Date: November 15, 2016 Date: January 4, 2017 2017-IPG#26(12 NEW LAWS GOING INTO EFFECT IN 2017 PROSECUTORS ABSOLUTELY MUST KNOW ABOUT) New Year New Laws. For better or worse, some of those new laws are going to have an impact on criminal prosecutions. All the new laws of potential interest to prosecutors are covered by Santa Clara County DDA Kathy Storton in the 2017 CDAA Legislative Digest. And in the two-hour podcast that accompanies this IPG memo, Kathy discusses many of those laws. This IPG memo, however, sacrifices breadth for depth and concentrates on the dozen new pieces of legislation that prosecutors must know about (and some of the potential issues the new laws will raise). Among the new laws covered: A law reducing peremptory challenges in misdemeanor cases A law allowing business records obtained by warrant to be admitted in the same way as business records obtained by subpoena A law allowing juveniles to engage in prostitution without any criminal penalties A law making it a felony for prosecutors to engage in bad faith, intentional Brady violations A law making it more likely prosecutors will be successful when asking court clerks to fax or e- mail court records A law making various changes to CalECPA, including clarifying when warrantless searches of electronic devices of parolees or probationers can occur and whether jail calls are subject to CalECPA A law eliminating the statute of limitations for various serious sex offenses A law requiring state prison for persons who rape unconscious or intoxicated victims Note: State initiatives that went into effect in November of 2016 have been or will be discussed in upcoming IPG memos as will a raft of new laws relating to human trafficking. This IPG memo is accompanied by a podcast providing 2 hours of general MCLE credit. Click below to listen to the podcast: IPG 26 1
TABLE OF CONTENTS 1. ONLY SIX PEREMPTORY CHALLENGES ARE NOW AVAILABLE TO EACH SIDE IN MISDEMEANOR JURY TRIALS (SB 843) 6 2. BUSINESS RECORDS OBTAINED BY SEARCH WARRANT MAY NOW BE INTRODUCED INTO EVIDENCE WITH AN AFFIDAVIT FROM THE CUSTODIAN OF RECORDS IN THE SAME WAY RECORDS OBTAINED BY SUBPOENA DUCES TECUM ARE INTRODUCED INTO EVIDENCE (SB 1087) 7 Questions an Inquisitive Prosecutor Might Have About the New Law 7 Q-1: Q-2: Under Evidence Code section 1560, records that are subpoenaed must be returned to the court and only opened in the presence of both parties. Is that true as well for records that are obtained via a search warrant? 9 If the search warrant is for records of a business where the crime being prosecuted occurred, does Evidence Code section 1560(f) apply? 9 3. IF A MINOR AGREES TO ENGAGE IN AN ACT OF PROSTITUTION FOR COMPENSATION OR IS LOITERING WITH THE INTENT TO COMMIT PROSTITUTION, THE MINOR MAY NO LONGER BE CRIMINALLY PROSECUTED (SB 1322) 10 Questions an Inquisitive Prosecutor Might Have About the New Law 12 Q-1: Q-2: Who qualifies as a commercially exploited child for purposes of allowing a minor engaging in prostitution or loitering with the intent to engage in prostitution to be taken into temporary custody and be adjudged a dependent child? 12 Does it remain unlawful for a minor to provide compensation in exchange for a sex act with a minor or an adult? 15 3-A. Distinguishing Between Sellers and Buyers of Sexual Acts; and Between Buyers of Adult Sex and Buyers of Child Sex (SB 420) 16 3-B. Mandatory Minimum Sentences for Persons Who Repeatedly Engage in Acts of Prostitution Have Been Eliminated (SB 1129) 16 4. IT IS NOW A FELONY FOR PROSECUTORS TO INTENTIONALLY AND IN BAD FAITH WITHHOLD OR MODIFY RELEVANT MATERIAL EXCULPATORY EVIDENCE WITH THE INTENT TO CONCEAL THE EVIDENCE (AB 1909) 17 Questions an Inquisitive Prosecutor Might Have About the New Law 18 Q-1: If a prosecutor is accused of concealing evidence that potentially might result in the prosecutor being criminally prosecuted, should the prosecutor be concerned about saying anything in response to the accusation? 18 2
4-A. The Statute Requiring Courts to Recuse and Report a Prosecutor Once It is Determined the Prosecutor Deliberately and Intentionally Withheld Relevant Exculpatory Evidence Has Been Modified to Clarify the Evidence Must Be Material (SB 1474) 18 5. PROVING PRIOR CONVICTIONS GOT EASIER BECAUSE ELECTRONICALLY- MAINTAINED COURT-CERTIFIED COPIES OF CONVICTIONS THAT DO NOT HAVE AN ELECTRONIC SIGNATURE OR WATERMARK MAY STILL BE ADMITTED IF IT OTHERWISE CAN BE SHOWN THE CONVICTION WAS PREPARED AND TRANSMITTED BY A SUPERIOR COURT CLERK (AB 1867) 20 Questions an Inquisitive Prosecutor Might Have About the New Law 21 Q-1: What is the intent behind changing the definition of an electronically digitized copy in Evidence Code section 452.5 and what is its practical impact? 21 6. THERE HAVE BEEN MANY CHANGES TO THE CALIFORNIA ELECTRONICS COMMUNICATION PRIVACY ACT (CalECPA) IMPACTING, AMONG OTHER THINGS, WHETHER WARRANTS OR COURT ORDERS ARE NEEDED TO SEARCH PROBATIONER OR PAROLEE ELECTRONIC DEVICES, TO ACCESS AND RETAIN JAIL CALLS, TO SWIPE DRIVER S LICENSES, TO DISCLOSE ELECTRONIC INFO TO THE DEFENSE, OR TO ACCESS POLICE BODY CAMERAS (SB 1121) 24 6-A. Law Enforcement is Now Expressly Given Warrantless Access to the Electronic Devices of Parolees, Persons on PRCS, and Those with Search Conditions Imposed as a Condition of Mandatory Supervision, Probation, or Pretrial Release 24 Questions an Inquisitive Prosecutor Might Have About the New Law 26 Q-1: What does it mean to be an authorized possessor of an electronic device? 26 Q-2: Q-3: Q-4: Q-5: In light of the above definition, can officers access the electronic device (e.g., cell phone) of persons on parole or PRCS or persons with search conditions even though they are not in actual possession of the device? 26 Does the addition of paragraph (9) to section 1546.1(c) eliminate all concerns about searching the electronic devices of parolees or persons on PRCS? 28 What does it mean to be subject to an electronic device search as a clear and unambiguous condition as described in section 1546.1(c)(10)? 29 In light of the requirement that the person on probation, mandatory supervision or pretrial release be subject to a clear and unambiguous search condition as described in section 1546.1(c)(10), should prosecutors ask for search conditions the expressly reference electronic devices? 31 3
6-B. Jail Calls Obtained by Law Enforcement Without a Warrant Are Not Subject to the CalECPA Rule Requiring Destruction of Electronic Communications Within 90 Days if All Participants to the Calls Were Informed the Jail Would Disclose the Calls to the Government Agency Who Received the Calls 33 Questions an Inquisitive Prosecutor Might Have About the New Law 34 Q-1: Should the admonishment jail inmates and the person being called receives when the call is made be modified to ensure retention of the calls complies with paragraph (g)(4) of section 1546.1? 36 6-C. The Magnetic Strip on a Driver s License or Identification Card is Not an Electronic Device as that Term is Used in CalECPA and Thus No Warrant is Needed to Access the Information on the Strip 37 6-D. No Warrant or Court Order is Needed in Order for Law Enforcement to Access Information Concerning the Location or Number of a Cell Phone in Order to Respond to an Emergency 911 Call from That Phone nor is Later Court Approval Required 38 6-E. Law Enforcement Agencies May Compel Employees to Return Electronic Devices to the Agency Without a Warrant 39 6-F. There is No Longer an Absolute Requirement that Any Warrant for Electronic Information Specify a Time Period 40 Questions an Inquisitive Prosecutor Might Have About the New Law 41 Q-1: Is there still a requirement that a search warrant allowing access to electronic information provide time periods when the warrant is not authorizing the search of an electronic device? 41 6-G. Prosecutors May Now Disclose Information Seized by Law Enforcement in Executing a Search Warrant When the Information Was Unrelated to the Objective of the Warrant but is Information that Prosecutors Need to Disclose to Comply with Their Statutory Discovery Obligations 42 6-H. Law Enforcement May Access Electronic Device Information (e.g., a Cell Phone) Without a Warrant If the Device is Found in the Secure Area of Local Detention Facility to Which Inmates Have Access 43 6-I. 6-J. The Notice that Must Be Given to the Target of a Tracking Device Warrant Pursuant to Penal Code section 1534 Must Also Comply with the Notice Requirements of CalECPA that Apply When the Government Obtains Electronic Communications by Way of a Search Warrant 44 Law Enforcement is Now Given Three Court Days Instead of Just Three Days to Obtain Court Approval of the Obtaining of Electronic Information Pursuant to an Emergency 46 4
6-K It is Now Clear that CalECPA Does Not Apply to the Collection of Electronic Information by the Public Utilities Commission or State Energy Resources Conservation and Development Commission 46 6-L. The Use of Trap and Trace Orders and Pen Registers That Comply with Penal Code Sections 638.50 638.55 Will Not Run Afoul of CalECPA 47 7. SUBJECT TO CERTAIN EXCEPTIONS, INTERROGATION OF ALL MURDER SUSPECTS CONDUCTED IN A FIXED PLACE OF DETENTION MUST BE ELECTRONICALLY RECORDED (SB 1389) 49 8. THE STATUTE OF LIMITATIONS FOR CERTAIN DESIGNATED SEX CRIMES HAS BEEN ELIMINATED (SB 813) 51 Questions an Inquisitive Prosecutor Might Have About the New Law 54 Q-1: Q-2: Is it going to be a really long time before we see any cases that are prosecutable under the amended version of section 799(b)? 54 If a case could have been prosecuted as of January 1, 2017 under section 803(f), but at the time a report is finally made, there is no longer independent corroborating evidence, can the case still be prosecuted under the new section 799(b)? 54 9. DEFENDANTS CONVICTED OF RAPE, SODOMY, PENETRATION WITH A FOREIGN OBJECT OR ORAL COPULATION OF A VICTIM WHO WAS UNCONSCIOUS OR INCAPABLE OF GIVING CONSENT DUE TO INTOXICATION MUST BE SENT TO STATE PRISON (AB 2888) 55 10. IT IS NOW UNLAWFUL TO HOLD AND OPERATE A CELL PHONE UNLESS IT IS SPECIFICALLY DESIGNED AND CONFIGURED TO ALLOW VOICE- OPERATED AND HANDS-FREE OPERATION AND IS USED IN THAT MANNER (AB 1785) 56 Questions an Inquisitive Prosecutor Might Have About the New Law 59 Q-1: Q-2: Is the modification of an infraction really one of the dozen most important new laws prosecutors must know about? 59 So long as all I am doing is swiping or tapping my dashboard mounted phone while driving, I m okay, right? 59 12. THE DEFINITION OF ASSAULT WEAPONS HAS BEEN CHANGED TO PROHIBIT POSSESSION OF PREVIOUSLY LAWFUL FIREARMS THAT HAD MAGAZINES THAT COULD BE DETACHED BY USE OF A BULLET BUTTON (SB 880) 62 5
1. ONLY SIX PEREMPTORY CHALLENGES ARE NOW AVAILABLE TO EACH SIDE IN MISDEMEANOR JURY TRIALS (SB 843) Prior law: Each side in a misdemeanor criminal case had 10 peremptory challenges unless the charged offense was punishable by a maximum of 90 days in jail (see e.g., Pen. Code, 415, 417.25, and 602.1) in which case, each side had only six peremptory challenges. New Law: Beginning January 1, 2017 and until January 1, 2021, each side in any misdemeanor criminal case is only entitled to six peremptory challenges. In joint trials, defendants must exercise their six challenges jointly, but each defendant will get two additional separately exercisable challenges and the prosecutor will get the same number of additional challenges as the total additional challenges available to the defense (i.e., the prosecutor gets 10 challenges when there are two defendants). Relevant Statutory Language Code of Civil Procedure section 231(b) now states: If the offense charged is punishable with a maximum term of imprisonment of one year or less, the defendant is entitled to six and the state to six peremptory challenges. When two or more defendants are jointly tried, their challenges shall be exercised jointly, but each defendant shall also be entitled to two additional challenges which may be exercised separately, and the state shall also be entitled to additional challenges equal to the number of all the additional separate challenges allowed the defendants. Other Points of Interest: SB 843 also added a new subdivision (f) to section 231, which requires the Judicial Council to conduct a study for submission to the public safety committees of the State Senate and the Assembly on the reductions in peremptory challenges[.] (Code of Civ. Proc, 231(f).) 6
2. BUSINESS RECORDS OBTAINED BY SEARCH WARRANT MAY NOW BE INTRODUCED INTO EVIDENCE WITH AN AFFIDAVIT FROM THE CUSTODIAN OF RECORDS IN THE SAME WAY RECORDS OBTAINED BY SUBPOENA DUCES TECUM ARE INTRODUCED INTO EVIDENCE (SB 1087) Prior Law: Evidence Code section 1560 and 1562 together permitted (and continue to permit) business records to be introduced into evidence without having a custodian of records testify if the records were subpoenaed and returned in compliance with the requirements of section 1560. That is, when the custodian or other qualified witness delivers by mail or otherwise a true, legible, and durable copy of all of the records described in the subpoena to the clerk of the court or to another person described in subdivision (d) of Section 2026.010 of the Code of Civil Procedure, together with the affidavit described in Section 1561 (Evid. Code, 1560(b)), such records are admissible in evidence [i]f the original records would be admissible in evidence if the custodian or other qualified witness had been present and testified to the matters stated in the affidavit, and if the requirements of Section 1271 have been met (Evid. Code, 1562); and the accompanying affidavit is admissible as evidence of the matters stated therein pursuant to Section 1561 (Evid. Code, 1562). New Law: Evidence Code section 1560 was amended to add a new subdivision (f). Under that subdivision, when business records are obtained by way of search warrant, the records may be introduced into evidence without having a custodian of records testify in the same way that records obtained by a subpoena duces tecum may be introduced albeit the records are initially sent to the law enforcement agency, not the court. Thus, to quote Kathy Storton, when a prosecutor obtains by a search warrant business records needed in a criminal investigation before charges are filed, the prosecutor need not request the records again through a subpoena duces tecum after charges are filed, in order to make them admissible at trial without live testimony. Now, whether the records are obtained via search warrant or subpoena, they are admissible if offered in compliance with Evidence Code sections 1560 1567. 7
Relevant Statutory Language New Evidence Code section 1560(f) provides: (f) If a search warrant for business records is served upon the custodian of records or other qualified witness of a business in compliance with Section 1524 of the Penal Code regarding a criminal investigation in which the business is neither a party nor the place where any crime is alleged to have occurred, and the search warrant provides that the warrant will be deemed executed if the business causes the delivery of records described in the warrant to the law enforcement agency ordered to execute the warrant, it is sufficient compliance therewith if the custodian or other qualified witness delivers by mail or otherwise a true, legible, and durable copy of all of the records described in the search warrant to the law enforcement agency ordered to execute the search warrant, together with the affidavit described in Section 1561, within five days after the receipt of the search warrant or within such other time as is set forth in the warrant. This subdivision does not abridge or limit the scope of search warrant procedures set forth in Chapter 3 (commencing with Section 1523) of Title 12 of Part 2 of the Penal Code or invalidate otherwise duly executed search warrants. (Emphasis added by IPG.) Editor s note: Penal Code section 1524 outlines the grounds that allow a search warrant to issue. Other Points of Interest Evidence Code section 1561, which describes the type of affidavit that must accompany records that are being introduced without a custodian of records pursuant to Evidence Code section 1560, was slightly amended to accommodate the changes made to section 1560. Specifically, section 1561, in pertinent part now provides: The records shall be accompanied by the affidavit of the custodian or other qualified witness, stating in substance each of the following:... (2) The copy is a true copy of all the records described in the subpoena duces tecum or search warrant,... (Evid. Code, 1561(a)(2), emphasis added by IPG.) The amendment to Evidence Code section 1560 was foreshadowed by language in some other statutes allowing for the admission of records seized pursuant to certain kinds of warrants. (See e.g., Pen. Code, 1524.2 [allowing for the admission of records obtained pursuant to a search warrant that are in the actual or constructive possession of a foreign corporation that provides electronic communication services or remote computing services to the general public under Evidence Code section 1562 when the corporation 8
verifies the authenticity of records that it produces by providing an affidavit that complies with the requirements set forth in Section 1561 of the Evidence Code ]; 1546.1(d)(3) [allowing for electronic communications obtained by way of a search warrant to a service provider to be admitted into evidence if accompanied by an affidavit complying with Evidence Code section 1561].) Generally, a search warrant must be executed and returned within 10 days after date of issuance. (Pen. Code, 1534.) However, section 1560(f) contemplates that the delivery of the records described in the warrant along with the accompanying affidavit be done within five days after the receipt of the search warrant or within such other time as is set forth in the warrant. Questions an Inquisitive Prosecutor Might Have About the New Law Q-1: Under Evidence Code section 1560, records that are subpoenaed must be returned to the court and only opened in the presence of both parties. Is that true as well for records that are obtained via a search warrant? Section 1560(f) only requires the records be returned to the law enforcement agency ordered to execute the search warrant, together with the affidavit described in Section 1561... (Evid. Code, 1560(f).) There is no requirement the records be opened in the presence of both parties. Q-2: If the search warrant is for records of a business where the crime being prosecuted occurred, does Evidence Code section 1560(f) apply? One of the requirements for admissibility of the records obtained pursuant to a search warrant is that the warrant for the business be in compliance with Section 1524 of the Penal Code regarding a criminal investigation in which the business is neither a party nor the place where any crime is alleged to have occurred... (Evid. Code, 1560(f), emphasis added.) Thus, if there is a robbery of liquor store and for some reason the records of the store are obtained pursuant to a search warrant, section 1560(f) may not be applicable. However, this is also true when it comes to records that are subpoenaed pursuant to 1560(b). (See Evid. Code, 1560(b).) 9
3. IF A MINOR AGREES TO ENGAGE IN AN ACT OF PROSTITUTION FOR COMPENSATION OR IS LOITERING WITH THE INTENT TO COMMIT PROSTITUTION, THE MINOR MAY NO LONGER BE CRIMINALLY PROSECUTED (SB 1322) Prior law: Penal Code section 647(b) made it a crime for anyone to solicit or engage in any act of prostitution. Penal Code section 653.22 made it a crime for anyone to loiter in any public place with the intent to commit prostitution. New Law: Beginning January 1, 2017, it is no longer crime for someone under 18 to solicit or engage in prostitution. (See Pen. Code, 647(b)(5).) Similarly, it is no longer a crime under Penal Code section 653.22 to loiter in a public place with the intent to commit prostitution. (See Pen. Code, 653.22(a)(2).) However, a person under 18 who engages in the conduct described in sections 647(b) or 653.22 may be adjudged a dependent child of the court and taken into temporary custody (as allowed under Welfare and Institutions Code sections 300(b)(2) and 305(a)) by law enforcement if the person is (i) being sexually trafficked or is receiving, money, food, or shelter in exchange for sexual acts and (ii) the parent or guardian of the person has failed to, or was unable to, protect the child. Relevant Statutory Language New Penal Code section 647(b), in relevant part, provides: Except as provided in paragraph (5) of subdivision (b) and subdivision (l), every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: (b) (1) An individual who solicits, or who agrees to engage in, or who engages in, any act of prostitution with the intent to receive compensation, money, or anything of value from another person. An individual agrees to engage in an act of prostitution when, with specific intent to so engage, he or she manifests an acceptance of an offer or solicitation by another person to so engage, regardless of whether the offer or solicitation was made by a person who also possessed the specific intent to engage in an act of prostitution. 10
(2) An individual who solicits, or who agrees to engage in, or who engages in, any act of prostitution with another person who is 18 years of age or older in exchange for the individual providing compensation, money, or anything of value to the other person. An individual agrees to engage in an act of prostitution when, with specific intent to so engage, he or she manifests an acceptance of an offer or solicitation by another person who is 18 years of age or older to so engage, regardless of whether the offer or solicitation was made by a person who also possessed the specific intent to engage in an act of prostitution. (3) An individual who solicits, or who agrees to engage in, or who engages in, any act of prostitution with another person who is a minor in exchange for the individual providing compensation, money, or anything of value to the minor. An individual agrees to engage in an act of prostitution when, with specific intent to so engage, he or she manifests an acceptance of an offer or solicitation by someone who is a minor to so engage, regardless of whether the offer or solicitation was made by a minor who also possessed the specific intent to engage in an act of prostitution. (4) A manifestation of acceptance of an offer or solicitation to engage in an act of prostitution does not constitute a violation of this subdivision unless some act, in addition to the manifestation of acceptance, is done within this state in furtherance of the commission of the act of prostitution by the person manifesting an acceptance of an offer or solicitation to engage in that act. As used in this subdivision, prostitution includes any lewd act between persons for money or other consideration. (5) Notwithstanding paragraphs (1) to (3), inclusive, this subdivision does not apply to a child under 18 years of age who is alleged to have engaged in conduct to receive money or other consideration that would, if committed by an adult, violate this subdivision. A commercially exploited child under this paragraph may be adjudged a dependent child of the court pursuant to paragraph (2) of subdivision (b) of Section 300 of the Welfare and Institutions Code and may be taken into temporary custody pursuant to subdivision (a) of Section 305 of the Welfare and Institutions Code, if the conditions allowing temporary custody without warrant are met. (Emphasis added by IPG.) New Penal Code section 653.22, in relevant part, states: (a) (1) Except as specified in paragraph (2), it is unlawful for any person to loiter in any public place with the intent to commit prostitution. This intent is evidenced by acting in a manner and under circumstances that openly demonstrate the purpose of inducing, enticing, or soliciting prostitution, or procuring another to commit prostitution. 11
(2) Notwithstanding paragraph (1), this subdivision does not apply to a child under 18 years of age who is alleged to have engaged in conduct that would, if committed by an adult, violate this subdivision. A commercially exploited child under this paragraph may be adjudged a dependent child of the court pursuant to paragraph (2) of subdivision (b) of Section 300 of the Welfare and Institutions Code and may be taken into temporary custody pursuant to subdivision (a) of Section 305 of the Welfare and Institutions Code, if the conditions allowing temporary custody without warrant are met. Other Points of Interest See this IPG below at pp 15-16, discussing other bills making changes to Penal Code section 647(b) changes which are reflected in the language of section 647(b) quoted above at pp. 10-11. Questions an Inquisitive Prosecutor Might Have About the New Law Q-1: Who qualifies as a commercially exploited child for purposes of allowing a minor engaging in prostitution or loitering with the intent to engage in prostitution to be taken into temporary custody and be adjudged a dependent child? As noted above, both Penal Code section 647(b)(5) and Penal Code section 653.22(a)(2) allow a commercially exploited child to be taken into temporary custody under Welfare and Institutions Code section 305(a) and permit that child to be adjudged a dependent child under Welfare and Institutions Code section 300(b)(2). Welfare and Institutions Code section 305(a) provides: Any peace officer may, without a warrant, take into temporary custody a minor: (a) When the officer has reasonable cause for believing that the minor is a person described in Section 300, and, in addition, that the minor has an immediate need for medical care, or the minor is in immediate danger of physical or sexual abuse, or the physical environment or the fact that the child is left unattended poses an immediate threat to the child's health or safety. In cases in which the child is left unattended, the peace officer shall first attempt to contact the child's parent or guardian to determine if the parent or guardian is able to assume custody of the child. If the parent or guardian cannot be contacted, the peace officer shall notify a social worker in the county welfare department to assume custody of the child. 12
Welfare and Institutions Code section 300(b)(2) provides: The Legislature finds and declares that a child who is sexually trafficked, as described in Section 236.1 of the Penal Code, or who receives food or shelter in exchange for, or who is paid to perform, sexual acts described in Section 236.1 or 11165.1 of the Penal Code, and whose parent or guardian failed to, or was unable to, protect the child, is within the description of this subdivision, and that this finding is declaratory of existing law. These children shall be known as commercially sexually exploited children. (Emphasis added by IPG.) Penal Code section 236.1 does not use the term sexually trafficked. However, subdivision (c) of section 236.1 provides: A person who causes, induces, or persuades, or attempts to cause, induce, or persuade, a person who is a minor at the time of commission of the offense to engage in a commercial sex act, with the intent to effect or maintain a violation of Section 266, 266h, 266i, 266j, 267, 311.1, 311.2, 311.3, 311.4, 311.5, 311.6, or 518 is guilty of human trafficking. (Pen. Code, 236.1(c), emphasis added by IPG.) The term [c]ommercial sex act for purposes of section 236.1 is defined to mean sexual conduct on account of which anything of value is given or received by a person. (Pen. Code, 236.1(h)(2).) Penal Code section 11165.1 actually defines the term sexual abuse and states it means sexual assault or sexual exploitation. (Pen. Code, 11165.1.) That section then distinguishes between sexual assault and sexual exploitation. Specifically, section 11165.1 states: As used in this article, sexual abuse means sexual assault or sexual exploitation as defined by the following: (a) Sexual assault means conduct in violation of one or more of the following sections: Section 261 (rape), subdivision (d) of Section 261.5 (statutory rape), Section 264.1 (rape in concert), Section 285 (incest), Section 286 (sodomy), subdivision (a) or (b), or paragraph (1) of subdivision (c) of Section 288 (lewd or lascivious acts upon a child), Section 288a (oral copulation), Section 289 (sexual penetration), or Section 647.6 (child molestation). (b) Conduct described as sexual assault includes, but is not limited to, all of the following: (1) Penetration, however slight, of the vagina or anal opening of one person by the penis of another person, whether or not there is the emission of semen. (2) Sexual contact between the genitals or anal opening of one person and the mouth or tongue of another person. (3) Intrusion by one person into the genitals or anal opening of another person, including the use of an object for this purpose, except that, it does not include acts performed for a valid medical purpose. (4) The 13
intentional touching of the genitals or intimate parts, including the breasts, genital area, groin, inner thighs, and buttocks, or the clothing covering them, of a child, or of the perpetrator by a child, for purposes of sexual arousal or gratification, except that it does not include acts which may reasonably be construed to be normal caretaker responsibilities; interactions with, or demonstrations of affection for, the child; or acts performed for a valid medical purpose. (5) The intentional masturbation of the perpetrator's genitals in the presence of a child. (c) Sexual exploitation refers to any of the following:(1) Conduct involving matter depicting a minor engaged in obscene acts in violation of Section 311.2 (preparing, selling, or distributing obscene matter) or subdivision (a) of Section 311.4 (employment of minor to perform obscene acts).(2) A person who knowingly promotes, aids, or assists, employs, uses, persuades, induces, or coerces a child, or a person responsible for a child's welfare, who knowingly permits or encourages a child to engage in, or assist others to engage in, prostitution or a live performance involving obscene sexual conduct, or to either pose or model alone or with others for purposes of preparing a film, photograph, negative, slide, drawing, painting, or other pictorial depiction, involving obscene sexual conduct. For the purpose of this section, person responsible for a child's welfare means a parent, guardian, foster parent, or a licensed administrator or employee of a public or private residential home, residential school, or other residential institution.(3) A person who depicts a child in, or who knowingly develops, duplicates, prints, downloads, streams, accesses through any electronic or digital media, or exchanges, a film, photograph, videotape, video recording, negative, or slide in which a child is engaged in an act of obscene sexual conduct, except for those activities by law enforcement and prosecution agencies and other persons described in subdivisions (c) and (e) of Section 311.3. (d) Commercial sexual exploitation refers to either of the following: (1) The sexual trafficking of a child, as described in subdivision (c) of Section 236.1. (2) The provision of food, shelter, or payment to a child in exchange for the performance of any sexual act described in this section or subdivision (c) of Section 236.1. (Pen. Code, 11651.1.) Presumably, the term commercially exploited children in Penal Code sections 647(b) and 653.22(a)(2) includes children who receive something in exchange for engaging in any of the sexual acts described in Section... 11165.1 of the Penal Code regardless of whether the sexual act is described in the section of 11165.1 defining sexual assault or in the section of 11651.1 defining sexual exploitation. 14
Q-2: Does it remain unlawful for a minor to provide compensation in exchange for a sex act with a minor or an adult? There is nothing in the statute that draws a distinction between minors and adults when it comes to the act of soliciting or engaging in an act of prostitution if the person providing the compensation is a minor. However, an adult who engages in an act of prostitution with a minor in exchange for compensation from the minor may, depending on the age of minor, potentially be prosecuted under a different statute. 3-A: Distinguishing Between Sellers and Buyers of Sexual Acts; and Between Buyers of Adult Sex and Buyers of Child Sex (SB 420) As is obvious from the language of the new Penal Code section 647(b), the limitation on prosecuting minors for engaging in prostitution was not the only change to Penal Code section 647(b). The following changes were also made: Prior Law Previously, subdivision (b) of section 647 was a unitary subdivision. There was no distinction in the law between persons selling sexual acts (prostitutes) and persons buying sexual acts ( johns ); nor was there any distinction between adults who purchased sexual acts from other adults and those who purchased sexual acts from a minor. They were all characterized as being in violation of subdivision (b) although persons purchasing sexual acts from minors could also potentially be charged with other offenses based on the same conduct (see e.g., Pen. Code, 288, subds. (a), (c)) and were subject to greater punishment (see e.g., Pen. Code, 647(m)). New Law Now, subdivision (b) of section 647 is divided up into five sub-parts. Subdivision (b)(1) targets the seller (aka the sex worker or prostitute ) by making it a misdemeanor for a person to solicit, agree to engage in, or engage in any act of prostitution when the person receives compensation. (Pen. Code, 647(b)(1).) Subdivision(b)(2) targets the buyer (aka the customer or john ) of adult sex by making it a misdemeanor for a person to solicit, agree to engage in, or engage in any act of prostitution with an adult when the person provides compensation. (Pen. Code, 647(b)(2).) 15
Subdivision (b)(3) targets the buyer (aka the customer or john ) of child sex by making it a misdemeanor for a person to solicit, agree to engage in, or engage in any act of prostitution with a minor when the person provides compensation. (Pen. Code, 647(b)(3).) Subdivision (b)(4) retains the earlier requirement that there be an act in furtherance of the commission of the act of prostitution by the person receiving compensation for the act and reiterates language from former subdivision (b) of section 647 that [a]s used in this subdivision, prostitution includes any lewd act between persons for money or other consideration. (Pen. Code, 647(b)(4).) Subdivision (b)(5) renders subdivisions (b)(1)-(3) inapplicable to minors who have engaged in sexual conduct to receive money or other consideration. (See (Pen. Code, 647(b)(5) [discussed in this IPG memo at pp. 10-14.) Relevant Statutory Language: See this IPG memo at pp. 10-11. Other Points of Interest According to the author of the bill, drawing the distinctions enacted by SB 420 will make Prior Law it easier to keep statistics on how many acts of prostitution involve minors. 3-B: Mandatory Minimum Sentences for Persons Who Repeatedly Engage in Acts of Prostitution Have Been Eliminated (SB 1129) If a defendant was convicted a second time for an act of prostitution, the defendant had to serve a period of not less than 45 days in county jail. If the defendant was convicted three or more times, the defendant had to serve a period of not less than 90 days. (See former Pen. Code, 647(k).) New Law The mandatory minimum sentences for engaging in acts of prostitution have been completely eliminated. (See Pen. Code, 647(k).) Other Points of Interest SB 1129 did not eliminate a court s authority under subdivision (k) of Penal Code section 647 to suspend the license of a person convicted of violating subdivision (b) of section 647 16
for 30 days or restrict the license for 6 months if the violation was committed within 1,000 feet of a private residence and with the use of a vehicle. (Pen. Code, 647(k).) 4. IT IS NOW A FELONY FOR PROSECUTORS TO INTENTIONALLY AND IN BAD FAITH WITHHOLD OR MODIFY RELEVANT MATERIAL EXCULPATORY EVIDENCE WITH THE INTENT TO CONCEAL THE EVIDENCE (AB 1909) Prior Law Previously, there was no statute specifically criminalizing a prosecutor s intentional concealment of material exculpatory evidence. Such conduct simply constituted a violation of due process, the discovery statute, and a prosecutor s ethical obligations. New Law A new subdivision (c) has been added to Penal Code section 141, which makes it unlawful for a prosecuting attorney, in bad faith, to, among other things, withhold any relevant and material exculpatory information when done with the specific intent that the information be concealed or destroyed. Relevant Statutory Language Specifically, Penal Code section 141(c) now provides: A prosecuting attorney who intentionally and in bad faith alters, modifies, or withholds any physical matter, digital image, video recording, or relevant exculpatory material or information, knowing that it is relevant and material to the outcome of the case, with the specific intent that the physical matter, digital image, video recording, or relevant exculpatory material or information will be concealed or destroyed, or fraudulently represented as the original evidence upon a trial, proceeding, or inquiry, is guilty of a felony punishable by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years. 17
Questions an Inquisitive Prosecutor Might Have About the New Law Q-1: If a prosecutor is accused of concealing evidence that potentially might result in the prosecutor being criminally prosecuted, should the prosecutor be concerned about saying anything in response to the accusation? Because a violation of Penal Code section 141(c) requires a prosecutor to act in bad faith and with the specific intent to conceal or destroy evidence, it is doubtful that any honest prosecutor will ever engage in such conduct or be criminally charged with engaging in such conduct. Mere defense allegations of discovery violations should not trigger concerns. Moreover, false accusations of prosecutors engaging in criminal behavior (e.g., suborning perjury ) are nothing new and come with the territory. However, CDAA has convened a working group which will be producing a document with suggestions on how discovery practices can be designed to help insulate prosecutors from false accusations of criminal discovery violations and how prosecutors can respond to such false accusations. 4-A: The Statute Requiring Courts to Recuse and Report a Prosecutor Once It is Determined the Prosecutor Deliberately and Intentionally Withheld Relevant Exculpatory Evidence Has Been Modified to Clarify the Evidence Must Be Material (SB 1474) Prior law Previously, Penal Code section 1424.5 provided that if a court determined a prosecutor had deliberately and intentionally withheld relevant or material exculpatory evidence or information in violation of law, a court was required to inform the State Bar of that violation if the prosecuting attorney acted in bad faith and the impact of the withholding contributed to a guilty verdict, guilty or nolo contendere plea, or, if identified before conclusion of trial, seriously limited the ability of a defendant to present a defense[.] (Pen. Code, 1424.5(a)(1).) Moreover, section 1424.5 allowed the court to disqualify the prosecutor. (Pen. Code, 1424.5(b)(1).) New Law There has been a slight tweaking to the language of Penal Code section 1424.5 to correct a drafting error that occurred when the bill was originally enacted last year. The reference to withholding relevant or material exculpatory evidence or information (emphasis added by 18
IPG) in both subdivision (a) and (b) is now changed to withholding relevant, material exculpatory evidence or information. This was done in order to reflect the original intent that the exculpatory evidence or information must be both relevant and material in order for the court to have a duty to report the attorney. Relevant Statutory Language Penal Code section 1424.5, in relevant part, now specifically provides: (a)(1) Upon receiving information that a prosecuting attorney may have deliberately and intentionally withheld relevant, material exculpatory evidence or information in violation of law, a court may make a finding, supported by clear and convincing evidence, that a violation occurred. If the court finds such a violation, the court shall inform the State Bar of California of that violation if the prosecuting attorney acted in bad faith and the impact of the withholding contributed to a guilty verdict, guilty or nolo contendere plea, or, if identified before conclusion of trial, seriously limited the ability of a defendant to present a defense. (2) A court may hold a hearing to consider whether a violation occurred pursuant to paragraph (1). (b)(1) If a court finds, pursuant to subdivision (a), that a violation occurred in bad faith, the court may disqualify an individual prosecuting attorney from a case. (2) Upon a determination by a court to disqualify an individual prosecuting attorney pursuant to paragraph (1), the defendant or his or her counsel may file and serve a notice of a motion pursuant to Section 1424 to disqualify the prosecuting attorney's office if there is sufficient evidence that other employees of the prosecuting attorney's office knowingly and in bad faith participated in or sanctioned the intentional withholding of the relevant, material exculpatory evidence or information and that withholding is part of a pattern and practice of violations. (Emphasis added by IPG.) Editor s note: If either Penal Code section 141(c) or Penal Code section 1424.5 has taken you by surprise, it is time to make reservations for CDAA s Discovery Seminar, being held in San Diego on May 9-11, 2017. 19
5. PROVING PRIOR CONVICTIONS GOT EASIER BECAUSE ELECTRONICALLY-MAINTAINED COURT-CERTIFIED COPIES OF CONVICTIONS THAT DO NOT HAVE AN ELECTRONIC SIGNATURE OR WATERMARK MAY STILL BE ADMITTED IF IT OTHERWISE CAN BE SHOWN THE CONVICTION WAS PREPARED AND TRANSMITTED BY A SUPERIOR COURT CLERK (AB 1867) Prior Law Evidence Code section 452.5(b)(1) provides that an official record of conviction certified in accordance with subdivision (a) of Section 1530, or an electronically digitized copy thereof is admissible under Section 1280 to prove the commission, attempted commission, or solicitation of a criminal offense, prior conviction, service of a prison term, or other act, condition, or event recorded by the record. (Emphasis added by IPG.) This remains the law. However, the term electronically digitized copy was previously defined as a copy that is made by scanning, photographing, or otherwise exactly reproducing a document, is stored or maintained in a digitized format, and bears an electronic signature or watermark unique to the entity responsible for certifying the document. (Former Evid. Code, 452.5(b)(2), emphasis added by IPG.) This was a problem because, while the law allowed courts to send electronically digitized copies, the requirement that the digitized copy bear an electronic signature or watermark effectively prevented courts that did not yet have an electronic system which could insert electronic signatures or watermarks from sending prior convictions by way of e-mail or fax. New Law The definition of electronically digitized copy has been changed to include a copy that does not bear an electronic signature or watermark unique to the entity certifying the document but is an official record of conviction, certified in accordance with subdivision (a) of Section 1530, that is transmitted by the clerk of the superior court in a manner showing that the copy was prepared and transmitted by that clerk of the superior court. (Evid. Code, 452.5(b)(2).) Relevant Statutory Language Evidence Code section 452.5 provides: 20
(a) The official acts and records specified in subdivisions (c) and (d) of Section 452 include any computer-generated official court records, as specified by the Judicial Council, that relate to criminal convictions, when the record is certified by a clerk of the superior court pursuant to Section 69844.5 of the Government Code at the time of computer entry. (b)(1) An official record of conviction certified in accordance with subdivision (a) of Section 1530, or an electronically digitized copy thereof, is admissible under Section 1280 to prove the commission, attempted commission, or solicitation of a criminal offense, prior conviction, service of a prison term, or other act, condition, or event recorded by the record. (2) For purposes of this subdivision, electronically digitized copy means a copy that is made by scanning, photographing, or otherwise exactly reproducing a document, is stored or maintained in a digitized format, and meets either of the following requirements: (A) The copy bears an electronic signature or watermark unique to the entity responsible for certifying the document. (B) The document that is copied is an official record of conviction, certified in accordance with subdivision (a) of Section 1530, that is transmitted by the clerk of the superior court in a manner showing that the copy was prepared and transmitted by that clerk of the superior court. A seal, signature, or other indicia of the court shall constitute adequate showing. (Evid. Code, 452.5(b)(2), emphasis added by IPG.) Questions an Inquisitive Prosecutor Might Have About the New Law Q-1: What is the intent behind changing the definition of an electronically digitized copy in Evidence Code section 452.5 and what is its practical impact? When this bill was originally drafted by Santa Clara County Assistant District Attorney James Gibbons-Shapiro, the intent was primarily to permit hard copies of prior convictions that had been sent/transmitted to the district attorney s office and maintained for future use to be admissible in subsequent litigation, as well as to make it easier and more efficient for courts to electronically transmit records of prior convictions. 21
The statutory language originally proposed was significantly altered as the bill made its way through the legislature and came to place a greater emphasis on making it easier and more efficient for courts to distribute court records that would be admissible in other court proceedings. However, the later legislative analyses of AB 1867 contained and incorporated language that reflected the original intent behind the bill. (See Sen. Rules Com., Off. Of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 1867 (2015-2016 Reg. Sess.) as amended March 31, 2016, at pp. 7-9; Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1867 (2015-2016 Reg. Sess.) as amended March 31, 2016, at pp. 6-11.) The language in the legislative history makes it abundantly clear, at a minimum, that: (i) the court should be able to electronically transmit (e.g., by e-mail or fax) a certified copy of the records of a prior conviction to a prosecutor s office; (ii) the prosecutor should be able to print out that electronically transmitted records of a prior conviction along with the accompanying e- mail or faxed cover sheet; and (iii) a prosecutor should be able to get the records admitted if the printout of the records contains a unique electronic signature or watermark or by introducing the e-mail or fax cover sheet reflecting that the document was sent by the court clerk - assuming the records were certified in accordance with Evidence Code section 1530(a) before they were transmitted and otherwise meet the foundational requirements of Evidence Code section 1280. One question that may arise is what is required in order for records to be certified in accordance with Evidence Code section 1530(a). That section provides, in relevant part, that A purported copy of a writing in the custody of a public entity, or of an entry in such a writing, is prima facie evidence of the existence and content of such writing or entry if:... (2) The office in which the writing is kept is within the United States or within the Panama Canal Zone, the Trust Territory of the Pacific Islands, or the Ryukyu Islands, and the copy is attested or certified as a correct copy of the writing or entry by a public employee, or a deputy of a public employee, having the legal custody of the writing;... (Evid. Code, 1530(a)(2).) In People v. Skiles (2011) 51 Cal.4th 1178, the California Supreme Court agreed with a defendant that a faxed copy of a prior conviction containing a copied attestation did not meet the requirements of section 1530 because a copied attestation does not signify that the official had seen and was vouching for the authenticity of the faxed copy, as required by section 1530[.] (Id. at 1186.) The Skiles court observed that [a]n attested or certified copy is defined as a duplicate of an original (usu. official) document, certified as an exact reproduction usu. by the officer responsible for issuing or keeping the original. (Ibid.) Since there was no evidence that 22
the public official who faxed the document examined and compared the faxed copy with the original as would be shown by a certificate of its correctness, the Skiles declined to rely on section 1530 to create a presumption the records were authentic. (Ibid.) Albeit, the Skiles court went on to find that other evidence was sufficient to find the faxed copy of a certified copy of the prior conviction was authentic and reliable. (Id. at p. 1187.) To avoid the problem raised in Skiles in light of the amendment to section 452.5, prosecutors should ask the court clerk to state in an attached document, or in the e-mail accompanying the electronically digitized copy of the prior conviction, that the copy of the prior conviction is an exact reproduction of the original document. It would be even better if the clerk could sign with a digital signature but it should not be a prerequisite. If this does not suffice, and a court believes an original document with the clerk s actual signature (i.e., the attestation/certification) must accompany the electronically digitized record of the prior conviction in order for there to be sufficient compliance with section 1530, then the prosecutor should point out that this belief would require the attestation/certification be sent by mail or hand-delivered and the amendment to section 452.5(b) would have accomplished nothing. Moreover, refusing to rely on an e-mail or document attached to the e-mail as evidence would completely undermine the intent to allow in other indicia as an alternative to a seal or signature under the new section 452.5(b) Whether the amendment to section 452.5(b) will allow the prosecution to introduce records of a prior conviction previously transmitted to the district attorney s office in hard copy form by a court and then electronically digitized by the prosecution is an open question. 23