BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
200-2010 Regular Session B
2
7
AB 27 (Jeffries)
As Introduced December 1, 2008
Hearing date: June 23, 2009
Penal Code
JM:mc
AGGRAVATED ARSON - MONETARY LOSS THRESHOLD
HISTORY
Source: Author
Prior Legislation: AB 1995 (Jeffries) - 2008, held in Senate
Appropriations
AB 1907 (Pacheco) - Ch. 135, Stats. 2004
SB 555 (Karnette) - Ch. 518, Stats. 1999
SB 1309 (Craven) - Ch. 421, Stats. 1994
Support: League of California Cities; California Fire Chiefs
Association; Fire Districts Association of California;
California District Attorneys Association;
Sheriff-Coroner of San Bernardino County; Riverside
Sheriffs' Association; Association for Los Angeles
Deputy Sheriffs
Opposition:None known
Assembly Floor Vote: Ayes 79 - Noes 0
KEY ISSUES
CONSISTENT WITH PRIOR BILLS THAT HAVE AMENDED THE AGGRAVATED ARSON
STATUTE, SHOULD A JANUARY 1, 2014, SUNSET BE PLACED IN THE STATUTE
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TO ALLOW THE LEGISLATURE TO CONSIDER THE EFFECTS OF INFLATION ON THE
MONETARY LOSS THRESHOLD?
SHOULD THE MONETARY LOSS THRESHOLD FOR AGGRAVATED ARSON BE RAISED
FROM $5,650,000 TO $6,500,000 TO REFLECT THE EFFECTS OF INFLATION?
PURPOSE
The purposes of this bill are to 1) set the monetary loss
threshold for aggravated arson at $6,500,000 to reflect the
effects of inflation; and 2) include a 2014 sunset in the law to
review the effects of inflation at that time.
Existing law provides that arson that causes 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 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
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to accelerate the fire, or delay ignition. (Pen. Code 451.1.)
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
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 (Pen. Code 451.5) provides that any person who
willfully, maliciously, or deliberately, with premeditation and
with intent to cause injury or to cause 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; and
? the fire caused damage, including fire suppression, in excess
of $5,650,000.
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.
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(Pen. Code 453.)
Existing law includes legislative intent, stated in 2004, that
the aggravated arson law be reviewed within five years to
determine the effect of inflation on the monetary threshold for
the crime. When amended in 2004 by AB 1907 (Pacheco) Ch. 135,
Stats. 2004, a clause was added to sunset the bill in 2010 in
order to allow consideration of the monetary threshold. (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 extends the sunset date until January 1, 2014, on the
threshold amount of property damage required under provisions of
the aggravated arson statute, and increases the amount of damage
required to $6.5 million.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
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incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
----------------------
<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
---------------------------
<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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According to the author:
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Penal Code section 451.5 states that aggravated arson
is caused by a person, "who willfully, maliciously,
deliberately, with premeditation, and with intent to
cause injury to one or more persons or to cause damage
to property under circumstances likely to produce
injury to one or more persons or to cause damage to
one or more structures or inhabited dwellings, sets
fire to, burns, or causes to be burned, or aids,
counsels, or procures the burning of any residence,
structure, forest land, or property."
A person is guilty of aggravated arson if any of the
following apply: the person has a previous arson
conviction within the past 10 years; if the fire
caused damage to or the destruction of, five or more
inhabited structures; or, the fire caused property
damage and other losses in excess of five million six
hundred fifty thousand dollars ($5,650,000). The
costs of fire suppression are included in this
monetary limit.
Unfortunately, the $5,600,000 monetary thresholds for
aggravated arson are scheduled to sunset and be
eliminated in 2010. Without legislative action, law
enforcement authorities will lose an important tool in
bringing arsonists to justice.
AB 1995 will extend the sunset provision found in
Penal Code Section 451.5 (B) from January 1, 2010, to
January 1, 2014. This bill will adjust for inflation
fire damage thresholds which are important and
necessary to convict dangerous arsonists and to keep
the public safe. Without this bill, law enforcement
authorities will no longer be able to prosecute
suspected arsonists for aggravated arson based on
monetary damage limits.
2. Consideration and Recalculation of Monetary Threshold for
Aggravated Arson
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The aggravated arson statutes were last amended in 2004. The
amendments include a sunset date of 2010 and a statement of
legislative intent that the monetary threshold be evaluated
within five years to determine the effect of inflation on that
amount.
The aggravated arson section (Pen. Code 451.5) became
effective in 1995 through enactment of SB 1309 (Craven) Ch. 421,
Stats. 1994. As originally enacted, Penal Code section 451.5
provided, in relevant part (with bold typeface added):
In calculating the total amount of property damage and
other losses under subparagraph (A) [which sets the
property damage element of aggravated arson at $5
million], the court shall consider the cost of fire
suppression. It is the intent of the Legislature that
this paragraph be reviewed within five years to
consider the effects of inflation on the dollar amount
stated herein. For that reason, this paragraph shall
remain in effect only until January 1, 1999, and as of
that date is repealed, unless a later enacted statute,
which is enacted before January 1, 1999, deletes or
extends that date.
AS EXISTING LAW PROVIDES THAT THE LEGISLATURE SHOULD DETERMINE
THE EFFECT OF INFLATION ON THE MONETARY THRESHOLD FOR AGGRAVATED
ARSON, SHOULD THE THRESHOLD FOR THIS CRIME BE SET AT $6,500,000
TO ACCOUNT FOR INFLATION SINCE IT WAS SET IN 2004?
AS WELL AS ADJUSTING THE AGGRAVATED ARSON THRESHOLD TO ACCOUNT
FOR INFLATION, OR AS AN ALTERNATIVE TO RAISING THE THRESHOLD,
SHOULD THE AGGRAVATED ARSON STATUTE PROVIDE THAT THE LEGISLATURE
SHOULD REVIEW IN FIVE YEARS THE EFFECT OF INFLATION ON THE
THRESHOLD FOR AGGRAVATED ARSON?
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