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

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Date Published: 09/04/2019 09:00 PM
AB294:v95#DOCUMENT

Amended  IN  Senate  September 04, 2019
Amended  IN  Senate  June 18, 2019
Amended  IN  Senate  May 30, 2019
Amended  IN  Assembly  March 06, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 294


Introduced by Assembly Member Rodriguez
(Coauthor: Assembly Member Boerner Horvath)

January 28, 2019


An act to amend Sections 243.9, 2601, 4501.1, and 7510 of, and to add Sections 2068, 4033, 4034, 4501.2, and 7524 to, the Penal Code, relating to correctional facilities.


LEGISLATIVE COUNSEL'S DIGEST


AB 294, as amended, Rodriguez. Correctional facilities: gassing.
Existing law defines the act of “gassing,” in part, as intentionally throwing human excrement or other bodily fluids at another person, resulting in actual contact with the person’s skin or membranes. Existing law makes it a crime of aggravated battery for any person confined in a local detention facility or the state prison to commit a battery by gassing upon the person of a peace officer or employee of the local detention facility or the state prison. Existing law prescribes a procedure by which a law enforcement employee who comes into contact with the bodily fluids of an inmate may request that the inmate be tested for HIV and hepatitis, subject to specified criteria and procedures.
This bill would authorize an officer or employee who is the victim of a reported or suspected gassing attack to request that the inmate involved with the attack be tested for hepatitis and tuberculosis, as specified. The bill would require a state prison facility and a county jail to make protective gear, such as clothing, goggles, and shields, readily available to staff.
The bill would also require a state prison facility and a county jail to provide adequate training to officers on how to prevent and mitigate the harm from gassing attacks, as specified, and to replace any article of an officer’s uniform that has been soiled in a gassing attack. The bill would require a state prison facility and a county jail to complete investigations of gassing attacks within 6 months of the violation, as specified.

The bill would require a state prison facility and a county jail to complete investigations of gassing attacks within 6 months of the violation, as specified.

Existing law authorizes an inmate of a correctional institution to request testing for HIV or hepatitis B or C of another inmate of that institution if the inmate has reason to believe that the inmate has come into contact with the bodily fluids of the other inmate.
This bill would authorize a person sentenced to a state prison or county jail to receive an examination for HIV or hepatitis B or C if the inmate has been exposed to the bodily fluids of another inmate, and to receive an examination for hepatitis B and C if the inmate has been exposed to human excrement, bodily fluids, bodily substances, or any mixture containing those substances. The bill would also authorize a person under those circumstances to request that the other inmate be tested for HIV and hepatitis B and C, as specified. inmate.
The bill would require the warden of a state prison and the county sheriff or administrator of a county jail to post a notice relating to the rights of a victim of a gassing attack and to provide a notice to an officer, employee, or inmate of the facility or jail who is the victim of the attacks, informing them of their rights. The bill would also require a state prison and a county jail to document specified information relating to those attacks.
By creating new duties for sheriffs and county jail administrators, this bill would impose a state-mandated local program.

The

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 243.9 of the Penal Code is amended to read:

243.9.
 (a) 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.
(2) If there is probable cause to believe that the inmate has violated subdivision (a), the chief medical officer of the local detention facility, or the chief medical officer’s designee, may, when 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, tuberculosis, or both hepatitis and 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, 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. 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 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 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.
(f) 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 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) 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 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 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, and to receive an examination for hepatitis B and C if the inmate has been exposed to human excrement, bodily fluids, bodily substances, or any mixture containing human excrement, bodily fluids, or bodily substances 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, and to request that another inmate be tested for hepatitis B and C if the inmate has reason to believe that the inmate came into contact with the human excrement, bodily fluids, bodily substances, or any mixture containing human excrement, bodily fluids, or bodily substances of the other 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, and to receive an examination for hepatitis B and C if the person has been exposed to human excrement, bodily fluids, bodily substances, or any mixture containing human excrement, bodily fluids, or bodily substances 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, and the right to request that another inmate be tested for hepatitis B and C if the person has reason to believe that the person came into contact with human excrement, bodily fluids, bodily substances, or any mixture containing human excrement, bodily fluids, or bodily substances of the other 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 human excrement, bodily fluids, bodily substances, or any mixture containing human excrement, bodily fluids, or bodily substances 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) 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. A state prison inmate convicted of a felony under this section shall serve the term of imprisonment 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.
(2) If there is probable cause to believe that the inmate has violated subdivision (a), the chief medical officer of the state prison facility, or the chief medical officer’s designee, may, when 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, tuberculosis, or both hepatitis and 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. 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 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 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 district attorney for prosecution.
(2) The 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).
(3) The state prison facility 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).
(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.
(f) 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, including a nonsworn employee of a correctional institution, who believes that 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 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 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 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 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.