BILL ANALYSIS                                                                                                                                                                                                    







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

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          AB 924 (Bigelow)                                            
          As Amended April 25, 2013 
          Hearing date: July 2, 2013
          Penal Code
          JM:mc

                           THEFT OF LIVESTOCK OR CARCASSES:

                      SPECIAL FINE PAID TO INVESTIGATING AGENCY  


                                       HISTORY

          Source:  California Cattlemen's Association

          Prior Legislation: None directly on point

          Support: California Chamber of Commerce; California Agricultural  
                   Commissioners and Sealers Association; Agriculture  
                   Council of California; California Grain and Seed  
                   Association; California Poultry Federation; Pacific Egg  
                   and Poultry Federation; Western United Dairymen;  
                   California Farm Bureau Federation; Los Angeles County  
                   District Attorney

          Opposition:California Attorneys for Criminal Justice; California  
                   Horsemen's Alliance; California District Attorneys  
                   Association (unless amended)
                   
          Assembly Floor Vote:  Ayes 77 - Noes 0


                                         KEY ISSUE




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          IN A CASE INVOLVING GRAND THEFT OF LIVESTOCK OR SPECIFIED ANIMAL  
          CARCASSES, SHOULD THE PROCEEDS OF A FINE OF UP TO $5,000 BE  
          ALLOCATED TO THE BUREAU OF LIVESTOCK IDENTIFICATION AND FOR  
          INVESTIGATING SUCH CRIMES, UPON LEGISLATIVE APPROPRIATION?



                                       PURPOSE

          The purpose of this bill is to provide that a defendant  
          convicted of theft of an animal or a specified animal carcass  
          may be subject to a fine of up to $5,000, the proceeds of which  
          shall be allocated to the Bureau of Livestock Identification of  
          the California Department of Agriculture, to be used for  
          investigation of livestock and animal carcass theft upon  
          appropriation by the Legislature.
           
           Existing law  defines "grand theft" as any theft where the money,  
          labor, or real or personal property taken or when the property  
          is taken from the person of another is of a value exceeding  
          $950.  (Pen. Code  487, subd. (a) and 487, subd. (c).)

           Existing law  provides that grand theft is committed when the  
          money, labor, or real or personal property taken is of a value  
          in excess of $950, except as specified.  (Pen. Code  487, subd.  
          (a).)

           Existing law  provides that, notwithstanding the default value of  
          $940 to establish grand theft, grand theft is committed in any  
          of the following cases:

                 when domestic fowls, avocados, or other farm crops are  
               taken of a value exceeding $250;
                 when fish or other aquacultural products are taken from  
               a commercial or research operation that is producing that  
               product of a value exceeding $250;
                 where money, labor or property is taken by a servant or  
               employee from his or her principal and aggregates $950 or  




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               more in any consecutive 12-month period;
                 when the property is taken from the person of another;  
               or
                 when the property taken is an automobile, firearm,  
               horse, mare, gelding, bovine animal, caprine animal, mule,  
               jack, jenny, sheep, lamb, hog, sow, boar, gilt, barrow, or  
               pig.
               (Pen. Code  487, subd. (b).)

           Existing law  provides that the taking or fraudulent  
          appropriation of the carcass of any bovine, caprine, equine,  
          ovine, or suine animal, or of any mule, jack or jenny, is grand  
          theft.  Where such an animal has been killed without the owner's  
          consent, taking of any part of the carcass is grand theft.   
          (Pen. Code  487, subds. (a)-(b).)

           Existing law  provides that grand theft is an alternate  
          felony-misdemeanor, punishable by imprisonment in the county  
          jail for up to one year, a fine of up to $1,000, or both, or by  
          a felony jail sentence of 16 months, two years or three years  
          pursuant to Penal Code Section 1170, subdivision (h), and a fine  
          of up to $10,000.  (Pen. Code  489, subd. (b).)  

           Existing law  provides that grand theft of a firearm is a felony,  
          punishable by imprisonment in state prison for 16 months, two  
          years or three years and a fine of up to $10,000.  (Pen. Code   
          489, subd. (a).)

           Existing law  provides that where the defendant in any action,  
          including a criminal prosecution, has been found to have taken  
          the cattle of another person, the recovery to the victim shall  
          be "four times the value of the animals.  The defendant shall  
          reimburse the victim for the time and money expended in pursuing  
          the cattle.  (Food & Agric. Code  21855: People v. Baker (2005)  
          126 Cal.App.4th 463, 469-470.)

           This bill  provides that where a person is convicted of grand  
          theft of livestock, as specified, or the carcass of a specified  
          animal, the defendant is liable for a fine of up to $5,000.  The  




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          fine shall be allocated to the Bureau of Livestock  
          Identification and, upon appropriation by the Legislature, used  
          for investigating theft of livestock or specified animal  
          carcasses.


                    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  
          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  




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          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:



















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                 whether a measure erodes realignment;
                 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.    Need for This Bill  

               The financial loss from animal theft can impact a  
               family ranching operation tremendously and mean the  
               difference in ending up in the red or in the black on  
               any given year.  There has been a 60% increase in the  
               value of beef cattle over the last few years, and as a  
               result we have also seen an increase in theft.  In  
               2012, the Bureau of Livestock Identification reported  
               that 1,110 head of cattle were stolen a value of  
               nearly $1 million.  AB 924 would give prosecutors the  
               tools they need to effectively administer the law and  
               appropriately convict persons found guilty of  
               livestock theft.

          2.  Fines and Fees in Criminal Cases are Numerous 

           Under existing law, a defendant must pay restitution for direct  
          losses to his or her victims and a restitution fine, with a  
          minimum of $140 and $280 for misdemeanors and felonies  
          respectively, in every case.  In addition to imprisonment,  
          courts can impose substantial criminal fines, with a usual  
          maximum of $10,000 in felonies and $1,000 in misdemeanors.   
          "Penalty assessments"  must be  applied to these fines.  Recent  




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          state budgets have increased penalty assessments to a combined  
          total of approximately 310% of the base fine, plus an additional  
          $79 in flat fees.  For example, where a court imposed the usual  
          maximum felony fine of $10,000, penalty assessments of $31,000  
          would be imposed as well, for a total of $41,000.


          This bill allows the court to impose a fine of up to $5,000.   
          Penalty assessments would raise the actual maximum fine to  
          approximately $20,500.  

          This bill allocates the base fine of $5,000 to the Bureau of  
          Livestock Identification.  The penalty assessment amounts would  
          be allocated to a wide variety of entities and programs, such as  
          court construction and security, DNA testing, various training  
          funds and others.  Without a more specific allocation, base  
          fines are divided between the city and county where the  
          violation occurred, as determined by a complex statutory  
          designation and agreement.  (Pen. Code  1463.0001-1463.0002.)   


          3.  Bill May Fall Heavily on Misdemeanants 

           The fine of up to $5,000 allowed by this bill may be imposed for  
          a misdemeanor conviction.  The bill requires other obligations  
          to be satisfied before the fine imposed under this bill can be  
          collected.  The court is also directed to consider a defendant's  
          ability to pay the fine.

          Because the fines and restitution obligations in felony cases  
          are generally significantly higher and more extensive than in  
          misdemeanor cases, the fine allowed by this bill may fall  
          disproportionately on misdemeanants.  That is, misdemeanants  
          will have fewer fines to pay and less restitution obligations.   
          Thus, misdemeanants will have more money available to pay the  
          fine allowed by this bill.  

          4.  Special Fines and Restitution for Cattle Theft and Cattle  
            Inspection Law Violations in Existing Law 











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          Food and Agriculture Code Section 21855 provides that a person  
          who takes the cattle of another shall pay four times the value  
          of the cattle to the victim and reimburse the victim for the  
          time and money he or she spent in pursuing the cattle.  It  
          appears that cattle thieves would likely seek to avoid  
          inspection by officials of the Department of Food and  
          Agriculture.  Violators of inspection laws are liable for a  
          civil penalty measured by the value of the costs of  
          investigation of the offense and the costs to return to the  
          owner any cattle that were taken unlawfully.


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