BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
4
9
1
AB 491 (Garrick)
As Amended May 4, 2009
Hearing date: June 16, 2009
Penal Code
JM:br
VANDALISM OF POLITICAL SIGNS - ADDITIONAL FINE
HISTORY
Source: Author
Prior Legislation: Unknown
Support: Unknown
Opposition:American Civil Liberties Union
Assembly Floor Vote: Ayes 70 - Noes 0
KEY ISSUE
WHERE A PERSON DESTROYS, MARKS, TEARS DOWN, OR OTHERWISE DEFACES A
POLITICAL SIGN WITHOUT AUTHORIZATION FROM THE CAMPAIGN RESPONSIBLE
FOR THE PRODUCTION OR CREATION OF THE SIGN, SHALL HE OR SHE BE
SUBJECT TO A FINE NOT TO EXCEED $1000, IN ADDITION TO ANY OTHER
PENALTY PROVIDED BY LAW?
PURPOSE
The purpose of this bill is to provide that any person who
(More)
AB 491 (Garrick)
PageB
destroys, marks, tears down, or otherwise defaces a political
sign without authorization from the campaign responsible for the
production or creation of the sign is subject to a fine not to
exceed $1000, in addition to any other penalty provided by law.
Existing law provides that vandalism is a crime committed where
a person defaces, damages or destroys any real or personal
property. (Pen. Code 594.) Vandalism is punishable as
follows:
If the amount of defacement, damage, or
destruction is less than $400, vandalism is a
misdemeanor, punishable by imprisonment in a county
jail not exceeding one year, or a fine of not more
than $1000, or by both the fine and imprisonment.
If the amount of defacement, damage, or
destruction is less than $400 and the person
previously has been convicted of vandalism or other
enumerated crimes, the offense is a misdemeanor,
punishable by imprisonment in a county jail not
exceeding one year, or a fine of not more than
$5000, or by both the fine and imprisonment.
If the amount of defacement, damage, or
destruction is $400 or more, but less than $10,000,
the offense is an alternate felony-misdemeanor,
punishable by imprisonment in the state prison or in
a county jail not exceeding one year, or a fine of
not more than $10,000, or both the fine and
imprisonment.
If the amount of defacement, damage, or
destruction is $10,000 or more, the crime is an
alternate felony-misdemeanor, punishable by
imprisonment in state prison or in a county jail not
exceeding one year, or a fine of not more than
$50,000, or both the fine and imprisonment.
Existing law provides that theft occurs where a person does any
of the following:
Steals, takes . . . or drives away the personal
(More)
AB 491 (Garrick)
PageC
property of another;
Fraudulently appropriates property which has been
entrusted to him or her;
Knowingly and designedly, by any false or
fraudulent representation or pretense, defrauds
another person of money, labor or personal or real
property;
Causes or procures others to report falsely of
his or her wealth or mercantile character and by
thus imposing upon any person, obtains credit and
thereby fraudulently gets or obtains possession of
money, or property or obtains the labor or service
of another. (Penal Code 484.)
Existing law generally provides that theft is a misdemeanor
where the value of the property, labor or services involved in
the theft does not exceed $400. Theft is grand theft - an
alternate felony-misdemeanor - where the value of the property,
labor, or services involved in the theft exceeds $400.
Specified exceptions, with a lower threshold of $100 for grand
theft, apply to certain kinds of property, such as avocados and
shellfish. (Pen. Code 487.)
Existing law provides that if the grand theft involves the theft
of a firearm, it is punishable by imprisonment in state prison
for 16 months, 2 or 3 years. In all other cases, grand theft is
punishable by imprisonment in county jail for not more than one
year or in the state prison for 16 months, 2 or 3 years. (Pen.
Code 489.)
Existing law provides that petty theft - theft of property
valued at $400 or less - is a misdemeanor, punishable by a fine
not exceeding $1000, imprisonment in the county jail not
exceeding six months, or both.
This bill provides that a person who knowingly destroys, marks,
tears down, or otherwise defaces a sign supporting or opposing a
candidate for elective office without authorization from the
campaign responsible for the production or creation of the sign
is subject to a fine not to exceed $1000, in addition to any
(More)
AB 491 (Garrick)
PageD
other penalty provided by law.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
----------------------
<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
(More)
AB 491 (Garrick)
PageE
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
(More)
AB 491 (Garrick)
PageF
period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
According to the author:
Over the past decade, candidates for elective office
have experienced an increase in political vandalism.
Specially, vandals have struck a series of campaign
signs raising local and national support for
increased penalties. While we recognize vandalism is
a criminal offense punishable by law, this problem
continues to plague campaigns throughout the state.
Currently, no specific penal code section addresses
political signs in particular; instead the crimes
usually fall under vandalism or theft. A prosecuted
vandal could face fines of up to $1,000 depending on
whether or not the case is considered a misdemeanor
or a felony once the amount of damage property is
taken into account. In addition, the campaign
responsible for the production or creation of the
sign is financially impacted and has to replace the
damaged or stolen sign. This bill, in addition to
any other penalty provided by law, would create an
auxiliary $1,000 fine for vandalism to campaign or
----------------------
<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
(More)
AB 491 (Garrick)
PageG
political signs.
2. Illegally Placed Signs
It is not uncommon during the course of an election for
campaign signs to be placed on private property without the
property owner's consent or to be placed on public property
in an area where local ordinances do not permit the
placement of signs. Under the provisions of this bill, a
person who removed or destroyed such a sign conceivably
could be required to pay a fine of up to $1000.
3. Control and Ownership Issues - Political Signs
It is generally the case that where a person gives another
person property that title and control over the property
rests in the person receiving the property or thing.
Specifically, the Civil Code states:
A gift is a transfer of personal property, made
voluntarily, and without consideration. A verbal
gift is not valid, unless the means of obtaining
possession and control of the thing are given, nor,
if it is capable of delivery, unless there is an
actual or symbolical delivery of the thing to the
done. A gift, other than a gift in view of impending
death, cannot be revoked by the giver. (Civ. Code
1146-1148.)
Recently, it appears that campaigns have been selling signs
and other materials as a means of fund raising. Similar to
a completed gift, the sale of an item transfers title or
ownership of the property from the seller to the buyer.
(Civ. Code 1039-1040, 1044.) Generally, the seller may
not control the property after sale. (However, Civil Code
Section 986 provides that upon sale of an item of fine art,
the artist shall be paid 5% of the sales prices.)
The Civil Code also regulates the sale of political
memorabilia. The Code prohibits a seller from claiming
(More)
AB 491 (Garrick)
PageH
that a copy of a political item is an original campaign
item. The relevant provisions appear to recognize that the
possessor of the memorabilia, not the campaign, owns or
controls the property:
The bill effectively grants permanent control or ownership
of a political sign to the campaign that produced the sign.
The bill sets no time limit on the control of the sign by
the campaign. Arguably, this bill conflicts with existing
laws concerning property rights generally and the right of
a person to own and sell political material.
Perhaps the concerns raised by the bill could be reduced if
the bill provided that the fine for vandalizing a political
sign applies where the "owner" of the sign did not give
authorization for tearing down, marking or defacing a sign.
However, in the context of a political sign - an item that
is intended to be very widely distributed and displayed -
ownership may also be a vague term. Issues concerning who
is an owner of a political sign are discussed at some
length in the analysis of AB 362 (Miller), set for hearing
on June 16, 2009 with this bill.
SHOULD THIS BILL REFER TO THE OWNER OF A POLITICAL SIGN,
RATHER THAN THE CAMPAIGN THAT PRODUCED THE SIGN?
4. First Amendment Standards and Basic Issues
Political speech and speech concerning public issues are
entitled to great protection under the First Amendment. (Burson
v. Freeman (1992) 504 U.S. 191, Perry Ed. Assn. v. Perry Local
Educators' Assn. (1983) 460 U.S. 37, 45.) The place where
speech takes place and the manner in which it is made are
important in determining the amount of protection given the
speech. (Aguilar v. Avis (1999) 21 Cal.4th 121, 156.) "[T]he
nature of the forum and the conflicting interests involved have
remained important in determining the degree of protection
afforded by the [First] Amendment to the speech in question."
(Lehman v. City of Shaker Heights (1974) 418 U.S. 298, 302-303 -
plur. opn.) Even speech about a campaign for elective office
(More)
AB 491 (Garrick)
PageI
can be regulated by reasonable and even-handed restrictions on
time, place and manner. In Lehman, the court upheld a ban on
political advertisements on public transit vehicles. (Ibid.)
Arguably, this bill gives the speech and property rights of a
political candidate or campaign special protection. The
protection provided by this bill may create conflicts with the
political speech and property rights of others. For example, a
person who obtains a political sign from a campaign and who
thereafter marks or alters the sign so as to criticize, satirize
or verbally attack a candidate or campaign, could receive a
$1000 fine (increased nearly four times with penalty
assessments) pursuant to the terms of this bill. Such a person
would argue that he or she owns the sign and that he or she has
a First Amendment right to alter the sign.
WILL THIS BILL RESULT IN COMPETING FREE SPEECH AND PROPERTY
CLAIMS THAT MAY BE DIFFICULT TO RESOLVE?
5. Related Bill - AB 362 (Miller) Makes It a Misdemeanor to Take,
Use or Reuse a Political Sign Without the Consent of the Owner
AB 362 (Miller) takes a different approach to acts involving the
non-consensual taking, use or destruction of political signs.
AB 362 makes it a misdemeanor to take, use, reuse or move a
political sign without the consent of the owner of the sign.
The bill does not state who is the "owner" of a political sign.
Unlike this bill, AB 362 provides that the prohibition on
damaging, moving, et cetera, a political sign does not apply to
a law enforcement officer, government official or campaign
representative acting in his or her official capacity. Neither
does AB 362 apply to a private property owner who has not
consented to the posting of a political sign on his or her
property.
It should be noted that were this exception applied to this
bill, the exception would not protect a private property owner
who did consent to the display of the sign. That is, a person
who consented to the display of the sign on his or her property
(More)
AB 491 (Garrick)
PageJ
would still be liable for the $1000 fine if he or she damaged or
tore down the sign without the consent of the campaign or
proposal promoted in the sign.
(More)
SHOULD THIS BILL INCLUDE AN EXCEPTION IN CASES WHERE A POLITICAL
SIGN IN DESTROYED, MARKED OR TORN DOWN BY A LAW ENFORCEMENT
OFFICER, GOVERNMENT OFFICIAL, OR CAMPAIGN REPRESENTATIVE ACTING
IN HIS OR HER OFFICIAL CAPACITY, OR TO A PRIVATE PROPERTY OWNER
WHO DID NOT CONSENT TO THE PLACING OF THE SIGN ON HIS OR HER
PROPERTY?
6. Issue Whether This Bill Creates a Misdemeanor "Enhancement" of
a $1000 Fine in Addition to Any Other Penalty Where the
Defendant's Vandalism Involved a Political Sign
The nature of the fine authorized by this bill is not entirely
clear. However, it appears that this bill creates what is
essentially an enhancement fine of $1000<3>. The fine would
apply where a defendant is convicted of an underlying crime -
likely vandalism or theft. At sentencing, the court would
impose the $1000 fine in addition to any jail term or fine
imposed for the underlying crime.
Misdemeanor penalty enhancements are generally not known in the
law. As such, misdemeanor sentencing is relatively
straight-forward and simple. Arguably, creating misdemeanor
fine enhancements would create confusion and perhaps undue
complexity in misdemeanor sentencing. Felony sentencing under
the determinate sentencing law (the DSL) includes a mind-numbing
number and variety of enhancements and special punishment
schemes. The DSL has been criticized by the courts and
practitioners for its complexity and lack of coherence. It has
---------------------------
<3> Rule 4.405 of the Court Rules for felony sentencing defines
an enhancement as "an additional term of imprisonment added to
the base term." The fine imposed pursuant to this bill would be
an additional fine added to the jail term, fine or both, imposed
for the underlying crime. It could perhaps be argued that the
bill creates a new infraction. However, infraction statutes do
not typically provide that the infraction can be imposed in
addition to any other penalty. A person charged with an
infraction is not entitled to a jury trial. An indigent
infraction defendant is not entitled to counsel at public
expense.
(More)
AB 491 (Garrick)
PageL
been argued that much of the complexity and inconsistency in the
law flows from the ad-hoc and reactive manner in which
sentencing measures were enacted.
This bill could set a precedent for ad-hoc enactment of numerous
misdemeanor enhancements that could present similar problems to
those in the DSL.
CAN THE $1000 FINE AUTHORIZED BY THIS BILL FOR DEFACING OR
MARKING A POLITICAL SIGN BE IMPOSED ALONE, OR CAN IT ONLY BE
IMPOSED AS AN ADDITIONAL PENALTY WHERE THE DEFENDANT IS
CONVICTED OF AN UNDERLYING CRIME SUCH AS VANDALISM OR THEFT?
WILL THE ENACTMENT OF MISDEMEANOR FINE ENHANCEMENTS LEAD TO
UNDUE CONFUSION AND COMPLEXITY IN MISDEMEANOR SENTENCING,
SIMILAR TO THE COMPLEXITY IN FELONY SENTENCING?
7. Argument in Opposition
The American Civil Liberties Union argues in opposition:
[AB 491] as written is vague and over-inclusive. This
raises significant constitutional concerns. A law is
unconstitutionally vague if a reasonable person cannot
tell what is prohibited and what is permitted. For
instance, the phrase "authorization from a campaign"
may be ambiguous. Legislation is also over-inclusive
when it regulates substantially more than the
Constitution allows to be regulated. For instance,
although the Constitution permits the regulation of
vandalism, this legislation may also cover a person who
wanted to write their name on the back of a political
sign they had purchased.
***************
AB 491 (Garrick)
PageM