The California Legal Update

Remember 9/11/2001; Support Our Troops

Vol. 20 / Jan. 1, 2015 / No. 1 / (View Other Issues)

Robert C. Phillips
   (858) 395-0302
Deputy District Attorney (Ret.)
   RCPhill808@AOL.com

This edition of the California Legal Update is dedicated to the memory of, and in honor of,
New York City Police Officers Wenjian Liu and Rafael Ramos,
Assassinated in the Line of Duty: EOW; December, 20, 2014.

THIS EDITION'S WORDS OF WISDOM:

"If you're going to do something tonight that you'll be sorry for tomorrow morning, sleep late." (Henny Youngman)

IN THIS ISSUE:

Administrative Notes:
New and Amended Statutes; Disclaimer
Proposition 47 Sentencing
New and Amended Statutes:
Alcoholic Beverages
Assaults
Communication Devices
Computer Crimes
Contempt of Court
Controlled Substances
Domestic Violence
Education
Elder Abuse
Electronic Devices
Environmental Law
Firearms
Forgery
Governmental Conflict of Interest
Holidays
Homicide
Human Trafficking
Impersonating a Peace Officer
Nitrous Oxide
Non-Sufficient Funds
Pornography
Privileges
Proposition 47 Statutes
Public Transportation
Search & Seizure
Search Warrants
Sexual Assault
Smartphones
Theft
Trespass
Vehicle Code Provisions
Vessel Operation
Wiretapping

ADMINISTRATIVE NOTES:

New and Amended Statutes; Disclaimer

The statutes listed here are not intended to cover the entire body of the Legislature’s work for 2014. Only those statutes believed to be of interest to most law enforcement officers, with the concerns of prosecutors in mind, are included. Sentencing rules (of which there are many), typically covered better in other publications, have been avoided except when important to the substance of a new or amended offense, such as under Proposition 47. Mere changes in the potential sentence for an offense are also not included unless the offense’s classification is also affected (e.g., felony to misdemeanor). Statutes that affect post-conviction proceedings (e.g., P.C. § 1405 et seq., “post-conviction DNA testing”) are also not included. Rewritten statutes, constituting cosmetic changes only, without any substantive changes to the elements of a crime, have been avoided. Most of the statutes that are included have been severely paraphrased, the degree of detail being dependent upon the newness, importance, and/or complexity of the statute. Although I have made a sincere effort to avoid taking any part of a statute out of context, it is strongly recommended that the unedited statute be consulted before attempting to use it either in the field or the courtroom. The effective date of each new or amended statute is January 1, 2015, unless otherwise indicated.

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Proposition 47 Sentencing

The Proposition 47 offenses are listed separately, below, under “Proposition 47 Statutes,” and then again under the specific heading for the specific type of offense (e.g., “Controlled Substances” or “Theft”). Sentencing for these offenses are generally to be as a misdemeanor, but include the possibility of a felony alternative when there exists one of more “disqualifiers,” the most common being when the offender is a registered sex offender per P.C. 290(c), or has a prior conviction for a specified offense (referred to by some as a “super strike”). Note that one may be registered as a sex offender under more ways than just P.C. § 290(c); i.e., pursuant to other provisions of the “Sex Offender Registration Act.” But unless otherwise indicated (e.g., see “Petty Theft with a Prior,” below), registration pursuant to P.C. 290(c) is the only type of registration that will elevate an offense to a felony. The “super strikes” are those offenses listed under P.C. § 667(e)(2)(C)(iv). These offenses are:

  1. A “sexually violent offense” as defined in W&I § 6600(b).

W&I § 6600(b): “Sexually violent offense" means the following acts when committed by force, violence, duress, menace, fear of immediate and unlawful bodily injury on the victim or another person, or threatening to retaliate in the future against the victim or any other person: A felony violation of P.C. §§ 261, 262, 264.1, 269, 286, 288, 288a, 288.5, or 289, or any felony violation of P.C. §§ 207, 209, or 220 when committed with the intent to commit a violation of P.C. §§ 261, 262, 264.1, 286, 288, 288a, or 289.

  1. Oral copulation with a child who is under 14 years of age, and who is more than 10 years younger than he or she as defined by P.C. § 288a, sodomy with another person who is under 14 years of age and more than 10 years younger than he or she as defined by P.C. § 286, or sexual penetration with another person who is under 14 years of age, and who is more than 10 years younger than he or she, as defined by P.C. § 289.

  1. A lewd or lascivious act involving a child under 14 years of age, in violation of P.C. § 288.

  1. Any homicide offense, including any attempted homicide offense, defined in P.C. §§ 187 to 191.5, inclusive.

  1. Solicitation to commit murder as defined in P.C. § 653f.

  1. Assault with a machine gun on a peace officer or firefighter, as defined in P.C. § 245(d)(3).

  1. Possession of a weapon of mass destruction, as defined in P.C. § 11418(a)(1).

  1. Any serious and/or violent felony offense punishable in California by life imprisonment or death.

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Alcoholic Beverages

Bus. & Prof. Code § 25600.3 (New): Alcoholic Beverage Coupons:

It is illegal (1) for a beer manufacturer or a beer wholesaler to offer, fund, produce, sponsor, promote, furnish, or redeem a coupon, or (2) a licensee authorized to sell alcoholic beverages at retail to accept, redeem, possess, or utilize a coupon that is funded, produced, sponsored, promoted, or furnished by a beer manufacturer or wholesaler.

Punishment: Misdemeanor; Six months in county jail and/or $1,000 fine. (B&P § 25617)

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Assaults

Civil Code § 1708.9 (New): Preventing Entry into a School or Health Facility:

It is civilly unlawful for a person, except a parent or guardian acting towards his or her own minor child, to:

  1. By force, threat of force, or physical obstruction that is a crime of violence, to intentionally injure, intimidate, or interfere with, or attempt to injure, intimidate, or interfere with, any person attempting to enter or exit a facility; or

  1. By non-violent physical obstruction, to intentionally injure, intimidate, interfere with, or attempt to injure, intimidate, or interfere with, any person attempting to enter or exit a facility.

Facility” is defined as the grounds of a preschool or school through 12th grade, or a health facility.

Interfere” is defined as restricting a person’s freedom of movement.

Intimidate” is defined as placing a person in reasonable apprehension of bodily harm to himself, herself, or another person.

Physical Obstruction” is defined as rendering ingress to, or egress from, a facility impassible to another person, or unreasonably difficult or hazardous.

The statute authorizes:

An aggrieved person to bring a civil action to enjoin the violation, or to obtain an injunction, or for compensatory or punitive damages; and

The Attorney General, a district attorney, or a city attorney, to bring a civil action to enjoin a violation, for compensatory damages for the aggrieved person, and for a civil penalty.

Punishment:

If the interference involves a violent physical obstruction: A civil penalty of up to $15,000 for a first violation, and $25,000 for a second or subsequent violation.

If the interference involves a non-violent physical obstruction: A civil penalty of up to $5,000 for a first violation, and $25,000 for a second or subsequent violation.

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Communication Devices

P.C. § 591 (Amended): Injuring Communication Devices or Electric Lines:

Disconnecting” or “cutting” a communication, electric line or other connected apparatus (e.g., telephone, telegraph, cable television line, or line used to conduct electricity) is added to the already listed act of “maliciously” injuring such an apparatus. The kinds of appurtenances or apparatus that qualify are expanded to include, “but not limited to, a backup deep cycle battery or other power supply.”

Punishment: Felony (Wobbler): 16 months, 2 or 3 years in jail and/or a fine of $10,000 (P.C. § 1170(h)), or one year in county jail and/or a $1,000 fine.

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Computer Crimes

P.C. § 502 (Amended): Computer Crimes:

The various computer crimes as they relate specifically to government computer systems and public safety infrastructure computer systems are separately listed in new subds. (c)(10) through (14) as follows:

(10): Knowingly and without permission disrupting government computer services or denying computer services to an authorized user of a government computer.

(11): Knowingly accessing and without permission altering, damaging, or destroying any data, computer software, or computer programs that reside or exist internal or external to a public safety infrastructure computer system or network.

(12): Knowingly and without permission disrupting a public safety infrastructure computer system or denying computer services to an authorized user of such a system.

(13): Knowingly and without permission providing a means of accessing a public safety infrastructure computer system.

(14): Knowingly introducing a computer contaminant into a public safety infrastructure computer system.

Amended or Added Definitions:

Access” is amended to include causing input to, causing output from, or causing data processing with. (Subd. (b)(1))

Computer Services” is amended to include Internet services, electronic services, and electronic message services. (Subd. (b)(4))

Government Computer System” is defined as any computer system, or part thereof, that is owned, operated, or used by any federal, state, or local governmental entity. (Subd. (b)(6))

Public Safety Infrastructure Computer System” is defined as any computer system, or part thereof, that is necessary for the health and safety of the public including computer systems owned, operated, or used by drinking water and wastewater treatment facilities, hospitals, emergency service providers, telecommunication companies, and gas and electric utility companies. (Subd. (b)(7))

Electronic Mail” is defined as an electronic message or computer file that is transmitted between two or more telecommunications devices; computers; computer networks, regardless of whether the network is a local, regional, or global network; or electronic devices capable of receiving electronic messages, regardless of whether the message is converted to a hard copy format after receipt, viewed upon transmission, or stored for later retrieval. (Subd. (b)(14))

Profile” is defined as either of the following: (A) A configuration of user data required by a computer so that the user may access programs or services and have the desired functionality on that computer. (B) An Internet Website user’s personal page or section of a page that is made up of data, in text or graphical form, that displays significant, unique, or identifying information, including, but not limited to, listing acquaintances, interests, associations, activities, or personal statements. (Subd. (b)(15))

Punishment:

For Subd. (c)(10) through (12): Felony (wobbler); 16 months, 2 or 3 years in jail and/or a fine of $10,000 (P.C. § 1170(h)), or one year in county jail and/or a $5,000 fine.

For Subd. (c)(13):

First Offense with no loss; Infraction; $1,000 fine.

First Offense with $5,000 loss or less, or Second or Subsequent violation; Misdemeanor; one year in county jail and/or $5,000 fine.

Any violation with loss of more than $5,000; Felony (wobbler); 16 months, 2 or 3 years in jail and/or a fine of $10,000 (P.C. § 1170(h)), or one year in county jail and/or a $5,000 fine.

For Subd. (c)(14):

First Offense with no loss; Misdemeanor; one year in county jail and/or $5,000 fine.

Second or subsequent violation, or with any loss; Felony (wobbler); 16 months, 2 or 3 years in jail and/or a fine of $10,000 (P.C. § 1170(h)), or one year in county jail and/or a $5,000 fine.

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Contempt of Court

P.C. § 166 (Amended): Contempt of Court:

Subd. (a)(6), dealing with the willful disobedience by a juror of a court admonishment prohibiting any form of communication or research about the case, including electronic or wireless communication or research, has been deleted, with all subsequent subdivisions moved up one number.

 

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Controlled Substances

Bus. & Prof. Code §§ 4144.5, 4145.5, & 4148.5 (Amended): Hypodermic Syringes:

The number of hypodermic syringes an adult may legally possess for personal use, and that a physician or pharmacist may furnish without a prescription, is increased from a maximum of 30 to an unlimited number.

Note: B&P §§ 4144, 4145, & 4148 are all repealed.

H&S § 11350 (Amended; Effective 11/5/2014): Controlled Substances and Narcotic Drugs:

Subd. (a):  Possession of (1) any controlled substance as specified in H&S §§ 11054(b), (c), (d)(14), (15), or (20), (e), or (f)(1), or 11055(b) or (c), or 11056(h), or (2) any controlled substance classified in schedule III, IV, or V, which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, is a misdemeanor.

Exceptions:

  • When the person has one or more prior convictions for any offense listed in P.C. § 667(e)(2)(C)(iv)* (i.e, a “super strike”); or

  • When the person has one or more prior convictions that require registration pursuant to P.C. § 290(c).

*See Administrative note, above.

Punishment:

Misdemeanor: One year in county jail and a $1,000 fine. (Subd. (a) and P.C. § 672.)

Felony: Where one or more of the above exceptions applies; 16 months, 2 or 3 years in county jail or state prison and a $10,000 fine. (P.C. §§ 1170(h), 672).

H&S § 11352 (Amended): Selling, Transporting for Sale, Furnishing or Giving Away a Controlled Substance:

Amendment adds that the section does not preclude or limit a defendant from being prosecuted for this section as an accessory.

H&S § 11357(a) (Amended; Effective 11/5/2014): Concentrated Cannabis:

Subd. (a):  Possession of concentrated cannabis is a misdemeanor.

Exceptions:

  • When the person has one or more prior convictions for any offense listed in P.C. § 667(e)(2)(C)(iv)* (i.e, a “super strike”); or

  • When the person has one or more prior convictions that require registration pursuant to P.C. § 290(c).

*See Administrative note, above.

Punishment:

Misdemeanor: One year in county jail and a $1,000 fine. (Subd. (a) and P.C. § 672.)

Felony: Where one or more of the above exceptions applies; 16 months, 2 or 3 years in county jail or state prison and a $10,000 fine. (P.C. §§ 1170(h), 672).

H&S § 11357.5 (Amended; Effective 1/1/2016): Synthetic Cannabinoid Compound or Derivative:

New subd. (b) will be added, effective 1/1/2016, making it a crime to “use or possess” (as opposed to sell, distribute, administer, give, or possess of sale; subd. (a)) a synthetic cannabinoid compound or a synthetic Cannabinoid derivative (i.e., synthetic marijuana).

Punishment: Infraction; $250 fine. (P.C. § 19.8)

H&S § 11364 (Amended): Hypodermic Syringes:

The section is amended to allow for the personal possession and use by an adult of an unlimited number of hypodermic needles and syringes.

Note: H&S § 11364.1 is repealed.

H&S § 11375.5 (Amended; Effective 1/1/2016): Synthetic Stimulant Compound or Derivative:

New subd. (b) will be added, effective 1/1/2016, making it a crime to “use or possess” (as opposed to sell, distribute, administer, give, or possess of sale; subd. (a)) a synthetic stimulant compound or a synthetic stimulant derivative.

Punishment: Infraction; $250 fine.

H&S § 11377 (Amended; Effective 11/5/2014): Controlled Substances and Non-Narcotic Drugs:

Subd. (a):  Possession of any controlled substance which is (1) classified in Schedule III, IV, or V, and which is not a narcotic drug, (2) specified in H&S § 11054(d), except as listed in (d)(13), (14), (15), or (20), (3) specified in H&S § 11056(c)(11), (4) specified in H&S § 11054(f)(2) or (3), or (5) specified in H&S § 11055(d), (e), or (f), unless upon the prescription of a physician, dentist, podiatrist, or veterinarian, licensed to practice in this state, is a misdemeanor.

Exceptions:

  • When the person has one or more prior convictions for any offense listed in P.C. § 667(e)(2)(C)(iv)* (i.e, a “super strike”); or

  • When the person has one or more prior convictions that require registration pursuant to P.C. § 290(c).

*See Administrative note, above.

Punishment:

Misdemeanor: One year in county jail and a $1,000 fine. (Subd. (a) and P.C. § 672.)

Felony: Where one or more of the above exceptions applies; 16 months, 2 or 3 years in county jail or state prison and a $10,000 fine. (P.C. §§ 1170(h), 672).

H&S § 11379 (Amended): Selling, Transporting for Sale, Furnishing or Giving Away a Controlled Substance:

Amendment adds that the section does not preclude or limit a defendant from being prosecuted for this section as an accessory.

 

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Domestic Violence

Fam. Code § 6203 (Amended): Abuse:

Now provides that “abuse” is not limited to the actual infliction of injury or assault.

Fam. Code § 6220 (Amended): Domestic Violence, Abuse, and Sexual Abuse:

Now provides that the purpose of Division 10 of the Family Code (§§ 6200-6409) is to “prevent” acts of domestic violence, abuse, and sexual abuse, deleting references to preventing the “recurrence” of domestic violence and abuse, thus allowing for the issuance of a restraining order upon evidence of past abuse alone and eliminating the need to show that domestic violence is likely to reoccur.

Fam. Code § 6300 (Amended): Evidence of Abuse:

Testimony” is added to the types of evidence (i.e., affidavits and any information provided to the court pursuant to Fam. Code § 6306) that may be used to show reasonable proof to the court of a past act or acts of abuse.

Fam. Code § 6306 requires a search of various databases regarding the criminal history, probation or parole status, firearm ownership, and history of prior restraining orders related to the target of a proposed restraining order.

A restraining order may be issued based solely on the affidavit or testimony of the person requesting the restraining order.

Fam. Code § 6301 (Amended): Factors in Granting a Restraining Order:

A Court is to consider the “totality of the circumstances” in determining whether to grant a request for a restraining order. The length of time since the last act of abuse is not, by itself, determinative.

Fam. Code § 6305 (Amended): Mutual Restraining Orders:

In determining if both parties acted primarily as aggressors, the court must consider the provisions concerning dominate aggressors as described in P.C. § 836(c)(3).

P.C. § 836(c)(3) provides that the dominate aggressor is the person determined to be the most significant, rather than the first, aggressor.

Fam. Code § 6340 (Amended): Denial of a Restraining Order:

In denying a restraining order, a court must provide a brief statement for the reasons for the decision either in writing or on the record. A decision stating “denied” is not sufficient.

Gov’t. Code § 6103.3 (Amended): Notice of Service of a Restraining Order:

Now provides that the Sheriff may provide notice to a protected person that a restraining order has been served by publishing notice on the Sheriff’s Internet website rather than by notifying the protected person by electronic or telephonic means.

P.C. § 136.2 (Amended): Intimidating or Threatening Victims & Witnesses:

In the subdivisions dealing with domestic violence-related threats to victims or witnesses (e.g., subds. (a), (e), (h) & (i)), the definition of “domestic violence,” as contained in P.C. § 13700, is expanded to include the potential victims as listed in Fam. Code § 6211. This therefore adds (1) a habitant or cohabitant as defined in Fam. Code § 6209 (e.g., a person who regularly resides or resided in the household), and (2) any person related by consanguinity within the second degree (e.g., children, parents, brothers, sisters, grandparents, grandchildren, uncles, aunts, first cousins, nephews or nieces).

P.C. §§ 18100-18205 (New; Effective 1/1/2016): Gun Violence Restraining Orders:

See under Firearms, below.

P.C. § 18200 (New; Effective 1/1/2016): Gun Violence Restraining Order:

Effective 1/1/2016, it will be illegal to file a petition for an ex parte gun violence restraining order while knowing the information in the petition is false, or with the intent to harass.

Punishment: Misdemeanor; Six months in county jail and/or a $1,000 fine. (P.C. § 19)

P.C. § 18205 (New; Effective 1/1/2016): Gun Violence Restraining Order:

Effective 1/1/2016, it will be illegal to own or possess a firearm or ammunition, while knowing that to do so is prohibited by a temporary gun violence restraining order, an ex parte gun violence restraining order, or a gun violence restraining order issued after notice and a hearing. A violation of this section triggers a five-year prohibition on controlling, owning, purchasing, possessing, or receiving, or attempting to purchase or receive a firearm or ammunition, beginning upon the expiration of the restraining order.

Punishment: Misdemeanor; Six months in county jail and/or a $1,000 fine. (P.C. § 19)

P.C. § 18250 (Amended): Seizure of Firearms and Deadly Weapons at Scene of a Domestic Violence Incident:

A sworn member of the Department of Justice who is a peace officer as defined in P.C. § 830.1, and a member of the San Francisco Bay Area Rapid Transit District Police Department, are added to the list of peace officers who are required to take custody of a firearm or deadly weapon in plain sight or discovered pursuant to a consensual or other lawful search at the scene of a domestic violence incident or when serving a protective or restraining order.

Gun violence restraining orders, issued pursuant to P.C. §§ 18100-18205 (New; Effective 1/1/2016), is added to this section requiring a listed peace officer to seize a firearm or deadly weapon lawfully discovered at the scene or a domestic violence incident or when serving a domestic violence protective order as defined in Fam. Code § 6218.   

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Education

Educ. Code § 67386 (New): “Yes Means YesLaw:

As a part of a state requirement in order to qualify for public funding, colleges and universities are required to adopt policies concerning sexual assault, domestic violence, dating violence, and stalking students on or off campus. Such policies are to include an affirmative consent standard for sexual activity, defining “affirmative consent” as “affirmative, conscious, and voluntary agreement to engage in sexual activity.” A lack of protest, lack of resistance, and/or silence does not mean consent. Affirmative consent must be ongoing throughout the sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, is never assumed to be an indicator of consent.

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Elder Abuse

Gov’t. Code § 8594.10 (Amended): Silver Alerts:

Developmentally disabled and cognitively impaired persons are added to those elders (i.e., 65 years of age of older) who may be the subject of a law enforcement “Silver Alert.”

Note: A “Silver Alert” is a law enforcement initiated “BOL” alert, or “Emergency Digital Information Service” message, or electronic flyer, that is activated when a specified person is missing under unexplained or suspicious circumstances and is believed to be in danger.

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Electronic Devices

Civ. Code § 1812.650 (New): Sale or Rental of Electronic Devices with Geographical Location Tracking Technology:

Subd. (a): The lessor of an electronic device that has geographical location tracking technology installed must give “clear and prominent notice” to, and obtain the express consent of, a consumer who enters into a rental-purchase agreement for the device.

Subd. (c): The lessor is prohibited from using, selling, or sharing the geographical location tracking technology on an electronic device for any purpose other than repossession of the device.

Subd. (d): Clear and prominent notification shall be displayed on an electronic device if geophysical location tracking technology is activated or used by the lessor. This notification requirement shall be suspended if the consumer or lessor reports that the electronic device has been stolen and has filed a police report stating that the electronic device has been stolen. For purposes of this subdivision, “filing a police report” means the filing of a consumer’s or lessor’s complaint with the police department in any form recognized by that jurisdiction.

Subd. (e): A lessor shall provide that any geophysical location tracking technology that has been installed by the lessor on an electronic device, or can be activated by the lessor, expires upon the first instance the electronic device connects to the Internet after completion of the purchase of the electronic device.

Subd. (f): A lessor shall not use or install monitoring technology on an electronic device for any purpose other than to provide remote technical assistance when requested by the consumer.

Subd. (g): A lessor shall provide clear and prominent notice to a consumer and obtain express consent from the consumer for the installation or use of any software that allows the lessor to provide remote technical assistance and upon the activation and deactivation of any remote technical assistance when requested by the consumer.

Subd. (h):  A lessor shall not acquire any data when providing remote technical assistance beyond what is necessary to provide assistance to the user and beyond what the user has consented to. Any data acquired during the period of consumer consented technical assistance shall not be retained, used, or sold for any purpose.

Subd. (i):  This section shall not be interpreted to require a lessor to enter into a rental-purchase agreement with any consumer who does not provide express consent to the above-described provisions of the rental-purchase agreement.

Subd. (b): For purposes of this section, “Clear and Prominent Notice” is defined as notice presented in an understandable language and syntax, in the predominantly used language for that communication, and that:

(1) In textual communications, the required disclosures are separate and apart from a privacy policy, data use policy, terms of service, end-user license agreement, lease agreement, or other similar document, and of a type, size, and location sufficiently noticeable for an ordinary consumer to read and comprehend in print that contrasts highly with the background on which they appear.

(2) In communications disseminated orally or through audible means, the required disclosures are unavoidable and delivered in a volume and cadence sufficient for an ordinary consumer to hear and comprehend.

(3) In communications disseminated through video means, the required disclosures are in writing in a form consistent with paragraph (1) and appear on the screen for a duration sufficient for an ordinary consumer to read and comprehend them.

(4) In communications made through interactive media, including the Internet, online services, and software, the required disclosures are unavoidable and presented in a form consistent with paragraph (1), in addition to any audio or video presentation.

C.C. § 1812.622 (Amended): Added definitions:

Electronic Device” is defined as a desktop or laptop computer, handheld device, tablet, smartphone, or other electronic product or device that has a platform on which to download, install, or run any software program, code, script, or other content. (Subd. (m))

Geographical Location Tracking Technology” is defined as hardware, software, or an application that collects and reports data or information that identifies the precise geographical location of an item, including technologies that report the GPS coordinates of an electronic device, the WIFI signals available to or actually used by an electronic device to access the Internet, the telecommunication towers or connections available to or actually used by an electronic device, the processing of any reported data or information through geolocation lookup services, or any information derived from any combination of the foregoing. (Subd. (n))

Monitoring Technology” is defined as any hardware, software, or application utilized in conjunction with an electronic device that can cause the electronic device to capture, monitor, record, or report information about activities with or without the user’s knowledge. (Subd. (o))

Remote Technical Assistance” is defined as collaborative access by the user and technician to connect to an electronic device for the purpose of providing technical support to the user. (Subd. (p))

Express Consent” is defined as the affirmative agreement to any use or installation of geophysical location tracking technology or remote technical assistance. Express consent does not include consent given when either option is highlighted or preselected as a default setting. (Subd. (q))

Punishment: Misdemeanor; Six months in county jail and/or $1,000 fine. (C.C. § 1812.647)

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Environmental Law

Pub. Res. Code §§ 42280-42288 (New): Single-Use Carryout Bags:

New Chapter 5.3, Part 3, Division 30 of the Public Resources Code prohibits specified stores from providing single-use carryout bags at the point of sale as of 7/1/2015.

Key Provisions:

The requirements for reusable bags is specified as a mandatory handle, a minimum volume, capability of being used at least 125 times, and made from material that is machine washable or that can be cleaned and disaffected.

Stores are prohibited from charging less than 10 cents for a recyclable bag.

Enforceable by a district attorney, city attorney, or attorney general through a civil action with civil penalties of $1,000 per day for a first violation, $2,000 per day for a second violation, and $5,000 per day for a third or subsequent violation.

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Firearms

P.C. § 1524 (Amended; Effective 1/1/2016): Search Warrant for Firearms and Ammunition Possessed by the Subject of a Gun Violence Restraining Order:

Effective 1/1/2016, the section is to be amended to allow for a search warrant to issue for firearms and ammunition owned, possessed, or controlled by a person who is subject to a gun violence restraining order or order issued pursuant to P.C. §§ 18100 to 18205 (New; Effective 1/1/2016), “if a prohibited firearm or ammunition or both is possessed, owned, in the custody of, or controlled by a person against whom a gun violence restraining order has been issued, the person has been lawfully served with that order, and the person has failed to relinquish the firearm as required by law.”

P.C. § 1524.5 (New); Effective 1/1/2016): Procedures for Execution of a Gun Violence Restraining Order Search Warrant:

Effective 1/1/2016), a police officer executing a search warrant for firearms or ammunition owned, possessed, or controlled by a person who is subject to a gun violence restraining order shall take custody of such firearms or ammunition.

If the firearms or ammunition is owned by someone other than the restrained person, they shall not be seized if (1) they are removed and stored in a manner that the restrained person does not have access to, or control of them; and (2) there is no evidence of unlawful possession of the firearm or ammunition by the owner.

If the location to be searched is jointly occupied by the restrained person and one or more other persons, and a locked gun safe is located that is owned by a person other than the restrained person, the contents of the safe cannot be searched “except in the owner’s presence, and with his or her consent or with a valid search warrant for a gun safe.”

P.C. § 11106.4 (New): Welfare Check Policies re: Firearms:

Law enforcement agencies are to develop, adopt, and implement written policies and standards for the best way to conduct “welfare checks” of persons who may be a danger to himself, herself, or others, encouraging officers to search the Department of Justice Automated Firearms System (via CLETS; the California Law Enforcement Telecommunications System) to determine if the person is the registered owner of a firearm.

P.C. § 16250 (Amended; Effective 1/1/2016): BB Device:

Effective 1/1/2016, the definition of a “BB Device” will be expanded by deleting the requirement that the projectile it expels be no larger than six millimeters in diameter. Without any limitations as to the size of the projectile, a “BB Device” will be defined as “any instrument that expels a projectile, such as a BB or pellet, through the force of air pressure, gas pressure, or spring action, or any spot marker gun.”

Note: This, in turn, by eliminating the size requirements of the projectile, will affect any other statute making reference to BB devices, such as P.C. § 19910, selling a BB device to a minor, P.C. § 19915, and furnishing a BB device to a minor without the parent’s permission. A BB device with a projectile of any size will also meet the legal definition of an “imitation firearm,” per P.C. §§ 16700 (requiring distinctive markings) and 16250.

P.C. §§ 18100-18205 (New; Effective 1/1/2016): Gun Violence Restraining Orders:

Effective 1/1/2016, creates a new Div. 3.2 in Title 2 of Part 6 of the Penal Code, entitled “Gun Violence Restraining Orders,” dealing with civil restraining order procedures. The individual chapters in this new division are entitled “Temporary Emergency Gun Violence Restraining Order,” “Ex parte Gun Violence Restraining Order,” “Gun Violence Restraining Order Issued After Notice and Hearing,” and “Offenses.”

Key Provisions:

Gun Violence Restraining Order” is defined as a written order, signed by the court, prohibiting and enjoining a named person from having in his or her custody or control, owning, purchasing, possessing, or receiving any firearms or ammunition.

Detailed procedures are set out for obtaining a temporary emergency gun violence restraining order, an ex parte gun violence restraining order, and a gun violence restraining order issued after notice and hearing.

A petition for a gun violence restraining order must describe the number, types, and locations of any firearms or ammunition presently believed by the petitioner to be possessed or controlled by the subject of the petition.

The court is required to notify the Department of Justice when a gun violence restraining order has been issued, renewed, dissolved, or terminated.

A law enforcement officer who serves a gun violence restraining order to submit proof of service directly into the California Restraining and Protective Order System.

Upon issuance of a gun violence restraining order, the court shall order the restrained person to surrender to local law enforcement all firearms and ammunition in the restrained person’s custody or control, or which the restrained person possesses or owns.

Firearms and ammunition must be surrendered immediately upon the restrained person being served with the restraining order, upon the request of a law enforcement officer. If no surrender request is made by law enforcement, firearms and ammunition must be surrendered to law enforcement or a licensed gun dealer within 24 hours of being served with the restraining order.

Law enforcement is not required to seek a gun violence restraining order.

Temporary Emergency Gun Violence Restraining Order: This order may be issued ex parte, is valid for 21 days, and may be issued only upon the request of a law enforcement officer. This order will be issued by the court upon a finding of “reasonable cause” to believe that (1) the subject of the petition poses an immediate and present danger of causing personal injury to him or herself, or others, and that (2) a temporary emergency gun violence restraining order is necessary to prevent such injury because less restrictive alternatives have been tried and found ineffective or have been determined to be inadequate or inappropriate.

Ex Parte Gun Violence Restraining Order: May be issued upon the petition of an immediate family member of the restrained person or a law enforcement officer, and is valid for 21 days. The court must find a “substantial likelihood” that (1) the subject of the petition poses a significant danger or personal injury to him or herself, or others, and that (2) an ex parte gun violence order is necessary to prevent such injury because less restrictive alternatives have been tried and found ineffective or have been determined to be inadequate or inappropriate.

An “immediate family member” is as described in P.C. § 422.4(b)(3); i.e., a spouse, domestic partner, parent, child, person related by consanguinity or affinity within the second degree, any person who regularly resides in the household, or any person who regularly resided in the household within the last six months.

Gun Violence Restraining Order Issued after Notice and Hearing: May be issued upon the request of an immediate family member of the restrained person, or a law enforcement officer, and is valid for one year, and may be renewed. The court must find by “clear and convincing evidence” that (1) the subject of the petition poses a significant danger or injury to him or herself or others, and that (2) a gun violence restraining order is necessary because less restrictive alternatives have been tried and found ineffective or have been determined to be inadequate or inappropriate.

The subject of the restraining order may submit one written request during the duration of the order for a hearing to terminate the order.

An immediate family member of the restrained person or a law enforcement officer may request renewal of a gun violence restraining order at any time within three months before expiration of the order.

An “immediate family member” is as described in P.C. § 422.4(b)(3); i.e., a spouse, domestic partner, parent, child, person related by consanguinity or affinity within the second degree, any person who regularly resides in the household, or any person who regularly resided in the household within the last six months.

P.C. § 18200 (New; Effective 1/1/2016): Gun Violence Restraining Order:

Effective 1/1/2016, it will be illegal to file a petition for an ex parte gun violence restraining order while knowing the information in the petition is false, or with the intent to harass.

Punishment: Misdemeanor; Six months in county jail and/or a $1,000 fine. (P.C. § 19)

P.C. § 18205 (New; Effective 1/1/2016): Gun Violence Restraining Order:

Effective 1/1/2016, it will be illegal to own or possess a firearm or ammunition, while knowing that to do so is prohibited by a temporary gun violence restraining order, an ex parte gun violence restraining order, or a gun violence restraining order issued after notice and a hearing. A violation of this section triggers a five-year prohibition on controlling, owning, purchasing, possessing, or receiving, or attempting to purchase or receive a firearm or ammunition, beginning upon the expiration of the restraining order.

Punishment: Misdemeanor; Six months in county jail and/or a $1,000 fine. (P.C. § 19)

P.C. § 18250 (Amended): Seizure of Firearms and Deadly Weapons at Scene of a Domestic Violence Incident:

A sworn member of the Department of Justice who is a peace officer as defined in P.C. § 830.1, and a member of the San Francisco Bay Area Rapid Transit District Police Department are added to the list of peace officers who are required to take custody of a firearm or deadly weapon in plain sight or discovered pursuant to a consensual or other lawful search at the scene of a domestic violence incident or when serving a protective or restraining order.

Gun violence restraining orders, issued pursuant to P.C. §§ 18100-18205 (New; Effective 1/1/2016), is added to this section requiring a listed peace officer to seize a firearm or deadly weapon lawfully discovered at the scene or a domestic violence incident or when serving a domestic violence protective order as defined in Fam. Code § 6218.

P.C. § 27585 (New): Importation of Firearms:

A California resident importing, bringing, or transporting any firearm obtained after 1/1/2015 into California from outside California must first deliver the firearm to a licensed firearm dealer in California for delivery to the California resident.

Punishment (P.C. § 27590 (Amended)):

For a handgun: Felony; 16 months, 2 or 3 years in jail and/or a fine of $10,000, per P.C. § 1170(h), or one year in county jail and/or a $5,000 fine. (P.C. §§ 27590(c)(7))

For other than a handgun: Misdemeanor: Six months in county jail and/or $1,000 fine (P.C. §§ 27590(a), 19).

With a specified prior conviction, is in a class of persons prohibited from having firearms, or actively participates in a criminal street gang: Felony: 2, 3, or 4 years in jail and/or $10,000 fine, per P.C. § 1170(h). (P.C. § 27590(b))

P.C. §§ 28010-28024 (New; Effective 1/1/2016): Registration and Assignment of Firearms by Private Patrol Operators:

Effective 1/1/2016, a new chapter in the Penal Code will be created entitled “Registration and Assignment of Firearms by Private Patrol Operators.” This chapter will deal with ownership and registration of firearms by a private patrol operator business, as opposed to individuals. A private patrol operator business that provides armed private contract security services will be permitted to assign firearms to its employees who are licensed to carry firearms. Such an assignment does not constitute a loan, sale, or transfer of a firearm.

Key Provisions:

A security guard acquiring a firearm under the provisions of this chapter must first possess a valid firearm qualification permit issued by the Bureau of Security & Investigative Services.

The Department of Justice is to create a “Certificate of Assignment” to identify an employee who has been assigned a private patrol operator-owned firearm and to enter the information in the Automated Firearms System, and to charge reasonable fees to pay for the system.

P.C. § 28020 (New; Effective 1/1/2016): Security Guards:

Effective 1/1/2016, it will be illegal for a security guard who has been assigned a firearm by his private patrol operator employer (see above) to fail to return the firearm to his employer within 48 hours of separating from employment, or within 48 hours of any employer requesting the return of the firearm.

Punishment: Misdemeanor; Six months in county jail and/or a $1,000 fine. (P.C. § 19)

P.C. § 32100 (Amended): Unsafe Handguns:

A single-shot pistol with a “break top” or “bolt action” of any barrel length is not an “unsafe handgun” pursuant to the provisions of P.C. §§ 31900-32020 (deleting the requirement that the barrel length be not less than six inches or with an overall length of at least 10½ inches).

As amended, the unsafe handgun statutes do apply to a semi-automatic pistol that has been temporarily or permanently altered so that it will not fire in a semi-automatic mode.  

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Forgery

P.C. § 473 (Amended; Effective 11/5/2014): Forgery:

Subd. (b) A forgery where the face value of the forged instrument does not exceed nine hundred and fifty dollars ($950) is now a misdemeanor.

Exceptions:

  • When the face value of the forged instrument exceeded $950; or

  • When the person has one or more prior convictions for any offense listed in P.C. § 667(e)(2)(C)(iv)* (i.e, a “super strike”); or

  • When the person has one or more prior convictions that require registration pursuant to P.C. § 290(c); or

  • When the person is also convicted in the same case of identity theft, per P.C. § 530.5.

*See Administrative note, above.

Punishment:

Misdemeanor: One year in county jail (subd. (b)) and/or $1,000 fine (P.C. § 19).

Felony (wobbler): Where one or more of the above exceptions applies, then one year in county jail and/or a $1,000 fine, or 16 months, 2 or 3 years in county jail or state prison and a $10,000 fine. (P.C. §§ 1170(h), 672). (Subd. (a) & (b))

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Governmental Conflict of Interest

Gov’t. Code § 1090 (Amended): Aiding and Abetting Government Officials in Having a Financial Conflict of Interest:

New subd. (b) is added to prohibit aiding and abetting a member of the Legislature, or a state, county, district, judicial district, or city officer or employee, in violating subd. (a), which prohibits these officials from having a financial interest in any contract made by them in their official capacity, and from being purchasers at any sale, or vendors at any purchase made by them, in their official capacity.

Punishment: See Gov’t. Code § 1097(b), below.

Gov’t. Code § 1093 (Amended): Aiding and Abetting Government Officials in Having a Conflict of Interest:

New subd. (b) is added to prohibit aiding and abetting the state Treasurer, Controller, a county or city officer, or their deputy or clerk in violating subd. (a), which prohibits these officials from purchasing, selling, or receiving for their own or another person’s benefit, and state, county, or city warrants, script, orders, demands, claims, or other evidence of indebtedness against the state, city or county.

Punishment: See Gov’t. Code § 1097(b), below.

Gov’t. Code § 1097 (Amended): Punishment:

New subd. (b) makes it a felony to willfully aid and abet an officer or person in violating Gov’t. Code §§ 1090(a) (Amended) or 1093(a) (Amended), above.

Punishment: Felony; 16 months, 2 or 3 years in state prison, and/or $1,000 fine, plus disqualification from ever holding any office in the state.  

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Holidays

Gov’t. Code § 6700 (Amended): Native American Day:

The fourth Friday in September is set aside as the new state holiday of “Native American Day.”

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Homicide

P.C. § 192 (Amended): Sudden Quarrel or Heat of Passion:

The provocation necessary to find the sudden quarrel or heat of passion element of voluntary manslaughter is “not objectively reasonable” if it resulted from discovery or, or knowledge about, or potential disclosure of the victim’s actual or perceived gender, gender identity, gender expression, or sexual orientation, including under circumstances in which the victim made an unwanted non-forcible romantic or sexual advance towards the defendant, or if the defendant and victim dated or had a romantic or sexual relationship.

A jury is not precluded from considering all relative facts to determine whether the defendant was in fact provoked for purposes of establishing “subjective provocation.

Gender” includes a person’s gender identity and gender-related appearance and behavior regardless of whether that appearance and behavior is associated with the person’s gender as determined at birth.

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Human Trafficking

Evid. Code § 912 (Amended): Waiver of the Human Trafficking Caseworker-Victim Privilege:

The “Human Trafficking Caseworker-Victim” evidentiary privilege under E.C. § 1038, for communications between the victim of human trafficking and his or her case worker, is added to the list of privileges (e.g., lawyer-client, physician-patient, sexual assault counselor-victim, and domestic violence counselor-victim) under this section that are waived if the holder of the privilege (i.e., the victim, defendant, or patient) discloses a significant part of the communication or consents to disclosure.

Note: Per P.C. § 11163.6 (Amended), the “Human Trafficking Caseworker-Victim” privilege is inapplicable when the information is to be disclosed to a domestic violence death review team.

Evid. Code § 917 (Amended): Communications Presumed Privileged:

The “Lawyer Referral Service-Client Communication” evidentiary privilege, under E.C. §§ 965-968, and the “Human Trafficking Caseworker-Victim” evidentiary privilege, under E.C. § 1038, are added to the list of privileges (e.g., lawyer-client, sexual assault counselor-victim, etc.) that are presumed confidential and for which the burden in on the opponent of the claim of privilege to establish that the communication in issue is not privileged.

P.C. § 629.52 (Amended): Crimes for Which A Wiretapping Order May Issue:

Human Trafficking,” per P.C. § 236.1, is added to the list of offenses (e.g., sale, transportation, or manufacturing of illegal drugs, murder, solicitation to commit murder, kidnapping per P.C. § 209, gang crimes, weapons of mass destruction) for which a wiretapping order may be obtained.

P.C. §§ 1335, 1337 (Amended): Conditional Examination of a Material Witness:

Human Trafficking” is added to those offenses (i.e., domestic violence, P.C. § 1192.7(c) serious felonies, and H&S §§ 11351, 11352, 11378, & 11379) for which the victim or other material witness may be conditionally examined whenever the witness is being dissuaded from cooperating with the prosecution or testifying at trial.

The court may have a witness conditionally examined in a human trafficking case if the court finds there is a “reasonable basis to believe” that the material witness will not attend the trial because he or she is under the direct control of the defendant or another person involved in human trafficking, and by virtue of this relationship, the defendant or other person seeks to prevent the victim or witness from testifying.

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Impersonating a Peace Officer

P.C. § 538d (Amended): Illegal Use of a Badge, Etc.:

New subd. (c)(2) provides that a local law enforcement agency in the jurisdiction that files charges against a person for a violation of subd. (c)(1), for falsely making, selling, loaning, giving, or transferring to another a badge, insignia, emblem, device, label, certificate, card, or other writing purportedly to be of a law enforcement officer, shall seize such item.  

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Nitrous Oxide

P.C. § 381d (New): Dispensing Nitrous Oxide:

It is illegal to dispense or distribute nitrous oxide to a person the defendant knows or should have known is going to use it in violation of P.C. § 381b (possession with intent to ingest nitrous oxide to cause intoxication, etc.), proximately causing great bodily injury or death.

Punishment: Misdemeanor; Six months in county jail and/or $1,000 fine.

See also P.C. § 381e (new), requiring documentation of the sale of nitrous oxide, and a new misdemeanor crime (6 months and/or $1,000 fine) of using, reviewing, or disclosing such documentation as it relates to the purchaser except as provided by law.

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Non-Sufficient Funds

P.C. § 476a (Amended; Effective 11/5/2014): Making or Delivering a Check with Insufficient Funds (NSF):

Subd. (b): Making, drawing, uttering or delivering a check or other listed negotiable instrument, with an intent to defraud, with insufficient funds to cover the value of such instrument, where the face value of the instrument does not exceed nine hundred and fifty dollars ($950) is a misdemeanor.

Exceptions:

  • When the face value of the instrument exceeds $950; or

  • When the person has one or more prior convictions for any offense listed in P.C. § 667(e)(2)(C)(iv)* (i.e, a “super strike”); or

  • When the person has one or more prior convictions that require registration pursuant to P.C. § 290(c); or

  • When the person is also convicted in the same case of identity theft, per P.C. § 530.5; or

  • When the person also has three or more (instead of only one) prior convictions for P.C. §§ 470 (Forgery), 475 (Possession with the Intent to Forge or Utter), 476 (Uttering), or a violation of this section; or a violation of a corresponding statute from another state, or petty theft in another state, where said offense would have been a violation of P.C. §§ 470, 475, 476, or of this section, if committed in this state.

*See Administrative note, above.

Punishment:

Misdemeanor: One year in county jail (subd. (b)) and/or $1,000 fine (P.C. § 19).

Felony (wobbler): Where one or more of the above exceptions applies, then one year in county jail and/or a $1,000 fine, or 16 months, 2 or 3 years in county jail or state prison and a $10,000 fine. (P.C. §§ 1170(h), 672). (Subd. (a) & (b))

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Pornography

P.C. § 647 (Amended): Revenge Porn:

The crime of “revenge porn,” per subd. (j)(4), is amended to eliminate the requirement that the defendant be the person who photographed or recorded the offending images. Only the intentional distribution of the images is now required.

The list of specified images is expanded to include the victim engaging in sexual intercourse, sodomy, oral copulation, sexual penetration and/or masturbation.

It must be proved that the defendant knew, or “should have known,” that distribution would cause serious emotional distress. The victim must actually suffer serious emotional distress. There must be an agreement that the images would remain private.

A person intentionally distributes and image when he or she personally distributes the images, specifically requests, or intentionally causes another person to distribute the images.

The victim’s “anus” is added to the list of body parts (i.e., the victim’s genitals, or a woman’s breasts below the top of the arreola that is uncovered or clearly visible through clothing) that may be the subject of revenge porn images.

Exceptions to the prohibition provided in this statute are (1) when the distribution is made in the course of reporting unlawful activity, (2) the distribution is made in compliance with a subpoena or other court order for use in legal proceedings, and (3) the distribution is made in the course of lawful public proceedings.

Punishment: Misdemeanor: Six months in county jail and/or $1,000 fine (P.C. § 19).

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Privileges

Evid. Code § 912 (Amended): Waiver of the Human Trafficking Caseworker-Victim Privilege:

The “Human Trafficking Caseworker-Victim” evidentiary privilege under E.C. § 1038, for communications between the victim of human trafficking and his or her case worker, is added to the list of privileges (e.g., lawyer-client, physician-patient, sexual assault counselor-victim, and domestic violence counselor-victim) under this section that are waived if the holder of the privilege (i.e., the victim, defendant, or patient) discloses a significant part of the communication or consents to disclosure.

Note: Per P.C. § 11163.6 (Amended), the “Human Trafficking Caseworker-Victim” privilege is inapplicable when the information is to be disclosed to a domestic violence death review team.

Evid. Code § 917 (Amended) Communications Presumed Privileged:

The “Lawyer Referral Service-Client Communication” evidentiary privilege, under E.C. §§ 965-968, and the “Human Trafficking Caseworker-Victim” evidentiary privilege, under E.C. § 1038, are added to the list of privileges (e.g., lawyer-client, sexual assault counselor-victim, etc.) that are presumed confidential and for which the burden in on the opponent of the claim of privilege to establish that the communication in issue is not privileged.  

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Proposition 47 Statutes

Gov’t. Code §§ 5799, 5799.1, & 5799.2 (New; Effective 11/5/2014): Safe Neighborhoods and School Funds:

Provides for using money saved through the implementation of the Proposition 47 statutes to fund the “Safe Neighborhoods and Schools Funds” program through the Department of Education (25%), and other programs administered by the California Victim Compensation & Government Claims Board (10%), and the Board of State and Community Corrections (65%).

H&S § 11350 (Amended; Effective 11/5/2014): Controlled Substances and Narcotic Drugs:

Subd. (a):  Possession of (1) any controlled substance as specified in H&S §§ 11054(b), (c), (d)(14), (15), or (20), (e), or (f)(1), or 11055(b) or (c), or 11056(h), or (2) any controlled substance classified in schedule III, IV, or V, which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, is a misdemeanor.

Exceptions:

  • When the person has one or more prior convictions for any offense listed in P.C. § 667(e)(2)(C)(iv)* (i.e, a “super strike”); or

  • When the person has one or more prior convictions that require registration pursuant to P.C. § 290(c).

*See Administrative note, above.

Punishment:

Misdemeanor: One year in county jail and a $1,000 fine. (Subd. (a) and P.C. § 672.)

Felony: Where one or more of the above exceptions applies; 16 months, 2 or 3 years in county jail or state prison and a $10,000 fine. (P.C. §§ 1170(h), 672).

H&S § 11357(a) (Amended; Effective 11/5/2014): Concentrated Cannabis:

Subd. (a):  Possession of concentrated cannabis is a misdemeanor.

Exceptions:

  • When the person has one or more prior convictions for any offense listed in P.C. § 667(e)(2)(C)(iv)* (i.e, a “super strike”); or

  • When the person has one or more prior convictions that require registration pursuant to P.C. § 290(c).

*See Administrative note, above.

Punishment:

Misdemeanor: One year in county jail and a $1,000 fine. (Subd. (a) and P.C. § 672.)

Felony: Where one or more of the above exceptions applies; 16 months, 2 or 3 years in county jail or state prison and a $10,000 fine. (P.C. §§ 1170(h), 672).

H&S § 11377 (Amended; Effective 11/5/2014): Controlled Substances and Non-Narcotic Drugs:

Subd. (a):  Possession of any controlled substance which is (1) classified in Schedule III, IV, or V, and which is not a narcotic drug, (2) specified in H&S § 11054(d), except as listed in (d)(13), (14), (15), or (20), (3) specified in H&S § 11056(c)(11), (4) specified in H&S § 11054(f)(2) or (3), or (5) specified in H&S § 11055(d), (e), or (f), unless upon the prescription of a physician, dentist, podiatrist, or veterinarian, licensed to practice in this state, is a misdemeanor.

Exceptions:

  • When the person has one or more prior convictions for any offense listed in P.C. § 667(e)(2)(C)(iv)* (i.e, a “super strike”); or

  • When the person has one or more prior convictions that require registration pursuant to P.C. § 290(c).

*See Administrative note, above.

Punishment:

Misdemeanor: One year in county jail and a $1,000 fine. (Subd. (a) and P.C. § 672.)

Felony: Where one or more of the above exceptions applies; 16 months, 2 or 3 years in county jail or state prison and a $10,000 fine. (P.C. §§ 1170(h), 672).

P.C. § 459.5 (New; Effective 11/5/2014): Shoplifting:

Subd. (a): Entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950), is a misdemeanor.

Any other entry into a commercial establishment with intent to commit larceny is burglary.

Exceptions:

  • When the value of the property that is taken or intended to be taken exceeds nine hundred and fifty dollars ($950); or

  • Where the person has one or more prior convictions for an offense listed in P.C. § 667(e)(2)(C)(iv)* (i.e, a “super strike”); or

  • Where the person has one or more prior convictions for an offense requiring registration per P.C. § 290(c).

*See Administrative note, above.

Punishment:

Misdemeanor: Six months in county jail and/or $1,000 fine (P.C. § 19).

Felony: Where one or more of the above exceptions apply: 16 months, 2 or 3 years in county jail or state prison and a $10,000 fine. (P.C. §§ 1170(h), 672).

Subd. (b): No person charged with shoplifting per subd. (a) may also be charged with burglary or theft of the same property.

P.C. § 473 (Amended; Effective 11/5/2014) Forgery:

Subd. (b): A forgery where the face value of the forged instrument does not exceed nine hundred and fifty dollars ($950) is a misdemeanor.

Exceptions:

  • When the face value of the forged instrument exceeds $950; or

  • When the person has one or more prior convictions for any offense listed in P.C. § 667(e)(2)(C)(iv)* (i.e, a “super strike”); or

  • When the person has one or more prior convictions that require registration pursuant to P.C. § 290(c); or

  • When the person is also convicted in the same case of identity theft, per P.C. § 530.5.

*See Administrative note, above.

Punishment:

Misdemeanor: One year in county jail (subd. (b)) and/or $1,000 fine (P.C. § 19).

Felony (wobbler): Where one or more of the above exceptions applies, then one year in county jail and/or a $1,000 fine, or 16 months, 2 or 3 years in county jail or state prison and a $10,000 fine. (P.C. §§ 1170(h), 672). (Subd. (a) & (b))

P.C. § 476a (Amended; Effective 11/5/2014): Making or Delivering a Check with Insufficient Funds (NSF):

Subd. (b): Making, drawing, uttering or delivering a check or other listed negotiable instrument, with an intent to defraud, with insufficient funds to cover the value of such instrument, where the face value of the instrument does not exceed nine hundred and fifty dollars ($950) is a misdemeanor.

Exceptions:

  • When the face value of the instrument exceeds $950; or

  • When the person has one or more prior convictions for any offense listed in P.C. § 667(e)(2)(C)(iv)* (i.e, a “super strike”); or

  • When the person has one or more prior convictions that require registration pursuant to P.C. § 290(c); or

  • When the person is also convicted in the same case of identity theft, per P.C. § 530.5; or

  • When the person also has three or more (instead of only one) prior convictions for P.C. §§ 470 (Forgery), 475 (Possession with the Intent to Forge or Utter), 476 (Uttering), or a violation of this section; or a violation of a corresponding statute from another state, or petty theft in another state, where said offense would have been a violation of P.C. §§ 470, 475, 476, or of this section, if committed in this state.

*See Administrative note, above.

Punishment:

Misdemeanor: One year in county jail (subd. (b)) and/or $1,000 fine (P.C. § 19).

Felony (wobbler): Where one or more of the above exceptions applies, then one year in county jail and/or a $1,000 fine, or 16 months, 2 or 3 years in county jail or state prison and a $10,000 fine. (P.C. §§ 1170(h), 672). (Subd. (a) & (b))

P.C. § 490.2 (New; Effective 11/5/2014): Petty Theft:

Subd. (a): Notwithstanding P.C. § 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft.

Exceptions:

Where the value of the property taken exceeds nine hundred and fifty dollars ($950); or

Where the person has one or more prior convictions for an offense listed in P.C. § 667(e)(2)(C)(iv)* (i.e., a “super strike”); or

When the person has one or more prior convictions that require registration pursuant to P.C. § 290(c).

*See Administrative note, above.

Punishment:

Misdemeanor: Six months in county jail and/or $1,000 fine (P.C. § 19).

Felony: When one or more of the above exceptions applies; 16 months, 2 or 3 years in county jail or state prison and a $10,000 fine. (P.C. §§ 1170(h), 672).

Subd. (b): This section shall not be applicable to any theft that may be charged as an infraction pursuant to any other provision of law.

P.C. § 496 (Amended; Effective 11/5/2014): Receiving Stolen Property:

Subd. (a): Buying or receiving any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or concealing, selling, withholding, or aiding in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, where the value of the stolen property does not exceed nine hundred and fifty dollars ($950), is a misdemeanor.

Exceptions:

  • When the face value of the forged instrument exceeds $950; or

  • When the person has one or more prior convictions for any offense listed in P.C. § 667(e)(2)(C)(iv)* (i.e., a “super strike”); or

  • When the person has one or more prior convictions that require registration pursuant to P.C. § 290(c).

*See Administrative note, above.

Punishment:

Misdemeanor: One year in county jail and/or $1,000 fine (Subd. (a) & P.C. § 19).

Felony (wobbler): Where one or more of the above exceptions applies, then one year in county jail and/or a $1,000 fine, or 16 months, 2 or 3 years in county jail or state prison and a $10,000 fine. (Subd. (a), P.C. §§ 1170(h) & 672).

P.C. § 666 (Amended; Effective 11/5/2014): Petty Theft with a Prior:

Subd. (b): The “petty theft with a prior” sentencing provisions (see subd. (a)) for a conviction of petty theft, when the person has a (i.e., one) prior conviction (instead of three prior convictions) and has served a term of imprisonment therefor in any penal institution or having been imprisoned therein as a condition of probation for that offense, for one or more of the offenses listed in Subd. (a), now only apply to persons who:

  • Are required to register pursuant to the Sex Offender Registration Act;** or

  • Have a prior violent or serious felony conviction as listed in P.C. § 667(e)(2)(C)(iv)* (i.e., a “super strike”); or

  • Has a conviction for P.C. § 368(d) or (e) (Elder Financial Abuse).

*See Administrative note, above.

**Note that this is broader than the other Prop. 47 statutes that only apply to sex registration pursuant to P.C. § 290(c).

Subd. (a): The listed qualifying prior convictions are:

  • Petty Theft.

  • Grand Theft.

  • Elder Financial Abuse, per P.C. § 368(d) or (e).

  • Auto Theft, per V.C. § 10851

  • Burglary.

  • Carjacking.

  • Robbery.

  • A felony violation of P.C. § 496 (Receiving Stolen Property).

Punishment: Felony (wobbler); One year in county jail and a $1,000 fine, or 16 months, two or three years in state prison and a $10,000 fine. (P.C. §§ 18, 672)

P.C. § 1170.18 (New; Effective 11/5/2014): Resentencing under Proposition 47; Procedures and Limitations:

Subd. (a): A person currently serving a sentence for a felony conviction, whether by trial or plea, of a felony, but who would have been guilty of a misdemeanor only under Proposition 47 had Prop. 47 been in effect at the time of the offense, may petition for a recall of his or her sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing in accordance with the current (i.e., Prop. 47) sentencing rules as specified in H&S §§ 11350, 11357, or 11377, or P.C. §§ 459.5, 473, 476a, 490.2, 496, or 666.

Subd. (b): Upon determining that a petitioner meets the criteria as specified in subd. (a), the petitioner’s felony sentence shall be recalled and he or she shall be resentenced to a misdemeanor pursuant to H&S §§ 11350, 11357, or 11377, or P.C. §§ 459.5, 473, 476a, 490.2, 496, or 666, unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety. In exercising its discretion, the court may consider all of the following:

(1)  The petitioner’s criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, and the remoteness of the crimes.

(2)  The petitioner’s disciplinary record and record of rehabilitation while incarcerated.

(3)  Any other evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety.

Subd. (c): An “unreasonable risk of danger to public safety” is defined as an unreasonable risk that the petitioner will commit a new violent felony within the meaning P.C. § 667(e)(2)(iv)(C)* (i.e., a “super strike).

*See Administrative note, above.

Subd. (d): A person who is resentenced pursuant to subdivision subd. (b)shall be given credit for time served and shall be subject to parole, per P.C. § 3000.08, for one year following completion of his or her sentence, unless the court, in its discretion, as part of its resentencing order, releases the person from parole.

Subd. (e): Under no circumstances may resentencing under this section result in the imposition of a term longer than the original sentence.

Subd. (f): A person who has completed his or her felony sentence for a conviction, whether by trial or plea, who would have been guilty of a misdemeanor only under Proposition 47 had this Prop. 47 been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors.

Subds. (g) & (h): If the application satisfies the criteria in subd. (f), the court shall designate the felony offense or offenses as a misdemeanor with no hearing necessary unless requested by the petitioner.

Subd. (i): The provisions of this section shall not apply to persons who:

  • Have one or more prior convictions for any offense listed in P.C. § 667(e)(2)(C)(iv)* (i.e., a “super strike”); or

  • Have one or more prior convictions that require registration pursuant to P.C. § 290(c).

*See Administrative note, above.

Subd. (j): Any petition or application under this section shall be filed within three years (i.e., by 11/5/17) after the effective date of Prop. 47, absent a showing of good cause.

Subd. (k): Any felony conviction that is recalled and resentenced under subd. (b) or designated as a misdemeanor under subd. (g) shall be considered a misdemeanor for all purposes, except that such resentencing shall not permit that person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction as a felon in possession of a firearm, under Div. 9, Title 4, Part 6, Chap. 2 of the Penal Code, commencing with P.C. § 29800.

Subd. (l): If the court that originally sentenced the petitioner is not available, the presiding judge shall designate another judge to rule on the petition or application.

Subd. (m) & (n): Nothing in this section is intended to diminish or abrogate any rights or remedies otherwise available to the petitioner or applicant nor diminish or abrogate the finality of judgments in any case not falling within the purview of this act.

Subd. (o): A resentencing hearing ordered under this act shall constitute a “post-conviction release proceeding” under the Calif. Consti., Art. I, § 28(b)(7). (Marsy’s Law) 

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Public Transportation

Pub. Util. Code § 99170 (Amended): False Information:

It is an infraction to:

Provide false information to an employee or contracted security guard of a transit district, or otherwise obstruct the issuance of a citation for violating a district ordinance or a state law; or

Violate any of the conditions established by a transit district ordinance under which a passenger may board a transit vehicle with a bicycle and where that bicycle may be stowed on the transit vehicle.

Punishment: Infraction; $75 for a first violation, $250 and 48 hours of community service for a second and subsequent violation. (Pub. Util. Code § 99170.)

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Search & Seizure

Gov’t. Code § 7599 (New): The Fourth Amendment Protection Act:

The State of California is prohibited from providing material support, participation, or assistance, in response to a request from a federal agency to collect the electronically stored information or metadata of any person, if the state has knowledge that the request constitutes an illegal or unconstitutional collection of electronically stored information or data.

Electronically Stored Data” is defined as data that is created, altered, communicated and stored in digital form.

Metadata” is defined as data bearing the record of, and not the content of, communication, including, but not limited to, the time, date, location, duration, origin, or subject of the communication, and the identity of the person, group, or entity sending or receiving the message.

Note: As a part of Proposition 47, a completely different Gov’t. Code § 7599 was enacted, effective as of 11/5/2014, providing that the provisions of Prop. 47 may be amended only by a vote of 2/3’s of the Legislature, except that sentencing penalties may be further reduced by a simple majority. How this error, making for two different section 7599’s, is going to be handled by the Legislature or the courts is unknown.

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Search Warrants

P.C. § 1524 (Amended; Effective 1/1/2016): Search Warrants for Firearms and Ammunition Possessed by the Subject of a Gun Violence Restraining Order:

Effective 1/1/2016, the section is to be amended to allow for a search warrant to issue for firearms and ammunition owned, possessed, or controlled by a person who is subject to a gun violence restraining order or order issued pursuant to P.C. §§ 18100 to 18205 (New, Effective 1/1/2016), “if a prohibited firearm or ammunition or both is possessed, owned, in the custody of, or controlled by a person against whom a gun violence restraining order has been issued, the person has been lawfully served with that order, and the person has failed to relinquish the firearm as required by law.”

P.C. § 1524.5 (New); Effective 1/1/2016): Procedures for Execution of a Gun Violence Restraining Order Search Warrant:

Effective 1/1/2016), a police officer executing a search warrant for firearms or ammunition owned, possessed, or controlled by a person who is subject to a gun violence restraining order shall take custody of such firearms or ammunition.

If the firearms or ammunition is owned by someone other than the restrained person, they shall not be seized if (1) they are removed and stored in a manner that the restrained person does not have access to, or control of them; and (2) there is no evidence of unlawful possession of the firearm or ammunition by the owner.

If the location to be searched is jointly occupied by the restrained person and one or more other persons, and a locked gun safe is located that is owned by a person other than the restrained person, the contents of the safe cannot be searched “except in the owner’s presence, and with his or her consent or with a valid search warrant for a gun safe.”

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Sexual Assault

Educ. Code § 67386 (New): “Yes Means YesLaw:

As a part of a state requirement in order to qualify for public funding, colleges and universities are required to adopt policies concerning sexual assault, domestic violence, dating violence, and stalking students on or off campus. Such policies are to include an affirmative consent standard for sexual activity, defining “affirmative consent” as “affirmative, conscious, and voluntary agreement to engage in sexual activity.” A lack of protest, lack of resistance, and/or silence does not mean consent. Affirmative consent must be ongoing throughout the sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, is never assumed to be an indicator of consent.

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Smartphones

Bus. & Prof. Code § 22761 (New): Smartphones and Anti-Theft Features:

All smartphones manufactured after July 1, 2015, and sold in California, must include a feature that enables the phone to be rendered inoperable when it is stolen.

The anti-theft feature may be disabled by an authorized user.

Punishment: Civil penalty of between $500 and $2500 per phone.

The Attorney General, a district attorney, or city attorney, is empowered to enforce this section by filing a civil lawsuit.  

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Theft

P.C. § 459.5 (New; Effective 11/5/2014): Shoplifting:

Subd. (a): Entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950), is a misdemeanor.

Any other entry into a commercial establishment with intent to commit larceny is burglary.

Exceptions:

  • When the value of the property that is taken or intended to be taken exceeds nine hundred and fifty dollars ($950); or

  • Where the person has one or more prior convictions for an offense listed in P.C. § 667(e)(2)(C)(iv)* (i.e., a “super strike”); or

  • Where the person has one or more prior convictions for an offense requiring registration per P.C. § 290(c).

*See Administrative note, above.

Punishment:

Misdemeanor: Six months in county jail and/or $1,000 fine (P.C. § 19).

Felony: Where one or more of the above exceptions apply: 16 months, 2 or 3 years in county jail or state prison and a $10,000 fine. (P.C. §§ 1170(h), 672).

Subd. (b): No person charged with shoplifting per subd. (a) may also be charged with burglary or theft of the same property.

P.C. § 490.2 (New; Effective 11/5/2014): Petty Theft:

Subd. (a): Notwithstanding P.C. § 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft.

Exceptions:

Where the value of the property taken exceeds nine hundred and fifty dollars ($950); or

Where the person has one or more prior convictions for an offense listed in P.C. § 667(e)(2)(C)(iv)* (i.e., a “super strike”); or

When the person has one or more prior convictions that require registration pursuant to P.C. § 290(c).

*See Administrative note, above.

Punishment:

Misdemeanor: Six months in county jail and/or $1,000 fine (P.C. § 19).

Felony: When one or more of the above exceptions applies; 16 months, 2 or 3 years in county jail or state prison and a $10,000 fine. (P.C. §§ 1170(h), 672).

P.C. § 496 (Amended; Effective 11/5/2014): Receiving Stolen Property:

Subd. (a): Buying or receiving any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or concealing, selling, withholding, or aiding in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, where the value of the stolen property does not exceed nine hundred and fifty dollars ($950), is a misdemeanor.

Exceptions:

  • When the face value of the forged instrument exceeds $950; or

  • When the person has one or more prior convictions for any offense listed in P.C. § 667(e)(2)(C)(iv)* (i.e., a “super strike”); or

  • When the person has one or more prior convictions that require registration pursuant to P.C. § 290(c).

*See Administrative note, above.

Punishment:

Misdemeanor: One year in county jail and/or $1,000 fine (Subd. (a) & P.C. § 19).

Felony (wobbler): Where one or more of the above exceptions applies, then one year in county jail and/or a $1,000 fine, or 16 months, 2 or 3 years in county jail or state prison and a $10,000 fine. (Subd. (a), P.C. §§ 1170(h) & 672).

P.C. § 666 (Amended; Effective 11/5/2014): Petty Theft with a Prior:

Subd. (b): The “petty theft with a prior” sentencing provisions (see subd. (a)) for a conviction of petty theft, when the person has a (i.e., one) prior conviction (instead of three prior convictions), and has served a term of imprisonment therefor in any penal institution or having been imprisoned therein as a condition of probation for that offense, for one or more of the offenses listed in Subd. (a), now only apply to persons who:

  • Are required to register pursuant to the Sex Offender Registration Act,** or

  • Have a prior violent or serious felony conviction as listed in P.C. § 667(e)(2)(C)(iv)* (i.e., a “super strike”); or

  • Has a conviction for P.C. § 368(d) or (e) (Elder Financial Abuse).

*See Administrative note, above.

**Note that this is broader than the other Prop. 47 statutes that only apply to sex registration pursuant to P.C. § 290(c).

Subd. (a): The listed prior convictions are:

  • Petty Theft.

  • Grand Theft.

  • Elder Financial Abuse, per P.C. § 368(d) or (e).

  • Auto Theft, per V.C. § 10851

  • Burglary.

  • Carjacking.

  • Robbery.

  • A felony violation of P.C. § 496 (Receiving Stolen Property).

Punishment: Felony (wobbler); One year in county jail and a $1,000 fine, or 16 months, two or three years in state prison and a $10,000 fine. (P.C. §§ 18, 672)  

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Trespass

P.C. § 602 (Amended): Trespass to Private Property:

Subd. (o) is amended to increase from six to 12 months the period of time for which the owner of land or real property, or a lawful possessor, may, with one request, obtain peace office assistance to deal with trespassing when the premises or property is closed to the public, and so-posted. Further, the requestor must inform the law enforcement agency when the assistance is no longer desired. Also, the section now provides that the request for assistance expires upon the transfer of ownership of the property or a change in the person in lawful possession.   

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Vehicle Code Provisions

Veh. Code § 10856 (Amended; Effective 9/17/2014): Towed Vehicle Regulations:

Subd. (a): An infraction is committed when a person (other than a peace officer acting in an official capacity) interferes with the transportation of a repossessed vehicle to a storage facility, auction, or dealer.

Subd. (b): An infraction is committed by a tow yard, impounding agency, governmental agency, or a person acting on behalf of any of these, by refusing to release a vehicle or other collateral to anyone legally entitled to the vehicle or collateral. This does not apply to a vehicle being held for evidence by law enforcement or a prosecuting attorney.

Punishment: Infraction; $250 fine.

Veh. Code § 38601 (Amended): Off-Highway Recreational Vehicles and Helmets:

The requirement that a person on an off-highway recreational vehicle wear a helmet is now limited to while on “public lands,” eliminating the need to wear a helmet when on private property.   

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Vessel Operation

Harb. & Nav. Code §§ 678, 678.3, 678.5, 678.7, 678.9, 678.11, & 678.15 (New): Vessel Operators’ Education and Certification Certificates:

In order to operate a motorboat on state waters, operators must obtain a “vessel operator card” by taking and passing a written examination provided by the State Division of Boating and Waterways. Such examination may be taken online via the Internet. Once obtained, an operator’s card is then valid for life. Phased in incrementally, year by year, as determined by the age of the operator, motorboat operators 20 years of age and younger must have a card by 1/1/2018, with everyone having a card by 1/1/2025.

Exceptions:

  1. A resident of another state or country who is temporarily using California state waterways and meets the boating requirements for his or her state or country.

  2. A person operating a motorboat under the supervision of an adult who has a vessel operator card, and who is not (yet) required to have one.

  3. A person operating a motorboat in an organized regatta or vessel race, or water ski race.

  4. A person operating a rental motorboat.

  5. A person in possession of a current commercial fishing license.

  6. A person in possession of a valid marine operator license issued by the United States Coast Guard or a valid certificate issued pursuant to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers.

  7. A person who has successfully completed a boating course approved by the Commission of Peace Officers Standards and Training (P.O.S.T.).

Punishment: Infraction, with a fine of $100 for a first offense, $250 for a second offense, and $500 for a third and subsequent offense. Upon conviction, a boating safety course must be taken and passed within seven months.

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Wiretapping

P.C. § 629.52 (Amended): Crimes for Which A Wiretapping Order May Issue:

Human Trafficking,” per P.C. § 236.1, is added to the list of offenses (e.g., sale, transportation, or manufacturing of illegal drugs, murder, solicitation to commit murder, kidnapping per P.C. § 209, gang crimes, weapons of mass destruction) for which a wiretapping order may be obtained.

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