BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 849|
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THIRD READING
Bill No: AB 849
Author: Bonilla (D)
Amended: 8/31/15 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 7-0, 7/14/15
AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone
SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/27/15
AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza, Nielsen
ASSEMBLY FLOOR: 74-0, 5/22/15 - See last page for vote
SUBJECT: Crimes: causing an explosionCrimes: causing an
explosion.
SOURCE: Los Angeles County District Attorney
DIGEST: This bill provides that a person who recklessly causes
an explosion that causes great bodily injury to another person
is guilty of an alternate felony-misdemeanor, punishable
pursuant to Penal Code Section 1170, subdivision (h), for a
felony term of two, four or six years or by a misdemeanor jail
term of up to one year; provides that where the explosion causes
damages in the amount of $20,000 or more to an inhabited
dwelling or any structure in which a person was present, the
offense is an alternate felony-misdemeanor, punishable pursuant
to Penal Code Section 1170, subdivision (h), for a felony term
of 16 months, two years or three years, or by a misdemeanor jail
term of up to one year; provides that where the amount of damage
is between $2,000 and $20,000, the offense is a misdemeanor,
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punishable by a jail term of up to one year; defines an
explosion as "the sudden conversion of? mechanical or chemical
energy into kinetic energy with the ? release of gas under
pressure" so as to move change or shatter nearby material;
provides that the defendant can be punished only a single time
if the same reckless conduct causes an explosion and a fire; and
provides that a defendant cannot be punished for recklessly
causing an explosion that causes great bodily and also receive
an enhancement for infliction of great bodily injury based on
the same injury.
ANALYSIS:
Existing law:
1) 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, or by
imprisonment in the county jail not to exceed one year,
or 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, or by imprisonment in the county jail not to
exceed one year, or 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 in the
state prison for 16 months, 2, or 3 years, or by
imprisonment in the county jail not to exceed one year,
or by a fine, or by both imprisonment and a fine.
d) Unlawfully causing a fire of property is a
misdemeanor. (Pen. Code § 452.)
2) Provides that any person convicted of reckless fire
setting shall be punished by a one, two, or three year
enhancement for each of the following circumstances found to
be true:
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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; or,
d) The defendants proximately caused multiple
structures to burn. (Pen. Code § 452.1.)
3) States that the following terms have the following
meanings:
a) Structure means any building, or commercial or
public tent, bridge, tunnel, or power plant;
b) Forest land means any brush covered land, cut over
land, forest, grasslands, or woods;
c) Property means real property or personal property,
other than a structure or forest land;
d) Inhabited means being used for dwelling purposes
whether occupied or not;
e) Inhabited structure and inhabited property do not
include real property on which an inhabited structure or
an inhabited property is located;
f) Maliciously imports a wish to vex, defraud, annoy,
or injure another person, or an intent to do a wrongful
act, established either by proof or presumption of law;
and;
g) Recklessly means a person is aware of and
consciously disregards a substantial and unjustifiable
risk that his or her act will set fire to, burn, or cause
to burn a structure, forest land, or property. The risk
shall be of such nature and degree that disregard thereof
constitutes a gross deviation from the standard of
conduct that a reasonable person would observe in the
situation. A person who creates such a risk but is
unaware thereof solely by reason of voluntary
intoxication also acts recklessly with respect thereto.
(Pen. Code § 450.)
4) Provides that any person, firm, or corporation who, except
as specified, within this state, possesses any destructive
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device, other than fixed ammunition of a caliber greater
than .60 caliber is guilty of a public offense. A person,
firm, or corporation convicted of this offense shall be
punished imprisonment in the county jail for a term not to
exceed one year, or in the state prison, or by a fine not to
exceed $10,000, or by both. (Pen. Code § 18710.).
5) States that any person who recklessly or maliciously has
in possession any destructive device or any explosive in any
of the following places is guilty of a felony punishable by
imprisonment in a county jail for two, four, or six years:
a) On a public street or highway;
b) In or near any theater, hall, school, college,
church, hotel, or other public building;
c) In or near any private habitation;
d) In, on, or near any aircraft, railway passenger
train, car, cable road, cable car, or vessel engaged in
carrying passengers for hire; and;
e) In, on, or near any other public place ordinarily
passed by human beings. (Pen Code § 18715.)
6) Provides that any person that possesses any substance,
material, or combination of substances or materials with the
intent any destructive device or any explosive without first
obtaining a valid permit that destructive device or
explosive, is guilty of a felony punishable by imprisonment
in a county jail for two, three, or four years. (Pen Code §
18720.)
7) States that every person that does any of the following is
guilty of a felony punishable by imprisonment in a county
jail for two, four, or six years:
a) Carries any destructive device or any explosive on
any vessel, aircraft, car, or other vehicle that
transports passengers for hire;
b) While on board any vessel, aircraft, car, or other
vehicle that transports passengers for hire places or
carries any destructive device or explosive in any hand
baggage, roll, or other container; and;
c) Places any destructive device or any explosive in
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any baggage that is alter checked with any common
carrier. (Pen Code, § 18720.)
8) States except as provided, any person, firm or corporation
who, within this state, sells, offers for sale, or knowingly
transports any destructive device, other than fixed
ammunition of a caliber greater than .60 caliber, is guilty
of a felony punishable by imprisonment in a county jail for
two, three, or four years. (Pen. Code, § 18730.)
9) Provides that every person that possess, explodes, or
ignites, or attempts to possess, explode, or ignite any
destructive device or any explosive with the intent to
injure, intimidate, or terrify any person, or with intent to
wrongfully injure or destroy any property is guilty of a
felony punishable by imprisonment in a county jail for
three, five, or seven years. (Pen. Code, § 18740.)
10) Provides that every person that explodes, or ignites, or
attempts to explode, or ignite any destructive device or any
explosive with the intent to murder is guilty of a felony
punishable by imprisonment in the state prison for life with
the possibility of parole. (Pen. Code, § 18745.)
This bill:
1)Provides that any person who recklessly causes an explosion
that results in great bodily injury shall be punished pursuant
to Penal Code Section 1170, subdivision (h), by a felony term
of two, four, or six years, or by imprisonment in a county
jail for a term not exceeding one year.
2)Provides that any person who recklessly causes an explosion
that results in damage in an amount of at least $20,000 to an
inhabited dwelling or structure in which a person was present
at the time of the offense shall be punished by imprisonment
pursuant to Penal Code Section 1170, subdivision (h), for a
felony term of sixteen months, two years or three years, or by
imprisonment in a county jail for a term not to exceed one
year. Where the explosion causes damage in an amount between
$2,000 and $20,000, the offense is a misdemeanor, punishable
by a jail term of up to one year.
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3)Provides that a misdemeanor offense of recklessly causing an
explosion is subject to a civil compromise.
4)Provides that a court may not punish a person for recklessly
causing an explosion that results in great bodily injury and
impose an enhancement for infliction of great bodily injury in
another offense based on that same injury.
5)Provides that a court may not punish a defendant for
recklessly causing an explosion and recklessly causing a fire
if both offenses arise from the same conduct.
6)Defines an explosion as "the sudden conversion of? mechanical
or chemical energy into kinetic energy with the ? release of
gas under pressure" so as to move, change or shatter nearby
material.
Background
The introduction of this bill was prompted by a rash of
explosions caused by the making of hash[ish] oil - an
increasingly popular form of concentrated cannabis - through
extraction with a solvent. As described below, the solvent most
commonly used is butane, thus the name "Butane Honey Oil," or
"BHO." Explosions occur when the butane that extracts the "oil"
from marijuana fails to dissipate, builds up, sinks to the floor
in an enclosed space and explodes from any spark. Extracting the
oil outside largely eliminates the risk of explosion, as
volatile butane quickly evaporates and disperses in the air.
Some of these explosions have caused death, serious injury and
substantial property damage.
Previously, the bill specifically defined crimes that are
committed when a person extracts concentrated cannabis through
chemical extraction and causes an explosion. The punishment for
the crime would have been less severe than the punishment for
extracting concentrated cannabis by chemical extraction per se
although the prosecutor would necessarily have to prove that
crime in proving the crime of causing an explosion while
extracting concentrated cannabis. Further, a defendant who was
convicted of the crime of causing an explosion while chemically
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extracting BHO and the crime of chemically extracting
concentrated cannabis in the same incident could only be
punished a single time. The proposed new crime would have
created a number of vexing charging and sentencing issues.
The bill was amended to define a new crime of recklessly causing
an explosion, a parallel or companion offense to the existing
crime or recklessly causing a fire. Under current law, a person
who caused a fire in making BHO - typically as a result of an
explosion- can be convicted for recklessly causing a fire, while
a person who caused an explosion without a fire could not be
charged with a crime for that conduct, even where the explosion
was much more damaging than the explosion and fire caused by
another person.
The bill also defines an explosion and specifically prohibits
punishment for recklessly causing a fire and recklessly causing
an explosion through the same conduct. Left unanswered is the
question of whether a defendant who causes an explosion in
making BHO can be punished for causing the explosion and making
BHO. Generally, a defendant can only be punished a single time
for one act or indivisible course of conduct that violates more
than one crime statute. The deciding factor is the intent and
objective of the defendant. Each case must be determined on its
own facts and exceptions to the rule - such as conduct that
causes physical harm to multiple victims.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: Yes
SUPPORT: (Verified8/28/15)
Association of Deputy District Attorneys
Association for Los Angeles Deputy Sheriffs
California Association of Code Enforcement Officers
California College and University Police Chiefs Association
California Correctional Supervisors Organization
California District Attorneys Association
California Narcotic Officers' Association
California Professional Firefighters
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California State Firefighters' Association
California State Lodge, Fraternal Order of Police
California State Sheriffs' Association
Central Coast Forest Association
Long Beach Police Officers' Association; Los Angeles County
Professional Peace Officers Association
Los Angeles Police Protective League
Riverside Sheriffs Association
Sacramento County Deputy Sheriffs' Association
Santa Ana Police Officers' Association
OPPOSITION: (8/28/15)
None received
ASSEMBLY FLOOR: 74-0, 5/22/15
AYES: Achadjian, Travis Allen, Baker, Bigelow, Bloom, Bonilla,
Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau,
Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly,
Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina
Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez,
Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden,
Irwin, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low,
Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin,
Nazarian, Obernolte, Patterson, Perea, Quirk, Rendon,
Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark
Stone, Thurmond, Ting, Wagner, Wilk, Williams, Wood, Atkins
NO VOTE RECORDED: Alejo, Jones, O'Donnell, Olsen, Waldron,
Weber
Prepared by:Jerome McGuire / PUB. S. /
8/31/15 16:34:24
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