BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 507 (Cannella)
As Amended: April 16, 2013
Hearing date: April 30, 2013
Penal Code
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COMMITTING ARSON TO DISRUPT A LIVESTOCK BUSINESS
HISTORY
Source: Western United Dairymen; California Cattlemen's
Association
Prior Legislation: SB 1302 (Cannella) 2012, held in Senate
Public Safety
Support: California State Sheriffs' Association; California
Grain and Feed Association; Western Growers
Association; California Farm Bureau Federation;
California Trucking Association; San Joaquin Farm
Bureau Federation; California Horse Council;
Professional Rodeo Cowboys Association; California
Chamber of Commerce
Opposition:California Public Defenders Association
KEY ISSUE
SHOULD A DEFENDANT CONVICTED OF ARSON INTENDED TO DISRUPT A
COMMERCIAL LIVESTOCK OPERATION BE SUBJECT TO A SENTENCE ENHANCEMENT
OF THREE, FOUR, OR FIVE YEARS?
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PURPOSE
The purpose of this bill is to provide that where a defendant's
intent in committing arson is to disrupt the commercial
operations of an animal feeding operation, feedlot or livestock
salesyard, the defendant shall receive a sentence enhancement of
three, four or five years.
Existing law provides that arson causing great bodily injury is
a felony, punishable by imprisonment in the state prison for
five, seven, or nine years. (Pen. Code § 451, subd. (a).)
Existing law provides that arson of an inhabited dwelling or
inhabited structure is a felony, punishable by imprisonment in
the state prison for three, five, or eight years. (Pen. Code §
451, subd. (b).)
Existing law provides that arson of a forestland or structure is
a felony punishable by imprisonment in the state prison for two,
four, or six years. (Pen. Code § 451, subd. (c).)
Existing law provides that arson of property is a felony,
punishable by imprisonment in the state prison for 16 months, 2
or 3 years. (Pen. Code § 451, subd. (d).)
Existing law provides that a person is guilty of unlawfully
causing a fire when he or she recklessly sets fire to or causes
to be burned any structure, forestland, or property a)
unlawfully causing a fire that causes great bodily injury is a
felony, punishable by imprisonment in the state prison for two,
four, or six years; by imprisonment in the county jail not to
exceed one year, by a fine, or by both imprisonment and a fine;
b) unlawfully causing a fire that causes an inhabited structure
or property to burn is a felony, punishable by imprisonment in
the state prison for two, three, or four years, by imprisonment
in the county jail not to exceed one year; by a fine, or by both
imprisonment and a fine; c) unlawfully causing a fire of a
structure or forestland is a felony punishable by imprisonment
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in the state prison for 16 months, 2 or 3 years; by imprisonment
in the county jail not to exceed one year, by a fine, or by both
imprisonment and a fine; and d) unlawfully causing a fire of
property is a misdemeanor. (Pen. Code § 452.)
Existing law provides that any person convicted of arson shall
be punished by a 3, 4, or 5-year enhancement if one or more of
the following circumstances are found to be true: a) The
defendant was previously convicted of felony arson; b) A peace
officer, firefighter, or other emergency personnel suffered
great bodily injury; c) The defendant proximately caused great
bodily injury to more than one victim in a single incident; d)
The defendant proximately caused multiple structures to burn;
and, e) The defendant committed arson by use of a device
designed to accelerate the fire, or delay ignition. (Pen. Code
§ 451.1.)
Existing law (Pen. Code § 451.5) provides that any person who
willfully, maliciously, or deliberately, with premeditation and
with intent to cause injury or damage to property under
circumstances likely to produce injury or to cause damage to one
or more structures or inhabited dwellings, sets fire to, burns,
or causes to be burned any residence or structure is guilty of
aggravated arson, punishable by 10-years-to-life in the state
prison if one or more of the following aggravating factors
exist:
] The defendant was previously convicted of arson on one or more
occasions within the past 10 years;
] The fire caused damage to, or the destruction of, five or more
inhabited structures; or
] The fire caused damage, including fire suppression, in excess
of $6,500,000.
Existing law provides that possession of an incendiary device
with the intent to set a fire is punishable by one year in the
county jail or by 16 months, 2 or 3 years in the state prison.
(Pen. Code § 453.)
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Existing law includes legislative intent that the aggravated
arson law be reviewed within five years to determine the effect
of inflation on the monetary threshold for the crime. To
provide for consideration of the aggravated arson threshold, the
current statute sunsets in 2014. (Pen. Code § 451.5, subd.
(b)(2)(B).)
Existing law provides that a person convicted of arson,
aggravated arson, and attempted arson must register with local
law enforcement. The duty to register is a lifetime requirement
except for a person convicted before 1995. The registration
requirement applies to a conviction for Penal Code section 453 -
possession or manufacture or an incendiary device with intent to
maliciously burn any structure, forest land, or property. (Pen.
Code § 457.1, subd. (b)(2).)
This bill provides that where a defendant's intent in committing
arson is to disrupt the commercial operations of an animal
feeding operation, animal feedlot or livestock salesyard, he or
she shall be subject to a sentence enhancement of three, four or
five years.
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
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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
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
According to the author:
This bill would amend Section 451.1 of the Penal Code
which currently does not fully recognize the
intentional act of animal cruelty, through arson. This
bill would include the destruction of the animal, its
well-being or disruption of property used in the
feeding or care of the livestock, as a result of the
act of arson or of the intent of the arson as a crime
punishable under Section 451.1 of the California Penal
Code.
This law brings California more in line with the
federal law that prohibits any person from engaging in
certain conduct "for the purpose of damaging or
interfering with the operations of an animal
enterprise." The statute covers any act that either
"damages or causes the loss of any real or personal
property" or "places a person in reasonable fear" of
injury.
2. Incident that Prompted Introduction of This Bill
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This bill appears to have been prompted by an arson fire on
January 8, 2012, at the Harris Ranch in Fresno County.
According to a story in the January 11, 2012, edition of the San
Francisco Chronicle, "14 cattle trucks" were destroyed at the
"feed lot truck storage facility at the ranch?." The Chronicle
reported that the North American Animal Liberation Press Office
sent an e-mail to media outlets explaining the organization had
received an anonymous message with specific information about
the fire.
As reported by the Chronicle, the Animal Liberation Press Office
e-mail included the following:
Containers of accelerant were placed beneath a row of
14 trucks with four digital timers used to light four
of the containers and kerosene soaked rope carrying
the fire to the other 10. [] We were extremely
pleased to see all 14 trucks "were a total loss."
We're not delusional enough to believe that this
action will shut down the Harris feeding company, let
alone have any effect on factory farming as a whole.
But we maintain that this type of action still has
worth, if not solely for the participant's peace of
mind, then to show that despite guards, a constant
worker presence and razor wire fence, the enemy is
still vulnerable.
On January 10, 2012, the Website of KGPE CBS47 TV in Fresno
paraphrased the Animal Liberation Press Office's statement
about the Harris Ranch incident and other related acts:
"The North American Animal Liberation Press Office does not
participate in illegal activity but distributes messages
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from those who sometimes do, group spokeswoman said."<1>
On February 21, 2012, a story published on the Website of
KSEE 24 TV in Fresno reported that a $100,000 reward had
been offered for information leading to the conviction of
the perpetrators of the arson at the Harris Ranch
feedlot.<2> The KSEE story stated that the damages in the
arson exceeded $2 million.
Internet searches conducted after the introduction of this
bill have not returned any stories about the incident. In
particular, it appears that there have been no published
reports of arrests of any suspects in the case or payment
of any reward.
3. Defining a Penalty with Reference to the Type of
Enterprise or Business Targeted by the Perpetrator
This bill provides for a three, four or five-year arson
sentence enhancement where the defendant targeted a
particular kind of enterprise or business, specifically, a
livestock operation or feedlot. Such an enhancement is
relatively unusual. However, there are some analogous laws.
For example, medical clinics that provide abortion
services are covered by laws prohibiting aggressive
protests and other actions that interfere with a woman's
constitutionally protected right to obtain such services.
The enhancement defined by this bill is similar to a hate crime.
Such crimes can be difficult to prove, as motivation for a
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<1>
http://www.cbs47.tv/news/local/story/Animal-Rights-Activists-Tied
-to-Harris-Ranch-Arson/lGZxj1oUxUe5izWgP_L9_A.cspx
<2>
http://www.ksee24.com/news/local/Big-Reward-Offered-in-Harris-Ran
ch-Arson-Case-139877993.html
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crime is not always clear. The motives of the perpetrators of
the Harris Ranch fire that prompted introduction of this bill
were expressly stated. However, determining whether or not a
person intended an arson fire to disrupt the operations of a
livestock operation may be difficult in other cases.
4. Issues Concerning Federal Investigations and Prosecutions of
Entities that Disrupt or Harm Livestock Operations
The author's statement notes that federal law includes a
comprehensive statute prohibiting disruption of an animal
enterprise. It appears that this bill is partly intended to
bring California law closer to federal law in this area.
However, there may be valid policy and practical reasons for
differences between federal and state laws on this subject.
Crimes against animal operations may often be caused by
anonymous activists, such as the Animal Liberation Front,<3> who
operate across the United States and in foreign countries. Many
of the persons and entities are particularly sophisticated,
organized and secretive. The Internet and other forms of
electronic communication allow activists to easily operate and
organize across state lines. Because federal law enforcement
agencies and prosecutors have the resources and jurisdiction to
investigate and prosecute these crimes across state lines, many
crimes disrupting livestock operations would likely be best
handled by federal agencies. No arrests have been made in the
January 2012 Harris Ranch arson discussed above. This may
indicate that the perpetrators have left the state, limiting the
ability of California law enforcement to investigate the crime.
5. Sentencing Issues
This bill creates a new enhancement which raises issues about
sentencing policy and the consequences of increased punishments.
Specifically, this bill provides that a defendant who
committing arson with the intent to disrupt the commercial
operations of a livestock operation, such as a feedlot, shall be
punished by a sentence enhancement of three, four or five years.
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<3> http://www.animalliberationfront.com/ALFront/alf_credo.htm
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Enhancements are not typically defined in terms of the kind of
business targeted. Such an enhancement has parallels to a hate
crime, which are complex and often difficult crimes to prove.
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Further, the bill does not specify what it means to disrupt a
livestock operation. The fire started or caused by the
defendant could have involved a small feeding or water trough,
or the defendant could have burned many livestock transport
trucks or burned an entire barn. The bill thus presents
concerns as to whether it imposes penalties proportionate to a
defendant's culpability. The enhancement might better reflect
truly increased culpability if the disruption significantly
affected the business, perhaps by requiring closure of the
business for some time to repair the damage.
SHOULD A SENTENCE ENHANCEMENT BE BASED ON THE TYPE OF COMMERCIAL
ENTITY HARMED BY THE OFFENSE?
AS THE SENTENCE ENHANCEMENT DEFINED BY THIS BILL DOES NOT
SPECIFY WHAT CONSTITUTES A DISRUPTION OF A LIVESTOCK OPERATION,
DOES THE BILL CREATE CONCERNS ABOUT DISPROPORTIONATE PUNISHMENT
FOR RELATIVELY LESS EGREGIOUS ACTS?
5. Drafting Errors in the Bill as Amended on April 16, 2013
The intent of the author is to provide that arson fire that
disrupts a livestock operation shall be subject to a sentence
enhancement of three, four or five years, as described in Penal
Code Section 451.1 of existing law. Section 451.1 now covers
cases where the defendant was previously convicted of felony
arson, caused great bodily injury to a peace officer,
firefighter, or other emergency personnel, caused great bodily
injury to more than one victim; caused multiple structures to
burn, or used a device designed to accelerate a fire, or delay
ignition.<4>
The author also intended to not change existing law defining and
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<4> The arson of the Harris ranch could likely have been
prosecuted under Section 451.1 in existing law, as the
perpetrators used accelerants, timers and a kerosene soaked
rope. This bill would apply the enhancement based on the intent
of the perpetrator to disrupt and livestock operation, not the
method of causing the fire.
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setting penalties for aggravated arson in Penal Code Section.
Aggravated arson is punishable by a life sentence. The bill,
however, still includes disruption of a livestock operation as
form of aggravated arson. It also eliminates a provision in
existing law concerning the effect on inflation on the value of
damages constituting aggravated arson. The amendments are
acceptable to the author.
To realize the intent of the author, Section 2 - amendments to
Penal Code Section 451.5 - should be stricken from the bill.
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