BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 1848 (Garrick) 8
As Amended March 17, 2010
Hearing date: June 15, 2010
Penal Code
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TOOLS FOR STEALING MOTORCYCLES
HISTORY
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
SHOULD A NEW MISDEMEANOR BE DEFINED THAT WOULD BE COMMITTED WHERE A
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PERSON POSSESSED A TOOL OR DEVICE WITH THE INTENT TO STEAL A
MOTORCYCLE?
PURPOSE
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
466.)
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
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<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.
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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.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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
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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
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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.
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<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).
COMMENTS
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
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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
Tools
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
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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.
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