BILL ANALYSIS
AB 461
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Date of Hearing: April 22, 2009
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Kevin De Leon, Chair
AB 461 (Gaines) - As Introduced: February 24, 2009
Policy Committee: Public
SafetyVote: 7-0
Urgency: Yes State Mandated Local Program:
Yes Reimbursable: No
SUMMARY
This bill reinstates provisions of the Economic Crime Act of
1992 - that apply to persons convicted of theft in excess of
$50,000 in a single occurrence - which expired January 1, 2008.
Specifically, this bill:
1)States that a court shall consider specified factors in
deciding whether to grant probation for offenses under this
Act.
2)Prohibits the court from granting probation to any defendant
with a prior conviction where a court found enhancements for
intentional taking, damaging or destruction of property in
excess of $50,000.
3)Prohibits probation for a defendant who commits theft in an
amount exceeding $100,000 in a single transaction or
occurrence, except in unusual circumstances where the
interests of justice would best be served by the grant of
probation.
4)Requires specified mandatory custody when probation is
granted. (At least 30 days for a felony conviction involving a
theft in excess of $50,000 in a single transaction or
occurrence, and at least 60 days for a felony conviction
involving theft in excess of $100,000 in a single transaction
or occurrence.)
5)States that when a defendant is granted probation for a felony
theft of greater than $50,000, the court shall require
additional conditions related to restitution.
AB 461
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6)States that the term of probation for cases under this act is
10 years. After five years of probation, however, the
defendant is released from the standard conditions of felony
probation and remains subject to the special terms and
conditions of probation imposed under this section.
FISCAL EFFECT
Continuing to prohibit probation for specified offenses means
more offenders will be sentenced to state prison. Also, adding
conditions of probation will result in more cases of revoked
probation that will in turn result in additional state prison
time. Based on the 34 persons sentenced to state prison with
enhancements for excessive takings over the past two years, if
five persons served one year in state prison rather than serving
probation in lieu of state incarceration, annual GF costs would
exceed $200,000.
COMMENT
1)Rationale . In 2007, AB 1705 (Niello) extended for 10 years the
sunset on sentence enhancements for excessive takings. The
provisions of the statute that address restitution and
probation limitations for excessive takings, however, were
inadvertently allowed to sunset January 1, 2008. This bill
re-enacts Penal Code section 1203.044 with a sunset date of
January 1, 2019, which coincides with the current sunset on
the related sentence enhancements.
2)Support . According to the California District Attorneys
Association, "By passing AB 1705 and thereby extending the
sunset date in section 12022.6, the Legislature expressed its
overwhelming support for the existing penalty enhancements for
excessive takings. This measure would essentially complete the
goal of AB 1705 by re-enacting the restitution and probation
provisions that were inadvertently allowed to sunset.
Re-enacting PC section 1203.044 is critical because the
victims of these crimes are entitled to restitution and the
perpetrators of high-dollar felony theft should not receive
probation."
3)Prior Legislation .
a) AB 1994 (Gaines, 2008), was virtually identical to AB
461. AB 194 passed off this committee's Suspense File 17-0,
AB 461
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passed the Assembly floor 78-0, and was never heard by
Senate Public Safety.
b) AB 1705 (Niello), Statutes of 2007, extended the sunset
to January 1, 2018 on the excessive takings enhancements
under Penal Code Section 12022.6.
c) AB 293 (Cunneen), Statutes of 1997, extended the sunset
to January 1, 2008 for the Economic Crime Act of 1992.
Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081