BILL ANALYSIS
AB 1800
Page 1
Date of Hearing: March 23, 2010
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1800 (Ma) - As Amended: March 16, 2010
REVISED
SUMMARY : Increases the penalty for unlawful rental of a
residential dwelling from a misdemeanor punishable by six months
in the county jail and/or a fine of up to $1,000 to a straight
felony punishable by a term of 16 months, two or three years in
state prison.
EXISTING LAW :
1)Provides that any person who, without the owner's or owner's
agent's consent, claims ownership or claims or takes
possession of a residential dwelling for the purpose of
renting that dwelling to another is guilty of a misdemeanor
punishable by imprisonment in a county jail not exceeding six
months, or by a fine not exceeding $1,000, or by both such
imprisonment and fine. Each violation is a separate offense.
[Penal Code Section 602.9(a).]
2)States that any person who, without the owner's or owner's
agent's consent, causes another person to enter or remain in
any residential dwelling for the purpose of renting that
dwelling to another, is guilty of a misdemeanor punishable by
imprisonment in a county jail not exceeding six months, or by
a fine not exceeding $1,000, or by both such imprisonment and
fine. Each violation is a separate offense. [Penal Code
Section 602.9(b).]
3)Defines "grand theft" as any theft where the money, labor, or
real or personal property taken is of a value exceeding $400,
except as specified. [Penal Code Sections 487(a).]
4)Defines "trespass" as entering any lands, whether unenclosed
or enclosed by fence, for the purpose of injuring any property
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or property rights or with the intention of interfering with,
obstructing, or injuring any lawful business or occupation
carried on by the owner of the land, the owner's agent or by
the person in lawful possession. [Penal Code Section 602(k)]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "As the State
grapples with record foreclosures, more and more families are
struggling to keep a roof over their heads. As more families
look at rental options, a wake of housing-related crimes has
erupted throughout California. Scam artists, hoping to prey
on potential renters, pose as landlords or as owners of a
property, and post attractive rental listings of abandoned
homes on the internet. An unsuspecting renter meets with the
imposter, is handed keys, and is asked to pay large cash
deposit, completely unaware that he or she is about to become
a victim of real estate fraud. Bank agents, realtors, or the
true property owner later arrive at the residence, and the
renter is forced to leave the property, losing possibly
thousands of dollars of savings, and left with nowhere else to
live.
"Under current law, individuals posing as landlords are only
guilty of a misdemeanor, punishable by a fine of no more than
$1000 and/or 6 months of jail time. Under Penal Code 602.9, a
thief could walk away with a slap on the wrist, and leave a
family homeless. With the State's record foreclosures and
economic downturn, more and more scammers are taking advantage
of innocent people during these difficult times. AB 1800 will
simply enhance the current misdemeanor crime of posing as a
landlord to a felony."
2)Penal Code Section 602.9 : This section of law was passed by
the Legislature in 1998 and has not been amended since. [See
AB 583 (Davis), Chapter 193, Statutes of 1998.] The author of
AB 538 explained:
"Existing law (Civil and Penal Code) does not explicitly outlaw
phony adverse possession schemes. Therefore, rental companies
are fraudulently renting out unoccupied houses belonging to
others. These schemes work as follows: an unscrupulous
rental company breaks in and changes the locks on a house that
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is temporarily vacant because of pending foreclosure action.
The rental company then advertises for 'house-sitters' to rent
the house. The rental company uses the pretext of claiming
the house under the state's obscure 1872 adverse possession
statute - which permits unused real property to be claimed by
a willing user through squatters' rights - to convince the
unwitting house-sitters to pay rent under suspicious
circumstances. The phony rental company skims all the rent
for itself, paying nothing to the true owner or the lender
with a lien interest.
"Despite the state's economic recovery, there are still
thousands of homes subject to foreclosure action. As reported
in the December 2, 1997 edition of the Sacramento Bee,
foreclosures are expected to reach record levels throughout
the state this year and the next. As a result, the phony
adverse possession scheme, which has been a growing problem
affecting Los Angeles and Orange Counties, is expected to move
to San Diego. Law enforcement agencies generally are
reluctant to intervene under present trespass laws because
they view adverse possession claims as a civil issue rather
than a criminal activity that can be prosecuted under the
State's unlawful trespass laws."
Similar to 1998, California currently faces record foreclosures.
It seems clear that the intent of the original legislation
was to criminalize the process of adverse possession by
occupancy in which the adverse possessor enters the property
and attempts to acquire ownership by placing tenants in the
home. Previous to this section, any action to restore
ownership would be filed in civil court. This bill proposes
to increase the penalty for adverse possession by occupancy
from a six month misdemeanor to a straight felony punishable
by a term of 16 months, two or three years in state.
3)Adverse Possession : Adverse possession is a method of
acquiring title to real property by possession for a statutory
period of time under certain conditions such as a
non-permissive use of the land with a claim of right when that
use is continuous, exclusive, hostile, open and notorious. A
person may establish actual possession of a parcel of land
under a claim of right if the property has been protected by a
substantial enclosure or cultivated or improved in the usual
manner. Only the land that is actually possessed by means of
enclosure, cultivation, or improvement may be claimed by
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adverse possession. [Code of Civil Procedure Section 324;
Gray vs. Walker (1910) 157 Cal. 381, 384.] Prior to 1998, the
adverse claimant need not personally occupy or reside on the
property. An adverse claimant in possession of a structure,
who thereafter rents and manages the structure for five years,
has been held to adequately possess the property to perfect
title by adverse possession. [People vs. Lapcheske (1999) 73
Cal.App. 4th 571, 573.] However, as noted above, AB 538
prohibited renting property without the owner's consent,
meaning that the adverse possessor would have to acquire good
title before he or she could rent the property. Also, the
defendant may be charged with theft if he or she receives
money for rent where the defendant misrepresents his
ownership. If the rent received is more than $400, then the
defendant may be charged with grand theft which is punishable
as an alternate felony/misdemeanor.
4)Trespass : "Trespass" is defined, inter alia, as entering any
lands, whether unenclosed or enclosed by fence, for the
purpose of injuring any property or property rights or with
the intention of interfering with, obstructing, or injuring
any lawful business or occupation carried on by the owner of
the land, the owner's agent or by the person in lawful
possession. [Penal Code Section 602(k).] Although adverse
possession may be a lawful manner of acquiring ownership, it
is trespassing and may be punished accordingly. [See
Lapcheske at 575.]
5)Concerns for Prison Overcrowding : The California Policy
Research Center (CPRC) issued a report on the status of
California's prisons. The report stated, "California has the
largest prison population of any state in the nation, with
more than 171,000 inmates in 33 adult prisons, and the state's
annual correctional spending, including jails and probation,
amounts to $8.92 billion. Despite the high cost of
corrections, fewer California prisoners participate in
relevant treatment programs than comparable states, and its
inmate-to-officer ratio is considerably higher. While the
nation's prisons average one correctional officer to every 4.5
inmates, the average California officer is responsible for 6.5
inmates. Although officer salaries are higher than average,
their ranks are spread dangerously thin and there is a severe
vacancy rate." [Petersilia, Understanding California
Corrections, CPRC (May 2006).] California's prison population
will likely exceed 180,000 by 2010.
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According to the Little Hoover Commission, "Lawsuits filed in
three federal courts alleging that the current level of
overcrowding constitutes cruel and unusual punishment ask that
the courts appoint a panel of federal judges to manage
California's prison population. United States District Judge
Lawrence Karlton, the first judge to hear the motion, gave the
State until June 2007 to show progress in solving the
overpopulation crisis. Judge Karlton clearly would prefer not
to manage California's prison population. At a December 2006
hearing, Judge Karlton told lawyers representing the
Schwarzenegger administration that he is not inclined 'to
spend forever running the state prison system.' However, he
also warned the attorneys, 'You tell your client June 4 may be
the end of the line. It may really be the end of the line.'
"Despite the rhetoric, thirty years of 'tough on crime' politics
has not made the state safer. Quite the opposite: today
thousands of hardened, violent criminals are released without
regard to the danger they present to an unsuspecting public.
Years of political posturing have taken a good idea -
determinate sentencing - and warped it beyond recognition with
a series of law passed with no thought to their cumulative
impact. And these laws stripped away incentive s for
offenders to change or improve themselves while incarcerated.
"Inmates, who are willing to improve their education, learn a
job skill or kick a drug habit find that programs are few and
far between, a result of budget choices and overcrowding.
Consequently, offenders are released into California
communities with the criminal tendencies and addictions that
first led to their incarceration. They are ill-prepared to do
more than commit new crimes and create new victims . . . . "
[Little Hoover Commission Report, Solving California's
Corrections Crisis: Time is Running Out (2007), pg. 1, 2.]
On January 12, 2010, the Three Judge Panel issued its final
ruling ordering the State of California to reduce its prison
population by approximately 50,000 inmates in the next two
years. [Coleman/Plata vs. Schwarzenegger (2010) No. Civ
S-90-0520 LKK JFM P/NO. C01-1351 THE.] Although this order is
stayed pending appeal to the United States Supreme Court,
careful consideration must be given to any proposal that
exacerbates prison overcrowding.
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6)Three Strikes : Because this bill expands the definition of an
existing felony, a person may be sentenced to a term of
25-years-to-life for adverse possession by occupancy, as
specified. Under "Three Strikes," any felony conviction, not
just a serious or violent felony conviction, following a
violent or serious prior results in a sentence of twice the
normal length. With any two violent or serious felony priors,
a new conviction for any felony - including writing bad
checks, petty theft with a prior, etc. - results in a life
sentence. Thus, the Three Strikes Law makes no distinction in
severity between different felonies. This explains why
creating a new felony involves very weighty and severe
consequences. Where a Three Strikes defendant is convicted of
two counts of theft not committed on one occasion or arising
from the same facts, he or she must receive two consecutive
terms of 25-years-to-life. For many defendants, such a
sentence means that they will never be released from prison.
Although it may be argued that a defendant may always file a
motion to dismiss a strike under People vs. Superior Court
(Romero) (1996) 13 Cal.4th 497, filing such a motion hardly
means that a defendant will be successful especially when the
Legislature sees fit to create a new felony. Simply passing
the responsibility to the courts is irresponsible. People vs.
Romero is rooted in Penal Code Section 1385, which allows a
judge to "strike a strike, in the interest of justice",
meaning dismiss one of the prior strikes for purposes of
sentencing under the Three-Strikes Law. Courts will look at a
number of factors to decide if dismissal for purposes of
sentencing is appropriate, including if the defendant has
lived a crime-free or relatively crime-free life between the
second and third offense. [People vs. Carmony (2004) 33
Cal.4th 367.] Living a crime-free life usually includes not
committing any misdemeanors. A defendant who has a record of
misdemeanors between strikes will likely be unsuccessful. A
denial of an invitation to dismiss under Penal Code Section
1385 is reviewed by appellate courts pursuant to an abuse of
discretion standard, which is extremely difficult to show.
[People vs. Superior Court (Alvarez) (1997) 14 Cal.4th 9680.]
Therefore, it should provide little comfort to the Legislature
that a defendant may make this very often, unsuccessful motion
to avoid being sentenced to 25-years-to-life on a non-violent
third strike. Does it make sense to expose a person to a term
of 25-years-to-life for what is currently a misdemeanor
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punishable by six months in the county jail?
7)Arguments in Support : According to the California State
Sheriffs' Association , "As the State grapples with record
foreclosures, more and more families are struggling to keep a
roof over their heads. As more families look at renting, a
wake of house-related crimes have erupted throughout
California. Under current law, individuals posing as
landlords are only guilty of a misdemeanor, punishable by a
fine of no more than $1000 and/or six months in the county
jail. These crimes should be grand theft, but PC 602.9
applies and the thief walks away leaving the family homeless.
AB 1800 will enhance the current misdemeanor crime of posing
as a landlord to a felony. Renters and new homeowners should
have a sense of security that a person handing over the keys
is not an imposter. "
8)Arguments in Opposition : According to the American Civil
Liberties Union , "Current law makes the unlawful rental of
residential property a misdemeanor. Current law also permits
felony charges if the defendant obtains rent exceeding $400.
We perceive little justification to making all these cases
felonies. Imposing new or stiffer felony penalties for this
or any other crime simply exacerbates the current prison
overcrowding crisis. It also implicates the Three Strikes
Law. The current penalties for these acts are sufficient to
punish the individuals for those offenses."
9)Prior Legislation : AB 583 (Davis), Chapter 193, Statutes of
1998, provided that claiming ownership or claiming or taking
possession of, or causing another to enter or remain in, a
residential dwelling for the purpose of renting or leasing the
dwelling to another without the consent of the owner or the
owner's lawful agent is a misdemeanor punishable, as
specified.
REGISTERED SUPPORT / OPPOSITION :
Support
Alameda County Sheriff's Office
California Apartment Association
California Association of Realtors
California Correctional Supervisors Organization
California Peace Officers' Association
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California State Sheriffs' Association
Crime Victims United
Mariposa County Sheriff's Office
Mono County Sheriff's Office
Office of the Sheriff, Santa Barbara County
Office of the Sheriff, Shasta County
San Bernardino County Sheriff's Department
Santa Cruz County Sheriff's Office
Western Center on Law and Poverty
Yolo County Sheriff's Department
Opposition
American Civil Liberties Union
Legal Services for Prisoners with Children
Friends Committee on Legislation
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744