BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
2
4
SB 24 (Oropeza)
As Amended April 1, 2009
Hearing date: April 21, 2009
Penal Code
JM:mc
REPORTING AND MONITORING CARGO THEFT
HISTORY
Source: Los Angeles County Sheriff
Prior Legislation:AB 1814 (Oropeza) - Ch. 515, Stats. 2004
Support: South Bay Association of Chambers of Commerce;
California Peace Officers' Association; California
Police Chiefs Association; LAX Coastal Area Chamber of
Commerce; California District Attorneys Association;
League of California Cities; California Retailers
Association
Opposition:None known
KEY ISSUES
SHOULD THE SUNSET CLAUSE ON THE STATUTE DEFINING THE CRIME OF CARGO
THEFT - A SEPARATELY DEFINED FORM OF GRAND THEFT - BE ELIMINATED?
SHOULD THE CARGO THEFT STATUTE BE AMENDED TO CLARIFY THAT THE CARGO
THEFT IS GRAND THEFT ONLY WHERE THE KIND AND VALUE OF THE CARGO
(More)
SB 24 (Oropeza)
PageB
TAKEN CONSTITUTE GRAND THEFT UNDER THE STATUTES THAT DEFINE GRAND
THEFT?
PURPOSE
The purpose of this bill is to eliminate the sunset on a law
that defines cargo theft as a separate, and separately
monitored, form of grand theft.
Existing law provides that grand theft is committed when the
property taken is valued in excess of $400, except as specified.
(Pen. Code 487, subd. (a).)
Existing law provides that, notwithstanding the value of the
property taken, grand theft is committed where the property
taken includes the following:
domestic fowls, avocados, or other farm crops of a value
exceeding $100;
commercial or research fish or aquaculture with a value
exceeding $100;
money, labor or property taken by a servant or employee from
his or her principal that aggregates $400 or more in any 12
consecutive month period;
property taken from the person of another (other than by
robbery); and
automobile, horse or firearm. (Pen. Code 487, subd. (b).)
Existing law provides grand theft of a firearm is a felony
punishable by imprisonment in state prison for 16 months, 2 or 3
years and a fine of up to $10,000. (Pen. Code 489.)
Existing law provides that in all other cases, grand theft is an
alternate felony-misdemeanor punishable by imprisonment in
county jail for not more than one year, a fine of up to $1,000,
or both, or by imprisonment in a state prison for 16 months, 2
(More)
SB 24 (Oropeza)
PageC
or 3 years and a fine of up to $10,000. (Pen. Code 489.)
Existing law provides that theft in other cases is petty theft.
(Pen. Code 488.)
Existing law states that petty theft is punishable by a fine not
exceeding $1,000, imprisonment in the county jail not exceeding
six months, or both. (Pen. Code 490.)
Existing law defines the alternate felony-misdemeanor of
receiving stolen property (of any value), punishable by
imprisonment in a county jail for up to one year, a fine of up
to $1,000, or both, or by imprisonment in a state prison for 16
months, 2 years or 3 years and a fine of up to $10,000. (Pen.
Code 496.) Section 496 specifically provides that the
district attorney or grand jury, in the interests of justice,
can charge the offense as a straight misdemeanor where the value
of the property does not exceed $400.
Existing law provides that any person, who enters specified
buildings including a vehicle, railroad car, locked or sealed
cargo container, whether or not mounted on a vehicle, with
intent to commit grand or petty theft, or any felony is guilty
of a burglary. (Pen. Code 459.)
Existing law defines a "vehicle" as a device by which any person
or property may be propelled, moved, or drawn upon a highway, as
specified. (Veh. Code 670.)
Existing law provides that a "trailer" is a vehicle designed for
carrying persons or property on its own structure and includes a
semi trailer, as defined. (Veh. Code 670.)
Existing law states that burglary of an inhabited dwelling
place, as specified, is burglary of the first degree. (Pen.
Code 460, subd. (a).)
Existing law provides that all other kinds of burglary are of
the second degree. (Pen. Code 460, subd. (b).)
(More)
SB 24 (Oropeza)
PageD
Existing law provides that a railroad car or a cargo container
can be the target of a burglary. (Pen. Code 458 and 459.)
Existing law states that burglary is punishable as follows:
Burglary in the first degree is punishable by imprisonment in
the state prison for 2, 4 or 6 years and a fine of up to
$10,000.
Burglary in the second degree is punishable by imprisonment in
the county jail for up to one year, a fine of up to $1,000, or
both, or by imprisonment in state prison for 16 months, 2
years or 3 years, and a fine of up to $10,000. (Pen. Code
461.)
Existing law states that acts punishable by different provisions
of the law shall be punished under the provision that provides
the longest potential term of imprisonment but in no case shall
the act be punished under more than one provision. (Pen. Code
654, subd. (a).)
Existing federal law includes the crime of theft or embezzlement
of cargo or goods in foreign or interstate commerce. The
maximum prison term is 10 years where the value of the property
is at least $1,000. The maximum imprisonment is three years
where the value of the property is less than $1,000. (18 U.S.C.
659.)
Existing federal law directs the United States Attorney General
to include cargo theft in the Uniform Crime Reports - the
national crime statistics. (P.L. 109-177, Title III, 307 -
part of the 2006 Patriot Act reauthorization.)
Existing law defines the crime of "cargo theft" and defines
"cargo" as "goods, wares, products, or manufactured merchandise
that has been loaded into a trailer, railcar, or cargo
container, awaiting or in transit." This section sunsets
January 1, 2010. (Pen. Code 487h.)
This bill eliminates the sunset clause on the crime of cargo
theft, a separately defined form of grand theft.
(More)
SB 24 (Oropeza)
PageE
This bill clarifies that the elements of cargo theft are the
same as the elements of grand theft as defined in Penal Code
Section 487, including the element concerning the minimum value
of the property taken.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
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
----------------------
<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)
SB 24 (Oropeza)
PageF
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
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)
SB 24 (Oropeza)
PageG
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:
Since AB 1814 was passed in 2004, law enforcement has
been able to accurately track cargo theft which has
built the case to receive Federal Homeland Security
dollars. With this law's proven success, a sunset at
the end of this year is not in California's best
interest. SB 24 would reauthorize the law and will
continue to assist in providing much needed resources
to the protection of our ports.
Prior to AB 1814, there was no standard classification
for cargo that was stolen from a trailer, rail car, or
storage container at ports in the state. The crime
could be classified as any number of different felony
crimes (burglary, robbery, larceny, grand theft, etc.)
depending on the circumstances. Without a standard
classification, it became difficult to track the
seriousness of the crime. On a nation level, it is
estimated $10 to $15 billion of cargo is stolen
----------------------
<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)
SB 24 (Oropeza)
PageH
annually. Further, as 42% of all US International
container trade enters this country through the Long
Beach/Los Angeles ports, we must provide the best
security to ensure the nation's commerce can move
freely in and out of California's ports.
2. Tracking Cargo Theft
As reported on June 23, 2008, in Drug Topics, a periodical for
pharmacists, Ryan Toole, supervisory special agent in the FBI's
Violent Crimes and Major Offenders Section, explained that in
2006 Congress mandated separate tracking of cargo theft in
police reports. Cargo thefts are reported to the FBI's Uniform
Crime Reports system. Previously, an officer recovering an
18-wheeler leaving a port with millions of dollars' worth of
goods would report it simply as a recovered vehicle, the same as
if it were a passenger car. Toole noted that FBI efforts to
educate police officers in reporting on the new system has
resulted in sophisticated sharing of information among agencies.
The statutory citations for cargo theft under federal law, and
the requirements for reporting cargo theft under the Uniform
Crime Reports, are set out above in "Existing Law."
(More)
3. Federal Bureau of Investigation (FBI) Cargo Theft Priorities
According to an article from 2006 on the FBI website:
Cargo theft is estimated to cost the U.S. $15-30
billion a year, though the true measure may be even
higher, since some businesses are reluctant to report
thefts out of concern for their reputations or their
insurance premiums. Thieves' methods vary, but the
outcome is generally the same-a load of merchandise
leaves Point-A and never arrives at Point-B.
"Cargo theft is our number-one priority in Major
Theft," says Unit Chief Eric B. Ives, who heads the
Major Theft Unit in the FBI's Criminal Investigative
Division. "There's never been a time when there's not
enough work."
The issue is much broader than a criminal stealing a
TV off a truck. In the past few years, investigations
have revealed more and more sophisticated operations
with well-organized hierarchies. The typical
"criminal enterprise," as Ives describes it, has a
leader who runs a regional or national operation.
Beneath him are cells of thieves and brokers, or
fences, who unload the stolen goods on the black
market. "Lumpers" physically move the goods, along
with drivers. And there's usually a specialist who is
expert at foiling the anti-theft locks on truck
trailers.
Cargo thieves heist whole truck loads of
merchandise-the average freight on a trailer is valued
between $12,000 and $3 million. The hotspots are
where you might expect-truck yards, hubs for
(More)
SB 24 (Oropeza)
PageJ
commercial freight carriers, and port cities.
To fight the problem, seven cargo theft task forces,
made up of FBI agents and local law enforcement,
operate in six cities: Memphis, Houston, Newark, New
York, San Juan, and Miami, which has two.
Investigations are aimed at toppling whole operations.
"While causing a disruption to the criminal operation
is important, the ultimate goal of the FBI is to
completely dismantle the criminal enterprise," Ives
says.
Some undercover investigations may last more than a
year and involve setting up front warehouses to fence
stolen merchandise. Private industry support is
critical in long term investigations. "They know that
if we can reduce cargo theft by taking out the
criminal enterprise it benefits them," Ives says.
4. The Port of Los Angeles and Port of Long Beach are the First
and Second Busiest Container Ports in the U.S. Respectively
According to the Port Website, the Port of Los Angeles handles
nearly $190 billion worth of cargo annually. The Port of Long
Beach typically handles well over $100 billion worth of cargo
annually. ($140 billion in 2007.) Various tracking reports
list Los Angeles and Long Beach (in that order) as the two
busiest container ports in the United States. Essentially, a
large portion of the foreign goods entering commerce in the
United States passes through Southern California Ports. The
volume of material that must be moved through the port presents
serious security, smuggling and theft concerns. Arguably,
tracking cargo theft demonstrates success, or lack thereof, in
securing the ports.
SB 24 (Oropeza)
PageK
SHOULD THE SUNSET BE ELIMINATED ON THE STATUTE THAT DEFINES AND
TRACKS CARGO THEFT AS A SEPARATE FORM OF GRAND THEFT?
5. Provisions in the Bill Clarifying that Cargo Theft is Grand
Theft where the Value and Kind of Property taken Satisfy the
Elements of Grand Theft set out in other Statutes
What distinguishes cargo theft from other forms of grand theft
is simply the place from which the property was taken. The fact
that the property was taken during the shipping process is not
an element of the crime that must be proved to a jury. The fact
that the property taken was cargo is simply a matter for
reporting in crime statistics.
The true elements of the grand theft - particularly as concerns
the value and kind of property taken - are defined in other
grand theft provisions, not the cargo theft statute. The most
common definition of grand theft is theft of property exceeding
$400 in value. There are exceptions for specified kinds of
property. For example, a theft of avocados or shellfish is
grand theft if the value of the property exceeds $100.
SHOULD THE CARGO THEFT STATUTE BE AMENDED TO CLARIFY THAT THE
ELEMENTS OF THE CRIME - INCLUDING AS CONCERNS THE VALUE AND KIND
OF PROPERTY TAKEN - ARE DEFINED IN OTHER SPECIFIED GRAND THEFT
PROVISIONS?
***************