BILL ANALYSIS                                                                                                                                                                                                    

                             Senator Mark Leno, Chair                A
                             2009-2010 Regular Session               B

          AB 1848 (Garrick)                                          8
          As Amended March 17, 2010 
          Hearing date:  June 15, 2010
          Penal Code

                            TOOLS FOR STEALING MOTORCYCLES  


          Source:  San Diego County District Attorney

          Prior Legislation: SB 1554 (Dutton) - Ch. 119, Stats. 2008
                       AB 2015 (Corbett) - Ch. 335, Stats. 2002

          Support:  American Motorcyclist Association District 37;  
                    California District Attorneys Association; California  
                    Motorcycle Dealers Association; California Peace  
                    Officers' Association; California Police Chiefs  
                    Association; California State Sheriffs' Association;  
                    Los Angeles Police Protective League, Riverside  
                    Sheriffs' Association, Association of Los Angeles  
                    Deputy Sheriffs; Sheriff of San Bernardino County

          Opposition:None known

          Assembly Floor Vote:  Ayes 74 - Noes 0

                                         KEY ISSUE



                                                          AB 1848 (Garrick)



          The purpose of this bill is to define a new misdemeanor that  
          would be committed where a person possesses a tool or device  
          with the specific intent of stealing a motorcycle.

           Existing law  provides that any person who possesses specified  
          burglary tools (picklock, vise grip, slim jim, master key, et  
          cetera) with the intent to break into or enter any building,  
          vehicle or vessel, is guilty of a misdemeanor.  Any person who,  
          without authority, makes or alters a key (or specified tool) so  
          as to open the lock of a building, vehicle, et cetera, is guilty  
          of a misdemeanor.  (Pen. Code  466.)<1>

           Existing law  provides that any person who makes, alters, or  
          repairs any instrument or thing, knowing or having reason to  
          believe that it is intended to be used in committing a  
          misdemeanor or felony, is guilty of a misdemeanor.  (Pen. Code   

           Existing law  provides that any person who possesses a tool  
          designed to break into a vending machine, and who intends to  
          commit theft from such a machine, is guilty of a misdemeanor.   
          (Pen. Code  466.3.)

           This bill  provides that every person who possesses, gives, or  
          lends any device designed to bypass the factory-installed  
          ignition of a motorcycle in order to start the engine of a  
          motorcycle without a manufacturer's key, or who possesses gives  
          or lends any motorcycle ignition or part thereof, with the  
          intent to unlawfully take or drive, or to facilitate the taking  
          <1>  Penal Code Section 466 effectively defines three crimes in  
          a single paragraph-length sentence.  The section would 
          be much clearer if it were divided into subdivisions.



                                                          AB 1848 (Garrick)

          or driving of a motorcycle without the consent of the owner is  
          guilty of a misdemeanor punishable by up to six months in the  
          county, by a fine not to exceed $1,000, or both.

           This bill  provides that every person who possesses, gives, or  
          lends items of hardware, including, but not limited to, bolt  
          cutters, electrical tape, wire strippers, or allen wrenches,  
          with the intent to unlawfully take or drive, or to facilitate  
          the taking or driving of a motorcycle without the consent of the  
          owner is guilty of a misdemeanor punishable by up to six months  
          in the county, by a fine not to exceed $1,000, or both.

          The severe prison overcrowding problem California has  
          experienced for the last several years has not been solved.  In  
          December of 2006 plaintiffs in two federal lawsuits against the  
          Department of Corrections and Rehabilitation sought a  
          court-ordered limit on the prison population pursuant to the  
          federal Prison Litigation Reform Act.  On January 12, 2010, a  
          federal three-judge panel issued an order requiring the state to  
          reduce its inmate population to 137.5 percent of design capacity  
          -- a reduction of roughly 40,000 inmates -- within two years.   
          In a prior, related 184-page Opinion and Order dated August 4,  
          2009, that court stated in part:

               "California's correctional system is in a tailspin,"  
               the state's independent oversight agency has reported.  
               . . .  (Jan. 2007 Little Hoover Commission Report,  
               "Solving California's Corrections Crisis: Time Is  
               Running Out").  Tough-on-crime politics have increased  
               the population of California's prisons dramatically  
               while making necessary reforms impossible. . . .  As a  
               result, the state's prisons have become places "of  
               extreme peril to the safety of persons" they house,   
               (Governor Schwarzenegger's Oct. 4, 2006 Prison  
               Overcrowding State of Emergency Declaration), while  
               contributing little to the safety of California's  
               residents,   California "spends more on corrections  



                                                          AB 1848 (Garrick)

               than most countries in the world," but the state  
               "reaps fewer public safety benefits." . . .  .   
               Although California's existing prison system serves  
               neither the public nor the inmates well, the state has  
               for years been unable or unwilling to implement the  
               reforms necessary to reverse its continuing  
               deterioration.  (Some citations omitted.)

               . . .

               The massive 750% increase in the California prison  
               population since the mid-1970s is the result of  
               political decisions made over three decades, including  
               the shift to inflexible determinate sentencing and the  
               passage of harsh mandatory minimum and three-strikes  
               laws, as well as the state's counterproductive parole  
               system.  Unfortunately, as California's prison  
               population has grown, California's political  
               decision-makers have failed to provide the resources  
               and facilities required to meet the additional need  
               for space and for other necessities of prison  
               existence.  Likewise, although state-appointed experts  
               have repeatedly provided numerous methods by which the  
               state could safely reduce its prison population, their  
               recommendations have been ignored, underfunded, or  
               postponed indefinitely.  The convergence of  
               tough-on-crime policies and an unwillingness to expend  
               the necessary funds to support the population growth  
               has brought California's prisons to the breaking  
               point.  The state of emergency declared by Governor  
               Schwarzenegger almost three years ago continues to  
               this day, California's prisons remain severely  
               overcrowded, and inmates in the California prison  
               system continue to languish without constitutionally  



                                                          AB 1848 (Garrick)

               adequate medical and mental health care.<2>

          The court stayed implementation of its January 12, 2010, ruling  
          pending the state's appeal of the decision to the U.S. Supreme  
          Court.  That appeal, and the final outcome of this litigation,  
          is not anticipated until later this year or 2011.

           This bill  does not appear to aggravate the prison overcrowding  
          crisis described above.


          <2>   Three Judge Court Opinion and Order, 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 (August 4, 2009).



          1.  Need for This Bill  

          According to the author:

               Motorcycle theft is easily committed using simple  
               devices.  Since stolen sport motorcycles are  
               frequently sold outside of this country (especially  
               when stolen in San Diego County), often before the  
               owner even knows the motorcycle is gone, motorcycle  
               thieves steal with impunity.  In 2007 more than  
               14-hundred sport motorcycles were stolen in San Diego.  
                In 2008, the number of stolen motorcycles decreased  
               to 11-hundred, partly due to a regional law  
               enforcement undercover operation.  This operation  
               identified three large, separate "cells" of thieves  
               operating in San Diego County.  Authorities were able  
               to identify 160 individuals actively participating in  
               one motorcycle theft ring.  According to the Insurance  
               industry, the cost of motorcycle claims run between  
               $8,000 - 10,000.00 per claim per bike.  These costs  
               are in turned passed onto consumers in the form of  
               higher rates.  Motorcycle thieves are able to use the  
               "pigtail" device quickly by simply cutting a few wires  
               and inserting the device into the ignition.  AB 1848  
               will outlaw the "pigtail," motorcycle ignition bypass  
               devices that are currently possessed only by  
               motorcycle thieves.  There is no legitimate reason to  
               be in possession of an ignition bypass device, and in  
               fact, even authorized motorcycle mechanics cannot  
               purchase this device because it is installed at the  
               factory facility.

               Penal Code section 466 prohibits possession of  
               "burglary tools," which include auto theft tools such  
               as slim jims and shaved keys since it is a "burglary"  
               to enter a locked motor vehicle.  Also prohibited are  
               "other instrument[s] or tool[s]" with the intent to  



                                                          AB 1848 (Garrick)

               commit burglary.  These items are not illegal to  
               possess if the possessor intends to steal a motorcycle  
               since that crime does not involve burglary.  When  
               police catch a criminal in possession of a motorcycle  
               ignition bypass device called a "pigtail," that  
               criminal can not be arrested.  

               Penal Code section 466 also makes it illegal to "make,  
               alter, or repair any instrument or thing, knowing or  
               having reason to believe that it is intended to be  
               used in committing a misdemeanor or felony," but this  
               requires proving that the person made, altered or  
               repaired a motorcycle theft tool (as opposed to merely  
               possess the item.)  Moreover, many items used to steal  
               motorcycles have legitimate uses and are not modified  
               in any way.  Thus, when suspected 

               motorcycle thieves are found in the middle of the  
               night, for example, in an area known for motorcycle  
               theft, and they possess many of the tools of the  
               trade, such as motorcycle ignitions, wire cutters,  
               wire strippers, or bolt cutters, they likewise can not  
               be arrested.

               Finally, in cases which a convicted motorcycle thief  
               is granted probation, it is possible to order the  
               probationer not to possess the items proposed in this  
               legislation.  If the probationer returns to stealing  
               motorcycles, he will likely get away with it, but it  
               is easy to find the tools of his trade by simply  
               conducting a probation search.  The same deterrent  
               effect should apply to non-probationers.  

          2.  Related Existing Statute Concerning Possession of Burglary  

          Penal Code Section 466 makes the possession of a picklock, crow,  
          keybit, crowbar, screwdriver, vise-grip plier, water-pump plier,  
          sledgehammer, slim jim, tension bar, lock pick gun, tubular lock  
          pick, floor-safe door puller, master keys, or other instrument  


                                                          AB 1848 (Garrick)

          or tool with the intent to break or enter into any building,  
          railroad car, vessel, or vehicle a misdemeanor.  This section  
          requires the specific intent to "feloniously break or enter,"  
          which are also elements of burglary.

          It appears that a perpetrator need not "break or enter" into  
          anything to steal a motorcycle.  Thus, it is argued that a  
          person can possess the tools needed to steal a motorcycle with  
          the intent to steal and not be subject to prosecution under  
          existing law.  This bill creates a parallel offense to the  
          existing law concerning burglary tools that makes it a  
          misdemeanor to possess specified tools with the intent to  
          unlawfully take or drive a motorcycle.

          3.  Existing Misdemeanors Concerning Altering or Making Devices to  
          be used in Crimes  

          Penal Code Section 466 provides, in defining one of three  
          separate crimes in that section, that any person who alters or  
          makes any instrument or thing, knowing or having reason to  
          believe that the device will be used to commit a misdemeanor or  
          felony, is guilty of a misdemeanor.  Arguably, any person who,  
          with the requisite criminal knowledge or intent, makes or alters  
          a tool or device for use in stealing a motorcycle key has  
          violated Penal Code Section 466 under current law.  However, the  
          provision concerning making or altering tools that are to be  
          used in a crime is very general.  Further, it appears that this  
          provision might not apply where a person used a tool that is  
          specifically designed to start a motorcycle.  Finally, Committee  
          staff was not able to find a case interpreting or applying this  
          particular provision.