BILL NUMBER: SB 1444 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JULY 7, 1996
AMENDED IN ASSEMBLY JUNE 19, 1996
AMENDED IN SENATE MAY 20, 1996
AMENDED IN SENATE APRIL 23, 1996
AMENDED IN SENATE MARCH 28, 1996
AMENDED IN SENATE MARCH 14, 1996
INTRODUCED BY Senator Solis
FEBRUARY 1, 1996
An act to amend Section 2236.1 of the Business and Professions
Code, to amend Sections 44237, 67380, and 87010 of the Education
Code, to amend Sections 352.1, 782, and 1103 of the Evidence Code, to
amend Sections 358 and 3021 of the Family Code, to amend Sections
6254, 12970, 13960, and 19702 of the Government Code, to amend
Section 273.5 of, and to add Section 679.04 to, the Penal Code, and
to amend Sections 1732, 1767.1, 1781, 6500, 8103, and 15610.63 of the
Welfare and Institutions Code, relating to crimes.
LEGISLATIVE COUNSEL'S DIGEST
SB 1444, as amended, Solis. Crimes: domestic violence: sexual
assault.
(1) Existing law provides that a physician and surgeon's
certificate shall be suspended automatically during the time that the
holder of the certificate is incarcerated after conviction of a
felony and provides a hearing procedure to determine whether the
felony was substantially related to the qualifications, functions, or
duties of the physician and surgeon for purposes of determining the
length of the suspension. Specified crimes are conclusively presumed
to be substantially related to the qualifications, functions, or
duties of a physician and surgeon for these purposes and a hearing is
not required with respect to a conviction for these crimes.
This bill would add the crime of spousal rape to the list of
crimes that are conclusively presumed to be substantially related to
the qualifications, functions, or duties of a physician and surgeon
for these purposes.
(2) Existing law requires every person, firm, association,
partnership, or corporation offering or conducting private school
instruction on the elementary or high school level to require each
new employee having contact with minor pupils and not possessing a
valid California teaching credential, or not currently licensed by
another state agency that requires a criminal record check, to submit
2 sets of fingerprints to the Department of Justice for the purpose
of obtaining a criminal record summary from the department and the
Federal Bureau of Investigation. The Department of Justice is
required to review the Federal Bureau of Investigation criminal
record summary to ascertain whether or not a new employee has a
conviction record or an arrest pending final adjudication for any sex
offense, controlled substance offense, or crime of violence, and to
notify the private school employer, as specified, as to whether or
not a new employee has a conviction or arrest pending final
adjudication for any of those crimes.
This bill would add the crime of spousal rape to the list of sex
offenses required to be reported for these purposes.
(3) Existing law provides that the names of victims of specified
crimes may not be disclosed, except as provided, pursuant to
provisions requiring the disclosure of information concerning crimes
committed on specified postsecondary institution campuses.
This bill additionally would provide that the name of the victim
of the crime of spousal rape may not be disclosed, except as
specified, under these provisions.
(4) Existing law provides that governing boards of community
college districts may not employ or retain on employment persons
convicted of, and may suspend persons charge with, specified sex
offenses.
This bill would add specified spousal rape offenses to the list of
sex offenses for purposes of these provisions.
(5) Existing law provides that, in specified criminal proceedings,
the district attorney may move to exclude from evidence the victim's
current address and telephone number.
This bill would authorize the district attorney additionally to
exclude from evidence the address and telephone number of the victim
of spousal rape.
(6) Existing law provides a procedure to be followed in
prosecutions for specified offenses in which evidence of sexual
conduct of a complaining witness is offered to attack the credibility
of the witness.
This bill would require that this procedure additionally be
followed in a prosecution for spousal rape in which this type of
evidence is offered.
(7) Existing law provides that, in prosecutions for specified
offenses, opinion evidence, reputation evidence, and evidence of
specific instances of the complaining witness' sexual conduct is
inadmissible by the defendant to prove consent by the complaining
witness.
This bill additionally would make this provision applicable in
prosecutions for spousal rape.
(8) Under existing law, the State Department of Health Services is
required to prepare and publish a brochure with information
regarding genetic diseases and defects and AIDS, and to make the
brochure available for distribution to each applicant for a marriage
license.
This bill would require the brochure to include a prescribed
statement relating to the right of a spouse to be free from violence
and abuse within the marriage.
(9) Existing law authorizes the courts to make determinations
regarding the custody of minor children and to issue orders regarding
visitation with those children in accordance with certain standards.
Existing law makes these provisions relating to custody applicable
to various proceedings in family law, including, among others,
proceedings to determine custody or visitation pursuant to the
Domestic Violence Prevention Act.
This bill would prohibit the construction of those provisions to
authorize custody or visitation rights to be granted to any nonparent
party to a Domestic Violence Prevention Act proceeding. This bill
would declare the intent of the Legislature to restate and clarify
existing law with regard to the authority of a nonparent party to
seek custody or visitation through a Domestic Violence Prevention Act
proceeding.
(10) Existing law requires state and local law enforcement
agencies to make public specified information pertaining to crimes
and provides that information about the victim of a specified crime
may be withheld, as provided.
This bill would provide additionally that this information may be
withheld about the victim of the crime of spousal rape.
(11) Existing law requires the Fair Employment and Housing
Commission to provide to the local district attorney's office a copy
of its decision and order if it finds that a party has engaged in an
unlawful practice consisting of a specified act, including rape.
This bill additionally would require that a copy of the decision
and order be provided to the local district attorney's office if
there is a finding that a party has engaged in an unlawful practice
consisting of spousal rape.
(12) Existing law defines the term "injury" for purposes of
provisions governing the procedure by which crime victims may obtain
restitution through compensation from the Restitution Fund. These
provisions do not provide for restitution for emotional injury,
unless it is accompanied by physical injury or the threat of physical
injury. Under these provisions, a victim of a specified crime who
sustains emotional injury is presumed to have sustained physical
injury.
This bill additionally would provide that a victim of spousal rape
who sustains emotional injury is presumed to have sustained physical
injury for these purposes.
(13) Existing law requires the State Personnel Board to provide to
the local district attorney's office a copy of its decision and
order if it finds that a person has engaged in discrimination
consisting of a specified act, including rape.
This bill additionally would require that a copy of the decision
and order be provided to the local district attorney's office if
there is a finding that a person has engaged in discrimination
consisting of spousal rape.
(14) Existing law provides that, if probation is granted or the
execution or imposition of a sentence is suspended for a person
convicted of specified domestic violence offenses who previously has
been convicted of such an offense, as provided, it shall be a
condition thereof that the person be imprisoned in a county jail for
not less than 96 hours and that he or she complete a batterer's
treatment program.
This bill would increase this minimum time of imprisonment in the
county jail to not less than 15 days. By increasing this minimum
term of imprisonment in a county jail, this bill would impose a
state-mandated local program.
(15) Existing law provides that, if probation is granted or the
execution or imposition of a sentence is suspended for a person
convicted of specified domestic violence offenses who previously has
been convicted of two or more of these offenses, as provided, it
shall be a condition thereof that the person be imprisoned in a
county jail for not less than 30 days and that he or she complete a
batterer's treatment program.
This bill would increase this minimum time of imprisonment in the
county jail to not less than 60 days. By increasing this minimum
term of imprisonment in a county jail, this bill would impose a
state-mandated local program.
(16) Existing law sets forth certain rights of victims of, and
witnesses to, crimes.
This bill additionally would provide that the victim of sexual
assault or spousal rape has the right to have advocates present at
any evidentiary , medical, or physical examination or
interview by law enforcement authorities or defense attorneys.
(17) Existing law provides that a person convicted of a specified
sex offense committed when that person was 18 years of age who has
previously been convicted of any such felony may not be committed to
the Youth Authority.
This bill would add the crime of spousal rape to the list of
specified sex offenses for these purposes.
(18) Existing law requires the Youthful Offender Parole Board to
send to specified individuals written notice of the parole
consideration or review hearing, and a progress report, of a person
committed to the Department of the Youth Authority for the commission
of specified offenses.
This bill would add specified spousal rape offenses to the list of
offenses specified for these purposes.
(19) Existing law requires the Youthful Offender Parole Board to
send to specified individuals written notice of a petition and of any
hearing set for a petition to have a person committed to state
prison who is under the control of the Youth Authority for the
commission of murder or specified rape offenses.
This bill additionally would require this notice to be sent
concerning a person committed to state prison who is under the
control of the Youth Authority for the commission of specified
spousal rape offenses.
(20) Existing law provides that a mentally retarded person may not
be committed to the State Department of Developmental Services
pursuant to specified provisions of law, unless he or she is a danger
to himself or herself or others. Dangerousness to self or others
includes a finding of incompetence to stand trial when the defendant
has been charged with specified crimes.
This bill would add specified spousal rape offenses to the list of
specified crimes for these purposes.
(21) Existing law provides that a person found not guilty by
reason of insanity of any of specified crimes may not purchase or
receive, or attempt to purchase or receive, or have in his or her
possession or under his or her custody or control a firearm or other
deadly weapon. A violation of this provision is punishable as a
felony or a misdemeanor.
This bill additionally would provide that a person found not
guilty by reason of insanity of specified spousal rape offenses may
not purchase or receive, or attempt to purchase or receive, or have
in his or her possession or under his or her custody or control a
firearm or other deadly weapon. By expanding the scope of a crime,
the bill would impose a state-mandated local program.
(22) Existing law defines the term "physical abuse" to include
specified crimes for purposes of provisions requiring the reporting,
investigating, and prosecuting of acts of abuse to elder or dependent
adults.
This bill additionally would define "physical abuse" to include
the crime of spousal rape for these purposes.
(23) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 2236.1 of the Business and Professions Code is
amended to read:
2236.1. (a) A physician and surgeon's certificate shall be
suspended automatically during any time that the holder of the
certificate is incarcerated after conviction of a felony, regardless
of whether the conviction has been appealed. The Division of Medical
Quality shall, immediately upon receipt of the certified copy of the
record of conviction, determine whether the certificate of the
physician and surgeon has been automatically suspended by virtue of
his or her incarceration, and if so, the duration of that suspension.
The division shall notify the physician and surgeon of the license
suspension and of his or her right to elect to have the issue of
penalty heard as provided in this section.
(b) Upon receipt of the certified copy of the record of
conviction, if after a hearing it is determined therefrom that the
felony of which the licensee was convicted was substantially related
to the qualifications, functions, or duties of a physician and
surgeon, the Division of Medical Quality shall suspend the license
until the time for appeal has elapsed, if no appeal has been taken,
or until the judgment of conviction has been affirmed on appeal or
has otherwise become final, and until further order of the division.
The issue of substantial relationship shall be heard by an
administrative law judge from the Medical Quality Hearing Panel
sitting alone or with a panel of the division, in the discretion of
the division.
(c) Notwithstanding subdivision (b), a conviction of any crime
referred to in Section 2237, or a conviction of Section 187, 261,
262, or 288 of the Penal Code, shall be conclusively presumed to be
substantially related to the qualifications, functions, or duties of
a physician and surgeon and no hearing shall be held on this issue.
Upon its own motion or for good cause shown, the division may decline
to impose or may set aside the suspension when it appears to be in
the interest of justice to do so, with due regard to maintaining the
integrity of and confidence in the medical profession.
(d) (1) Discipline may be ordered in accordance with Section 2227,
or the Division of Licensing may order the denial of the license
when the time for appeal has elapsed, the judgment of conviction has
been affirmed on appeal, or an order granting probation is made
suspending the imposition of sentence, irrespective of a subsequent
order under Section 1203.4 of the Penal Code allowing the 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,
complaint, information, or indictment.
(2) The issue of penalty shall be heard by an administrative law
judge from the Medical Quality Hearing Panel sitting alone or with a
panel of the division, in the discretion of the division. The
hearing shall not be had until the judgment of conviction has become
final or, irrespective of a subsequent order under Section 1203.4 of
the Penal Code, an order granting probation has been made suspending
the imposition of sentence; except that a licensee may, at his or her
option, elect to have the issue of penalty decided before those time
periods have elapsed. Where the licensee so elects, the issue of
penalty shall be heard in the manner described in this section at the
hearing to determine whether the conviction was substantially
related to the qualifications, functions, or duties of a physician
and surgeon. If the conviction of a licensee who has made this
election is overturned on appeal, any discipline ordered pursuant to
this section shall automatically cease. Nothing in this subdivision
shall prohibit the division from pursuing disciplinary action based
on any cause other than the overturned conviction.
(e) The record of the proceedings resulting in the conviction,
including a transcript of the testimony therein, may be received in
evidence.
(f) The other provisions of this article setting forth a procedure
for the suspension or revocation of a physician and surgeon's
certificate shall not apply to proceedings conducted pursuant to this
section.
SEC. 2. Section 44237 of the Education Code is amended to read:
44237. (a) Commencing October 1, 1985, every person, firm,
association, partnership, or corporation offering or conducting
private school instruction on the elementary or high school level
shall require each new employee having contact with minor pupils and
not possessing a valid California state teaching credential, or not
currently licensed by another state agency that requires a criminal
record summary, to submit on or before the first day of his or her
employment, two sets of fingerprints to the Department of Justice for
the purpose of obtaining a criminal record summary from the
Department of Justice and the Federal Bureau of Investigation. This
requirement is a condition of employment. It is the intent of the
Legislature under this section to assist in the employment decision.
This section shall not be construed, however, to prohibit the
employment of any person based upon his or her criminal record.
(b) The Department of Justice shall furnish a criminal record
summary to the employer designated by a new employee submitting
fingerprints pursuant to subdivision (a). The criminal record
summary shall contain only arrests resulting in a conviction and
arrests pending final adjudication. The criminal record summary
furnished to the employer shall be maintained by the employer in a
secured file separate from personnel files, and shall be maintained
in accordance with regulations for Criminal Offender Record
Information Security as specified in Subchapter 7 (commencing with
Section 700) of Chapter 1 of Title 11 of the California Code of
Regulations.
(c) The Department of Justice shall review the criminal record
summary it obtains from the Federal Bureau of Investigation to
ascertain whether or not a new employee has a conviction record or an
arrest pending final adjudication for any sex offense, controlled
substance offense, or crime of violence. The Department of Justice
shall provide written notification to the private school employer
only as to whether or not a new employee has any convictions or
arrests pending final adjudication for any of those crimes, but shall
not provide information identifying any offense for which an
employee was convicted or arrested.
(d) The employer may request subsequent arrest service from the
Department of Justice as is provided under Section 11105.2 of the
Penal Code.
(e) As used in this section, the following terms shall have the
following definitions:
(1) "Crime of violence" means a conviction for any of the offenses
specified in subdivision (c) of Section 667.5 of the Penal Code, or
a violation or attempted violation of Chapter 8 (commencing with
Section 236) or Chapter 9 (commencing with Section 240) of Title 8 of
Part 1 of the Penal Code.
Out-of-state convictions for any violation or attempted violation
of any crime prescribed in this paragraph shall also be deemed a
crime of violence.
(2) "Controlled substance offense" means a felony conviction for a
violation or attempted violation of Division 10 (commencing with
Section 11000) of the Health and Safety Code.
Out-of-state convictions for any violation or attempted violation
of any crime prescribed in this paragraph shall also be deemed a
crime of violence.
(3) "Employer" means every person, firm, association, partnership,
or corporation offering or conducting private school instruction on
the elementary or high school level.
(4) "New employee" means any person hired to work in a private
school on or after July 1, 1985, on a regular, paid full-time or
regular, paid part-time basis who will have contact with minor
pupils.
(5) "Sex offense" means a conviction for any violation or
attempted violation of Section 220, 261, 261.5, 262, 264, 266, 266j,
267, 273a, 273d, 285, 286, 288, 289, 311.2, 311.3, 311.4, 313.1, 314,
647b, or 647d of the Penal Code, or former Section 647a of the Penal
Code, or commitment as a mentally disordered sex offender under
former Article 1 (commencing with Section 6300) of Chapter 2 of Part
2 of the Welfare and Institutions Code as repealed by Chapter 928 of
the Statutes of 1981.
Out-of-state convictions for any violation or attempted violation
of any crime prescribed in this paragraph shall also be deemed a sex
offense.
(f) Any new employee who wishes to have his or her employer
consider information relevant to his or her criminal record, such as
evidence of rehabilitation, shall be responsible for submitting these
facts or documentation to his or her employer.
(g) The Commission on Teacher Credentialing shall send on a
monthly basis to each private school a list of all teachers who have
had their state teaching credential revoked or suspended. The list
shall be identical to the list compiled for public schools in the
state. The commission shall also send on a quarterly basis a
complete and updated list of all teachers who have had their teaching
credentials revoked or suspended, excluding teachers who have had
their credentials reinstated, or who are deceased.
(h) The Department of Justice may charge each applicant for a
criminal record summary a reasonable fee to cover costs associated
with the processing, reviewing, and supplying of the criminal record
summary as required by this section. In no event, shall the fee
exceed the actual costs incurred by the department.
SEC. 3. Section 67380 of the Education Code is amended to read:
67380. (a) The governing board of each community college
district, the Trustees of the California State University, the Board
of Directors of the Hastings College of the Law, the Regents of the
University of California, and the governing board of any
postsecondary institution receiving public funds for student
financial assistance shall do all of the following:
(1) Require the appropriate officials at each campus within their
respective jurisdictions to compile records of both of the following:
(A) All occurrences reported to campus police, campus security
personnel, or campus safety authorities of, and arrests for, crimes
that are committed on campus and that involve violence, hate
violence, theft or destruction of property, illegal drugs, or alcohol
intoxication.
(B) All occurrences of noncriminal acts of hate violence reported
to, and for which a written report is prepared by, designated campus
authorities.
(2) Require any written record of a noncriminal act of hate
violence to include, but not be limited to, the following:
(A) A description of the act of hate violence.
(B) Victim characteristics.
(C) Offender characteristics, if known.
(3) Make the information concerning the crimes compiled pursuant
to subparagraph (A) of paragraph (1) available within two business
days following the request of any student or employee of, or
applicant for admission to, any campus within their respective
jurisdictions, or to the media, unless the information is the type of
information exempt from disclosure pursuant to subdivision (f) of
Section 6254 of the Government Code, in which case the information is
not required to be disclosed. Notwithstanding paragraph (2) of
subdivision (f) of Section 6254 of the Government Code, the name of a
victim of any crime defined by Section 261, 262, 264, 264.1, 273a,
273d, 273.5, 286, 288, 288a, 289, 422.6, 422.7, or 422.75 of the
Penal Code shall not be disclosed without the permission of the
victim, or the victim's parent or guardian if the victim is a minor.
For purposes of this paragraph and subparagraph (A) of paragraph
(1), the campus police, campus security personnel, and campus safety
authorities described in subparagraph (A) of paragraph (1) shall be
included within the meaning of "state or local police agency" and
"state and local law enforcement agency," as those terms are used in
subdivision (f) of Section 6254 of the Government Code.
(4) Require the appropriate officials at each campus within their
respective jurisdictions to prepare, prominently post, and copy for
distribution on request a campus safety plan that sets forth all of
the following: the availability and location of security personnel,
methods for summoning assistance of security personnel, any special
safeguards that have been established for particular facilities or
activities, any actions taken in the preceding 18 months to increase
safety, and any changes in safety precautions expected to be made
during the next 24 months. For the purposes of this section, posting
and distribution may be accomplished by including relevant safety
information in a student handbook or brochure that is made generally
available to students.
(5) Require the appropriate officials at each campus within their
respective jurisdictions to report information compiled pursuant to
paragraph (1) relating to hate violence to the governing board,
trustees, board of directors, or regents, as the case may be. The
governing board, trustees, board of directors, or regents, as the
case may be, shall, upon collection of that information from all of
the campuses within their jurisdiction, transmit a report containing
a compilation of that information to the California Postsecondary
Education Commission no later than January 1 of each year, commencing
January 1, 1993. The commission shall submit a report to the
Legislature and the Governor on July 1, 1993, and every two years
thereafter, on the type and number of incidents of hate violence
occurring in institutions of public higher education in California.
It is the intent of the Legislature that the governing board of each
community college district, the Trustees of the California State
University, the Board of Directors of the Hastings College of the
Law, the Regents of the University of California, and the governing
board of any postsecondary institution receiving public funds for
student financial assistance establish guidelines for identifying and
reporting occurrences of hate violence. It is the intent of the
Legislature that the guidelines established by these institutions of
higher education be as consistent with each other as possible. These
guidelines shall be developed in consultation with the California
Postsecondary Education Commission, the Department of Fair Employment
and Housing, and the California Association of Human Rights
Organizations. The report shall include, but not be limited to, the
following:
(A) A comparison of incidents occurring in the year being reported
to previous years for which there is hate violence data.
(B) To the extent possible, a comparison of incidents of hate
violence occurring at community colleges, the California State
University, the Hastings College of the Law, the University of
California, and postsecondary institutions receiving funds for
student financial assistance with incidents occurring at colleges and
universities in other states and private universities in California.
(C) Findings and recommendations to the Legislature on the means
of addressing hate violence at community colleges, the California
State University, the Hastings College of the Law, the University of
California, and postsecondary institutions receiving public funds for
student financial assistance.
(b) Any person who is refused information required to be made
available pursuant to subparagraph (A) of paragraph (1) of
subdivision (a) may maintain a civil action for damages against any
institution that refuses to provide the information, and the court
shall award that person an amount not to exceed one thousand dollars
($1,000) if the court finds that the institution refused to provide
the information.
(c) For purposes of this section, "hate violence" means any act of
physical intimidation or physical harassment, physical force or
physical violence, or the threat of physical force or physical
violence, that is directed against any person or group of persons, or
the property of any person or group of persons because of the
ethnicity, race, national origin, religion, sex, sexual orientation,
disability, or political or religious beliefs of that person or
group.
(d) This section does not apply to the governing board of any
private postsecondary institution receiving funds for student
financial assistance with a full-time enrollment of less than 1,000
students.
(e) This section shall apply to a campus of one of the public
postsecondary educational systems identified in subdivision (a) only
if that campus has a full-time equivalent enrollment of more than
1,000 students.
(f) Notwithstanding any other provision of this section, this
section shall not apply to the California Community Colleges unless
and until the Legislature makes funds available to the California
Community Colleges for the purposes of this section.
SEC. 4. Section 87010 of the Education Code is amended to read:
87010. "Sex offense," as used in Sections 87405, 88022, and
88123, means any one or more of the offenses listed below:
(a) Any offense defined in Section 261.5, 266, 267, 285, 286, 288,
288a, 647.6, or former Section 647a, paragraph (2) or (3) of
subdivision (a) of Section 261, paragraph (1) or (2) of subdivision
(a) of Section 262, or subdivision (a) or (d) of Section 647 of the
Penal Code.
(b) Any offense defined in former subdivision 5 of former Section
647 of the Penal Code repealed by Chapter 560 of the Statutes of
1961, or any offense defined in former subdivision 2 of former
Section 311 of the Penal Code repealed by Chapter 2147 of the
Statutes of 1961, if the offense defined in those sections was
committed prior to September 15, 1961, to the same extent that such
an offense committed prior to that date was a sex offense for the
purposes of this section prior to September 15, 1961.
(c) Any offense defined in Section 314 of the Penal Code committed
on or after September 15, 1961.
(d) Any offense defined in former subdivision 1 of former Section
311 of the Penal Code repealed by Chapter 2147 of the Statutes of
1961 committed on or after September 7, 1955, and prior to September
15, 1961.
(e) Any offense involving lewd and lascivious conduct under
Section 272 of the Penal Code committed on or after September 15,
1961.
(f) Any offense involving lewd and lascivious conduct under former
Section 702 of the Welfare and Institutions Code repealed by Chapter
1616 of the Statutes of 1961, if the offense was committed prior to
September 15, 1961, to the same extent that such an offense committed
prior to that date was a sex offense for the purposes of this
section prior to September 15, 1961.
(g) Any offense defined in Section 286 or 288a of the Penal Code
prior to the effective date of the amendment of either section
enacted at the 1975-76 Regular Session of the Legislature committed
prior to the effective date of the amendment.
(h) Any attempt to commit any of the above-mentioned offenses.
(i) Any offense committed or attempted in any other state that, if
committed or attempted in this state, would have been punishable as
one or more of the above-mentioned offenses.
SEC. 5. Section 352.1 of the Evidence Code is amended to read:
352.1. In any criminal proceeding under Section 261, 262, or
264.1, subdivision (d) of Section 286, or subdivision (d) of Section
288a of the Penal Code, or in any criminal proceeding under
subdivision (c) of Section 286 or subdivision (c) of Section 288a of
the Penal Code in which the defendant is alleged to have compelled
the participation of the victim by force, violence, duress, menace,
or threat of great bodily harm, the district attorney may, upon
written motion with notice to the defendant or the defendant's
attorney, if he or she is represented by an attorney, within a
reasonable time prior to any hearing, move to exclude from evidence
the current address and telephone number of any victim at the
hearing.
The court may order that evidence of the victim's current address
and telephone number be excluded from any hearings conducted pursuant
to the criminal proceeding if the court finds that the probative
value of the evidence is outweighed by the creation of substantial
danger to the victim.
Nothing in this section shall abridge or limit the defendant's
right to discover or investigate the information.
SEC. 6. Section 782 of the Evidence Code is amended to read:
782. (a) In any prosecution under Section 261, 262, 264.1, 286,
288, 288a, 288.5, or 289 of the Penal Code, or for assault with
intent to commit, attempt to commit, or conspiracy to commit any
crime defined in any of those sections, except where the crime is
alleged to have occurred in a local detention facility, as defined in
Section 6031.4, or in a state prison, as defined in Section 4504, if
evidence of sexual conduct of the complaining witness is offered to
attack the credibility of the complaining witness under Section 780,
the following procedure shall be followed:
(1) A written motion shall be made by the defendant to the court
and prosecutor stating that the defense has an offer of proof of the
relevancy of evidence of the sexual conduct of the complaining
witness proposed to be presented and its relevancy in attacking the
credibility of the complaining witness.
(2) The written motion shall be accompanied by an affidavit in
which the offer of proof shall be stated.
(3) If the court finds that the offer of proof is sufficient, the
court shall order a hearing out of the presence of the jury, if any,
and at the hearing allow the questioning of the complaining witness
regarding the offer of proof made by the defendant.
(4) At the conclusion of the hearing, if the court finds that
evidence proposed to be offered by the defendant regarding the sexual
conduct of the complaining witness is relevant pursuant to Section
780, and is not inadmissible pursuant to Section 352 of this code,
the court may make an order stating what evidence may be introduced
by the defendant, and the nature of the questions to be permitted.
The defendant may then offer evidence pursuant to the order of the
court.
(b) As used in this section, "complaining witness" means the
alleged victim of the crime charged, the prosecution of which is
subject to this section.
SEC. 7. Section 1103 of the Evidence Code is amended to read:
1103. (a) In a criminal action, evidence of the character or a
trait of character (in the form of an opinion, evidence of
reputation, or evidence of specific instances of conduct) of the
victim of the crime for which the defendant is being prosecuted is
not made inadmissible by Section 1101 if the evidence is:
(1) Offered by the defendant to prove conduct of the victim in
conformity with the character or trait of character.
(2) Offered by the prosecution to rebut evidence adduced by the
defendant under paragraph (1).
(b) In a criminal action, evidence of the defendant's character
for violence or trait of character for violence (in the form of an
opinion, evidence of reputation, or evidence of specific instances of
conduct) is not made inadmissible by Section 1101 if the evidence is
offered by the prosecution to prove conduct of the defendant in
conformity with the character or trait of character and is offered
after evidence that the victim had a character for violence or a
trait of character tending to show violence has been adduced by the
defendant under paragraph (1) of subdivision (a).
(c) (1) Notwithstanding any other provision of this code to the
contrary, and except as provided in this subdivision, in any
prosecution under Section 261, 262, or 264.1 of the Penal Code, or
under Section 286, 288a, or 289 of the Penal Code, or for assault
with intent to commit, attempt to commit, or conspiracy to commit a
crime defined in any of those sections, except where the crime is
alleged to have occurred in a local detention facility, as defined in
Section 6031.4, or in a state prison, as defined in Section 4504,
opinion evidence, reputation evidence, and evidence of specific
instances of the complaining witness' sexual conduct, or any of that
evidence, is not admissible by the defendant in order to prove
consent by the complaining witness.
(2) Paragraph (1) shall not be applicable to evidence of the
complaining witness' sexual conduct with the defendant.
(3) If the prosecutor introduces evidence, including testimony of
a witness, or the complaining witness as a witness gives testimony,
and that evidence or testimony relates to the complaining witness'
sexual conduct, the defendant may cross-examine the witness who gives
the testimony and offer relevant evidence limited specifically to
the rebuttal of the evidence introduced by the prosecutor or given by
the complaining witness.
(4) Nothing in this subdivision shall be construed to make
inadmissible any evidence offered to attack the credibility of the
complaining witness as provided in Section 782.
(5) As used in this section, "complaining witness" means the
alleged victim of the crime charged, the prosecution of which is
subject to this subdivision.
SEC. 8. Section 358 of the Family Code is amended to read:
358. (a) The State Department of Health Services shall prepare
and publish a brochure which shall contain the following:
(1) Information concerning the possibilities of genetic defects
and diseases and contain a listing of centers available for the
testing and treatment of genetic defects and diseases.
(2) Information concerning acquired immune deficiency syndrome
(AIDS) and the availability of testing for antibodies to the probable
causative agent of AIDS.
(3) The following statement:
"The laws of this state affirm your right to enter into this
marriage and at the same time to live within the marriage free from
violence and abuse. The laws against physical, emotional,
psychological, and sexual abuse, and battery and assault, as well as
other provisions of the criminal laws of this state, are applicable
to spouses and other family members, and violations of these laws are
punishable by either fine or imprisonment, or both."
(b) The State Department of Health Services shall make the
brochures available to county clerks who shall distribute a copy of
the brochure to each applicant for a marriage license, including
applicants for a confidential marriage license and notary publics
receiving a confidential marriage license pursuant to Section 503.
(c) Each notary public authorizing a confidential marriage under
Section 503 shall distribute a copy of the brochure to the applicants
for a confidential
marriage license.
(d) To the extent possible, the State Department of Health
Services shall seek to combine in a single brochure all statutorily
required information for marriage license applicants.
SEC. 8.5. Brochures containing the information required by Section
8 of this act, which amends Section 358 of the Family Code, shall
not be required to be prepared and published until the existing
supply of brochures is depleted.
SEC. 9. Section 3021 of the Family Code is amended to read:
3021. This part applies in any of the following:
(a) A proceeding for dissolution of marriage.
(b) A proceeding for nullity of marriage.
(c) A proceeding for legal separation of the parties.
(d) An action for exclusive custody pursuant to Section 3120.
(e) A proceeding to determine custody or visitation in a
proceeding pursuant to the Domestic Violence Prevention Act (Division
10 (commencing with Section 6200).
Nothing in this subdivision shall be construed to authorize
custody or visitation rights to be granted to any nonparent party to
a Domestic Violence Prevention Act proceeding. As used in this
section, "nonparent" does not include a biological parent, alleged or
presumed parent, adoptive parent, pending adoptive parent, foster
parent, or step parent. By amending this subdivision during the
1995-96 Regular Session, it is the intent of the Legislature to
restate existing law, and to clarify that nonparent parties may not
seek a determination of custody or visitation rights through a
Domestic Violence Prevention Act proceeding, but only through a
proceeding for dissolution or legal separation, or an action to
determine paternity or a petition for guardianship in accordance with
the Uniform Parentage Act (Part 3 (commencing with Section 7600) of
Division 12).
(f) A proceeding to determine custody or visitation in an action
pursuant to the Uniform Parentage Act (Part 3 (commencing with
Section 7600) of Division 12).
SEC. 11. Section 6254 of the Government Code is amended to read:
6254. Except as provided in Sections 6254.7 and 6254.13, nothing
in this chapter shall be construed to require disclosure of records
that are any of the following:
(a) Preliminary drafts, notes, or interagency or intra-agency
memoranda that are not retained by the public agency in the ordinary
course of business, provided that the public interest in withholding
those records clearly outweighs the public interest in disclosure.
(b) Records pertaining to pending litigation to which the public
agency is a party, or to claims made pursuant to Division 3.6
(commencing with Section 810), until the pending litigation or claim
has been finally adjudicated or otherwise settled.
(c) Personnel, medical, or similar files, the disclosure of which
would constitute an unwarranted invasion of personal privacy.
(d) Contained in or related to:
(1) Applications filed with any state agency responsible for the
regulation or supervision of the issuance of securities or of
financial institutions, including, but not limited to, banks, savings
and loan associations, industrial loan companies, credit unions, and
insurance companies.
(2) Examination, operating, or condition reports prepared by, on
behalf of, or for the use of, any state agency referred to in
paragraph (1).
(3) Preliminary drafts, notes, or interagency or intra-agency
communications prepared by, on behalf of, or for the use of, any
state agency referred to in paragraph (1).
(4) Information received in confidence by any state agency
referred to in paragraph (1).
(e) Geological and geophysical data, plant production data, and
similar information relating to utility systems development, or
market or crop reports, which are obtained in confidence from any
person.
(f) Records of complaints to, or investigations conducted by, or
records of intelligence information or security procedures of, the
office of the Attorney General and the Department of Justice, and any
state or local police agency, or any investigatory or security files
compiled by any other state or local police agency, or any
investigatory or security files compiled by any other state or local
agency for correctional, law enforcement, or licensing purposes,
except that state and local law enforcement agencies shall disclose
the names and addresses of persons involved in, or witnesses other
than confidential informants to, the incident, the description of any
property involved, the date, time, and location of the incident, all
diagrams, statements of the parties involved in the incident, the
statements of all witnesses, other than confidential informants, to
the victims of an incident, or an authorized representative thereof,
an insurance carrier against which a claim has been or might be made,
and any person suffering bodily injury or property damage or loss,
as the result of the incident caused by arson, burglary, fire,
explosion, larceny, robbery, carjacking, vandalism, vehicle theft, or
a crime as defined by subdivision (c) of Section 13960, unless the
disclosure would endanger the safety of a witness or other person
involved in the investigation, or unless disclosure would endanger
the successful completion of the investigation or a related
investigation. However, nothing in this division shall require the
disclosure of that portion of those investigative files that reflect
the analysis or conclusions of the investigating officer.
Other provisions of this subdivision notwithstanding, state and
local law enforcement agencies shall make public the following
information, except to the extent that disclosure of a particular
item of information would endanger the safety of a person involved in
an investigation or would endanger the successful completion of the
investigation or a related investigation:
(1) The full name and occupation of every individual arrested by
the agency, the individual's physical description including date of
birth, color of eyes and hair, sex, height and weight, the time and
date of arrest, the time and date of booking, the location of the
arrest, the factual circumstances surrounding the arrest, the amount
of bail set, the time and manner of release or the location where the
individual is currently being held, and all charges the individual
is being held upon, including any outstanding warrants from other
jurisdictions and parole or probation holds.
(2) Subject to the restrictions imposed by Section 841.5 of the
Penal Code, the time, substance, and location of all complaints or
requests for assistance received by the agency and the time and
nature of the response thereto, including, to the extent the
information regarding crimes alleged or committed or any other
incident investigated is recorded, the time, date, and location of
occurrence, the time and date of the report, the name and age of the
victim, the factual circumstances surrounding the crime or incident,
and a general description of any injuries, property, or weapons
involved. The name of a victim of any crime defined by Section 220,
261, 262, 264, 264.1, 273a, 273d, 273.5, 286, 288, 288a, 289, 422.6,
422.7, 422.75, or 646.9 of the Penal Code may be withheld at the
victim's request, or at the request of the victim's parent or
guardian if the victim is a minor. When a person is the victim of
more than one crime, information disclosing that the person is a
victim of a crime defined by Section 220, 261, 262, 264, 264.1, 273a,
273d, 286, 288, 288a, 289, 422.6, 422.7, 422.75, or 646.9 of the
Penal Code may be deleted at the request of the victim, or the victim'
s parent or guardian if the victim is a minor, in making the report
of the crime, or of any crime or incident accompanying the crime,
available to the public in compliance with the requirements of this
paragraph.
(3) Subject to the restrictions of Section 841.5 of the Penal Code
and this subdivision, the current address of every individual
arrested by the agency and the current address of the victim of a
crime, where the requester declares under penalty of perjury that the
request is made for a scholarly, journalistic, political, or
governmental purpose, or that the request is made for investigation
purposes by a licensed private investigator as described in Chapter
11.3 (commencing with Section 7512) of Division 3 of the Business and
Professions Code, except that the address of the victim of any crime
defined by Section 220, 261, 262, 264, 264.1, 273a, 273d, 273.5,
286, 288, 288a, 289, 422.6, 422.7, 422.75, or 646.9 of the Penal Code
shall remain confidential. Address information obtained pursuant to
this paragraph shall not be used directly or indirectly to sell a
product or service to any individual or group of individuals, and the
requester shall execute a declaration to that effect under penalty
of perjury.
(g) Test questions, scoring keys, and other examination data used
to administer a licensing examination, examination for employment, or
academic examination, except as provided for in Chapter 3
(commencing with Section 99150) of Part 65 of the Education Code.
(h) The contents of real estate appraisals or engineering or
feasibility estimates and evaluations made for or by the state or
local agency relative to the acquisition of property, or to
prospective public supply and construction contracts, until all of
the property has been acquired or all of the contract agreement
obtained. However, the law of eminent domain shall not be affected
by this provision.
(i) Information required from any taxpayer in connection with the
collection of local taxes that is received in confidence and the
disclosure of the information to other persons would result in unfair
competitive disadvantage to the person supplying the information.
(j) Library circulation records kept for the purpose of
identifying the borrower of items available in libraries, and library
and museum materials made or acquired and presented solely for
reference or exhibition purposes. The exemption in this subdivision
shall not apply to records of fines imposed on the borrowers.
(k) Records the disclosure of which is exempted or prohibited
pursuant to federal or state law, including, but not limited to,
provisions of the Evidence Code relating to privilege.
(l) Correspondence of and to the Governor or employees of the
Governor's office or in the custody of or maintained by the Governor'
s legal affairs secretary, provided that public records shall not be
transferred to the custody of the Governor's legal affairs secretary
to evade the disclosure provisions of this chapter.
(m) In the custody of or maintained by the Legislative Counsel,
except those records in the public data base maintained by the
Legislative Counsel that are described in Section 10248.
(n) Statements of personal worth or personal financial data
required by a licensing agency and filed by an applicant with the
licensing agency to establish his or her personal qualification for
the license, certificate, or permit applied for.
(o) Financial data contained in applications for financing under
Division 27 (commencing with Section 44500) of the Health and Safety
Code, where an authorized officer of the California Pollution Control
Financing Authority determines that disclosure of the financial data
would be competitively injurious to the applicant and the data is
required in order to obtain guarantees from the United States Small
Business Administration. The California Pollution Control Financing
Authority shall adopt rules for review of individual requests for
confidentiality under this section and for making available to the
public those portions of an application which are subject to
disclosure under this chapter.
(p) Records of state agencies related to activities governed by
Chapter 10.3 (commencing with Section 3512), Chapter 10.5 (commencing
with Section 3525), and Chapter 12 (commencing with Section 3560) of
Division 4 of Title 1, that reveal a state agency's deliberative
processes, impressions, evaluations, opinions, recommendations,
meeting minutes, research, work products, theories, or strategy, or
that provide instruction, advice, or training to employees who do not
have full collective bargaining and representation rights under
these chapters. Nothing in this subdivision shall be construed to
limit the disclosure duties of a state agency with respect to any
other records relating to the activities governed by the employee
relations acts referred to in this subdivision.
(q) Records of state agencies related to activities governed by
Articles 2.6 (commencing with Section 14081), 2.8 (commencing with
Section 14087.5), and 2.91 (commencing with Section 14089) of Chapter
7 of Part 3 of Division 9 of the Welfare and Institutions Code, that
reveal the special negotiator's deliberative processes, discussions,
communications, or any other portion of the negotiations with
providers of health care services, impressions, opinions,
recommendations, meeting minutes, research, work product, theories,
or strategy, or that provide instruction, advice, or training to
employees.
Except for the portion of a contract containing the rates of
payment, contracts for inpatient services entered into pursuant to
these articles, on or after April 1, 1984, shall be open to
inspection one year after they are fully executed. In the event that
a contract for inpatient services that is entered into prior to
April 1, 1984, is amended on or after April 1, 1984, the amendment,
except for any portion containing the rates of payment, shall be open
to inspection one year after it is fully executed. If the
California Medical Assistance Commission enters into contracts with
health care providers for other than inpatient hospital services,
those contracts shall be open to inspection one year after they are
fully executed.
Three years after a contract or amendment is open to inspection
under this subdivision, the portion of the contract or amendment
containing the rates of payment shall be open to inspection.
Notwithstanding any other provision of law, the entire contract or
amendment shall be open to inspection by the Joint Legislative Audit
Committee. The Joint Legislative Audit Committee shall maintain the
confidentiality of the contracts and amendments until the time a
contract or amendment is fully open to inspection by the public.
(r) Records of Native American graves, cemeteries, and sacred
places maintained by the Native American Heritage Commission.
(s) A final accreditation report of the Joint Commission on
Accreditation of Hospitals that has been transmitted to the State
Department of Health Services pursuant to subdivision (b) of Section
1282 of the Health and Safety Code.
(t) Records of a local hospital district, formed pursuant to
Division 23 (commencing with Section 32000) of the Health and Safety
Code, or the records of a municipal hospital, formed pursuant to
Article 7 (commencing with Section 37600) or Article 8 (commencing
with Section 37650) of Chapter 5 of Division 3 of Title 4 of this
code, that relate to any contract with an insurer or nonprofit
hospital service plan for inpatient or outpatient services for
alternative rates pursuant to Section 10133 or 11512 of the Insurance
Code. However, the record shall be open to inspection within one
year after the contract is fully executed.
(u) Information contained in applications for licenses to carry
firearms issued pursuant to Section 12050 of the Penal Code by the
sheriff of a county or the chief or other head of a municipal police
department that indicates when or where the applicant is vulnerable
to attack or that concerns the applicant's medical or psychological
history or that of members of his or her family.
(v) (1) Records of the Major Risk Medical Insurance Program
related to activities governed by Part 6.3 (commencing with Section
12695), and Part 6.5 (commencing with Section 12700), of Division 2
of the Insurance Code, and that reveal the deliberative processes,
discussions, communications, or any other portion of the negotiations
with health plans, or the impressions, opinions, recommendations,
meeting minutes, research, work product, theories, or strategy of the
board or its staff, or records that provide instructions, advice, or
training to employees.
(2) (A) Except for the portion of a contract that contains the
rates of payment, contracts for health coverage entered into pursuant
to Part 6.3 (commencing with Section 12695), or Part 6.5 (commencing
with Section 12700), of Division 2 of the Insurance Code, on or
after July 1, 1991, shall be open to inspection one year after they
have been fully executed.
(B) In the event that a contract for health coverage that is
entered into prior to July 1, 1991, is amended on or after July 1,
1991, the amendment, except for any portion containing the rates of
payment shall be open to inspection one year after the amendment has
been fully executed.
(3) Three years after a contract or amendment is open to
inspection pursuant to this subdivision, the portion of the contract
or amendment containing the rates of payment shall be open to
inspection.
(4) Notwithstanding any other provision of law, the entire
contract or amendments to a contract shall be open to inspection by
the Joint Legislative Audit Committee. The Joint Legislative Audit
Committee shall maintain the confidentiality of the contracts and
amendments thereto, until the contract or amendments to a contract is
open to inspection pursuant to paragraph (3).
(w) (1) Records of the Major Risk Medical Insurance Program
related to activities governed by Chapter 14 (commencing with Section
10700) of Part 2 of Division 2 of the Insurance Code, and that
reveal the deliberative processes, discussions, communications, or
any other portion of the negotiations with health plans, or the
impressions, opinions, recommendations, meeting minutes, research,
work product, theories, or strategy of the board or its staff, or
records that provide instructions, advice, or training to employees.
(2) Except for the portion of a contract that contains the rates
of payment, contracts for health coverage entered into pursuant to
Chapter 14 (commencing with Section 10700) of Part 2 of Division 2 of
the Insurance Code, on or after January 1, 1993, shall be open to
inspection one year after they have been fully executed.
(3) Notwithstanding any other provision of law, the entire
contract or amendments to a contract shall be open to inspection by
the Joint Legislative Audit Committee. The Joint Legislative Audit
Committee shall maintain the confidentiality of the contracts and
amendments thereto, until the contract or amendments to a contract is
open to inspection pursuant to paragraph (2).
(x) Financial data contained in applications for registration, or
registration renewal, as a service contractor filed with the Director
of the Department of Consumer Affairs pursuant to Chapter 20
(commencing with Section 9800) of Division 3 of the Business and
Professions Code, for the purpose of establishing the service
contractor's net worth, or, financial data regarding the funded
accounts held in escrow for service contracts held in force in this
state by a service contractor.
Nothing in this section prevents any agency from opening its
records concerning the administration of the agency to public
inspection, unless disclosure is otherwise prohibited by law.
Nothing in this section prevents any health facility from
disclosing to a certified bargaining agent relevant financing
information pursuant to Section 8 of the National Labor Relations
Act.
SEC. 12. Section 12970 of the Government Code is amended to read:
12970. (a) If the commission finds that a respondent has engaged
in any unlawful practice under this part, it shall state its findings
of fact and determination and shall issue and cause to be served on
the parties an order requiring the respondent to cease and desist
from the unlawful practice and to take action, including, but not
limited to, any of the following:
(1) The hiring, reinstatement or upgrading of employees, with or
without backpay.
(2) The admission or restoration to membership in any respondent
labor organization.
(3) The payment of actual damages as may be available in civil
actions under this part, except as otherwise provided in this
section. Actual damages include, but are not limited to, damages for
emotional injuries if the accusation or amended accusation prays for
those damages. Actual damages awarded under this section for
emotional pain, suffering, inconvenience, mental anguish, loss of
enjoyment of life, and other nonpecuniary losses shall not exceed, in
combination with the amounts of any administrative fines imposed
pursuant to subdivision (c), fifty thousand dollars ($50,000) per
aggrieved person per respondent.
(4) Notwithstanding paragraph (3), the payment of actual damages
up to one hundred fifty thousand dollars ($150,000) assessed against
a respondent for a violation of Section 51.7 of the Civil Code, as an
unlawful practice under this part.
(5) Affirmative or prospective relief to prevent the recurrence of
the unlawful practice.
(6) A report to the commission as to the manner of compliance with
the commission's order.
(b) An unlawful practice under this part alone is not sufficient
to sustain an award of actual damages pursuant to this section. The
department is required to prove, by a preponderance of the evidence,
that an aggrieved person has sustained actual injury. In determining
whether to award damages for emotional injuries, and the amount of
any award for these damages, the commission shall consider relevant
evidence of the effects of discrimination on the aggrieved person
with respect to any or all of the following:
(1) Physical and mental well-being.
(2) Personal integrity, dignity, and privacy.
(3) Ability to work, earn a living, and advance in his or her
career.
(4) Personal and professional reputation.
(5) Family relationships.
(6) Access to the job and ability to associate with peers and
coworkers.
The commission shall also consider the duration of the emotional
injury, and whether that injury was caused or exacerbated by an
aggrieved person's knowledge of a respondent's failure to respond
adequately to, or to correct, the discriminatory practice or by the
egregiousness of the discriminatory practice.
(c) In addition to the foregoing, in order to vindicate the
purposes and policies of this part, the commission may assess against
the respondent, if the accusation or amended accusation so prays, an
administrative fine per aggrieved person per respondent, the amount
of which shall be determined in accordance with the combined amount
limitation of paragraph (3) of subdivision (a).
(d) In determining whether to assess an administrative fine
pursuant to this section, the commission shall find that the
respondent has been guilty of oppression, fraud, or malice, expressed
or implied, as required by Section 3294 of the Civil Code. In
determining the amount of fines, the commission shall consider
relevant evidence of, including, but not limited to, the following:
(1) Willful, intentional, or purposeful conduct.
(2) Refusal to prevent or eliminate discrimination.
(3) Conscious disregard for the rights of employees.
(4) Commission of unlawful conduct.
(5) Intimidation or harassment.
(6) Conduct without just cause or excuse.
(7) Multiple violations of the Fair Employment and Housing Act.
The moneys derived from an administrative fine assessed pursuant
to this subdivision shall be deposited in the General Fund. No
administrative fine shall be assessed against a public entity. The
commission shall have no authority to award punitive damages as a
remedy for a finding of employment discrimination.
(e) In addition to the foregoing, in order to vindicate the
purposes and policies of this part, the commission may assess against
the respondent if the accusation or amended accusation so prays, a
civil penalty of up to twenty-five thousand dollars ($25,000) to be
awarded to a person denied any right provided for by Section 51.7 of
the Civil Code, as an unlawful practice prohibited under this part.
(f) If the commission finds the respondent has engaged in an
unlawful practice under this part, and the respondent is licensed or
granted a privilege by an agency of the state to do business, provide
a service, or conduct activities, and the unlawful practice is
determined to have occurred in connection with the exercise of that
license or privilege, the commission shall provide the licensing or
privilege granting agency with a copy of its decision or order.
(g) If the commission finds that a respondent has not engaged in
an unlawful practice under this part, the commission shall state its
findings of fact and determination and issue and cause to be served
on the parties an order dismissing the accusation as to that
respondent.
(h) Any findings and determination made or any order issued
pursuant to this section shall be written and shall indicate the
identity of the members of the commission who participated herein.
(i) Any order issued by the commission shall have printed on its
face references to the rights of appeal of any party to the
proceeding to whose position the order is adverse.
(j) If the commission finds that a respondent has engaged in an
unlawful practice under this part, and it appears that this practice
consisted of acts described in Section 243.4, 261, 262, 286, 288,
288a, or 289 of the Penal Code, the commission, with the consent of
the complainant, shall provide the local district attorney's office
with a copy of its decision and order.
(k) Notwithstanding Section 12960, if the commission finds that a
respondent has engaged in unlawful discrimination in housing under
Section 12948, the remedies afforded in Section 12987 or any other
provision in this part pertaining to housing discrimination, shall
apply.
SEC. 13. Section 13960 of the Government Code is amended to read:
13960. As used in this article:
(a) (1) "Victim" means a resident of the State of California, a
member of the military stationed in California, or a family member
living with a member of the military stationed in California who
sustains injury or death as a direct result of a crime.
(2) "Derivative victim" means a resident of California who is one
of the following:
(A) At the time of the crime was the parent, sibling, spouse, or
child of the victim.
(B) At the time of the crime was
living in the household of the victim.
(C) A person who had previously lived in the household of the
victim for a period of not less than two years in a relationship
substantially similar to a relationship listed in subparagraph (A).
(D) Is another family member of the victim, including the victim's
fiance, and witnessed the crime.
(b) "Injury" includes physical or emotional injury, or both.
However, this article does not apply to emotional injury unless that
injury is incurred by a victim who also sustains physical injury or
threat of physical injury. For purposes of this article, a victim of
a crime committed in violation of Section 261, 262, 270, 270a, 270c,
271, 272, 273a, 273b, 273d, 285, 286, 288, 288.1, 288a, or 289 of the
Penal Code, who sustains emotional injury is presumed to have
sustained physical injury.
(c) "Crime" means a crime or public offense that would constitute
a misdemeanor or a felony if committed in California by a competent
adult that results in injury to a resident of this state, including a
crime or public offense, wherever it may take place, when the
resident is temporarily absent from the state. No act involving the
operation of a motor vehicle, aircraft, or water vehicle that results
in injury or death constitutes a crime for the purposes of this
article, except that a crime shall include any of the following:
(1) Injury or death intentionally inflicted through the use of a
motor vehicle, aircraft, or water vehicle.
(2) Injury or death caused by a driver in violation of Section
20001 of the Vehicle Code.
(3) Injury or death caused by a person who is under the influence
of any alcoholic beverage or drug.
(4) Injury or death caused by a driver of a motor vehicle in the
immediate act of fleeing the scene of a crime in which he or she
knowingly and willingly participated.
For the purpose of the limitations imposed by this article, a
crime shall mean one act or series of related acts arising from the
same course of conduct with the same perpetrator or perpetrators.
(d) "Pecuniary loss" means the following expenses for which the
victim or derivative victim has not been and will not be reimbursed
from any other source:
(1) The amount of medical or medical-related expenses incurred by
the victim, including in-patient psychological or psychiatric
expenses, and including, but not limited to, eyeglasses, hearing
aids, dentures, or any prosthetic device taken, lost, or destroyed
during the commission of the crime, or the use of which became
necessary as a direct result of the crime.
(2) The amount of out-patient mental health counseling related
expenses that became necessary as a direct result of the crime.
These counseling services may be provided by a person licensed as a
clinical social worker or a person licensed as a marriage, family,
and child counselor practicing within the scope of licensure, or
within the scope of his or her respective practice acts.
(3) The loss of income that the victim or the loss of support that
the derivative victim has incurred or will incur as a direct result
of an injury or death.
(4) Pecuniary loss also includes nonmedical remedial care and
treatment rendered in accordance with a religious method of healing
recognized by state law.
(5) The amount of family psychiatric, psychological, or mental
health counseling expenses necessary as a direct result of the crime
for the successful treatment of the victim, provided to family
members of the victim in the presence of the victim, whether or not
the family member relationship existed at the time of the crime.
(e) "Board" means the State Board of Control.
(f) "Victim centers" means those centers as specified in Section
13835.2 of the Penal Code.
(g) "Peer counselor" means a provider of mental health counseling
services who has completed a specialized course in rape crisis
counseling skills development, participates in continuing education
in rape crisis counseling skills development, and provides rape
crisis counseling in consultation with a mental health practitioner
licensed within the State of California.
SEC. 14. Section 19702 of the Government Code is amended to read:
19702. (a) A person shall not be discriminated against under this
part because of sex, race, religious creed, color, national origin,
ancestry, marital status, physical disability, or mental disability.
A person shall not be retaliated against because he or she has
opposed any practice made an unlawful employment practice, or made a
charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this part. For purposes
of this article, "discrimination" includes harassment. This
subdivision is declaratory of existing law.
(b) As used in this section, "physical disability" includes, but
is not limited to, impairment of sight, hearing, or speech, or
impairment of physical ability because of amputation or loss of
function or coordination, or any other health impairment which
requires special education or related services.
(c) As used in this section, "mental disability" includes, but is
not limited to, any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities.
(d) Notwithstanding subdivisions (b) and (c), if the definition of
disability used in the Americans with Disabilities Act of 1990
(Public Law 101-336) would result in broader protection of the civil
rights of individuals with a mental disability or physical
disability, as defined in subdivision (b) or (c), then that broader
protection shall be deemed incorporated by reference into, and shall
prevail over conflicting provisions of, the definitions in
subdivisions (b) and (c). The definitions of subdivisions (b) and
(c) shall not be deemed to refer to or include conditions excluded
from the federal definition of "disability" pursuant to Section 511
of the Americans with Disabilities Act of 1990 (42 U.S.C. Sec.
12211).
(e) If the board finds that a person has engaged in discrimination
under this part, and it appears that this practice consisted of acts
described in Section 243.4, 261, 262, 286, 288, 288a, or 289 of the
Penal Code, the board, with the consent of the complainant, shall
provide the local district attorney's office with a copy of its
decision and order.
(f) If the board finds that discrimination has occurred in
violation of this part, the board shall issue and cause to be served
on the appointing authority an order requiring the appointing
authority to cause the discrimination to cease and desist and to take
any action, including, but not limited to, hiring, reinstatement or
upgrading of employees, with or without backpay, and compensatory
damages, which, in the judgment of the board, will effectuate the
purposes of this part. Consistent with this authority, the board may
establish rules governing the award of compensatory damages. The
order shall include a requirement of reporting the manner of
compliance.
(g) Any person claiming discrimination within the state civil
service may submit a complaint which shall be in writing and set
forth the particulars of the alleged discrimination, the name of the
appointing authority, the persons alleged to have committed the
unlawful discrimination, and any other information that may be
required by the board. The complaint shall be filed with the
appointing authority or, in accordance with board rules, with the
board itself.
(h) Complaints shall be filed within one year of the alleged
unlawful discrimination or the refusal to act in accordance with this
section, except that this period may be extended for not to exceed
90 days following the expiration of that year, if a person allegedly
aggrieved by unlawful discrimination first obtained knowledge of the
facts of the alleged unlawful discrimination after the expiration of
one year from the date of its occurrence. Complaints of
discrimination in adverse actions or rejections on probation shall be
filed in accordance with Sections 19175 and 19575.
(i) When an employee of the appointing authority refuses, or
threatens to refuse, to cooperate in the investigation of a complaint
of discrimination, the appointing authority may seek assistance from
the board. The board may provide for direct investigation or
hearing of the complaint, the use of subpoenas, or any other action
which will effect the purposes of this section.
SEC. 15. Section 273.5 of the Penal Code is amended to read:
273.5. (a) Any person who willfully inflicts upon his or her
spouse, or any person who willfully inflicts upon any person with
whom he or she is cohabiting, or any person who willfully inflicts
upon any person who is the mother or father of his or her child,
corporal injury resulting in a traumatic condition, is guilty of a
felony, and upon conviction thereof shall be punished by imprisonment
in the state prison for two, three, or four years, or in a county
jail for not more than one year, or by a fine of up to six thousand
dollars ($6,000), or by both.
(b) Holding oneself out to be the husband or wife of the person
with whom one is cohabiting is not necessary to constitute
cohabitation as the term is used in this section.
(c) As used in this section, "traumatic condition" means a
condition of the body, such as a wound or external or internal
injury, whether of a minor or serious nature, caused by a physical
force.
(d) For the purpose of this section, a person shall be considered
the father or mother of another person's child if the alleged male
parent is presumed the natural father under Sections 7611 and 7612 of
the Family Code.
(e) In any case in which a person is convicted of violating this
section and probation is granted, the court shall require
participation in a batterer's treatment program as a condition of
probation, as specified in Section 1203.097.
(f) If probation is granted, or the execution or imposition of a
sentence is suspended, for any person convicted under subdivision (a)
who previously has been convicted under subdivision (a) for an
offense that occurred within seven years of the offense of the second
conviction, the person shall be punished pursuant to subdivision (a)
of Section 273.56.
(g) If probation is granted, or the execution or imposition of a
sentence is suspended, for any person convicted under subdivision (a)
who previously has been convicted of two or more violations of
subdivision (a) for offenses that occurred within seven years of the
most recent conviction, the person shall be punished pursuant to
subdivision (b) of Section 273.56.
(h) If probation is granted upon conviction of a violation of
subdivision (a), the conditions of probation may include, in lieu of
a fine, one or both of the following requirements:
(1) That the defendant make payments to a battered women's
shelter, up to a maximum of five thousand dollars ($5,000), pursuant
to Section 1203.097.
(2) That the defendant reimburse the victim for reasonable costs
of counseling and other reasonable expenses that the court finds are
the direct result of the defendant's offense.
For any order to pay a fine, make payments to a battered women's
shelter, or pay restitution as a condition of probation under this
subdivision, the court shall make a determination of the defendant's
ability to pay. In no event shall any order to make payments to a
battered women's shelter be made if it would impair the ability of
the defendant to pay direct restitution to the victim or
court-ordered child support. Where the injury to a married person is
caused in whole or in part by the criminal acts of his or her spouse
in violation of this section, the community property may not be used
to discharge the liability of the offending spouse for restitution
to the injured spouse, required by Section 1203.04, or to a shelter
for costs with regard to the injured spouse and dependents, required
by this section, until all separate property of the offending spouse
is exhausted.
SEC. 16. Section 679.04 is added to the Penal Code, to read:
679.04. A victim of sexual assault, as defined in subdivisions
(a) and (b) of Section 11165.1, or spousal rape has the right to have
advocates present at any evidentiary , medical, or
physical examination or interview by law enforcement authorities or
defense attorneys. As used in this section, "advocates" means a
sexual assault victim counselor, as defined in Section 1035.2 of the
Evidence Code, and at least one additional support person chosen by
the victim.
SEC. 17. Section 1732 of the Welfare and Institutions Code is
amended to read:
1732. No person convicted of violating Section 261, 262, or
264.1, subdivision (b) of Section 288, Section 289, or of sodomy or
oral copulation by force, violence, duress, menace or threat of great
bodily harm as provided in Section 286 or 288a of the Penal Code
committed when that person was 18 years of age who has previously
been convicted of any such felony shall be committed to the Youth
Authority. This section does not prohibit the adjournment of
criminal proceedings pursuant to Division 3 (commencing with Section
3000) or Division 6 (commencing with Section 6000) of the Welfare and
Institutions Code.
SEC. 18. Section 1767.1 of the Welfare and Institutions Code is
amended to read:
1767.1. At least 30 days before the Youthful Offender Parole
Board meets to review or consider the parole of any person who has
been committed to the control of the Department of the Youth
Authority for the commission of any offense described in subdivision
(b), paragraph (2) of subdivision (d), or subdivision (e) of Section
707, or for the commission of an offense in violation of paragraph
(2) of subdivision (a) of Section 262 or paragraph (3) of subdivision
(a) of Section 261 of the Penal Code, the board shall send written
notice of the hearing to each of the following persons: the judge of
the court that committed the person to the authority, the attorney
for the person, the district attorney of the county from which the
person was committed, and the law enforcement agency that
investigated the case. The Youthful Offender Parole Board shall also
send a progress report regarding the ward, prepared by the
Department of the Youth Authority, to the judge of the court that
committed the person at the same time it sends the written notice to
the judge.
Each of the persons so notified shall have the right to submit a
written statement to the board at least 10 days prior to the
scheduled hearing for the board's consideration at the hearing.
Nothing in this subdivision shall be construed to permit any person
so notified to attend the hearing. With respect to the parole of any
person over the age of 18 years, the presiding officer shall state
findings and supporting reasons for the decision of the board at the
hearing. The findings and reasons shall be reduced to writing, and
shall be made available for inspection by members of the public no
later than 30 days from the date of the hearing.
SEC. 19. Section 1781 of the Welfare and Institutions Code is
amended to read:
1781. Upon the filing of a petition under this article, the court
shall notify the person whose liberty is involved, and if he or she
is a minor, his or her parent or guardian if practicable, of the
application and shall afford him or her an opportunity to appear in
court with the aid of counsel and of process to compel attendance of
witnesses and production of evidence. When he or she is unable to
provide his or her own counsel, the court shall appoint counsel to
represent him or her.
In the case of any person who is the subject of such a petition
and who is under the control of the Youth Authority for the
commission of any offense of rape in violation of paragraph (1) or
(2) of subdivision (a) of Section 262 or subdivision (2) or
subdivision (3) of Section 261 of the Penal Code, or murder, the
Youthful Offender Parole Board shall send written notice of the
petition and of any hearing set for the petition to each of the
following persons: the attorney for the person who is the subject of
the petition, the district attorney of the county from which the
person was committed, and the law enforcement agency that
investigated the case. The board shall also send written notice to
the victim of the rape or the next of kin of the person murdered if
he or she requests notice from the board and keeps it apprised of his
or her current mailing address. Notice shall be sent at least 30
days before the hearing.
SEC. 20. Section 6500 of the Welfare and Institutions Code is
amended to read:
6500. On and after July 1, 1971, no mentally retarded person may
be committed to the State Department of Developmental Services
pursuant to this article, unless he or she is a danger to himself or
herself or others. For the purposes of this article, dangerousness
to self or others shall be considered to include, but not be limited
to, a finding of incompetence to stand trial pursuant to the
provisions of Chapter 6 (commencing with Section 1367) of Title 10 of
Part 2 of the Penal Code when the defendant has been charged with
murder, mayhem, aggravated mayhem, a violation of Section 207, 209,
or 209.5 of the Penal Code in which the victim suffers intentionally
inflicted great bodily injury, robbery perpetrated by torture or by a
person armed with a dangerous or deadly weapon or in which the
victim suffers great bodily injury, carjacking perpetrated by torture
or by a person armed with a dangerous or deadly weapon or in which
the victim suffers great bodily injury, a violation of subdivision
(b) of Section 451 of the Penal Code, a violation of paragraph (1) or
(2) of subdivision (a) of Section 262 or paragraph (2) or (3) of
subdivision (a) of Section 261 of the Penal Code, a violation of
Section 459 of the Penal Code in the first degree, assault with
intent to commit murder, a violation of Section 220 of the Penal Code
in which the victim suffers great bodily injury, a violation of
Section 12303.1, 12303.3, 12308, 12309, or 12310 of the Penal Code,
or if the defendant has been charged with a felony involving death,
great bodily injury, or an act that poses a serious threat of bodily
harm to another person.
Any order of commitment made pursuant to this article shall expire
automatically one year after the order of commitment is made. This
section shall not be construed to prohibit any party enumerated in
Section 6502 from filing subsequent petitions for additional periods
of commitment. In the event subsequent petitions are filed, the
procedures followed shall be the same as with an initial petition for
commitment.
In any proceedings conducted under the authority of this article
the alleged mentally retarded person shall be informed of his or her
right to counsel by the court; and if the person does not have an
attorney for the proceedings the court shall immediately appoint the
public defender or other attorney to represent him or her. The
person shall pay the cost for that legal service if he or she is able
to do so. At any judicial proceeding under the provisions of this
article, allegations that a person is mentally retarded and a danger
to himself or herself or to others shall be presented by the district
attorney for the county unless the board of supervisors, by
ordinance or resolution, delegates this authority to the county
counsel.
SEC. 21. Section 8103 of the Welfare and Institutions Code is
amended to read:
8103. (a) (1) No person who after October 1, 1955, has been
adjudicated by a court of any state to be a danger to others as a
result of a mental disorder or mental illness, or who has been
adjudicated to be a mentally disordered sex offender, shall purchase
or receive, or attempt to purchase or receive, or have in his or her
possession, custody, or control any firearm or any other deadly
weapon unless there has been issued to the person a certificate by
the court of adjudication upon release from treatment or at a later
date stating that the person may possess a firearm or any other
deadly weapon without endangering others, and the person has not,
subsequent to the issuance of the certificate, again been adjudicated
by a court to be a danger to others as a result of a mental disorder
or mental illness.
(2) The court shall immediately notify the Department of Justice
of the court order finding the individual to be a person described in
paragraph (1). The court shall also notify the Department of
Justice of any certificate issued as described in paragraph (1).
(b) (1) No person who has been found, pursuant to Section 1026 of
the Penal Code or the law of any other state or the United States,
not guilty by reason of insanity of murder, mayhem, a violation of
Section 207, 209, or 209.5 of the Penal Code in which the victim
suffers intentionally inflicted great bodily injury, carjacking or
robbery in which the victim suffers great bodily injury, a violation
of Section 451 or 452 of the Penal Code involving a trailer coach, as
defined in Section 635 of the Vehicle Code, or any dwelling house, a
violation of paragraph (1) or (2) of subdivision (a) of Section 262
or paragraph (2) or (3) of subdivision (a) of Section 261 of the
Penal Code, a violation of Section 459 of the Penal Code in the first
degree, assault with intent to commit murder, a violation of Section
220 of the Penal Code in which the victim suffers great bodily
injury, a violation of Section 12303.1, 12303.2, 12303.3, 12308,
12309, or 12310 of the Penal Code, or of a felony involving death,
great bodily injury, or an act which poses a serious threat of bodily
harm to another person, or a violation of the law of any other state
or the United States that includes all the elements of any of the
above felonies as defined under California law, shall purchase or
receive, or attempt to purchase or receive, or have in his or her
possession or under his or her custody or control any firearm or any
other deadly weapon.
(2) The court shall immediately notify the Department of Justice
of the court order finding the person to be a person described in
paragraph (1).
(c) (1) No person who has been found, pursuant to Section 1026 of
the Penal Code or the law of any other state or the United States,
not guilty by reason of insanity of any crime other than those
described in subdivision (b) shall purchase or receive, or attempt to
purchase or receive, or shall have in his or her possession,
custody, or control any firearm or any other deadly weapon unless the
court of commitment has found the person to have recovered sanity,
pursuant to Section 1026.2 of the Penal Code or the law of any other
state or the United States.
(2) The court shall immediately notify the Department of Justice
of the court order finding the person to be a person described in
paragraph (1). The court shall also notify the Department of Justice
when it finds that the person has recovered his or her sanity.
(d) (1) No person found by a court to be mentally incompetent to
stand trial, pursuant to Section 1370 or 1370.1 of the Penal Code or
the law of any other state or the United States, shall purchase or
receive, or attempt to purchase or receive, or shall have in his or
her possession, custody, or control any firearm or any other deadly
weapon, unless there has been a finding with respect to the person of
restoration to competence to stand trial by the committing court,
pursuant to Section 1372 of the Penal Code or the law of any other
state or the United States.
(2) The court shall immediately notify the Department of Justice
of the court order finding the person to be mentally incompetent as
described in paragraph (1). The court shall also notify the
Department of Justice when it finds that the person has recovered his
or her competence.
(e) (1) No person who has been placed under conservatorship by a
court, pursuant to Section 5350 or the law of any other state or the
United States, because the person is gravely disabled as a result of
a mental disorder or impairment by chronic alcoholism shall purchase
or receive, or attempt to purchase or receive, or shall have in his
or her possession, custody, or control any firearm or any other
deadly weapon while under the conservatorship if, at the time the
conservatorship was ordered or thereafter, the court which imposed
the conservatorship found that possession of a firearm or any other
deadly weapon by the person would present a danger to the safety of
the person or to others. Upon placing any person under
conservatorship, and prohibiting firearm or any other deadly weapon
possession by the person, the court shall notify the person of this
prohibition.
(2) The court shall immediately notify the Department of Justice
of the court order placing the person under conservatorship and
prohibiting firearm or any other deadly weapon possession by the
person as described in paragraph (1). The notice shall include the
date the conservatorship was imposed and the date the conservatorship
is to be terminated. If the conservatorship is subsequently
terminated before the date listed in the notice to the Department of
Justice or the court subsequently finds that possession of a firearm
or any other deadly weapon by the person would no longer present a
danger to the safety of the person or others, the court shall
immediately notify the Department of Justice.
(3) All information provided to the Department of Justice pursuant
to paragraph (2) shall be kept confidential, separate, and apart
from all other records maintained by the department, and shall be
used only to determine eligibility to purchase or possess firearms or
other deadly weapons. Any person who knowingly furnishes that
information for any other purpose is guilty of a misdemeanor. All
the information concerning any person shall be destroyed upon receipt
by the Department of Justice of notice of the termination of
conservatorship as to that person pursuant to paragraph (2).
(f) (1) No person who has been (A) taken into custody as provided
in Section 5150 because that person is a danger to himself, herself,
or to others, (B) assessed within the meaning of Section 5151, and
(C) admitted to a designated facility within the meaning of Sections
5151 and 5152 because that person is a danger to himself, herself, or
others, shall own, possess, control, receive, or purchase, or
attempt to own, possess, control, receive, or purchase any firearm
for a period of five years after the person is released from the
facility. A person described in the preceding sentence, however, may
own, possess, control,
receive, or purchase, or attempt to own, possess, control, receive,
or purchase any firearm if the superior court has, pursuant to
paragraph (4), upon petition of the person, found, by a preponderance
of the evidence, that the person is likely to use firearms in a safe
and lawful manner.
(2) For each person subject to this subdivision, the facility
shall immediately, on the date of admission, submit a report to the
Department of Justice, on a form prescribed by the department,
containing information that includes, but is not limited to, the
identity of the person and the legal grounds upon which the person
was admitted to the facility.
Any report prescribed by this subdivision shall be confidential,
except for purposes of the court proceedings described in this
subdivision and for determining the eligibility of the person to own,
possess, control, receive, or purchase a firearm.
(3) Prior to, or concurrent with, the discharge, the facility
shall inform a person subject to this subdivision that he or she is
prohibited from owning, possessing, controlling, receiving, or
purchasing any firearm for a period of five years. Simultaneously,
the facility shall inform the person that he or she may petition a
court, as provided in this subdivision, for an order permitting the
person to own, possess, control, receive, or purchase a firearm.
(4) Any person who is subject to paragraph (1) may petition the
superior court of his or her county of residence for an order that he
or she may own, possess, control, receive, or purchase firearms. At
the time the petition is filed, the clerk of the court shall set a
hearing date and notify the person, the Department of Justice, and
the district attorney. The People of the State of California shall
be the respondent in the proceeding and shall be represented by the
district attorney. Upon motion of the district attorney, or on its
own motion, the superior court may transfer the petition to the
county in which the person resided at the time of his or her
detention, the county in which the person was detained, or the county
in which the person was evaluated or treated. Within seven days
after receiving notice of the petition, the Department of Justice
shall file copies of the reports described in this section with the
superior court. The reports shall be disclosed upon request to the
person and to the district attorney. The district attorney shall be
entitled to a continuance of the hearing to a date of not less than
14 days after the district attorney was notified of the hearing date
by the clerk of the court. The district attorney may notify the
county mental health director of the petition who shall provide
information about the detention of the person that may be relevant to
the court and shall file that information with the superior court.
That information shall be disclosed to the person and to the district
attorney. The court, upon motion of the person subject to paragraph
(1) establishing that confidential information is likely to be
discussed during the hearing that would cause harm to the person,
shall conduct the hearing in camera with only the relevant parties
present, unless the court finds that the public interest would be
better served by conducting the hearing in public. Notwithstanding
any other law, declarations, police reports, including criminal
history information, and any other material and relevant evidence
that is not excluded under Section 352 of the Evidence Code, shall be
admissible at the hearing under this section. If the court finds by
a preponderance of the evidence that the person would be likely to
use firearms in a safe and lawful manner, the court may order that
the person may own, control, receive, possess, or purchase firearms.
A copy of the order shall be submitted to the Department of Justice.
Upon receipt of the order, the Department of Justice shall delete
any reference to the prohibition against firearms from the person's
state summary criminal history information.
(5) Nothing in this subdivision shall prohibit the use of reports
filed pursuant to this section to determine the eligibility of
persons to own, possess, control, receive, or purchase a firearm if
the person is the subject of a criminal investigation, a part of
which involves the ownership, possession, control, receipt, or
purchase of a firearm.
(g) (1) No person who has been certified for intensive treatment
under Section 5250, 5260, or 5270.15 shall own, possess, control,
receive, or purchase, or attempt to own, possess, control, receive,
or purchase any firearm for a period of five years.
Any person who meets the criteria contained in subdivision (e) or
(f) who is released from intensive treatment shall nevertheless, if
applicable, remain subject to the prohibition contained in
subdivision (e) or (f).
(2) For each person certified for intensive treatment under
paragraph (1), the facility shall immediately submit a report to the
Department of Justice, on a form prescribed by the department,
containing information regarding the person, including, but not
limited to, the legal identity of the person and the legal grounds
upon which the person was certified. Any report submitted pursuant
to this paragraph shall only be used for the purposes specified in
paragraph (2) of subdivision (f).
(3) Prior to, or concurrent with, the discharge of each person
certified for intensive treatment under paragraph (1), the facility
shall inform the person of that information specified in paragraph
(3) of subdivision (f).
(4) Any person who is subject to the prohibition contained in
paragraph (1) may fully invoke paragraph (4) of subdivision (f).
(h) For all persons identified in subdivisions (f) and (g),
facilities shall report to the Department of Justice as specified in
those subdivisions, except facilities shall not report persons under
subdivision (g) if the same persons previously have been reported
under subdivision (f).
Additionally, all facilities shall report to the Department of
Justice upon the discharge of persons from whom reports have been
submitted pursuant to subdivision (f) or (g). However, a report
shall not be filed for persons who are discharged within 31 days
after the date of admission.
(i) Every person who owns or possesses or has under his or her
custody or control, or purchases or receives, or attempts to purchase
or receive, any firearm or any other deadly weapon in violation of
this section shall be punished by imprisonment in the state prison or
in a county jail for not more than one year.
(j) "Deadly weapon," as used in this section, has the meaning
prescribed by Section 8100.
SEC. 22. Section 15610.63 of the Welfare and Institutions Code is
amended to read:
15610.63. "Physical abuse" means any of the following:
(a) Assault, as defined in Section 240 of the Penal Code.
(b) Battery, as defined in Section 242 of the Penal Code.
(c) Assault with a deadly weapon or force likely to produce great
bodily injury, as defined in Section 245 of the Penal Code.
(d) Unreasonable physical constraint, or prolonged or continual
deprivation of food or water.
(e) Sexual assault, that means any of the following:
(1) Sexual battery, as defined in Section 243.4 of the Penal Code.
(2) Rape, as defined in Section 261 of the Penal Code.
(3) Rape in concert, as described in Section 264.1 of the Penal
Code.
(4) Spousal rape, as defined in Section 262 of the Penal Code.
(5) Incest, as defined in Section 285 of the Penal Code.
(6) Sodomy, as defined in Section 286 of the Penal Code.
(7) Oral copulation, as defined in Section 288a of the Penal Code.
(8) Penetration of a genital or anal opening by a foreign object,
as defined in Section 289 of the Penal Code.
(f) Use of a physical or chemical restraint or psychotropic
medication under any of the following conditions:
(1) For punishment.
(2) For a period beyond that for which the medication was ordered
pursuant to the instructions of a physician and surgeon licensed in
the State of California, who is providing medical care to the elder
or dependent adult at the time the instructions are given.
(3) For any purpose not authorized by the physician and surgeon.
SEC. 23. No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution because the
only costs that may be incurred by a local agency or school district
will be incurred because this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIIIB of the California Constitution.
Notwithstanding Section 17580 of the Government Code, unless
otherwise specified, the provisions of this act shall become
operative on the same date that the act takes effect pursuant to the
California Constitution.