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
          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?





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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  
          ---------------------------
          <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.  


          ---------------------------
          <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  
          ---------------------------
          <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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