BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2013-2014 Regular Session               B

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          AB 909 (Gray)                                               
          As Amended May 24, 2013 
          Hearing date:  June 25, 2013
          Penal Code
          AA:mc

                                METAL THEFT: TASK FORCE  


                                       HISTORY

          Source:  California Farm Bureau Federation

          Prior Legislation: AB 2298 (Ma) - Ch. 823, Stats. 2012 (amended  
          into an unrelated measure)

          Support: California Association of Joint Powers Authorities;  
                   California State Association of Counties; West Coast  
                   Chapter of the Institute of Scrap Recycling Industries;  
                   Pacific Gas and Electric; Friant Water Authority;  
                   California Chamber of Commerce; Association of  
                   California Water Agencies; California Business  
                   Properties Association; American Pistachio Growers;  
                   California Cotton Ginners Association; California  
                   Cotton Growers Association; California Grape & Tree  
                   Fruit League; Western Agricultural Processors  
                   Association; Western Plant Health Association;  
                   Metropolitan Water District of Southern California;  
                   Eastern Municipal Water District; Lassen County;  
                   PacifiCorp; California State Sheriffs' Association

          Opposition:None known





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          Assembly Floor Vote:  Ayes  77 - Noes  1



                                         KEY ISSUE
           
          SHOULD A METAL THEFT TASK FORCE AND FUND BE CREATED, AS SPECIFIED?

                                          

                                       PURPOSE

          The purpose of this bill is to establish the Metal Theft Task  
          Force and Fund, as specified.   

           Current law  establishes the "Board of State and Community  
          Corrections" ("BSCC"), as specified.  (Penal Code § 6024.)   
           Current law  provides the following mission for the BSCC:

               The mission of the board shall include providing  
               statewide leadership, coordination, and technical  
               assistance to promote effective state and local  
               efforts and partnerships in California's adult and  
               juvenile criminal justice system, including addressing  
               gang problems.  This mission shall reflect the  
               principle of aligning fiscal policy and correctional  
               practices, including, but not limited
               to prevention, intervention, suppression, supervision,  
               and incapacitation, to promote a justice investment  
               strategy that fits each county and is consistent with  
               the integrated statewide goal of improved public  
               safety through cost-effective, promising, and  
               evidence-based strategies for managing criminal  
               justice populations.  (Penal Code § 6024(b).)

           Current law  enumerates specified duties for the BSCC, including  
          requiring it to do the following:

                 Collect and maintain available information and data  
               about state and community correctional policies, practices,  




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               capacities, and needs, including, but not limited to,  
               prevention, intervention, suppression, supervision, and  
               incapacitation, as they relate to both adult corrections,  
               juvenile justice, and gang problems.  The board shall seek  
               to collect and make publicly available up-to-date data and  
               information reflecting the impact of state and community  
               correctional, juvenile justice, and gang-related policies  
               and practices enacted in the state, as was well as  
               information and data concerning promising and  
               evidence-based practices from other jurisdictions.
                 Develop recommendations for the improvement of criminal  
               justice and delinquency and gang prevention activity  
               throughout the state.
                 Identify, promote, and provide technical assistance  
               relating to evidence-based programs, practices, and  
               innovative projects consistent with the mission of the  
               board.
                 Receive and disburse federal funds, and perform all  
               necessary and appropriate services in the performance of  
               its duties as established by federal acts.
                 Develop comprehensive, unified, and orderly procedures  
               to ensure that applications for grants are processed  
               fairly, efficiently, and in a manner consistent with the  
               mission of BSCC.
                 Identify delinquency and gang intervention and  
               prevention grants that have the same or similar program  
               purpose, are allocated to the same entities, serve the same  
               target populations, and have the same desired outcomes for  
               the purpose of consolidating grant funds and programs and  
               moving toward a unified single delinquency intervention and  
               prevention grant application process in adherence with all  
               applicable federal guidelines and mandates.
                 Cooperate with and render technical assistance to the  
               Legislature, state agencies, units of general local  
               government, combinations of those units, or other public or  
               private agencies, organizations, or institutions in matters  
               relating to criminal justice and delinquency prevention.
                 Develop incentives for units of local government to  
               develop comprehensive regional partnerships whereby  
               adjacent jurisdictions pool grant funds in order to deliver  




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               services to a broader target population and maximize the  
               impact of state funds at the local level.
                 Conduct evaluation studies of the programs and  
               activities assisted by the federal acts.
                 Identify and evaluate state, local, and federal gang and  
               youth violence suppression, intervention, and prevention  
               programs and strategies, along with funding for those  
               efforts.  The board shall assess and make recommendations  
               for the coordination of the state's programs, strategies,  
               and funding that address gang and youth violence in a  
               manner that maximizes the effectiveness and coordination of  
               those programs, strategies, and resources.  By January 1,  
               2014, the board shall develop funding allocation policies  
               to ensure that within three years no less than 70 percent  
               of funding for gang and youth violence suppression,  
               intervention, and prevention programs and strategies is  
               used in programs that utilize promising and proven  
               evidence-based principles and practices. The board shall  
               communicate with local agencies and programs in an effort  
               to promote the best evidence-based principles and practices  
               for addressing gang and youth violence through suppression,  
               intervention, and prevention.
                 Collect county criminal justice realignment plans within  
               two months of adoption by the county boards of supervisors.  
                Commencing January 1, 2013, and annually thereafter, the  
               board shall collect and analyze available data regarding  
               the implementation of the local plans and other  
               outcome-based measures, as defined by the board in  
               consultation with the Administrative Office of the Courts,  
               the Chief Probation Officers of California, and the  
               California State Sheriffs Association. 
                 By July 1, 2013, and annually thereafter, the board  
               shall provide to the Governor and the Legislature a report  
               on the implementation of the plans described above.  (Penal  
               Code









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               § 6027.)<1>

           Current law  also authorizes BSCC to do either of the following:   
          (1) Collect, evaluate, publish, and disseminate statistics and  
          other information on the condition and progress of criminal  
          justice
          in the state.  (2) Perform other functions and duties as  
          required by federal acts, rules, regulations, or guidelines in  
          acting as the administrative office of the state planning agency  
          for distribution
          of federal grants.  (Id.)

          
          Establishment of Metal Theft Task Force and Fund
          
           This bill  would establish a Metal Theft Task Force and Fund, as  
          specified and operative on January 1, 2015, with the following  
          features and requirements:

          Metal Theft Task Force Fund
          
           This bill  would establish the Metal Theft Task Force Fund within  
          the State Treasury, as specified.  Funds shall, upon  
          appropriation by the Legislature, be available for the purposes  
          set forth in this title:

                 The fund shall consist of moneys deposited into the fund  
             --------------------------
          <1>   In addition to these duties, BSCC (and its predecessor  
          entities) also is required to establish minimum standards for  
          local correctional facilities (Penal Code § 6030), to inspect  
          local detention facilities biennially (Penal Code §§ 6031 and  
          6031.1), to conduct biennial inspections of local juvenile  
          facilities, as specified (Welfare and Institutions Code § 209),  
          and to engage in related efforts with respect to standards and  
          conditions in local facilities where minors are detained, as  
          specified.  (See WIC §§ 207.1, 210, and 210.2.)  In addition to  
          its ongoing duties, CSA/BSCC is statutorily tasked with  
          administering certain programs, such as the AB 900 Local Jail  
          Construction Financing Program, the Juvenile Justice Crime  
          Prevention Act, and the Youthful Offender Block Grant.



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               from the federal government, industry, and private sources.
                 General Fund moneys shall not be deposited into the fund  
               nor used to implement the provisions of this title. 
                 Funds provided under this program are stated in statute  
               to be intended to ensure that law enforcement is equipped  
               with the necessary personnel and tools to successfully  
               combat metal theft and related recycling crimes, which  
               include, but are not limited to, all of the following  
               offenses:

                  o         The theft of metals, including, but not  
                    limited to, nonferrous metals.
                  o         The purchase and recycling of stolen  
                    metals, including, but not limited to, recycled  
                    metal beverage containers, by recyclers.
                  o         The transportation of stolen metals from  
                    this state to another state.
                  o         The transportation of stolen metals from  
                    another state to this state.

          Administration of the Fund

           This bill  would provide that the fund shall be administered by  
          the BSCC.

           This bill  would authorize the BSCC to adopt regulations as  
          needed to administer this title.

           This bill  would provide that the overall program and the  
          evaluation and monitoring of all grants made pursuant to this  
          title shall be performed by the BSCC.

           This bill  would provide that moneys appropriated to the BSCC for  
          the program shall be expended to fund programs that enhance the  
          capacity of local law enforcement and prosecutors to deter,  
          investigate, and prosecute metal theft and related recycling  
          crimes.

           This bill  would provide that after deduction of the BSCC's  
          actual and necessary administrative costs, the funds shall be  




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          expended to fund programs to enhance the capacity of local law  
          enforcement and prosecutors to deter, investigate, and prosecute  
          metal theft and related recycling crimes.

           This bill  would provide that funds distributed under this  
          program shall be expended for the exclusive purpose of  
          deterring, investigating, and prosecuting metal theft and  
          related recycling crimes.

           This bill  would provide that up to 10 percent of the funds may,  
          upon appropriation, be used for developing and maintaining a  
          statewide database on metal theft and related recycling crimes  
          for use in developing and distributing intelligence information  
          to participating law enforcement agencies.

          Establishment of a Metal Theft Task Force Program
          
           This bill  would require the BSCC to establish the Metal Theft  
          Task Force Program.  

          Regional Task Forces
          
           This bill  would require the BSCC to develop specific guidelines  
          and administrative procedures for the selection of regional task  
          forces to receive funds under this program, as follows:

                 Each regional task force that seeks funds shall  
               submit a written application to the board setting  
               forth in detail the proposed use of funds.
                 Each regional task force shall be identified by a  
               name that is appropriate to the area that it serves.   
               In order to qualify for funds, a regional task force  
               shall be comprised of local law enforcement and  
               prosecutors from at least two counties.
                 Each task force would be expressly authorized to  
               consult with experts from the United States military,  
               the California Military Department, the Department of  
               Justice, other law enforcement entities, and various  
               other state and private organizations, including  
               pertinent trade associations, as deemed necessary to  




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               maximize the effectiveness of this program.
                 Priority shall be given to regional task forces  
               outside of the 13 counties funded under the rural  
               crime prevention programs, as specified.
                 The guidelines shall include all of the following  
               selection criteria that shall be considered by the board in  
               awarding grant funds:

                  o         The number of metal theft or related recycling  
                    crime cases filed in the prior year.
                  o         The number of metal theft or related recycling  
                    crime cases investigated in the prior year.
                  o         The number of victims involved in the cases  
                    filed.
                  o         The total aggregate monetary loss suffered by  
                    the victims, including damage caused by the theft.
                  o         Local funds available to assist the regional  
                    task force.
                  o         The number of licensed recycling facilities in  
                    the region.

          

          Accounting of Funds Received
          
           This bill  would require that each regional task force awarded  
          funds authorized under the program during the previous  
          grant-funding cycle, upon reapplication for funds to the board  
          in each successive year, submit a detailed accounting of funds  
          received and expended in the prior year in addition to any  
          information required by this title.

           This bill  would require that the accounting include all of the  
          following information:

                  o         The amount of funds received and expended.
                  o         The use to which those funds were put,  
                    including payment of salaries and expenses, purchase  
                    of equipment and supplies, and other expenditures by  
                    type.




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                  o         The number of filed complaints,  
                    investigations, arrests, and convictions that resulted  
                    from the expenditure of the funds.

          Evaluation and Reporting
           
          This bill  would require the BSCC to regularly review the  
          effectiveness of the program in deterring, investigating, and  
          prosecuting metal theft and related recycling crimes and present  
          a report to the Legislature and Governor, as specified.

           This bill  would require that the report be based on information  
          provided by the regional task forces in an annual report to the  
          board which shall detail all of the following:

                 The number of metal theft and recycling crime cases  
               filed in the prior year.
                 The number of metal theft and recycling crime cases  
               investigated in the prior year.
                 The number of victims involved in the cases filed.
                 The number of convictions obtained in the prior year.
                 The total aggregate monetary loss suffered by the  
               victims, including damage caused by the theft.
                 An accounting of funds received and expended in the  
               prior year, which shall include all of the following:

                  o         The amount of funds received and expended.
                  o         The uses to which those funds were put,  
                    including payment of salaries and expenses, purchase  
                    of supplies, and other expenditures.
                  o         Any other relevant information requested.

           This bill  provides that the program established pursuant to this  
          title shall not be implemented until the Department of Finance  
          determines that sufficient funds have been deposited in the  
          Metal Theft Task Force Fund to implement the provisions of this  
          title and funds have been made available for the purposes of  
          this title upon appropriation by the Legislature as provided  
          above.





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           This bill  would require the BSCC to implement the provisions of  
          this title only upon the availability of funds appropriated for  
          that purpose, in an amount sufficient to cover all costs  
          relating to the implementation and continuing administration of  
          the provisions of this title.
          
          Definitions
          
           This bill  would provide, for the purposes of this title, the  
          following terms have the following meanings:

                 "Fund" means the Metal Theft Task Force Fund.
                 "Board" means the Board of State and Community  
               Corrections.
                 "Program" means the Metal Theft Task Force Program.

          Legislative Findings and Declarations
           
            This bill  would make uncodified legislative findings and  
          declarations concerning metal theft, as specified.   

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the last several years, severe overcrowding in California's  
          prisons has been the focus of evolving and expensive litigation  
          relating to conditions of confinement.  On May 23, 2011, the  
          United States Supreme Court ordered California to reduce its  
          prison population to 137.5 percent of design capacity within two  
          years from the date of its ruling, subject to the right of the  
          state to seek modifications in appropriate circumstances.   

          Beginning in early 2007, Senate leadership initiated a policy to  
          hold legislative proposals which could further aggravate the  
          prison overcrowding crisis through new or expanded felony  
          prosecutions.  Under the resulting policy known as "ROCA" (which  
          stands for "Receivership/ Overcrowding Crisis Aggravation"), the  
          Committee held measures which created a new felony, expanded the  
          scope or penalty of an existing felony, or otherwise increased  
          the application of a felony in a manner which could exacerbate  
          the prison overcrowding crisis.  Under these principles, ROCA  




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          was applied as a content-neutral, provisional measure necessary  
          to ensure that the Legislature did not erode progress towards  
          reducing prison overcrowding by passing legislation which would  
          increase the prison population.  ROCA necessitated many hard and  
          difficult decisions for the Committee.

          In January of 2013, just over a year after the enactment of the  
          historic Public Safety Realignment Act of 2011, the State of  
          California filed court documents seeking to vacate or modify the  
          federal court order issued by the Three-Judge Court three years  
          earlier to reduce the state's prison population to 137.5 percent  
          of design capacity.  The State submitted in part that the, ". .  
          .  population in the State's 33 prisons has been reduced by over  
          24,000 inmates since October 2011 when public safety realignment  
          went into effect, by more than 36,000 inmates compared to the  
          2008 population . . . , and by nearly 42,000 inmates since 2006  
          . . . ."  Plaintiffs, who opposed the state's motion, argue in  
          part that, "California prisons, which currently average 150% of  
          capacity, and reach as high as 185% of capacity at one prison,  
          continue to deliver health care that is constitutionally  
          deficient."  In an order dated January 29, 2013, the federal  
          court granted the state a six-month extension to achieve the  
          137.5 % prisoner population cap by December 31st of this year.  

          In an order dated April 11, 2013, the Three-Judge Court denied  
          the state's motions, and ordered the state of California to  
          "immediately take all steps necessary to comply with this  
          Court's . . . Order . . . requiring defendants to reduce overall  
          prison population to 137.5% design capacity by December 31,  
          2013."         

          The ongoing litigation indicates that prison capacity and  
          related issues concerning conditions of confinement remain  
          unresolved.  However, in light of the real gains in reducing the  
          prison population that have been made, although even greater  
          reductions are required by the court, the Committee will review  
          each ROCA bill with more flexible consideration.  The following  
          questions will inform this consideration:
                                                          
                 whether a measure erodes realignment;




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                 whether a measure addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
                 whether a bill corrects a constitutional infirmity or  
               legislative drafting error; 
                 whether a measure proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy; and
                 whether a bill addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy.

                                      COMMENTS

          1.  Stated Need for This Bill

           The author states:

               Farmers and ranchers face numerous challenges in  
               providing California and the world with agricultural  
               products, including metal theft.  Recent legislation  
               has improved the record keeping requirements for junk  
               dealers and recyclers and changed the way most  
               payments are made for scrap metal.  However, the new  
               law has not been enough to stop the dramatic increase  
               in metal theft.

               Metal theft impacts California farmers, ranchers,  
               utility providers, construction companies, and  
               municipalities.  Thieves strip copper wire from  
               irrigation pumps to sell to scrap metal recyclers.   
               The cost of replacing copper wire on an irrigation  
               pump ranges from $1,500 to $4,000 and this cost does  
               not include crop losses caused by lack of irrigation.   
               Utility lines are cut and stripped of copper wire and  
               construction companies are losing wire and pipes to  
               thieves.  Cities and counties







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               are seeing copper wiring stripped from traffic lights  
               and municipal facilities raising significant public  
               safety concerns.

               AB 909 creates a Metal Theft Task Force program, which  
               will ultimately provide resources to local law  
               enforcement to target metal theft regionally.  The  
               program would be voluntary and provide grants to  
               regional task forces.

               This program is modeled after the Central Valley and  
               Central Coast Rural Crime Prevention Programs and the  
               High Technology Crimes Task Force.  A 2002 LAO report  
               found the rural crime prevention programs' rates of  
               arrests, prosecutions and convictions were higher than  
               the statewide average.  Additionally, efforts to  
               recover stolen equipment were successful in recovering  
               over half of each dollar reported lost.  AB 909 builds  
               on the sturdy foundation of these programs to ensure  
               law enforcement has the ability to bring metal thieves  
               to justice.

          2.  What this Bill Would Do; the BSCC  

          As explained above, this bill would require the Board of State  
          and Community Corrections (BSCC) to administer a new statewide  
          effort to address the problems and challenges of metal theft.   
          In this way, this bill would place substantial new duties on the  
          BSCC, which in its current statutory configuration has existed  
          for about a year.  The BSCC would be responsible for the  
          creation and administration of the overall program and the  
          evaluation and monitoring of all grants made pursuant to this  
          title.  The BSCC would also be required to develop specific  
          guidelines and administrative procedures for the selection of  
          regional task forces to receive funds under this program and  
          regularly review the effectiveness of the program in deterring,  
          investigating, and prosecuting metal theft and related recycling  
          crimes and present a report to the Legislature and Governor.   

          Earlier this year the Legislative Analyst's Office offered the  




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          following observations concerning the progress of the BSCC in  
          meeting its new missions:

               The Legislature gave BSCC the mission of providing  
               technical assistance to counties with the goal of  
               encouraging evidence-based programs that improve  
               criminal justice outcomes cost-effectively.  Based on  
               reports from BSCC and our conversations with county  
               stakeholders, BSCC has not yet played an active role  
               in facilitating the adoption of evidence-based  
               programs.  . . . .   

                 We are also concerned that BSCC has not yet  
               developed a longer-term plan to fulfill its data  
               collection mission. . . .  <2> 

          Members may wish to discuss the timing and potential impact of  
          adding additional statutory duties and priorities for an entity  
          that faces many challenges relating both to its structural  
          reformation (independence from CDCR), its ongoing duties (for  
          example, implementation of the SB 81 Local Youthful Offender  
          Rehabilitative Facilities Construction Financing Program) and  
          the added duties and expectations surround the BSCC concerning  
          the public safety realignment.  In addition, at the request of  
          the administration the Legislature just restructured the BSCC in  
          a budget trailer bill (SB 74) passed on June 14, 2013 to add a  
          full-time chair of the board to serve as an additional member of  
          the now 13-member BSCC. 

          3.  Previous Legislation to Curb Metal Theft  

          This Committee passed a nearly identical bill, AB 2298 (Ma) last  
          year (5-0).  That measure was held on Appropriations suspense,  
          amended and, ultimately, amended into an unrelated bill.  

          Last session, this Committee approved SB 1387 (Emmerson), which  
          prohibits junk dealers and recyclers from possessing any fire  
          hydrant, fire department connection, manhole cover or backflow  


          ---------------------------
          <2>   Legislative Analyst's Office, The 2013-14 Budget:  
          Governor's Criminal Justice Proposals (Feb. 15, 2013).











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          device without a written certification on the letterhead of the  
          agency previously owning the material, and adds fire hydrants,  
          manhole covers and backflow devices to the list of items which,  
          if any person possesses, knowing they were stolen, would receive  
          an additional fine of up to $3,000.  (Penal Code § 496e.)

          In 2011 the Legislature created a separate offense of grand  
          theft of copper material.  (AB 316 (Carter), Chapter 317,  
          Statutes of 2011.)  

          In 2009, the Legislature passed the following measures to  
          address the growing problem of metal theft:

                 SB 447 (Maldonado), Chapter 732, Statutes of 2009,  
               assists local law enforcement officials in quickly  
               investigating stolen metal and apprehending thieves by  
               requiring scrap metal dealers and recyclers to report  
               what materials are being scrapped at their facilities  
               and by whom on a daily basis.  These rules already  
               apply to pawn shop dealers.
                 SB 691 (Calderon), Chapter 720, Statutes of 2009,  
               requires junk dealers and recyclers to take  
               thumbprints of individuals selling copper, copper  
               alloys, aluminum and stainless steel.  Sellers must  
               also show a government identification (ID) and proof  
               of their current address.  Recyclers who violate the  
               law face suspension or revocation of their business  
               license and increased fines and jail time. 
                 AB 844 (Berryhill), Chapter 731, Statutes of 2009,  
               requires recyclers to hold payment for three days,  
               check a photo ID and take a thumbprint of anyone  
               selling scrap metals.  AB 844 also requires any person  
               convicted of metal theft to pay restitution for the  
               materials stolen and for any collateral damage caused  
               during the theft. 
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