BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 1782 (Chesbro) 2
As Amended May 1, 2014
Hearing date: June 17, 2014
Penal Code
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DAMAGING COMMUNICATIONS OR ELECTRICAL SERVICE LINES
INCREASED FINES AND UPDATED TERMS
HISTORY
Source: California Center for Rural Policy
Prior Legislation: None Directly on Point
Support: California Cable and Telecommunications Association;
California Municipal Utilities Association; California
Police Chiefs Association; California State Sheriffs'
Association; Southern California Edison; Taxpayers for
Improving Public Safety; Trinity Public Utilities
District; Cox Communications; Frontier Communications;
Fresno Metropolitan Flood Control District; Humboldt
County Board of Supervisors; PacifiCorp; Southern
California Edison; Southern California Public Power
Authority; Suddenlink Communications; Western
Electrical Contractors Association
Opposition:California Attorneys for Criminal Justice
Assembly Floor Vote: Ayes 76 - Noes 0
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KEY ISSUE
SHOULD THE MAXIMUM FINE FOR THE CRIME OF MALICIOUSLY DAMAGING OR
DISCONNECTING A COMMUNICATIONS LINE OR LINE FOR CONDUCTING
ELECTRICITY, OR FOR CONNECTING WITHOUT AUTHORIZATION TO AN
ELECTRICAL CONDUCTION LINE, BE RAISED FROM $500 TO $10,000?
PURPOSE
The purpose of the bill is to 1) raise from $500 to $10,000 the
maximum fine for the crime of maliciously damaging,
disconnecting, obstructing or cutting a communications line,
including a cable television line, or a line used to conduct
electricity, or to connect without authorization to an
electrical conduction line; and 2) clarify that the offense
applies to specified devices, such as a backup deep cycle
battery.
Existing law provides that a person who does any of the
following acts is guilty of an alternate felony-misdemeanor,
punishable by a felony jail term of 16 months, 2 or 3 years in
the county jail, or by a fine not exceeding $500, or
imprisonment in the county jail not exceeding one year:
Unlawfully and maliciously takes down, removes, injures,
or obstructs any part of a telegraph, telephone, or cable
television line, or any line used to conduct electricity,
or appurtenances or apparatuses connected therewith.
Severs any wire thereof of a noted line, or makes any
unauthorized connection with any line, other than a
telegraph, telephone, or cable television line, used to
conduct electricity (Pen. Code § 591.)
Existing law provides that a person who unlawfully and
maliciously removes, injures, destroys, damages, or obstructs
the use of any wireless communication device with the intent to
prevent the use of the device to summon assistance or notify law
enforcement or any public safety agency of a crime is guilty of
a misdemeanor. (Pen. Code § 591.5.)
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This bill makes the following changes in the alternate
felony-misdemeanor statute that prohibits removing, destroying,
obstructing use of or damaging, any communications line or line
used to conduct electricity, or connecting without authorization
to a line used to conduct electricity:
Adds or includes the acts of disconnecting or cutting a
specified communications line or line used to conduct
electricity.
Includes a backup deep cycle battery or other connected
power supply in the devices covered by the law prohibiting
and punishing the act of removing, damaging or obstructing
a specified communications line or line used to conduct
electricity.
Increases the maximum fine for the offense from $500 to
$10,000 per incident.
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 that 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
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passing legislation, which would increase the prison population.
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 requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted 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 opposed the
state's motion, arguing 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 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, 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." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014, and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013, Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
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to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated May 15, 2014, the state
reported that as of May 14, 2014, 116,428 inmates were housed in
the State's 34 adult institutions, which amounts to 140.8% of
design bed capacity, and 8,650 inmates were housed in
out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
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.
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COMMENTS
1. Need for this Bill
According to the author:
In Humboldt County, Suddenlink Communications has been
the victim of multiple intentional fiber cutting
attacks resulting in the loss of services including
cable, internet, and cell phone service to over 10,000
customers on several occurrences. In other incidents
throughout California, cable nodes have been
vandalized and cable amplifiers and emergency backup
batteries have been stolen, resulting in the loss of
communications services, including the ability to make
emergency 911 calls, for thousands of residential and
business customers.
Dependable communication services are critical for
public safety, national security and California's
economic growth and sustainability. Current law
limits the penalty to $500 or up to one year in county
jail which has not served as a deterrent to this type
of crime. AB 1782 would increase the criminal fine
for "unlawfully and maliciously" disconnecting and
obstructing communication infrastructure or electric
lines. Judges would continue to have the option of
sentencing an offender to county jail for up to one
year.
2. Default Fine for a Felony or Misdemeanor Where no Other
Fine is Specified
Standard or Default Fines Generally
Penal Code Section 18, subdivision (a), provides that where no
other sentence is specified, the penalty for a felony is a term
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of 16 months, two years or three years, served in prison or
jail, depending on whether the realignment provisions in Penal
Code Section 1170, subdivision (h), apply to the crime.
Generally, the most serious offenses are punished by prison
terms. The crime considered by this bill - maliciously
damaging, disconnecting or obstructing a communications line or
line used to conduct electricity, or connecting without
authorization to an electrical conduction line - is punishable
by a felony jail term. A crime that is described to be a
felony, but punishable by imprisonment or a fine, is also
punishable by imprisonment in the county jail for up to one year
(as a misdemeanor), regardless of whether the penalty provision
specifically authorizes a jail term of up to one year. (Pen.
Code §§ 17, subd. (b)(1) and 18, subd. (b).)
Penal Code Section 672 provides that where no other fine is
specified, the maximum fine for a felony is $10,000 and $1,000
for a misdemeanor. While many felony statutes specifically
state that the maximum fine for the offense is $10,000, others
simply state that the offense is a felony or that an offense
punishable pursuant to Penal Code Section 1170, subdivision
(h).<1> Many misdemeanor statutes specify that the maximum fine
for the offense is $1,000, although some misdemeanors specify
lower or higher maximum fines. It is also not uncommon for a
crime to simply be described as a misdemeanor. In such a case,
Penal Code Section 19 provides that the maximum jail term is six
months and the maximum fine is $1,000. A misdemeanor statute
can set the maximum jail term not exceeding one year.<2> (Pen.
Code § 19.2.)
Anomalous and Confusing Penalty Structure in this Bill
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<1> Section 1170, subdivision (h) provides that a person
convicted of one of a list of specified offenses is subject to
felony sentence served in the county jail. Section 1170,
subdivision (h) specifically provides that if no other term is
stated in the statute defining the crime, the court shall choose
a term of 16 months, two years or three years.
<2> That offense covered by this bill includes a maximum
misdemeanor jail term of one year.
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This bill sets out an anomalous and confusing penalty structure.
The bill provides that the crime of disrupting or damaging
communications and electrical lines is "punishable by
imprisonment pursuant to subdivision (h) of Section 1170, or by
a fine not exceeding ten thousand dollars ($10,000) per
incident, or imprisonment in the county jail not exceeding one
year."
The penalty provision can be interpreted to mean that if the
court imposes a felony jail term, then a fine cannot be imposed,
as the fine and felony jail term are specifically described as
alternative punishments. If there were no reference to a fine
in connection with the felony jail term, Penal Code Section 672
would provide that the offense necessarily includes a fine of up
to $10,000. If
the court imposes the fine alone, the crime becomes a
misdemeanor by operation of law pursuant to Penal Code Section
17, subdivision (b), and Section 18, subdivision (b), which set
out the rules for alternate felony-misdemeanors.
The bill also can be interpreted to mean that the court cannot
impose a fine if it imposes a misdemeanor jail term, as those
two punishments are stated as alternatives. Penal Code Section
18, subdivision (b), does provides that where a crime is
described as a felony that is punishable by imprisonment or a
fine, a misdemeanor jail term can be imposed if the crime does
not specifically include an alternate (misdemeanor) sentence of
up to one year in the county jail. However, this bill does
specifically authorize a misdemeanor jail term. As such, it is
not certain that a misdemeanor jail term and a fine could be
imposed under this bill. A court will follow the plain meaning
of the words in a statute, unless that would produce an absurd
result or another provision compels or allows a different
interpretation. (People v. Tirey (2014) 225 Cal.App.4th 1150,
1159-1160.)
3. Author's Proposed Amendment to Define the Crime as a Standard
Alternate Felony-Misdemeanor (Wobbler)
The author has agreed to amend the bill in committee to include
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a standard alternate felony-misdemeanor penalty. Courts would
no longer be limited to imposing a maxim fine of $500,
regardless of the extent of damages or disruption the
defendant's crime caused. Instead, fines for misdemeanor and
felony convictions would be equivalent to fines for similar
offenses. As noted in Comment #5, a defendant ordered to pay
the maximum felony fine of $10,000 would actually be required to
pay a fine of over $40,000 after the addition of mandatory
penalty assessments. The defendant would also be required to
pay full restitution to the victim and a restitution fine - with
the proceeds deposited in the Victims of Crime Fund - of from
$200 to $10,000. Thus, the court could impose a wide range of
monetary sanctions and restitution orders to address the
particular circumstances of each case.
4. Restitution and Collection Issues
Regardless of the fine that may be imposed for the crime of
damage or disruption of communication or electrical lines, it is
likely that the main interest of the victim would be restitution
for losses. The California Constitution and implementing
statutory provisions require the sentencing court to order the
defendant to pay full restitution to the victim. Restitution
has priority in collections by government entities. A defendant
ordered to pay a great amount of restitution would not likely
have the resources to pay a high criminal fine. However, there
would be some concern that over time the complexity and
inefficiencies of the collection system could reduce the
restitution paid to the defendant, especially if the defendant
also owes criminal fines and fees. Further, efforts to collect
a fine from a defendant who is difficult to locate or has little
ability to pay could cost more than the proceeds of the fine.
5. Penalty Assessments Effectively Quadruple the Amount of a
Criminal Fine Stated in Statute
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Assessment Calculation
Mandatory penalty assessments and fees are assessed on the base
fine for a crime. Assuming a defendant was fined $10,000 as the
maximum fine, the following penalty assessments would be imposed
pursuant to the Penal Code and the California Government Code,
for an actual liability of $41,079:
Base Fine:
$10,000
Penal Code 1464 assessment:
$10,000 ($10 for every $10)
Penal Code 1465.7 surcharge:
$2,000 (20%
surcharge)
Penal Code 1465.8 assessment:
$40 (per conviction)
Government Code 70372 assessment:
$5,000 ($5 for every $10)
Government Code 70373 assessment:
$35 (per conviction.)
Government Code 76000.5 assessment:
$4 (per conviction.)
Government Code 76000 assessment:
$7,000 ($7 for every $10)
Government Code 76000.5 assessment:
$2,000 ($2 for every $10)
Government Code 76104.6 assessment:
$1,000 ($1 for every $10)
Government Code 76104.7 assessment
$4,000 ($4 for every $10)
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Total Fine with Assessments:
$41,079
Explanation of each Penalty
Until the budget year 2002-2003, penalty assessments of 170% of
the base (stated) were added to every fine. The current penalty
assessments are approximately 310% plus a flat fee of $79. (See
Pen. Code §§ 1464, 1465.7 and 1465.8; Gov. Code §§ 70373,
7600.5,76000 et seq., § 76000.10, 76104.6 and 76104.7) As of
April 2013 (310% plus, $79 in flat fees)
State penalty of $10 for every $10 or fraction thereof,
upon every fine, penalty or forfeiture for criminal
offenses, including all Vehicle Code offenses except
parking offenses. 70 percent goes to the state and 30
percent to the county. The state portion is distributed in
specified percentages among: the Fish and Game Preservation
Fund (0.33 percent); the Restitution Fund (32.02 percent);
the Peace Officers Training Fund (23.99 percent); the
Driver Training Penalty Assessment Fund (25.70 percent);
the Corrections Training Fund (7.88 percent); the Local
Public Prosecutors and Public Defenders Fund (0.78 percent,
not to exceed $850,000 per year); the Victim-Witness
Assistance Fund (8.64 percent); and the Traumatic Brain
Injury Fund (0.66 percent). (Pen. Code § 1464.)
County penalty of $7 for every $10 or fraction thereof,
upon every fine, penalty, or forfeiture for criminal
offenses, including all offenses involving Vehicle Code
violations and any local ordinance adopted pursuant to the
Vehicle Code, except parking offenses. The money is placed
in any of the following funds if established by a County
Board of Supervisors: Courthouse Construction Fund; a
Criminal Justice Facilities Construction Fund; Automated
Fingerprint Identification Fund; Emergency Medical Services
Fund; DNA Identification Fund. (Gov. Code § 76000 et seq.)
The 2002-03 Budget Act imposed a temporary state
surcharge of 20 percent on every base fine. The surcharge
became permanent in 2007. The money is deposited in the
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General Fund. (Pen. Code § 1465.7.)
The "State Court Facilities Construction Fund" adds a
state court construction penalty of up to $5 for every $10
upon every fine, penalty, or forfeiture for criminal
offenses. The variation is dependent on the amount
collected by the county for deposit into the local
Courthouse Construction Fund. (Gov. Code § 76100.) The
assessment ranges from $0.00 for every $10 in two counties
to the full $5 for every $10 in nine counties. This
provision took effect on January 1, 2003. (Gov. Code §
70372.)
Proposition 69, Nov. 2004, levies a $1 penalty
assessment on every $10 in fines and forfeitures resulting
from criminal and traffic offenses and dedicates these
revenues to state and local governments for DNA databank
implementation purposes - the state will receive 70% of
these funds in the first two years, 50% in the third year
and 25% annually thereafter. The remainder will go to
local governments. (Gov. Code § 76104.6.)
State-only penalty of $4 for every $10 on every fine
penalty or forfeiture imposed by the courts for all
criminal offenses, including Vehicle Code offenses or local
ordinance adopted pursuant to the Vehicle Code. (Gov. Code
76104.7.)
$2 on every $10 to support emergency medical services.
(Gov. Code § 76000.5.)
$4 on every Vehicle Code violation or local ordinance
for the Emergency Medical Air Transportation Act Fund.
(Gov. Code § 76000.10.)
Flat fee of $40 on every conviction for a criminal
offense to ensure adequate funding for court security.
(Pen. Code § 1465.8.)
$35 court facilities assessment on every conviction for
a criminal offense including a traffic offense, excluding
parking offenses, and on any local ordinance adopted
pursuant to the Vehicle Code. (Gov. Code § 70373.)
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