdivision (g), as required in this section, shall result in
the citation of a deficiency and an immediate assessment of civil
penalties in the amount of one hundred dollars ($100) per violation,
per day for a maximum of five days, unless the violation is a second
or subsequent violation within a 12-month period in which case the
civil penalties shall be in the amount of one hundred dollars ($100)
per violation for a maximum of 30 days, and shall be grounds for
disciplining the licensee pursuant to Section 1569.50. The State
Department of Social Services may assess civil penalties for
continued violations as permitted by Section 1569.49. The licensee
shall then submit these fingerprint images to the State Department of
Social Services for processing. Documentation of the individual's
clearance or exemption shall be maintained by the licensee and be
available for inspection. The Department of Justice shall notify the
department, as required by Section 1522.04, and notify the licensee
by mail within 14 days of electronic transmission of the fingerprints
to the Department of Justice, if the person has no criminal record.
A violation of the regulations adopted pursuant to Section 1522.04
shall result in the citation of a deficiency and an immediate
assessment of civil penalties in the amount of one hundred dollars
($100) per violation, per day for a maximum of five days, unless the
violation is a second or subsequent violation within a 12-month
period in which case the civil penalties shall be in the amount of
one hundred dollars ($100) per violation for a maximum of 30 days,
and shall be grounds for disciplining the licensee pursuant to
Section 1569.50. The department may assess civil penalties for
continued violations as permitted by Section 1569.49.
(2) Within 14 calendar days of the receipt of the fingerprint
images, the Department of Justice shall notify the State Department
of Social Services of the criminal record information, as provided
for in this subdivision. If no criminal record information has been
recorded, the Department of Justice shall provide the licensee and
the State Department of Social Services with a statement of that fact
within 14 calendar days of receipt of the fingerprint images. If new
fingerprint images are required for processing, the Department of
Justice shall, within 14 calendar days from the date of receipt of
the fingerprint images, notify the licensee that the fingerprint
images were illegible.
(3) Except for persons specified in paragraph (2) of subdivision
(b), the licensee shall endeavor to ascertain the previous employment
history of persons required to be fingerprinted under this
subdivision. If the State Department of Social Services determines,
on the basis of the fingerprint images submitted to the Department of
Justice, that the person has been convicted of a sex offense against
a minor, an offense specified in Section 243.4, 273a, 273d, 273g, or
368 of the Penal Code, or a felony, the State Department of Social
Services shall notify the licensee in writing within 15 calendar days
of the receipt of the notification from the Department of Justice to
act immediately to terminate the person's employment, remove the
person from the residential care facility for the elderly, or bar the
person from entering the residential care facility for the elderly.
The State Department of Social Services may subsequently grant an
exemption pursuant to subdivision (f). If the conviction was for
another crime, except a minor traffic violation, the licensee shall,
upon notification by the State Department of Social Services, act
immediately to either (1) terminate the person's employment, remove
the person from the residential care facility for the elderly, or bar
the person from entering the residential care facility for the
elderly or (2) seek an exemption pursuant to subdivision (f). The
department shall determine if the person shall be allowed to remain
in the facility until a decision on the exemption is rendered by the
department. A licensee's failure to comply with the department's
prohibition of employment, contact with clients, or presence in the
facility as required by this paragraph shall result in a citation of
deficiency and an immediate assessment of civil penalties by the
department against the licensee, in the amount of one hundred dollars
($100) per violation, per day for a maximum of five days, unless the
violation is a second or subsequent violation within a 12-month
period in which case the civil penalties shall be in the amount of
one hundred dollars ($100) per violation for a maximum of 30 days,
and shall be grounds for disciplining the licensee pursuant to
Section 1569.50.
(4) The department may issue an exemption on its own motion
pursuant to subdivision (f) if the person's criminal history
indicates that the person is of good character based on the age,
seriousness, and frequency of the conviction or convictions. The
department, in consultation with interested parties, shall develop
regulations to establish the criteria to grant an exemption pursuant
to this paragraph.
(5) Concurrently with notifying the licensee pursuant to paragraph
(4), the department shall notify the affected individual of his or
her right to seek an exemption pursuant to subdivision (f). The
individual may seek an exemption only if the licensee terminates the
person's employment or removes the person from the facility after
receiving notice from the department pursuant to paragraph (4).
(d) (1) For purposes of this section or any other provision of
this chapter, a conviction means a plea or verdict of guilty or a
conviction following a plea of nolo contendere. Any action that the
department is permitted to take following the establishment of a
conviction may be taken when the time for appeal has elapsed, when
the judgment of conviction has been affirmed on appeal or when an
order granting probation is made suspending the imposition of the
sentence, notwithstanding a subsequent order pursuant to the
provisions of Sections 1203.4 and 1203.4a of the Penal Code
permitting a person to withdraw his or her plea of guilty and to
enter a plea of not guilty, or setting aside the verdict of guilty,
or dismissing the accusation, information, or indictment. For
purposes of this section or any other provision of this chapter, the
record of a conviction, or a copy thereof certified by the clerk of
the court or by a judge of the court in which the conviction
occurred, shall be conclusive evidence of the conviction. For
purposes of this section or any other provision of this chapter, the
arrest disposition report certified by the Department of Justice or
documents admissible in a criminal action pursuant to Section 969b of
the Penal Code shall be prima facie evidence of the conviction,
notwithstanding any other provision of law prohibiting the admission
of these documents in a civil or administrative action.
(2) For purposes of this section or any other provision of this
chapter, the department shall consider criminal convictions from
another state or federal court as if the criminal offense was
committed in this state.
(e) The State Department of Social Services may not use a record
of arrest to deny, revoke, or terminate any application, license,
employment, or residence unless the department investigates the
incident and secures evidence, whether or not related to the incident
of arrest, that is admissible in an administrative hearing to
establish conduct by the person that may pose a risk to the health
and safety of any person who is or may become a client. The State
Department of Social Services is authorized to obtain any arrest or
conviction records or reports from any law enforcement agency as
necessary to the performance of its duties to inspect, license, and
investigate community care facilities and individuals associated with
a community care facility.
(f) (1) After review of the record, the director may grant an
exemption from disqualification for a license as specified in
paragraphs (1) and (4) of subdivision (a), or for employment,
residence, or presence in a residential care facility for the elderly
as specified in paragraphs (4), (5), and (6) of subdivision (c) if
the director has substantial and convincing evidence to support a
reasonable belief that the applicant and the person convicted of the
crime, if other than the applicant, are of such good character as to
justify issuance of the license or special permit or granting an
exemption for purposes of subdivision (c). However, an exemption may
not be granted pursuant to this subdivision if the conviction was for
any of the following offenses:
(A) An offense specified in Section 220, 243.4, or 264.1,
subdivision (a) of Section 273a or, prior to January 1, 1994,
paragraph (1) of Section 273a, Section 273d, 288, or 289, subdivision
(c) of Section 290, or Section 368 of the Penal Code, or was a
conviction of another crime against an individual specified in
subdivision (c) of Section 667.5 of the Penal Code.
(B) A felony offense specified in Section 729 of the Business and
Professions Code or Section 206 or 215, subdivision (a) of Section
347, subdivision (b) of Section 417, or subdivision (a) of Section
451 of the Penal Code.
(2) The director shall notify in writing the licensee or the
applicant of his or her decision within 60 days of receipt of all
information from the applicant and other sources determined necessary
by the director for the rendering of a decision pursuant to this
subdivision.
(3) The department may not prohibit a person from being employed
or having contact with clients in a facility on the basis of a denied
criminal record exemption request or arrest information unless the
department complies with the requirements of Section 1569.58.
(g) (1) For purposes of compliance with this section, the
department may permit an individual to transfer a current criminal
record clearance, as defined in subdivision (a), from one facility to
another, as long as the criminal record clearance has been processed
through a state licensing district office, and is being transferred
to another facility licensed by a state licensing district office.
The request shall be submitted in writing to the department, and
shall include a copy of the person's driver's license or valid
identification card issued by the Department of Motor Vehicles, or a
valid photo identification issued by another state or the United
States government if the person is not a California resident. Upon
request of the licensee, who shall enclose a self-addressed stamped
envelope for this purpose, the department shall verify whether the
individual has a clearance that can be transferred.
(2) The State Department of Social Services shall hold criminal
record clearances in its active files for a minimum of two years
after an employee is no longer employed at a licensed facility in
order for the criminal record clearances to be transferred under this
section.
(h) If a licensee or facility is required by law to deny
employment or to terminate employment of any employee based on
written notification from the department that the employee has a
prior criminal conviction or is determined unsuitable for employment
under Section 1569.58, the licensee or facility shall not incur civil
liability or unemployment insurance liability as a result of that
denial or termination.
(i) Notwithstanding any other provision of law, the department may
provide an individual with a copy of his or her state or federal
level criminal offender record information search
response as provided to that department
by the Department of Justice if the department has denied a criminal
background clearance based on this information and the individual
makes a written request to the department for a copy specifying an
address to which it is to be sent. The state or federal level
criminal offender record information search response shall not be
modified or altered from its form or content as provided by the
Department of Justice and shall be provided to the address specified
by the individual in his or her written request. The department shall
retain a copy of the individual's written request and the response
and date provided.
SEC. 4. Section 1596.871 of the Health and Safety Code is amended
to read:
1596.871. The Legislature recognizes the need to generate timely
and accurate positive fingerprint identification of applicants as a
condition of issuing licenses, permits, or certificates of approval
for persons to operate or provide direct care services in a child
care center or family child care home. It is the intent of the
Legislature in enacting this section to require the fingerprints of
those individuals whose contact with child day care facility clients
may pose a risk to the children's health and safety. An individual
shall be required to obtain either a criminal record clearance or a
criminal record exemption from the State Department of Social
Services before his or her initial presence in a child day care
facility.
(a) (1) Before issuing a license or special permit to any person
to operate or manage a day care facility, the department shall secure
from an appropriate law enforcement agency a criminal record to
determine whether the applicant or any other person specified in
subdivision (b) has ever been convicted of a crime other than a minor
traffic violation or arrested for any crime specified in Section 290
of the Penal Code, for violating Section 245 or 273.5, subdivision
(b) of Section 273a or, prior to January 1, 1994, paragraph (2) of
Section 273a of the Penal Code, or for any crime for which the
department cannot grant an exemption if the person was convicted and
the person has not been exonerated.
(2) The criminal history information shall include the full
criminal record, if any, of those persons, and subsequent arrest
information pursuant to Section 11105.2 of the Penal Code.
(3) Except during the 2003-04, 2004-05, 2005-06, 2006-07, and
2007-08 fiscal years, neither the Department of Justice nor the
department may charge a fee for the fingerprinting of an applicant
who will serve six or fewer children or any family day care applicant
for a license, or for obtaining a criminal record of an applicant
pursuant to this section.
(4) The following shall apply to the criminal record information:
(A) If the State Department of Social Services finds that the
applicant or any other person specified in subdivision (b) has been
convicted of a crime, other than a minor traffic violation, the
application shall be denied, unless the director grants an exemption
pursuant to subdivision (f).
(B) If the State Department of Social Services finds that the
applicant, or any other person specified in subdivision (b), is
awaiting trial for a crime other than a minor traffic violation, the
State Department of Social Services may cease processing the
application until the conclusion of the trial.
(C) If no criminal record information has been recorded, the
Department of Justice shall provide the applicant and the State
Department of Social Services with a statement of that fact.
(D) If the State Department of Social Services finds after
licensure that the licensee, or any other person specified in
paragraph (2) of subdivision (b), has been convicted of a crime other
than a minor traffic violation, the license may be revoked, unless
the director grants an exemption pursuant to subdivision (f).
(E) An applicant and any other person specified in subdivision (b)
shall submit fingerprint images and related information to the
Department of Justice and the Federal Bureau of Investigation,
through the Department of Justice, for a state and federal level
criminal offender record information search, in addition to the
search required by subdivision (a). If an applicant meets all other
conditions for licensure, except receipt of the Federal Bureau of
Investigation's criminal history information for the applicant and
persons listed in subdivision (b), the department may issue a license
if the applicant and each person described by subdivision (b) has
signed and submitted a statement that he or she has never been
convicted of a crime in the United States, other than a traffic
infraction as defined in paragraph (1) of subdivision (a) of Section
42001 of the Vehicle Code. If, after licensure, the department
determines that the licensee or person specified in subdivision (b)
has a criminal record, the license may be revoked pursuant to Section
1596.885. The department may also suspend the license pending an
administrative hearing pursuant to Section 1596.886.
(b) (1) In addition to the applicant, this section shall be
applicable to criminal convictions of the following persons:
(A) Adults responsible for administration or direct supervision of
staff.
(B) Any person, other than a child, residing in the facility.
(C) Any person who provides care and supervision to the children.
(D) Any staff person, volunteer, or employee who has contact with
the children.
(i) A volunteer providing time-limited specialized services shall
be exempt from the requirements of this subdivision if this person is
directly supervised by the licensee or a facility employee with a
criminal record clearance or exemption, the volunteer spends no more
than 16 hours per week at the facility, and the volunteer is not left
alone with children in care.
(ii) A student enrolled or participating at an accredited
educational institution shall be exempt from the requirements of this
subdivision if the student is directly supervised by the licensee or
a facility employee with a criminal record clearance or exemption,
the facility has an agreement with the educational institution
concerning the placement of the student, the student spends no more
than 16 hours per week at the facility, and the student is not left
alone with children in care.
(iii) A volunteer who is a relative, legal guardian, or foster
parent of a client in the facility shall be exempt from the
requirements of this subdivision.
(iv) A contracted repair person retained by the facility, if not
left alone with children in care, shall be exempt from the
requirements of this subdivision.
(v) Any person similar to those described in this subdivision, as
defined by the department in regulations.
(E) If the applicant is a firm, partnership, association, or
corporation, the chief executive officer, other person serving in
like capacity, or a person designated by the chief executive officer
as responsible for the operation of the facility, as designated by
the applicant agency.
(F) If the applicant is a local educational agency, the president
of the governing board, the school district superintendent, or a
person designated to administer the operation of the facility, as
designated by the local educational agency.
(G) Additional officers of the governing body of the applicant, or
other persons with a financial interest in the applicant, as
determined necessary by the department by regulation. The criteria
used in the development of these regulations shall be based on the
person's capability to exercise substantial influence over the
operation of the facility.
(H) This section does not apply to employees of child care and
development programs under contract with the State Department of
Education who have completed a criminal record clearance as part of
an application to the Commission on Teacher Credentialing, and who
possess a current credential or permit issued by the commission,
including employees of child care and development programs that serve
both children subsidized under, and children not subsidized under, a
State Department of Education contract. The Commission on Teacher
Credentialing shall notify the department upon revocation of a
current credential or permit issued to an employee of a child care
and development program under contract with the State Department of
Education.
(I) This section does not apply to employees of a child care and
development program operated by a school district, county office of
education, or community college district under contract with the
State Department of Education who have completed a criminal record
clearance as a condition of employment. The school district, county
office of education, or community college district upon receiving
information that the status of an employee's criminal record
clearance has changed shall submit that information to the
department.
(2) Nothing in this subdivision shall prevent a licensee from
requiring a criminal record clearance of any individuals exempt from
the requirements under this subdivision.
(c) (1) (A) Subsequent to initial licensure, any person specified
in subdivision (b) and not exempted from fingerprinting shall, as a
condition to of employment, residence,
or presence in a child day care facility be fingerprinted and sign a
declaration under penalty of perjury regarding any prior criminal
conviction. The licensee shall submit fingerprint images and related
information to the Department of Justice and the Federal Bureau of
Investigation, through the Department of Justice, or to comply with
paragraph (1) of subdivision (h), prior to the person's employment,
residence, or initial presence in the child day care facility.
(B) These fingerprint images for the purpose of obtaining a
permanent set of fingerprints shall be electronically submitted to
the Department of Justice in a manner approved by the State
Department of Social Services and to the Department of Justice, or to
comply with paragraph (1) of subdivision (h), as required in this
section, shall result in the citation of a deficiency, and an
immediate assessment of civil penalties in the amount of one hundred
dollars ($100) per violation, per day for a maximum of five days,
unless the violation is a second or subsequent violation within a
12-month period in which case the civil penalties shall be in the
amount of one hundred dollars ($100) per violation for a maximum of
30 days, and shall be grounds for disciplining the licensee pursuant
to Section 1596.885 or Section 1596.886. The State Department of
Social Services may assess civil penalties for continued violations
permitted by Sections 1596.99 and 1597.62. The fingerprint images and
related information shall then be submitted to the department for
processing. Within 14 calendar days of the receipt of the fingerprint
images, the Department of Justice shall notify the State Department
of Social Services of the criminal record information, as provided in
this subdivision. If no criminal record information has been
recorded, the Department of Justice shall provide the licensee and
the State Department of Social Services with a statement of that fact
within 14 calendar days of receipt of the fingerprint images. If new
fingerprint images are required for processing, the Department of
Justice shall, within 14 calendar days from the date of receipt of
the fingerprint images, notify the licensee that the fingerprints
were illegible.
(C) Documentation of the individual's clearance or exemption shall
be maintained by the licensee, and shall be available for
inspection. When live-scan technology is operational, as defined in
Section 1522.04, the Department of Justice shall notify the
department, as required by that section, and notify the licensee by
mail within 14 days of electronic transmission of the fingerprints to
the Department of Justice, if the person has no criminal record. Any
violation of the regulations adopted pursuant to Section 1522.04
shall result in the citation of a deficiency and an immediate
assessment of civil penalties in the amount of one hundred dollars
($100) per violation, per day for a maximum of five days, unless the
violation is a second or subsequent violation within a 12-month
period in which case the civil penalties shall be in the amount of
one hundred dollars ($100) per violation for a maximum of 30 days,
and shall be grounds for disciplining the licensee pursuant to
Section 1596.885 or Section 1596.886. The department may assess civil
penalties for continued violations, as permitted by Sections 1596.99
and 1597.62.
(2) Except for persons specified in paragraph (2) of subdivision
(b), the licensee shall endeavor to ascertain the previous employment
history of persons required to be fingerprinted under this
subdivision. If it is determined by the department, on the basis of
fingerprints submitted to the Department of Justice, that the person
has been convicted of a sex offense against a minor, an offense
specified in Section 243.4, 273a, 273d, 273g, or 368 of the Penal
Code, or a felony, the State Department of Social Services shall
notify the licensee to act immediately to terminate the person's
employment, remove the person from the child day care facility, or
bar the person from entering the child day care facility. The
department may subsequently grant an exemption pursuant to
subdivision (f). If the conviction was for another crime except a
minor traffic violation, the licensee shall, upon notification by the
State Department of Social Services, act immediately to either (1)
terminate the person's employment, remove the person from the child
day care facility, or bar the person from entering the child day care
facility; or (2) seek an exemption pursuant to subdivision (f). The
department shall determine if the person shall be allowed to remain
in the facility until a decision on the exemption is rendered. A
licensee's failure to comply with the department's prohibition of
employment, contact with clients, or presence in the facility as
required by this paragraph shall result in a citation of deficiency
and an immediate assessment of civil penalties by the department
against the licensee, in the amount of one hundred dollars ($100) per
violation, per day for a maximum of five days, unless the violation
is a second or subsequent violation within a 12-month period in which
case the civil penalties shall be in the amount of one hundred
dollars ($100) per violation for a maximum of 30 days, and shall be
grounds for disciplining the licensee pursuant to Section 1596.885 or
1596.886.
(3) The department may issue an exemption on its own motion
pursuant to subdivision (f) if the person's criminal history
indicates that the person is of good character based on the age,
seriousness, and frequency of the conviction or convictions. The
department, in consultation with interested parties, shall develop
regulations to establish the criteria to grant an exemption pursuant
to this paragraph.
(4) Concurrently with notifying the licensee pursuant to paragraph
(3), the department shall notify the affected individual of his or
her right to seek an exemption pursuant to subdivision (f). The
individual may seek an exemption only if the licensee terminates the
person's employment or removes the person from the facility after
receiving notice from the department pursuant to paragraph (3).
(d) (1) For purposes of this section or any other provision of
this chapter, a conviction means a plea or verdict of guilty or a
conviction following a plea of nolo contendere. Any action that the
department is permitted to take following the establishment of a
conviction may be taken when the time for appeal has elapsed, when
the judgment of conviction has been affirmed on appeal, or when an
order granting probation is made suspending the imposition of
sentence, notwithstanding a subsequent order pursuant to Sections
1203.4 and 1203.4a of the Penal Code permitting the person to
withdraw his or her plea of guilty and to enter a plea of not guilty,
or setting aside the verdict of guilty, or dismissing the
accusation, information, or indictment. For purposes of this section
or any other provision of this chapter, the record of a conviction,
or a copy thereof certified by the clerk of the court or by a judge
of the court in which the conviction occurred, shall be conclusive
evidence of the conviction. For purposes of this section or any other
provision of this chapter, the arrest disposition report certified
by the Department of Justice, or documents admissible in a criminal
action pursuant to Section 969b of the Penal Code, shall be prima
facie evidence of conviction, notwithstanding any other provision of
law prohibiting the admission of these documents in a civil or
administrative action.
(2) For purposes of this section or any other provision of this
chapter, the department shall consider criminal convictions from
another state or federal court as if the criminal offense was
committed in this state.
(e) The State Department of Social Services may not use a record
of arrest to deny, revoke, or terminate any application, license,
employment, or residence unless the department investigates the
incident and secures evidence, whether or not related to the incident
of arrest, that is admissible in an administrative hearing to
establish conduct by the person that may pose a risk to the health
and safety of any person who is or may become a client. The State
Department of Social Services is authorized to obtain any arrest or
conviction records or reports from any law enforcement agency as
necessary to the performance of its duties to inspect, license, and
investigate community care facilities and individuals associated with
a community care facility.
(f) (1) After review of the record, the director may grant an
exemption from disqualification for a license or special permit as
specified in paragraphs (1) and (4) of subdivision (a), or for
employment, residence, or presence in a child day care facility as
specified in paragraphs (3), (4), and (5) of subdivision (c) if the
director has substantial and convincing evidence to support a
reasonable belief that the applicant and the person convicted of the
crime, if other than the applicant, are of good character so as to
justify issuance of the license or special permit or granting an
exemption for purposes of subdivision (c). However, an exemption may
not be granted pursuant to this subdivision if the conviction was for
any of the following offenses:
(A) An offense specified in Section 220, 243.4, or 264.1,
subdivision (a) of Section 273a or, prior to January 1, 1994,
paragraph (1) of Section 273a, Section 273d, 288, or 289, subdivision
(c) of Section 290, or Section 368 of the Penal Code, or was a
conviction of another crime against an individual specified in
subdivision (c) of Section 667.5 of the Penal Code.
(B) A felony offense specified in Section 729 of the Business and
Professions Code or Section 206 or 215, subdivision (a) of Section
347, subdivision (b) of Section 417, or subdivision (a) or (b) of
Section 451 of the Penal Code.
(2) The department may not prohibit a person from being employed
or having contact with clients in a facility on the basis of a denied
criminal record exemption request or arrest information unless the
department complies with the requirements of Section 1596.8897.
(g) Upon request of the licensee, who shall enclose a
self-addressed stamped postcard for this purpose, the Department of
Justice shall verify receipt of the fingerprint images.
(h) (1) For the purposes of compliance with this section, the
department may permit an individual to transfer a current criminal
record clearance, as defined in subdivision (a), from one facility to
another, as long as the criminal record clearance has been processed
through a state licensing district office, and is being transferred
to another facility licensed by a state licensing district office.
The request shall be in writing to the department, and shall include
a copy of the person's driver's license or valid identification card
issued by the Department of Motor Vehicles, or a valid photo
identification issued by another state or the United States
government if the person is not a California resident. Upon request
of the licensee, who shall enclose a self-addressed stamped envelope
for this purpose, the department shall verify whether the individual
has a clearance that can be transferred.
(2) The State Department of Social Services shall hold criminal
record clearances in its active files for a minimum of two years
after an employee is no longer employed at a licensed facility in
order for the criminal record clearances to be transferred.
(3) The following shall apply to a criminal record clearance or
exemption from the department or a county office with
department-delegated licensing authority:
(A) A county office with department-delegated licensing authority
may accept a clearance or exemption from the department.
(B) The department may accept a clearance or exemption from any
county office with department-delegated licensing authority.
(C) A county office with department-delegated licensing authority
may accept a clearance or exemption from any other county office with
department-delegated licensing authority.
(4) With respect to notifications issued by the Department of
Justice pursuant to Section 11105.2 of the Penal Code concerning an
individual whose criminal record clearance was originally processed
by the department or a county office with department-delegated
licensing authority, all of the following shall apply:
(A) The Department of Justice shall process a request from the
department or a county office with department-delegated licensing
authority to receive the notice, only if all of the following
conditions are met:
(i) The request shall be submitted to the Department of Justice by
the agency to be substituted to receive the notification.
(ii) The request shall be for the same applicant type as the type
for which the original clearance was obtained.
(iii) The request shall contain all prescribed data elements and
format protocols pursuant to a written agreement between the
department and the Department of Justice.
(B) (i) On or before January 7, 2005, the department shall notify
the Department of Justice of all county offices that have
department-delegated licensing authority.
(ii) The department shall notify the Department of Justice within
15 calendar days of the date on which a new county office receives
department-delegated licensing authority or a county's delegated
licensing authority is rescinded.
(C) The Department of Justice shall charge the department or a
county office with department-delegated licensing authority a fee for
each time a request to substitute the recipient agency is received
for purposes of this paragraph. This fee shall not exceed the cost of
providing the service.
(i) Notwithstanding any other provision of law, the department may
provide an individual with a copy of his or her state or federal
level criminal offender record information search response as
provided to that department by the Department of Justice if the
department has denied a criminal background clearance based on this
information and the individual makes a written request to the
department for a copy specifying an address to which it is to be
sent. The state or federal level criminal offender record information
search response shall not be modified or altered from its form or
content as provided by the Department of Justice and shall be
provided to the address specified by the individual in his or her
written request. The department shall retain a copy of the individual'
s written request and the response and date provided.
SEC. 5. Section 289.5 of the Penal Code is amended to read:
289.5. (a) Every person who flees to this state with the intent
to avoid prosecution for an offense which, if committed or attempted
in this state, would have been punishable as one or more of the
offenses described in subdivision (c) of Section 290, and who has
been charged with that offense under the laws of the jurisdiction
from which the person fled, is guilty of a misdemeanor.
(b) Every person who flees to this state with the intent to avoid
custody or confinement imposed for conviction of an offense under the
laws of the jurisdiction from which the person fled, which offense,
if committed or attempted in this state, would have been punishable
as one or more of the offenses described in subdivision (c) of
Section 290, is guilty of a misdemeanor.
(c) No person shall be charged and prosecuted for an offense under
this section unless the prosecutor has requested the other
jurisdiction to extradite the person and the other jurisdiction has
refused to do so.
(d) Any person who is convicted of any felony sex offense
described in subdivision (c) of Section 290, that is committed after
fleeing to this state under the circumstances described in
subdivision (a) or (b) of this section, shall, in addition and
consecutive to the punishment for that conviction, receive an
additional term of two years' imprisonment.
SEC. 6. Section 290 of the Penal Code is repealed.
SEC. 7. Section 290 is added to the Penal Code, to read:
290. (a) Sections 290 to 290.024 290.023
, inclusive, shall be known and may be cited as the Sex
Offender Registration Act. All references to "the Act" in those
sections are to the Sex Offender Registration Act.
(b) Every person described in subdivision (c), for the rest of his
or her life while residing in California, or while attending school
or working in California, as described in Sections 290.003 and
290.01, shall be required to register with the chief of police of the
city in which he or she is residing, or the sheriff of the county if
he or she is residing in an unincorporated area or city that has no
police department, and, additionally, with the chief of police of a
campus of the University of California, the California State
University, or community college if he or she is residing upon the
campus or in any of its facilities, within five working days of
coming into, or changing his or her residence within, any city,
county, or city and county, or campus in which he or she temporarily
resides, and shall be required to register thereafter in accordance
with the Act.
(c) The following persons shall be required to register:
Any person who, since July 1, 1944, has been or is hereafter
convicted in any court in this state or in any federal or military
court of a violation of Section 187 committed in the perpetration, or
an attempt to perpetrate, rape or any act punishable under
Section 286, 288, 288a, or 289,
Section 207 or 209 committed with intent to violate Section 261, 286,
288, 288a, or 289, Section 220, except assault to commit mayhem,
Section 243.4, paragraph (1), (2), (3), (4), or (6) of subdivision
(a) of Section 261, paragraph (1) of subdivision (a) of Section 262
involving the use of force or violence for which the person is
sentenced to the state prison, Section 264.1, 266, or 266c,
subdivision (b) of Section 266h, subdivision (b) of Section 266i,
Section 266j, 267, 269, 285, 286, 288, 288a, 288.3, 288.4, 288.5,
288.7, 289, or 311.1, subdivision (b), (c), or (d) of Section 311.2,
Section 311.3, 311.4, 311.10, 311.11, or 647.6, former Section 647a,
subdivision (c) of Section 653f, subdivision 1 or 2 of Section 314,
any offense involving lewd or lascivious conduct under Section 272,
or any felony violation of Section 288.2; any statutory predecessor
that includes all elements of one of the above-mentioned offenses; or
any person who since that date has been or is hereafter convicted of
the attempt or conspiracy to commit any of the above-mentioned
offenses.
SEC. 8. Section 290.001 is added to the Penal Code, to read:
290.001. Every person who has ever been adjudicated a sexually
violent predator, as defined in Section 6600 of the Welfare and
Institutions Code, shall register in accordance with the Act.
SEC. 9. Section 290.002 is added to the Penal Code, to read:
290.002. Persons required to register in their state of residence
who are out-of-state residents employed, or carrying on a vocation
in California on a full-time or part-time basis, with or without
compensation, for more than 14 days, or for an aggregate period
exceeding 30 days in a calendar year, shall register in accordance
with the Act. Persons described in subdivision (c) of Section 290 who
are out-of-state residents enrolled in any educational institution
in California, as defined in Section 22129 of the Education Code, on
a full-time or part-time basis, shall register in accordance with the
Act. The place where the out-of-state resident is located, for
purposes of registration, shall be the place where the person is
employed, carrying on a vocation, or attending school. The
out-of-state resident subject to this section shall, in addition to
the information required pursuant to Section 290.015, provide the
registering authority with the name of his or her place of employment
or the name of the school attended in California, and his or her
address or location in his or her state of residence. The
registration requirement for persons subject to this section shall
become operative on November 25, 2000. The terms "employed or carries
on a vocation" include employment whether or not financially
compensated, volunteered, or performed for government or educational
benefit.
SEC. 10. Section 290.003 is added to the Penal Code, to read:
290.003. Any person who, since July 1, 1944, has been or
hereafter is released, discharged, or paroled from a penal
institution where he or she was confined because of the commission or
attempted commission of one of the offenses described in subdivision
(c) of Section 290, shall register in accordance with the Act.
SEC. 11. Section 290.004 is added to the Penal Code, to read:
290.004. Any person who, since July 1, 1944, has been or
hereafter is determined to be a mentally disordered sex offender
under Article 1 (commencing with Section 6300) of Chapter 2 of Part 2
of Division 6 of the Welfare and Institutions Code, or any person
who has been found guilty in the guilt phase of a trial for an
offense for which registration is required by this section but who
has been found not guilty by reason of insanity in the sanity phase
of the trial shall register in accordance with the Act.
SEC. 12. Section 290.005 is added to the Penal Code, to read:
290.005. The following persons shall register in accordance with
the Act:
(a) Any person who, since July 1, 1944, has been, or is hereafter
convicted in any other court, including any state, federal, or
military court, of any offense that, if committed or attempted in
this state, would have been punishable as one or more of the offenses
described in subdivision (c) of Section 290.
(b) Any person ordered by any other court, including any state,
federal, or military court, to register as a sex offender for any
offense, if the court found at the time of conviction or sentencing
that the person committed the offense as a result of sexual
compulsion or for purposes of sexual gratification.
(c) Except as provided in subdivision (d), any person who would
be required to register while residing in the state of conviction for
a sex offense committed in that state.
(d) Notwithstanding subdivision (c), a person convicted in another
state of an offense similar to one of the following offenses who is
required to register in the state of conviction shall not be required
to register in California unless the out-of-state offense contains
all of the elements of a registerable California offense described in
subdivision (c) of Section 290:
(1) Indecent exposure, pursuant to Section 314.
(2) Unlawful sexual intercourse, pursuant to Section 261.5.
(3) Incest, pursuant to Section 285.
(4) Sodomy, pursuant to Section 286, or oral copulation, pursuant
to Section 288a, provided that the offender notifies the Department
of Justice that the sodomy or oral copulation conviction was for
conduct between consenting adults, as described in Section 290.019,
and the department is able, upon the exercise of reasonable
diligence, to verify that fact.
(5) Pimping, pursuant to Section 266h, or pandering, pursuant to
Section 266i.
SEC. 13. Section 290.006 is added to the Penal Code, to read:
290.006. Any person ordered by any court to register pursuant to
the Act for any offense not included specifically in subdivision (c)
of Section 290, shall so register, if the court finds at the time of
conviction or sentencing that the person committed the offense as a
result of sexual compulsion or for purposes of sexual gratification.
The court shall state on the record the reasons for its findings and
the reasons for requiring registration.
SEC. 14. Section 290.007 is added to the Penal Code, to read:
290.007. Any person required to register pursuant to any
provision of the Act shall register in accordance with the Act,
regardless of whether the person's conviction has been dismissed
pursuant to Section 1203.4, unless the person obtains a certificate
of rehabilitation and is entitled to relief from registration
pursuant to Section 290.5.
SEC. 15. Section 290.008 is added to the Penal Code, to read:
290.008. (a) Any person who, on or after January 1, 1986, is
discharged or paroled from the Department of Corrections and
Rehabilitation to the custody of which he or she was committed after
having been adjudicated a ward of the juvenile court pursuant to
Section 602 of the Welfare and Institutions Code because of the
commission or attempted commission of any offense described in
subdivision (c) shall register in accordance with the Act.
(b) Any person who is discharged or paroled from a facility in
another state that is equivalent to the Division of Juvenile Justice,
to the custody of which he or she was committed because of an
offense which, if committed or attempted in this state, would have
been punishable as one or more of the offenses described in
subdivision (c) shall register in accordance with the Act.
(c) Any person described in this section who committed an offense
in violation of any of the following provisions shall be required to
register pursuant to the Act:
(1) Assault with intent to commit rape, sodomy, oral copulation,
or any violation of Section 264.1, 288, or 289 under Section 220.
(2) Any offense defined in paragraph (1), (2), (3), (4), or (6) of
subdivision (a) of Section 261, Section 264.1, 266c, or 267,
paragraph (1) of subdivision (b) of, or subdivision (c) or (d) of,
Section 286, Section 288 or 288.5, paragraph (1) of subdivision (b)
of, or subdivision (c) or (d) of, Section 288a, subdivision (a) of
Section 289, or Section 647.6.
(3) A violation of Section 207 or 209 committed with the intent to
violate Section 261, 286, 288, 288a, or 289.
(d) Prior to discharge or parole from the Department of
Corrections and Rehabilitation, any person who is subject to
registration under this section shall be informed of the duty to
register under the procedures set forth in the Act. Department
officials shall transmit the required forms and information to the
Department of Justice.
(e) All records specifically relating to the registration in the
custody of the Department of Justice, law enforcement agencies, and
other agencies or public officials shall be destroyed when the person
who is required to register has his or her records sealed under the
procedures set forth in Section 781 of the Welfare and Institutions
Code. This section shall not be construed as requiring the
destruction of other criminal offender or juvenile records relating
to the case that are maintained by the Department of Justice, law
enforcement agencies, the juvenile court, or other agencies and
public officials unless ordered by a court under Section 781 of the
Welfare and Institutions Code.
SEC. 16. Section 290.009 is added to the Penal Code, to read:
290.009. Any person required to register under the Act who is
enrolled as a student or is an employee or carries on a vocation,
with or without compensation, at an institution of higher learning in
this state, shall register pursuant to the provisions of this act.
SEC. 17. Section 290.010 is added to the Penal Code, to read:
290.010. If the person who is registering has more than one
residence address at which he or she regularly resides, he or she
shall register in accordance with the Act in each of the
jurisdictions in which he or she regularly resides, regardless of the
number of days or nights spent there. If all of the addresses are
within the same jurisdiction, the person shall provide the
registering authority with all of the addresses where he or she
regularly resides.
SEC. 18. Section 290.011 is added to the Penal Code, to read:
290.011. Every person who is required to register pursuant to the
Act who is living as a transient shall be required to register for
the rest of his or her life as follows:
(a) He or she shall register, or reregister if the person has
previously registered, within five working days from release from
incarceration, placement or commitment, or release on probation,
pursuant to subdivision (b) of Section 290, except that if the person
previously registered as a transient less than 30 days from the date
of his or her release from incarceration, he or she does not need to
reregister as a transient until his or her next required 30-day
update of registration. If a transient is not physically present in
any one jurisdiction for five consecutive working days, he or she
shall register in the jurisdiction in which he or she is physically
present on the fifth working day following release, pursuant to
subdivision (b) of Section 290. Beginning on or before the 30th day
following initial registration upon release, a transient shall
reregister no less than once every 30 days thereafter. A transient
shall register with the chief of police of the city in which he or
she is physically present within that 30-day period, or the sheriff
of the county if he or she is physically present in an unincorporated
area or city that has no police department, and additionally, with
the chief of police of a campus of the University of California, the
California State University, or community college if he or she is
physically present upon the campus or in any of its facilities. A
transient shall reregister no less than once every 30 days regardless
of the length of time he or she has been physically present in the
particular jurisdiction in which he or she reregisters. If a
transient fails to reregister within any 30-day period, he or she may
be prosecuted in any jurisdiction in which he or she is physically
present.
(b) A transient who moves to a residence shall have five working
days within which to register at that address, in accordance with
subdivision (b) of Section 290. A person registered at a residence
address in accordance with that provision who becomes transient shall
have five working days within which to reregister as a transient in
accordance with subdivision (a).
(c) Beginning on his or her first birthday following registration,
a transient shall register annually, within five working days of his
or her birthday, to update his or her registration with the entities
described in subdivision (a). A transient shall register in
whichever jurisdiction he or she is physically present on that date.
At the 30-day updates and the annual update, a transient shall
provide current information as required on the Department of Justice
annual update form, including the information described in paragraphs
(1) to (3), inclusive of subdivision (a) of Section 290.015, and the
information specified in subdivision (d).
(d) A transient shall, upon registration and reregistration,
provide current information as required on the Department of Justice
registration forms, and shall also list the places where he or she
sleeps, eats, works, frequents, and engages in leisure activities. If
a transient changes or adds to the places listed on the form during
the 30-day period, he or she does not need to report the new place or
places until the next required reregistration.
(e) Failure to comply with the requirement of reregistering every
30 days following initial registration pursuant to subdivision (a)
shall be punished in accordance with of
subdivision (g) of Section 290.018. Failure to comply with any other
requirement of this section shall be punished in accordance with
either subdivision (a) or (b) of Section 290.018.
(f) A transient who moves out of state shall inform, in person,
the chief of police in the city in which he or she is physically
present, or the sheriff of the county if he or she is physically
present in an unincorporated area or city that has no police
department, within five working days, of his or her move out of
state. The transient shall inform that registering agency of his or
her planned destination, residence or transient location out of
state, and any plans he or she has to return to California, if known.
The law enforcement agency shall, within three days after receipt of
this information, forward a copy of the change of location
information to the Department of Justice. The department shall
forward appropriate registration data to the law enforcement agency
having local jurisdiction of the new place of residence or location.
(g) For purposes of this section, "transient" means a person who
has no residence. "Residence" means one or more addresses at which a
person regularly resides, regardless of the number of days or nights
spent there, such as a shelter or structure that can be located by a
street address, including, but not limited to, houses, apartment
buildings, motels, hotels, homeless shelters, and recreational and
other vehicles.
(h) The transient registrant's duty to update his or her
registration no less than every 30 days shall begin with his or her
second transient update following the date this section became
effective.
SEC. 19. Section 290.012 is added to the Penal Code, to read:
290.012. (a) Beginning on his or her first birthday following
registration or change of address, the person shall be required to
register annually, within five working days of his or her birthday,
to update his or her registration with the entities described in
subdivision (b) of Section 290. At the annual update, the person
shall provide current information as required on the Department of
Justice annual update form, including the information described in
paragraphs (1) to (3), inclusive of subdivision (a) of Section
290.015. The registering agency shall give the registrant a copy of
the registration requirements from the Department of Justice form.
(b) In addition, every person who has ever been adjudicated a
sexually violent predator, as defined in Section 6600 of the Welfare
and Institutions Code, shall, after his or her release from custody,
verify his or her address no less than once every 90 days and place
of employment, including the name and address of the employer, in a
manner established by the Department of Justice. Every person who, as
a sexually violent predator, is required to verify his or her
registration every 90 days, shall be notified wherever he or she next
registers of his or her increased registration obligations. This
notice shall be provided in writing by the registering agency or
agencies. Failure to receive this notice shall be a defense to the
penalties prescribed in subdivision (f) of Section 290.018.
(c) In addition, every person subject to the Act, while living as
a transient in California shall update his or her registration at
least every 30 days, in accordance with Section 290.011.
(d) No entity shall require a person to pay a fee to register or
update his or her registration pursuant to this section. The
registering agency shall submit registrations, including annual
updates or changes of address, directly into the Department of
Justice Violent Crime Information Network (VCIN).
SEC. 20. Section 290.013 is added to the Penal Code, to read:
290.013. (a) Any person who was last registered at a residence
address pursuant to the Act who changes his or her residence address,
whether within the jurisdiction in which he or she is currently
registered or to a new jurisdiction inside or outside the state,
shall, in person, within five working days of the move, inform the
law enforcement agency or agencies with which he or she last
registered of the move, the new address or transient location, if
known, and any plans he or she has to return to California.
(b) If the person does not know the new residence address or
location at the time of the move, the registrant shall, in person,
within five working days of the move, inform the last registering
agency or agencies that he or she is moving. The person shall later
notify the last registering agency or agencies, in writing, sent by
certified or registered mail, of the new address or location within
five working days of moving into the new residence address or
location, whether temporary or permanent.
(c) The law enforcement agency or agencies shall, within three
working days after receipt of this information, forward a copy of the
change of address information to the Department of Justice. The
Department of Justice shall forward appropriate registration data to
the law enforcement agency or agencies having local jurisdiction of
the new place of residence.
(d) If the person's new address is in a Department of Corrections
and Rehabilitation facility or state mental institution, an official
of the place of incarceration, placement, or commitment shall, within
90 days of receipt of the person, forward the registrant's change of
address information to the Department of Justice. The agency need
not provide a physical address for the registrant but shall indicate
that he or she is serving a period of incarceration or commitment in
a facility under the agency's jurisdiction. This subdivision shall
apply to persons received in a department facility or state mental
institution on or after January 1, 1999. The Department of Justice
shall forward the change of address information to the agency with
which the person last registered.
SEC. 21. Section 290.014 is added to the Penal Code, to read:
290.014. If any person who is required to register pursuant to
the Act changes his or her name, the person shall inform, in person,
the law enforcement agency or agencies with which he or she is
currently registered within five working days. The law enforcement
agency or agencies shall forward a copy of this information to the
Department of Justice within three working days of its receipt.
SEC. 22. Section 290.015 is added to the Penal Code, to read:
290.015. (a) A person who is subject to the Act shall register,
or reregister if the person has previously registered, upon release
from incarceration, placement, commitment, or release on probation
pursuant to subdivision (a) of Section 290.001
(b) of Section 290 . This section shall not apply to a
person who is incarcerated for less than 30 days if he or she has
registered as required by the Act, he or she returns after
incarceration to the last registered address, and the annual update
of registration that is required to occur within five working days of
his or her birthday, pursuant to subdivision (a) of Section 290.012,
did not fall within that incarceration period. The registration
shall consist of all of the following:
(1) A statement in writing signed by the person, giving
information as shall be required by the Department of Justice and
giving the name and address of the person's employer, and the address
of the person's place of employment if that is different from the
employer's main address.
(2) The fingerprints and a current photograph of the person taken
by the registering official.
(3) The license plate number of any vehicle owned by, regularly
driven by, or registered in the name of the person.
(4) Notice to the person that, in addition to the requirements of
the Act, he or she may have a duty to register in any other state
where he or she may relocate.
(5) Copies of adequate proof of residence, which shall be limited
to a California driver's license, California identification card,
recent rent or utility receipt, printed personalized checks or other
recent banking documents showing that person's name and address, or
any other information that the registering official believes is
reliable. If the person has no residence and no reasonable
expectation of obtaining a residence in the foreseeable future, the
person shall so advise the registering official and shall sign a
statement provided by the registering official stating that fact.
Upon presentation of proof of residence to the registering official
or a signed statement that the person has no residence, the person
shall be allowed to register. If the person claims that he or she has
a residence but does not have any proof of residence, he or she
shall be allowed to register but shall furnish proof of residence
within 30 days of the date he or she is allowed to register.
(b) Within three days thereafter, the registering law enforcement
agency or agencies shall forward the statement, fingerprints,
photograph, and vehicle license plate number, if any, to the
Department of Justice.
SEC. 23. Section 290.016 is added to the Penal Code, to read:
290.016. (a) On or after January 1, 1998, upon incarceration,
placement, or commitment, or prior to release on probation, any
person who is required to register under the Act shall preregister.
The preregistering official shall be the admitting officer at the
place of incarceration, placement, or commitment, or the probation
officer if the person is to be released on probation. The
preregistration shall consist of all of the following:
(1) A preregistration statement in writing, signed by the person,
giving information that shall be required by the Department of
Justice.
(2) The fingerprints and a current photograph of the person.
(3) Any person who is preregistered pursuant to this subdivision
is required to be preregistered only once.
(b) Within three days thereafter, the preregistering official
shall forward the statement, fingerprints, photograph, and vehicle
license plate number, if any, to the Department of Justice.
SEC. 24. Section 290.017 is added to the Penal Code, to read:
290.017. (a) Any person who is released, discharged, or paroled
from a jail, state or federal prison, school, road camp, or other
institution where he or she was confined because of the commission or
attempted commission of one of the offenses specified in subdivision
(c) of Section 290 or is released from a state hospital to which he
or she was committed as a mentally disordered sex offender under
Article 1 (commencing with Section 6300) of Chapter 2 of Part 2 of
Division 6 of the Welfare and Institutions Code, shall, prior to
discharge, parole, or release, be informed of his or her duty to
register under the Act by the official in charge of the place of
confinement or hospital, and the official shall require the person to
read and sign any form that may be required by the Department of
Justice, stating that the duty of the person to register under the
Act has been explained to the person. The official in charge of the
place of confinement or hospital shall obtain the address where the
person expects to reside upon his or her discharge, parole, or
release and shall report the address to the Department of Justice.
The official shall at the same time forward a current photograph of
the person to the Department of Justice.
(b) The official in charge of the place of confinement or hospital
shall give one copy of the form to the person and shall send one
copy to the Department of Justice and one copy to the appropriate law
enforcement agency or agencies having jurisdiction over the place
the person expects to reside upon discharge, parole, or release. If
the conviction that makes the person subject to the Act is a felony
conviction, the official in charge shall, not later than 45 days
prior to the scheduled release of the person, send one copy to the
appropriate law enforcement agency or agencies having local
jurisdiction where the person expects to reside upon discharge,
parole, or release; one copy to the prosecuting agency that
prosecuted the person; and one copy to the Department of Justice. The
official in charge of the place of confinement or hospital shall
retain one copy.
(c) Any person who is convicted in this state of the commission
or attempted commission of any of the offenses specified in
subdivision (c) of Section 290 and who is released on probation,
shall, prior to release or discharge, be informed of the duty to
register under the Act by the probation department, and a probation
officer shall require the person to read and sign any form that may
be required by the Department of Justice, stating that the duty of
the person to register has been explained to him or her. The
probation officer shall obtain the address where the person expects
to reside upon release or discharge and shall report within three
days the address to the Department of Justice. The probation officer
shall give one copy of the form
to the person, send one copy to the Department of Justice, and
forward one copy to the appropriate law enforcement agency or
agencies having local jurisdiction where the person expects to reside
upon his or her discharge, parole, or release.
(d) Any person who is convicted in this state of the commission or
attempted commission of any of the offenses specified in subdivision
(c) of Section 290 and who is granted conditional release without
supervised probation, or discharged upon payment of a fine, shall,
prior to release or discharge, be informed of the duty to register
under the Act in open court by the court in which the person has been
convicted, and the court shall require the person to read and sign
any form that may be required by the Department of Justice, stating
that the duty of the person to register has been explained to him or
her. If the court finds that it is in the interest of the efficiency
of the court, the court may assign the bailiff to require the person
to read and sign forms under the Act. The court shall obtain the
address where the person expects to reside upon release or discharge
and shall report within three days the address to the Department of
Justice. The court shall give one copy of the form to the person,
send one copy to the Department of Justice, and forward one copy to
the appropriate law enforcement agency or agencies having local
jurisdiction where the person expects to reside upon his or her
discharge, parole, or release.
SEC. 25. Section 290.018 is added to the Penal Code, to read:
290.018. (a) Any person who is required to register under the Act
based on a misdemeanor conviction or juvenile adjudication who
willfully violates any requirement of the Act is guilty of a
misdemeanor punishable by imprisonment in a county jail not exceeding
one year.
(b) Except as provided in subdivisions (f), (h), and (j), any
person who is required to register under the Act based on a felony
conviction or juvenile adjudication who willfully violates any
requirement of the Act or who has a prior conviction or juvenile
adjudication for the offense of failing to register under the Act and
who subsequently and willfully violates any requirement of the Act
is guilty of a felony and shall be punished by imprisonment in the
state prison for 16 months, or two or three years.
(c) If probation is granted or if the imposition or execution of
sentence is suspended, it shall be a condition of the probation or
suspension that the person serve at least 90 days in a county jail.
The penalty described in subdivision (b) or this subdivision shall
apply whether or not the person has been released on parole or has
been discharged from parole.
(d) Any person determined to be a mentally disordered sex offender
or who has been found guilty in the guilt phase of trial for an
offense for which registration is required under the Act, but who has
been found not guilty by reason of insanity in the sanity phase of
the trial, or who has had a petition sustained in a juvenile
adjudication for an offense for which registration is required
pursuant to subdivision (c) of Section 290, but who has been found
not guilty by reason of insanity, who willfully violates any
requirement of the Act is guilty of a misdemeanor and shall be
punished by imprisonment in a county jail not exceeding one year. For
any second or subsequent willful violation of any requirement of the
Act, the person is guilty of a felony and shall be punished by
imprisonment in the state prison for 16 months, or two or three
years.
(e) If, after discharge from parole, the person is convicted of a
felony or suffers a juvenile adjudication as specified in this act,
he or she shall be required to complete parole of at least one year,
in addition to any other punishment imposed under this section. A
person convicted of a felony as specified in this section may be
granted probation only in the unusual case where the interests of
justice would best be served. When probation is granted under this
act, the court shall specify on the record and shall enter into the
minutes the circumstances indicating that the interests of justice
would best be served by the disposition.
(f) Any person who has ever been adjudicated a sexually violent
predator, as defined in Section 6600 of the Welfare and Institutions
Code, and who fails to verify his or her registration every 90 days
as required pursuant to subdivision (b) of Section 290.012, shall be
punished by imprisonment in the state prison, or in a county jail not
exceeding one year.
(g) Except as otherwise provided in subdivision (f), any person
who is required to register or reregister pursuant to Section 290.011
and willfully fails to comply with the requirement that he or she
reregister no less than every 30 days is guilty of a misdemeanor and
shall be punished by imprisonment in a county jail for at
least 30 days, but not exceeding six months. A person who willfully
fails to comply with the requirement that he or she reregister no
less than every 30 days shall not be charged with this violation more
often than once for a failure to register in any period of 90 days.
Any person who willfully commits a third or subsequent violation of
the requirements of Section 290.011 that he or she reregister no less
than every 30 days shall be punished in accordance with either
subdivision (a) or (b).
(h) Any person who fails to provide proof of residence as required
by paragraph (5) of subdivision (a) of Section 290.015, regardless
of the offense upon which the duty to register is based, is guilty of
a misdemeanor punishable by imprisonment in a county jail not
exceeding six months.
(i) Any person who is required to register under the Act who
willfully violates any requirement of the Act is guilty of a
continuing offense as to each requirement he or she violated.
(j) In addition to any other penalty imposed under this section,
the failure to provide information required on registration and
reregistration forms of the Department of Justice, or the provision
of false information, is a crime punishable by imprisonment in a
county jail for a period not exceeding one year.
(k) Whenever any person is released on parole or probation and is
required to register under the Act but fails to do so within the time
prescribed, the parole authority or the court, as the case may be,
shall order the parole or probation of the person revoked. For
purposes of this subdivision, "parole authority" has the same meaning
as described in Section 3000.
SEC. 26. Section 290.019 is added to the Penal Code, to read:
290.019. (a) Notwithstanding any other
section in the Act, a person who was convicted before January 1,
1976, under subdivision (a) of Section 286, or Section 288a, shall
not be required to register pursuant to the Act for that conviction
if the conviction was for conduct between consenting adults that was
decriminalized by Chapter 71 of the Statutes of 1975 or Chapter 1139
of the Statutes of 1976. The Department of Justice shall remove that
person from the Sex Offender Registry, and the person is discharged
from his or her duty to register pursuant to the following
procedure either of the following procedures :
(a)
(1) The person submits to the Department of Justice
official documentary evidence, including court records or police
reports, that demonstrate that the person's conviction pursuant to
either of those sections was for conduct between consenting adults
that was decriminalized.
(b)
(2) The person submits to the department a declaration
stating that the person's conviction pursuant to either of those
sections was for consensual conduct between adults that has been
decriminalized. The declaration shall be confidential and not a
public record, and shall include the person's name, address,
telephone number, date of birth, and a summary of the circumstances
leading to the conviction, including the date of the conviction and
county of the occurrence.
(c)
(b) The department shall determine whether the person's
conviction was for conduct between consensual adults that has been
decriminalized. If the conviction was for consensual conduct between
adults that has been decriminalized, and the person has no other
offenses for which he or she is required to register pursuant to the
Act, the department shall, within 60 days of receipt of those
documents, notify the person that he or she is relieved of the duty
to register, and shall notify the local law enforcement agency with
which the person is registered that he or she has been relieved of
the duty to register. The local law enforcement agency shall remove
the person's registration from its files within 30 days of receipt of
notification. If the documentary or other evidence submitted is
insufficient to establish the person's claim, the department shall,
within 60 days of receipt of those documents, notify the person that
his or her claim cannot be established, and that the person shall
continue to register pursuant to the Act. The department shall
provide, upon the person's request, any information relied upon by
the department in making its determination that the person shall
continue to register pursuant to the Act. Any person whose claim has
been denied by the department pursuant to this subdivision may
petition the court to appeal the department's denial of the person's
claim.
SEC. 27. Section 290.020 is added to the Penal Code, to read:
290.020. In any case in which a person who would be required to
register pursuant to the Act for a felony conviction is to be
temporarily sent outside the institution where he or she is confined
on any assignment within a city or county including firefighting,
disaster control, or of whatever nature the assignment may be, the
local law enforcement agency having jurisdiction over the place or
places where the assignment shall occur shall be notified within a
reasonable time prior to removal from the institution. This section
shall not apply to any person who is temporarily released under guard
from the institution where he or she is confined.
SEC. 28. Section 290.021 is added to the Penal Code, to read:
290.021. Except as otherwise provided by law, the statements,
photographs, and fingerprints required by the Act shall not be open
to inspection by the public or by any person other than a regularly
employed peace officer or other law enforcement officer.
SEC. 29. Section 290.022 is added to the Penal Code, to read:
290.022. On or before June 10 July 1
, 2010, the Department of Justice shall renovate the VCIN to do the
following:
(1) Correct all software deficiencies affecting data integrity and
include designated data fields for all mandated sex offender data.
(2) Consolidate and simplify program logic, thereby increasing
system performance and reducing system maintenance costs.
(3) Provide all necessary data storage, processing, and search
capabilities.
(4) Provide law enforcement agencies with full Internet access to
all sex offender data and photos.
(5) Incorporate a flexible design structure to readily meet future
demands for enhanced system functionality, including public Internet
access to sex offender information pursuant to Section 290.46.
SEC. 30. Section 290.023 is added to the Penal Code, to read:
290.023. The registration provisions of the Act are applicable to
every person described in the Act, without regard to when his or her
crime or crimes were committed or his or her duty to register
pursuant to the Act arose, and to every offense described in the Act,
regardless of when it was committed.
SEC. 31. Section 290.01 of the Penal Code is amended to read:
290.01. (a) (1) Commencing October 28, 2002, every person
required to register under Section 290
pursuant to Sections 290 to 290.009, inclusive, of the Sex Offender
Registration Act who is enrolled as a student of any
university, college, community college, or other institution of
higher learning, or is, with or without compensation, a full-time or
part-time employee of that university, college, community college, or
other institution of higher learning, or is carrying on a vocation
at the university, college, community college, or other institution
of higher learning, for more than 14 days, or for an aggregate period
exceeding 30 days in a calendar year, shall, in addition to the
registration required by Section 290, register with the campus police
department within five working days of commencing enrollment or
employment at that university, college, community college, or other
institution of higher learning, on a form as may be required by the
Department of Justice. The terms "employed or carries on a vocation"
include employment whether or not financially compensated,
volunteered, or performed for government or educational benefit. The
registrant shall also notify the campus police department within five
working days of ceasing to be enrolled or employed, or ceasing to
carry on a vocation, at the university, college, community college,
or other institution of higher learning.
(2) For purposes of this section, a campus police department is a
police department of the University of California, California State
University, or California Community College, established pursuant to
Section 72330, 89560, or 92600 of the Education Code, or is a police
department staffed with deputized or appointed personnel with peace
officer status as provided in Section 830.6 of the Penal Code and is
the law enforcement agency with the primary responsibility for
investigating crimes occurring on the college or university campus on
which it is located.
(b) If the university, college, community college, or other
institution of higher learning has no campus police department, the
registrant shall instead register pursuant to subdivision (a) with
the police of the city in which the campus is located or the sheriff
of the county in which the campus is located if the campus is located
in an unincorporated area or in a city that has no police
department, on a form as may be required by the Department of
Justice. The requirements of subdivisions (a) and (b) are in addition
to the requirements of Section 290 the Sex
Offender Registration Act .
(c) A first violation of this section is a misdemeanor punishable
by a fine not to exceed one thousand dollars ($1,000). A second
violation of this section is a misdemeanor punishable by imprisonment
in a county jail for not more than six months, by a fine not to
exceed one thousand dollars ($1,000), or by both that imprisonment
and fine. A third or subsequent violation of this section is a
misdemeanor punishable by imprisonment in a county jail for not more
than one year, by a fine not exceeding one thousand dollars ($1,000),
or by both that imprisonment and fine.
(d) (1) (A) The following information regarding a registered sex
offender on campus as to whom information shall not be made available
to the public via the Internet Web site as provided in Section
290.46 may be released to members of the campus community by any
campus police department or, if the university, college, community
college, or other institution of higher learning has no police
department, the police department or sheriff's department with
jurisdiction over the campus, and any employees of those agencies, as
required by Section 1092(f)(1)(I) of Title 20 of the United States
Code:
(i) The offender's full name.
(ii) The offender's known aliases.
(iii) The offender's gender.
(iv) The offender's race.
(v) The offender's physical description.
(vi) The offender's photograph.
(vii) The offender's date of birth.
(viii) Crimes resulting in registration under Section 290.
(ix) The date of last registration or reregistration.
(B) The authority provided in this subdivision is in addition to
the authority of a peace officer or law enforcement agency to provide
information about a registered sex offender pursuant to Section
290.45, and exists notwithstanding Section 290.021 or any other
provision of law.
(2) Any law enforcement entity and employees of any law
enforcement entity listed in paragraph (1) shall be immune from civil
or criminal liability for good faith conduct under this subdivision.
(3) Nothing in this subdivision shall be construed to authorize
campus police departments or, if the university, college, community
college, or other institution has no police department, the police
department or sheriff's department with jurisdiction over the campus,
to make disclosures about registrants intended to reach persons
beyond the campus community.
(4) (A) Before being provided any information by an agency
pursuant to this subdivision, a member of the campus community who
requests that information shall sign a statement, on a form provided
by the Department of Justice, stating that he or she is not a
registered sex offender, that he or she understands the purpose of
the release of information is to allow members of the campus
community to protect themselves and their children from sex
offenders, and that he or she understands it is unlawful to use
information obtained pursuant to this subdivision to commit a crime
against any registrant or to engage in illegal discrimination or
harassment of any registrant. The signed statement shall be
maintained in a file in the agency's office for a minimum of five
years.
(B) An agency disseminating printed information pursuant to this
subdivision shall maintain records of the means and dates of
dissemination for a minimum of five years.
(5) For purposes of this subdivision, "campus community" means
those persons present at, and those persons regularly frequenting,
any place associated with an institution of higher education,
including campuses; administrative and educational offices;
laboratories; satellite facilities owned or utilized by the
institution for educational instruction, business, or institutional
events; and public areas contiguous to any campus or facility that
are regularly frequented by students, employees, or volunteers of the
campus.
SEC. 32. Section 296.2 of the Penal Code is amended to read:
296.2. (a) Whenever the DNA Laboratory of the Department of
Justice notifies the Department of Corrections or any law enforcement
agency that a biological specimen or sample, or print impression is
not usable for any reason, the person who provided the original
specimen, sample, or print impression shall submit to collection of
additional specimens, samples, or print impressions. The Department
of Corrections or other responsible law enforcement agency shall
collect additional specimens, samples, and print impressions from
these persons as necessary to fulfill the requirements of this
chapter, and transmit these specimens, samples, and print impressions
to the appropriate agencies of the Department of Justice.
(b) If a person, including any juvenile, is convicted of, pleads
guilty or no contest to, is found not guilty by reason of insanity
of, or is adjudged a ward of the court under Section 602 of the
Welfare and Institutions Code for committing, any of the offenses
described in subdivision (a) of Section 296, and has given a blood
specimen or other biological sample or samples to law enforcement for
any purpose, the DNA Laboratory of the Department of Justice is
authorized to analyze the blood specimen and other biological sample
or samples for forensic identification markers, including DNA
markers, and to include the DNA and forensic identification profiles
from these specimens and samples in the state's DNA and forensic
identification data bank and data bases.
This subdivision applies whether or not the blood specimen or
other biological sample originally was collected from the sexual or
violent offender pursuant to the data bank and data base program, and
whether or not the crime committed predated the enactment of the
state's DNA and forensic identification data bank program, or any
amendments thereto. This subdivision does not relieve a person
convicted of a crime described in subdivision (a) of Section 296, or
otherwise subject to this chapter, from the requirement to give blood
specimens, saliva samples, and thumb and palm print impressions for
the DNA and forensic identification data bank and data base program
as described in this chapter.
(c) Any person who is required to register under Section 290 for
the commission of any felony offense specified in Section 290 who has
not provided the specimens, samples, and print impressions described
in this chapter for any reason including the release of the person
prior to the enactment of the state's DNA and forensic identification
data base and data bank program, an oversight or error, or because
of the transfer of the person from another state, the person, as an
additional requirement of registration or of updating his or her
annual registration pursuant to the Sex Offender
Registration Act , shall give specimens, samples, and print
impressions as described in this chapter for inclusion in the state'
s DNA and forensic identification data base and data bank.
At the time the person registers or updates his or her
registration, he or she shall receive an appointment designating a
time and place for the collection of the specimens, samples, and
print impressions described in this chapter, if he or she has not
already complied with the provisions of this chapter.
As specified in the appointment, the person shall report to a
county jail facility in the county where he or she resides or is
temporarily located to have specimens, samples, and print impressions
collected pursuant to this chapter or other facility approved by the
Department of Justice for this collection. The specimens, samples,
and print impressions shall be collected in accordance with
subdivision (f) of Section 295.
If, prior to the time of the annual registration update, a person
is notified by the Department of Justice, a probation or parole
officer, other law enforcement officer, or officer of the court, that
he or she is subject to this chapter, then the person shall provide
the specimens, samples, and print impressions required by this
chapter within 10 calendar days of the notification at a county jail
facility or other facility approved by the department for this
collection.
SEC. 33. Section 311.11 of the Penal Code is amended to read:
311.11. (a) Every person who knowingly possesses or controls any
matter, representation of information, data, or image, including, but
not limited to, any film, filmstrip, photograph, negative, slide,
photocopy, videotape, video laser disc, computer hardware, computer
software, computer floppy disc, data storage media, CD-ROM, or
computer-generated equipment or any other computer-generated image
that contains or incorporates in any manner, any film or filmstrip,
the production of which involves the use of a person under the age of
18 years, knowing that the matter depicts a person under the age of
18 years personally engaging in or simulating sexual conduct, as
defined in subdivision (d) of Section 311.4, is guilty of a felony
and shall be punished by imprisonment in the state prison, or a
county jail for up to one year, or by a fine not exceeding two
thousand five hundred dollars ($2,500), or by both the fine and
imprisonment.
(b) Every person who commits a violation of subdivision (a), and
who has been previously convicted of a violation of this section, an
offense described in subdivision (c) of Section 290, or an attempt to
commit any of the above-mentioned offenses, is guilty of a felony
and shall be punished by imprisonment in the state prison for two,
four, or six years.
(c) It is not necessary to prove that the matter is obscene in
order to establish a violation of this section.
(d) This section does not apply to drawings, figurines, statues,
or any film rated by the Motion Picture Association of America, nor
does it apply to live or recorded telephone messages when
transmitted, disseminated, or distributed as part of a commercial
transaction.
SEC. 34. Section 646.9 of the Penal Code is amended to read:
646.9. (a) Any person who willfully, maliciously, and repeatedly
follows or willfully and maliciously harasses another person and who
makes a credible threat with the intent to place that person in
reasonable fear for his or her safety, or the safety of his or her
immediate family is guilty of the crime of stalking, punishable by
imprisonment in a county jail for not more than one year, or by a
fine of not more than one thousand dollars ($1,000), or by both that
fine and imprisonment, or by imprisonment in the state prison.
(b) Any person who violates subdivision (a) when there is a
temporary restraining order, injunction, or any other court order in
effect prohibiting the behavior described in subdivision (a) against
the same party, shall be punished by imprisonment in the state prison
for two, three, or four years.
(c) (1) Every person who, after having been convicted of a felony
under Section 273.5, 273.6, or 422, commits a violation of
subdivision (a) shall be punished by imprisonment in a county jail
for not more than one year, or by a fine of not more than one
thousand dollars ($1,000), or by both that fine and imprisonment, or
by imprisonment in the state prison for two, three, or five years.
(2) Every person who, after having been convicted of a felony
under subdivision (a), commits a violation of this section shall be
punished by imprisonment in the state prison for two, three, or five
years.
(d) In addition to the penalties provided in this section, the
sentencing court may order a person convicted of a felony under this
section to register as a sex offender pursuant to Section 290.006.
(e) For the purposes of this section, "harasses" means engages in
a knowing and willful course of conduct directed at a specific person
that seriously alarms, annoys, torments, or terrorizes the person,
and that serves no legitimate purpose.
(f) For the purposes of this section, "course of conduct" means
two or more acts occurring over a period of time, however short,
evidencing a continuity of purpose. Constitutionally protected
activity is not included within the meaning of "course of conduct."
(g) For the purposes of this section, "credible threat" means a
verbal or written threat, including that performed through the use of
an electronic communication device, or a threat implied by a pattern
of conduct or a combination of verbal, written, or electronically
communicated statements and conduct, made with the intent to place
the person that is the target of the threat in reasonable fear for
his or her safety or the
safety of his or her family, and made with the apparent ability to
carry out the threat so as to cause the person who is the target of
the threat to reasonably fear for his or her safety or the safety of
his or her family. It is not necessary to prove that the defendant
had the intent to actually carry out the threat. The present
incarceration of a person making the threat shall not be a bar to
prosecution under this section. Constitutionally protected activity
is not included within the meaning of "credible threat."
(h) For purposes of this section, the term "electronic
communication device" includes, but is not limited to, telephones,
cellular phones, computers, video recorders, fax machines, or pagers.
"Electronic communication" has the same meaning as the term defined
in Subsection 12 of Section 2510 of Title 18 of the United States
Code.
(i) This section shall not apply to conduct that occurs during
labor picketing.
(j) If probation is granted, or the execution or imposition of a
sentence is suspended, for any person convicted under this section,
it shall be a condition of probation that the person participate in
counseling, as designated by the court. However, the court, upon a
showing of good cause, may find that the counseling requirement shall
not be imposed.
(k) The sentencing court also shall consider issuing an order
restraining the defendant from any contact with the victim, that may
be valid for up to 10 years, as determined by the court. It is the
intent of the Legislature that the length of any restraining order be
based upon the seriousness of the facts before the court, the
probability of future violations, and the safety of the victim and
his or her immediate family.
() For purposes of this section, "immediate family" means any
spouse, parent, child, any person related by consanguinity or
affinity within the second degree, or any other person who regularly
resides in the household, or who, within the prior six months,
regularly resided in the household.
(m) The court shall consider whether the defendant would benefit
from treatment pursuant to Section 2684. If it is determined to be
appropriate, the court shall recommend that the Department of
Corrections make a certification as provided in Section 2684. Upon
the certification, the defendant shall be evaluated and transferred
to the appropriate hospital for treatment pursuant to Section 2684.
SEC. 35. Section 801.1 of the Penal Code is amended to read:
801.1. (a) Notwithstanding any other limitation of time described
in this chapter, prosecution for a felony offense described in
Section 261, 286, 288, 288.5, 288a, or 289, or Section 289.5, as
enacted by Chapter 293 of the Statutes of 1991 relating to
penetration by an unknown object, that is alleged to have been
committed when the victim was under the age of 18 years, may be
commenced any time prior to the victim's 28th birthday.
(b) Notwithstanding any other limitation of time described in this
chapter, if subdivision (a) does not apply, prosecution for a felony
offense described in subdivision (c) of Section 290 shall be
commenced within 10 years after commission of the offense.
SEC. 36. Section 803 of the Penal Code is amended to read:
803. (a) Except as provided in this section, a limitation of time
prescribed in this chapter is not tolled or extended for any reason.
(b) No time during which prosecution of the same person for the
same conduct is pending in a court of this state is a part of a
limitation of time prescribed in this chapter.
(c) A limitation of time prescribed in this chapter does not
commence to run until the discovery of an offense described in this
subdivision. This subdivision applies to an offense punishable by
imprisonment in the state prison, a material element of which is
fraud or breach of a fiduciary obligation, the commission of the
crimes of theft or embezzlement upon an elder or dependent adult, or
the basis of which is misconduct in office by a public officer,
employee, or appointee, including, but not limited to, the following
offenses:
(1) Grand theft of any type, forgery, falsification of public
records, or acceptance of a bribe by a public official or a public
employee.
(2) A violation of Section 72, 118, 118a, 132, 134, or 186.10.
(3) A violation of Section 25540, of any type, or Section 25541 of
the Corporations Code.
(4) A violation of Section 1090 or 27443 of the Government Code.
(5) Felony welfare fraud or Medi-Cal fraud in violation of Section
11483 or 14107 of the Welfare and Institutions Code.
(6) Felony insurance fraud in violation of Section 548 or 550 of
this code or former Section 1871.1, or Section 1871.4, of the
Insurance Code.
(7) A violation of Section 580, 581, 582, 583, or 584 of the
Business and Professions Code.
(8) A violation of Section 22430 of the Business and Professions
Code.
(9) A violation of Section 10690 of the Health and Safety Code.
(10) A violation of Section 529a.
(11) A violation of subdivision (d) or (e) of Section 368.
(d) If the defendant is out of the state when or after the offense
is committed, the prosecution may be commenced as provided in
Section 804 within the limitations of time prescribed by this
chapter, and no time up to a maximum of three years during which the
defendant is not within the state shall be a part of those
limitations.
(e) A limitation of time prescribed in this chapter does not
commence to run until the offense has been discovered, or could have
reasonably been discovered, with regard to offenses under Division 7
(commencing with Section 13000) of the Water Code, under Chapter 6.5
(commencing with Section 25100) of, Chapter 6.7 (commencing with
Section 25280) of, or Chapter 6.8 (commencing with Section 25300) of,
Division 20 of, or Part 4 (commencing with Section 41500) of
Division 26 of, the Health and Safety Code, or under Section 386, or
offenses under Chapter 5 (commencing with Section 2000) of Division 2
of, Chapter 9 (commencing with Section 4000) of Division 2 of,
Section 6126 of, Chapter 10 (commencing with Section 7301) of
Division 3 of, or Chapter 19.5 (commencing with Section 22440) of
Division 8 of, the Business and Professions Code.
(f) (1) Notwithstanding any other limitation of time described in
this chapter, a criminal complaint may be filed within one year of
the date of a report to a California law enforcement agency by a
person of any age alleging that he or she, while under the age of 18
years, was the victim of a crime described in Section 261, 286, 288,
288a, 288.5, or 289, or Section 289.5, as enacted by Chapter 293 of
the Statutes of 1991 relating to penetration by an unknown object.
(2) This subdivision applies only if all of the following occur:
(A) The limitation period specified in Section 800, 801, or 801.1,
whichever is later, has expired.
(B) The crime involved substantial sexual conduct, as described in
subdivision (b) of Section 1203.066, excluding masturbation that is
not mutual.
(C) There is independent evidence that corroborates the victim's
allegation. If the victim was 21 years of age or older at the time of
the report, the independent evidence shall clearly and convincingly
corroborate the victim's allegation.
(3) No evidence may be used to corroborate the victim's allegation
that otherwise would be inadmissible during trial. Independent
evidence does not include the opinions of mental health
professionals.
(4) (A) In a criminal investigation involving any of the crimes
listed in paragraph (1) committed against a child, when the
applicable limitations period has not expired, that period shall be
tolled from the time a party initiates litigation challenging a grand
jury subpoena until the end of the litigation, including any
associated writ or appellate proceeding, or until the final
disclosure of evidence to the investigating or prosecuting agency, if
that disclosure is ordered pursuant to the subpoena after the
litigation.
(B) Nothing in this subdivision affects the definition or
applicability of any evidentiary privilege.
(C) This subdivision shall not apply where a court finds that the
grand jury subpoena was issued or caused to be issued in bad faith.
(g) (1) Notwithstanding any other limitation of time described in
this chapter, a criminal complaint may be filed within one year of
the date on which the identity of the suspect is conclusively
established by DNA testing, if both of the following conditions are
met:
(A) The crime is one that is described in subdivision (c) of
Section 290.
(B) The offense was committed prior to January 1, 2001, and
biological evidence collected in connection with the offense is
analyzed for DNA type no later than January 1, 2004, or the offense
was committed on or after January 1, 2001, and biological evidence
collected in connection with the offense is analyzed for DNA type no
later than two years from the date of the offense.
(2) For purposes of this section, "DNA" means deoxyribonucleic
acid.
(h) For any crime, the proof of which depends substantially upon
evidence that was seized under a warrant, but which is unavailable to
the prosecuting authority under the procedures described in People
v. Superior Court (Laff) (2001) 25 Cal.4th 703, People v. Superior
Court (Bauman & Rose) (1995) 37 Cal.App.4th 1757, or subdivision (c)
of Section 1524, relating to claims of evidentiary privilege or
attorney work product, the limitation of time prescribed in this
chapter shall be tolled from the time of the seizure until final
disclosure of the evidence to the prosecuting authority. Nothing in
this section otherwise affects the definition or applicability of any
evidentiary privilege or attorney work product.
SEC. 37. Section 1202.7 of the Penal Code is amended to read:
1202.7. The Legislature finds and declares that the provision of
probation services is an essential element in the administration of
criminal justice. The safety of the public, which shall be a primary
goal through the enforcement of court-ordered conditions of
probation; the nature of the offense; the interests of justice,
including punishment, reintegration of the offender into the
community, and enforcement of conditions of probation; the loss to
the victim; and the needs of the defendant shall be the primary
considerations in the granting of probation. It is the intent of the
Legislature that efforts be made with respect to persons who are
subject to Section 290.011 who are on probation to engage them in
treatment.
SEC. 38. Section 1417.8 of the Penal Code is amended to read:
1417.8. (a) Notwithstanding any other provision of this chapter,
the court shall direct that any photograph of any minor that has been
found by the court to be harmful matter, as defined in Section 313,
and introduced or filed as an exhibit in any criminal proceeding
specified in subdivision (b) be handled as follows:
(1) Prior to the final determination of the action or proceeding,
the photograph shall be available only to the parties or to a person
named in a court order to receive the photograph.
(2) After the final determination of the action or proceeding, the
photograph shall be preserved with the permanent record maintained
by the clerk of the court. The photograph may be disposed of or
destroyed after preservation through any appropriate photographic or
electronic medium. If the photograph is disposed of, it shall be
rendered unidentifiable before the disposal. No person shall have
access to the photograph unless that person has been named in a court
order to receive the photograph. Any copy, negative, reprint, or
other duplication of the photograph in the possession of the state, a
state agency, the defendant, or an agent of the defendant, shall be
delivered to the clerk of the court for disposal whether or not the
defendant was convicted of the offense.
(b) The procedure provided by subdivision (a) shall apply to acts
listed in subdivision (c) of Section 290, and to acts under the
following provisions:
(1) Section 261.5.
(2) Section 272.
(3) Chapter 7.5 (commencing with Section 311) of Title 9 of Part
1.
(4) Chapter 7.6 (commencing with Section 313) of Title 9 of Part
1.
(c) For the purposes of this section, "photograph" means any
photographic image contained in a digital format or on any chemical,
mechanical, magnetic, or electronic medium.
SEC. 39. Section 3000.07 of the Penal Code is amended to read:
3000.07. (a) Every inmate who has been convicted for any felony
violation of a "registerable sex offense" described in subdivision
(c) of Section 290 or any attempt to commit any of the
above-mentioned offenses and who is committed to prison and released
on parole pursuant to Section 3000 or 3000.1 shall be monitored by a
global positioning system for the term of his or her parole, or for
the duration or any remaining part thereof, whichever period of time
is less.
(b) Any inmate released on parole pursuant to this section shall
be required to pay for the costs associated with the monitoring by a
global positioning system. However, the Department of Corrections and
Rehabilitation shall waive any or all of that payment upon a finding
of an inability to pay. The department shall consider any remaining
amounts the inmate has been ordered to pay in fines, assessments and
restitution fines, fees, and orders, and shall give priority to the
payment of those items before requiring that the inmate pay for the
global positioning monitoring. No inmate shall be denied parole on
the basis of his or her inability to pay for those monitoring costs.
SEC. 40. Section 3004 of the Penal Code is amended to read:
3004. (a) Notwithstanding any other law, the parole authority may
require, as a condition of release on parole or reinstatement on
parole, or as an intermediate sanction in lieu of return to prison,
that an inmate or parolee agree in writing to the use of electronic
monitoring or supervising devices for the purpose of helping to
verify his or her compliance with all other conditions of parole. The
devices shall not be used to eavesdrop or record any conversation,
except a conversation between the parolee and the agent supervising
the parolee which is to be used solely for the purposes of voice
identification.
(b) Every inmate who has been convicted for any felony violation
of a "registerable sex offense" described in subdivision (c) of
Section 290 or any attempt to commit any of the above-mentioned
offenses and who is committed to prison and released on parole
pursuant to Section 3000 or 3000.1 shall be monitored by a global
positioning system for life.
(c) Any inmate released on parole pursuant to this section shall
be required to pay for the costs associated with the monitoring by a
global positioning system. However, the Department of Corrections and
Rehabilitation shall waive any or all of that payment upon a finding
of an inability to pay. The department shall consider any remaining
amounts the inmate has been ordered to pay in fines, assessments and
restitution fines, fees, and orders, and shall give priority to the
payment of those items before requiring that the inmate pay for the
global positioning monitoring.
SEC. 41. Section 3060.6 of the Penal Code is amended to read:
3060.6. Notwithstanding any other provision of law, on or after
January 1, 2001, whenever any paroled person is returned to custody
or has his or her parole revoked for conduct described in subdivision
(c) of Section 290, the parole authority shall report the
circumstances that were the basis for the return to custody or
revocation of parole to the law enforcement agency and the district
attorney that has primary jurisdiction over the community in which
the circumstances occurred and to the Department of Corrections and
Rehabilitation. Upon the release of the paroled person, the
Department of Corrections and Rehabilitation shall inform the law
enforcement agency and the district attorney that has primary
jurisdiction over the community in which the circumstances occurred
and, if different, the county in which the person is paroled or
discharged, of the circumstances that were the basis for the return
to custody or revocation of parole.
SEC. 42. 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 that California's sex offender registration
statute is clear and is effectively implemented, it is necessary that
this act take effect immediately.