Today's Law As Amended


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AB-294 Correctional facilities: gassing.(2019-2020)



As Amends the Law Today


SECTION 1.

 Section 243.9 of the Penal Code is amended to read:

243.9.
 (a) Every person An inmate  confined in any local detention facility who commits a battery by gassing upon the person of any peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, or employee of the local detention facility is guilty of aggravated battery and shall be punished by imprisonment in a county jail or by imprisonment in the state prison for two, three, or four years.
(b) For purposes of this section, “gassing” means intentionally placing or throwing, or causing to be placed or thrown, upon the person of another, any human excrement or other bodily fluids or bodily substances or any mixture containing human excrement or other bodily fluids or bodily substances that results in actual contact with the person’s skin or membranes.
(c) (1) The person in charge of the local detention facility shall use every available means to immediately investigate all reported or suspected violations of subdivision (a), including, but not limited to, the use of forensically acceptable means of preserving and testing the suspected gassing substance to confirm the presence of human excrement or other bodily fluids or bodily substances. The local facility shall complete its investigation within six months of the violation.
(c) (2)  The person in charge of the local detention facility shall use every available means to immediately investigate all reported or suspected violations of subdivision (a), including, but not limited to, the use of forensically acceptable means of preserving and testing the suspected gassing substance to confirm the presence of human excrement or other bodily fluids or bodily substances.  If there is probable cause to believe that the inmate has violated subdivision (a), the chief medical officer of the local detention facility, or his or her  the chief medical officer’s  designee, may, when he or she deems  they deem  it medically necessary to protect the health of an officer or employee who may have been subject to a violation of this section, order the inmate to receive an examination or test for hepatitis or tuberculosis or  hepatitis, tuberculosis, or  both hepatitis and tuberculosis tuberculosis,  on either a voluntary or involuntary basis immediately after the event, and periodically thereafter as determined to be necessary by the medical officer in order to ensure that further hepatitis or tuberculosis transmission does not occur. These decisions shall be consistent with an occupational exposure as defined by the Center Centers  for Disease Control and Prevention. The results of any examination or test shall be provided to the officer or employee who has been subject to a reported or suspected violation of this section. Nothing in this subdivision shall be construed to otherwise  This subdivision does not  supersede the operation of Title 8 (commencing with Section 7500). Any person performing tests, transmitting test results, or disclosing information pursuant to this section shall be  is  immune from civil liability for any action taken in accordance with this section.
(3) An officer or employee who is the victim of a reported or suspected violation of this section has the right to request the inmate to be tested for any of the diseases listed in paragraph (2), subject to a finding of medical necessity by the chief medical officer or their designee pursuant to paragraph (2).
(d) (1)  The person in charge of the local detention facility shall refer all reports for which there is probable cause to believe that the inmate has violated subdivision (a) to the local  district attorney for prosecution.
(2) The local detention facility shall consult with the district attorney’s office to determine the type of physical evidence and documentation that is necessary to prosecute a person for committing the aggravated battery described in subdivision (a).
(3) The local detention facility has the discretion to not test the gassing substance for the presence of a bodily fluid if the facility, in consultation with the district attorney’s office, determines that testing is unnecessary to obtain sufficient evidence of the aggravated battery described in subdivision (a).
(e) This section does not preclude the right of an inmate to test the suspected gassing substance for purposes of providing a defense against any charges filed pursuant to this section.
(e)  Nothing in  (f)   this section shall  This section does not  preclude prosecution under both this section and any other provision of law.

SEC. 2.

 Section 2068 is added to the Penal Code, to read:

2068.
 (a) (1) The warden in charge of a state prison facility shall post a legible notice in an easily visible location to officers and employees of the facility that describes the rights of a victim of aggravated battery, as described in subdivision (a) of Section 4501.1.
(2) The notice shall be entitled “Victims’ Right to Aftercare in a Gassing Attack” and state the following:
“If you have direct contact with the bodily fluids of an inmate, you have the right to be informed by supervisory or medical personnel if the inmate has a communicable disease. You have the right to request that the inmate be tested for the human immunodeficiency virus (HIV), hepatitis, and tuberculosis. A request for inmate testing is subject to approval in accordance with applicable laws and regulations. You have the right to access counseling services at the time of your request for disease testing and when the test results are provided to you. You are entitled to workers’ compensation insurance if you are injured or disabled in the course of employment.”
(3) The warden in charge of a state prison facility shall provide a physical notice explaining a victim’s rights to aftercare in a gassing attack to an officer or employee who is a victim of aggravated battery, as defined in subdivision (a) of Section 4501.1, immediately after the incident is reported. This document shall contain information substantially similar to the notice described in paragraph (2). The notice shall be signed by both the warden and the victim and shall serve as an acknowledgment of the victim’s rights after a gassing attack.
(4) The warden in charge of a state prison facility shall provide on an annual basis a facilitywide email, to the extent a facilitywide email is utilized by the state prison, describing a victim’s rights to aftercare in a gassing attack. This email shall contain information substantially similar to the notice described in paragraph (2) and also include contact information for aftercare and counseling resources.
(b) A state prison facility shall make protective gear, including, but not limited to, clothing, goggles, shields, and other protective devices, readily available to staff.
(c) A state prison facility shall document all of the following:
(1) The total number of gassing incidents at the state prison facility and the number that were committed by repeat offenders.
(2) The disposition of each gassing incident, including administrative penalties imposed, number of incidents prosecuted, the results of those prosecutions, and any discipline procedures or penalties imposed.
(3) A profile of the inmates who committed the gassing incidents, including the number of inmates who have one or more prior serious or violent felony convictions.
(4) Efforts that the state prison facility has taken to limit these incidents, including staff training and the use of protective clothing, goggles, shields, or other protective gear.
(5) The results and costs of medical testing related to gassing incidents.
(d) (1) A state prison facility shall provide adequate training to officers on how to prevent and mitigate the harm from gassing attacks on a biennial basis.
(2) A state prison facility shall provide adequate training to a newly hired officer on how to prevent and mitigate the harm from gassing attacks within three months of the newly hired officer’s employment date.
(e) A state prison facility shall replace any article of an officer’s uniform that has been soiled in a gassing attack.
(f) (1) For the purposes of this section, “gassing” has the same meaning as described in subdivision (b) of Section 4501.1.
(2) For the purposes of this section, “officer” means a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2.

SEC. 3.

 Section 2601 of the Penal Code is amended to read:

2601.
 Subject only to the provisions of that section, Section 2600,  each person described in Section 2600 shall have the following civil rights:
(a) Except as provided in Section 2225 of the Civil Code, to inherit, own, sell, or convey real or personal property, including all written and artistic material produced or created by the person during the period of imprisonment. However, to the extent authorized in Section 2600, the Department of Corrections may restrict or prohibit sales or conveyances that are made for business purposes.
(b) To correspond, confidentially, with any member of the State Bar or holder of public office, provided that the prison authorities may open and inspect incoming mail to search for contraband.
(c) (1) To purchase, receive, and read any and all newspapers, periodicals, and books accepted for distribution by the United States Post Office. Pursuant to this section, prison authorities may exclude any of the following matter:
(A) Obscene publications or writings, and mail containing information concerning where, how, or from whom this matter may be obtained.
(B) Any matter of a character tending to incite murder, arson, riot, violent racism, or any other form of violence.
(C) Any matter concerning gambling or a lottery.
(2) Nothing in this section shall be construed as limiting  This section does not limit  the right of prison authorities to do the following:
(A) Open and inspect any and all packages received by an inmate.
(B) Establish reasonable restrictions as to the number of newspapers, magazines, and books that the inmate may have in his or her  the inmate’s  cell or elsewhere in the prison at one time.
(d) To initiate civil actions, subject to a three dollar ($3) filing fee to be collected by the Department of Corrections,  Corrections and Rehabilitation,  in addition to any other filing fee authorized by law, and subject to Title 3a (commencing with Section 391) of the Code of Civil Procedure.
(e) To marry.
(f) To create a power of appointment.
(g) To make a will.
(h) To receive all benefits provided for in Sections 3370 and 3371 of the Labor Code and in Section 5069.
(i) To receive an examination for the human immunodeficiency virus (HIV) or for hepatitis B or C if the person has been exposed to the bodily fluids of another inmate.
(j) To request that another inmate be tested for HIV or hepatitis B or C pursuant to Section 7512 and subject to all the procedures and requirements of that section, if the person has reason to believe that the person came into contact with the bodily fluids of another inmate.

SEC. 4.

 Section 4033 is added to the Penal Code, to read:

4033.
 (a) (1) The sheriff of each county or the administrator of each county jail shall post a legible notice in an easily visible location to officers and employees of the jail that describes the rights of a victim of aggravated battery, as described in subdivision (a) of Section 243.9.
(2) The notice shall be entitled “Victims’ Right to Aftercare in a Gassing Attack” and state the following:
“If you have direct contact with the bodily fluids of an inmate, you have the right to be informed by supervisory or medical personnel if the inmate has a communicable disease. You have the right to request that the inmate be tested for the human immunodeficiency virus (HIV), hepatitis, and tuberculosis. A request for inmate testing is subject to approval in accordance with applicable laws and regulations. You have the right to access counseling services at the time of your request for disease testing and when the test results are provided to you. You are entitled to workers’ compensation insurance if you are injured or disabled in the course of employment.”
(3) The sheriff of each county or the administrator of each county jail shall provide a physical notice explaining a victim’s rights to aftercare in a gassing attack to an officer or employee who is a victim of aggravated battery, as defined in subdivision (a) of Section 243.9, immediately after the incident is reported. This document shall contain information substantially similar to the notice described in paragraph (2). The notice shall be signed by both the sheriff or county jail administrator and the victim and shall serve as an acknowledgment of the victim’s rights after a gassing attack.
(4) The sheriff of each county or the administrator of each county jail shall provide on an annual basis a facilitywide email, to the extent a facilitywide email is utilized by the county jail, describing a victim’s rights to aftercare in a gassing attack. This email shall contain information substantially similar to the notice described in paragraph (2) and also include contact information for aftercare and counseling resources.
(b) A county jail shall make protective gear, including, but not limited to, clothing, goggles, shields, and other protective devices, readily available to staff.
(c) A county jail shall document all of the following:
(1) The total number of gassing incidents at the county jail and the number that were committed by repeat offenders.
(2) The disposition of each gassing incident, including administrative penalties imposed, number of incidents prosecuted, the results of those prosecutions, and any discipline procedures or penalties imposed.
(3) A profile of the inmates who committed the gassing incidents, including the number of inmates who have one or more prior serious or violent felony convictions.
(4) Efforts that the county jail has taken to limit these incidents, including staff training and the use of protective clothing, goggles, shields, or other protective gear.
(5) The results and costs of medical testing related to gassing incidents.
(d) (1) A county jail shall provide adequate training to officers on how to prevent and mitigate the harm from gassing attacks on a biennial basis.
(2) A county jail shall provide adequate training to a newly hired officer on how to prevent and mitigate the harm from gassing attacks within three months of the newly hired officer’s employment date.
(e) A county jail shall replace any article of an officer’s uniform that has been soiled in a gassing attack.
(f) (1) For the purposes of this section, “gassing” has the same meaning as described in subdivision (b) of Section 243.9.
(2) For the purposes of this section, “officer” means a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2.

SEC. 5.

 Section 4034 is added to the Penal Code, to read:

4034.
 (a) A person confined in a county jail has the right to receive an examination for the human immunodeficiency virus (HIV) or for hepatitis B or C if the person has been exposed to the bodily fluids of another inmate.
(b) A person confined in a county jail has the right to request that another inmate be tested for HIV or hepatitis B or C pursuant to Section 7512 and subject to all the procedures and requirements of that section, if the person has reason to believe that the person came into contact with the bodily fluids of another inmate.
(c) The sheriff of each county or the administrator of each county jail shall provide notice to an inmate who has been exposed to bodily fluids of another inmate explaining the inmate’s right to be tested for the communicable diseases listed in subdivision (a) and the right to request that the other inmate be tested for those communicable diseases.
(d) A county jail shall document all incidents in which an inmate intentionally places or throws, or causes to be placed or thrown, any human excrement, other bodily fluids, bodily substances, or any mixture containing human excrement, bodily fluids, or bodily substances on another inmate that results in actual contact with the inmate’s skin or membranes.

SEC. 6.

 Section 4501.1 of the Penal Code is amended to read:

4501.1.
 (a) Every person An inmate  confined in the state prison who commits a battery by gassing upon the person of any peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, or employee of the state prison is guilty of aggravated battery and shall be punished by imprisonment in a county jail or by imprisonment in the state prison for two, three, or four years. Every A  state prison inmate convicted of a felony under this section shall serve his or her  the  term of imprisonment as  prescribed in Section 4501.5.
(b) For purposes of this section, “gassing” means intentionally placing or throwing, or causing to be placed or thrown, upon the person of another, any human excrement or other bodily fluids or bodily substances or any mixture containing human excrement or other bodily fluids or bodily substances that results in actual contact with the person’s skin or membranes.
(c) (1) The warden or other person in charge of a state prison facility shall use every available means to immediately investigate all reported or suspected violations of subdivision (a), including, but not limited to, the use of forensically acceptable means of preserving and testing the suspected gassing substance to confirm the presence of human excrement or other bodily fluids or bodily substances. The state prison facility shall complete its investigation within six months of the violation.
(c) (2)  The warden or other person in charge of the state prison shall use every available means to immediately investigate all reported or suspected violations of subdivision (a), including, but not limited to, the use of forensically acceptable means of preserving and testing the suspected gassing substance to confirm the presence of human excrement or other bodily fluids or bodily substances.  If there is probable cause to believe that the inmate has violated subdivision (a), the chief medical officer of the state prison or his or her  facility, or the chief medical officer’s  designee, may, when he or she deems  they deem  it medically necessary to protect the health of an officer or employee who may have been subject to a violation of this section, order the inmate to receive an examination or test for hepatitis or tuberculosis or  hepatitis, tuberculosis, or  both hepatitis and tuberculosis tuberculosis,  on either a voluntary or involuntary basis immediately after the event, and periodically thereafter as determined to be necessary by the medical officer in order to ensure that further hepatitis or tuberculosis transmission does not occur. These decisions shall be consistent with an occupational exposure as defined by the Center Centers  for Disease Control and Prevention. The results of any examination or test shall be provided to the officer or employee who has been subject to a reported or suspected violation of this section. Nothing in this subdivision shall be construed to otherwise  This subdivision does not  supersede the operation of Title 8 (commencing with Section 7500). Any person performing tests, transmitting test results, or disclosing information pursuant to this section shall be  is  immune from civil liability for any action taken in accordance with this section.
(3) An officer or employee who is the victim of a reported or suspected violation of this section has the right to request the inmate be tested for any of the diseases listed in paragraph (2), subject to a finding of medical necessity by the chief medical officer or their designee pursuant to paragraph (2).
(d) (1)  The warden or other person in charge of the a  state prison facility  shall refer all reports for which there is probable cause to believe that the inmate has violated subdivision (a) to the local  district attorney for prosecution.
(e) (2)  The Department of Corrections and Rehabilitation shall report to the Legislature, by January 1, 2000, its findings and recommendations on gassing incidents at the state prison and the medical testing authorized by this section. The report shall include, but not be limited to, all of the following: state prison facility shall consult with the district attorney’s office to determine the type of physical evidence and documentation that is necessary to prosecute a person for committing the aggravated battery described in subdivision (a). 
(1) (3)  The total number of gassing incidents at each  state prison facility up to the date of the report. shall have the discretion to not test the gassing substance for the presence of a bodily fluid if the facility, in consultation with the district attorney’s office, determines that testing is unnecessary to obtain sufficient evidence of the aggravated battery described in subdivision (a). 
(2) The disposition of each gassing incident, including the administrative penalties imposed, the number of incidents that are prosecuted, and the results of those prosecutions, including any penalties imposed.
(3) A profile of the inmates who commit the aggravated batteries, including the number of inmates who have one or more prior serious or violent felony convictions.
(4) (e)  Efforts that the department has taken to limit these incidents, including staff training and the use of protective clothing and goggles. This section does not preclude the right of an inmate to test the suspected gassing substance for purposes of providing a defense against any charges filed pursuant to this section. 
(5) The results and costs of the medical testing authorized by this section.
 (f) Nothing in this section shall  This section does not  preclude prosecution under both this section and any other provision of law.

SEC. 7.

 Section 4501.2 is added to the Penal Code, to read:

4501.2.
 The warden or other person in charge of a state prison shall document all incidents in which an inmate intentionally places or throws, or causes to be placed or thrown, any human excrement, other bodily fluids, bodily substances, or any mixture containing human excrement, bodily fluids, or bodily substances on another inmate that results in actual contact with the inmate’s skin or membranes.

SEC. 8.

 Section 7510 of the Penal Code is amended to read:

7510.
 (a) A law enforcement employee  employee, including a nonsworn employee of a correctional institution,  who believes that he or she  they  came into contact with bodily fluids of either an inmate of a correctional institution, a person not in a correctional institution who has been arrested or taken into custody whether or not the person has been charged with a crime, including a person detained for or charged with an offense for which he or she  they  may be made a ward of the court under Section 602 of the Welfare and Institutions Code, a person charged with any crime, whether or not the person is in custody, on postrelease community supervision, mandatory supervision pursuant to paragraph (5) of subdivision (h) of Section 1170, or on probation or parole due to conviction of a crime, shall report the incident through the completion of a form provided by the State Department of Public Health. The form shall be directed to the chief medical officer, as defined in subdivision (c), who serves the applicable law enforcement employee. Utilizing this form the law enforcement employee may request a test for HIV or hepatitis B or C of the person who is the subject of the report. The forms may be combined with regular incident reports or other forms used by the correctional institution or law enforcement agency, however the processing of a form by the chief medical officer containing a request for HIV or hepatitis B or C testing of the subject person shall not be delayed by the processing of other reports or forms.
(b) The report required by subdivision (a) shall be submitted by the end of the law enforcement employee’s shift during which the incident occurred, or if not practicable, as soon as possible, but no longer than two days after the incident, except that the chief medical officer may waive this filing period requirement if he or she finds that  good cause exists. The report shall include names of witnesses to the incident, names of persons involved in the incident, and if feasible, any written statements from these parties. The law enforcement employee shall assist in the investigation of the incident, as requested by the chief medical officer.
(c) For purposes of this section, Section 7503, and Section 7511, “chief medical officer” means:
(1) In the case of a report filed by a staff member of a state prison, the chief medical officer of that facility.
(2) In the case of a parole officer filing a report, the chief medical officer of the nearest state prison.
(3) In the case of a report filed by an employee of the Division of Juvenile Justice, the chief medical officer of the facility.
(4) In the case of a report filed against a subject who is an inmate of a city or county jail or a county- or city-operated juvenile facility, or a court facility, or who has been arrested or taken into custody whether or not the person has been charged with a crime, but who is not in a correctional facility, including a person detained for, or charged with, an offense for which he or she  they  may be made a ward of the court under Section 602 of the Welfare and Institutions Code, or a person charged with a crime, whether or not the person is in custody, the county health officer of the county in which the individual is jailed or charged with the crime.
(5) In the case of a report filed by a probation officer, a prosecutor or staff person, a public defender attorney or staff person, the county health officer of the county in which the probation officer, prosecutor or staff person, a public defender attorney or staff person, is employed.
(6) In any instance where the chief medical officer, as determined pursuant to this subdivision, is not a physician and surgeon, the chief medical officer shall designate a physician and surgeon to perform his or her duties under  those duties required by  this title.

SEC. 9.

 Section 7524 is added to the Penal Code, to read:

7524.
 The warden or other person in charge of a state prison shall provide notice to an inmate who has been exposed to human excrement, bodily fluids, bodily substances, or any mixture containing human excrement, bodily fluids, or bodily substances of another inmate, explaining the inmate’s rights pursuant to subdivisions (i) and (j) of Section 2601 to be tested for the human immunodeficiency virus (HIV) and hepatitis B and C and to request that the other inmate be tested for those communicable diseases.
SEC. 10.
 If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.