BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair S 2013-2014 Regular Session B 5 0 7 SB 507 (Cannella) As Amended: April 16, 2013 Hearing date: April 30, 2013 Penal Code JM:jr 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? (More) SB 507 (Cannella) PageB 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 (More) SB 507 (Cannella) PageC 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.) (More) SB 507 (Cannella) PageD 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 (More) SB 507 (Cannella) PageE 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: (More) SB 507 (Cannella) PageF 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 (More) SB 507 (Cannella) PageG 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 (More) SB 507 (Cannella) PageH 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 --------------------------- <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 (More) SB 507 (Cannella) PageI 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. --------------------------- <3> http://www.animalliberationfront.com/ALFront/alf_credo.htm (More) SB 507 (Cannella) PageJ 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. (More) 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 --------------------------- <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. (More) SB 507 (Cannella) PageL 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. ***************