BILL ANALYSIS
AB 362
Page 1
Date of Hearing: April 21, 2009
Chief Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 362 (Miller) - As Amended: April 15, 2009
SUMMARY : Makes it an alternate felony/misdemeanor to take,
possess, damage, reuse, or move any political sign or signs
having an aggregate value of $400 or more without authorization
from the owner. Specifically, this bill :
1)Makes it an alternate felony/misdemeanor, punishable by
imprisonment in the county jail not to exceed one year, or by
imprisonment in the state prison for 16 months, 2 or 3 years
and a fine of $15,000, per incident, for any person to take,
possess, damage, reuse, or move any political sign or signs
having an aggregate value of $400 or more without
authorization from the owner of the sign or signs.
2)Provides that any person who possesses, damages, reuses, or
moves any political sign or signs having an aggregate value of
$400 or more without authorization from the owner of the sign
or signs is guilty of petty theft.
3)Defines "political sign" as any sign advocating the election
of a specific candidate for official office or advocating a
position relating to a ballot or issues.
4)States that the above prohibition does not apply to a law
enforcement officer, local government official, or authorized
campaign representative acting within his or her official
capacity or to a private property owner who has not given
consent to the posting of a political sign on his or her
property.
EXISTING LAW :
1)Defines "grand theft" as any theft where the money, labor, or
real or personal property taken is of a value exceeding $400,
or when the property is taken from the person of another.
[Penal Code Section 487(a) and (c).]
AB 362
Page 2
2)Provides that grand theft is committed when the money, labor,
or real or personal property taken is of a value in excess of
$400, except as specified. [Penal Code Section 487(a).]
3)Provides that notwithstanding the value of the property taken,
grand theft is committed in any of the following cases [Penal
Code Section 487(b)]:
a) When domestic fowls, avocados, or other farm crops are
taken of a value exceeding $100;
b) When fish or other aquacultural products are taken from
a commercial or research operation that is producing that
product of a value exceeding $100;
c) Where money, labor or property is taken by a servant or
employee from his or her principal and aggregates $400 or
more in any consecutive 12-month period; and,
d) When the property is taken from the person of another;
or, when the property taken is, among other things, an
automobile, horse or firearm.
4)Provides that if the grand theft involves the theft of a
firearm, it is punishable by imprisonment in state prison for
16 months, 2 or 3 years. In all other cases, grand theft is
punishable by imprisonment in county jail for not more than
one year or in the state prison for 16 months, 2 or 3 years.
(Penal Code Section 489.)
5)Provides that theft in other cases is petty theft. (Penal
Code Section 488.)
6)States that petty theft is punishable by a fine not exceeding
$1,000, or by imprisonment in the county jail not exceeding
six months; or both. (Penal Code Section 490.)
7)Provides that every person who maliciously damages, defaces,
or destroys the real or personal property is guilty of
vandalism, which is punishable as an alternate
felony/misdemeanor if the amount of the damage is $400 or
more. (Penal Code Section 594.)
FISCAL EFFECT : Unknown
AB 362
Page 3
COMMENTS :
1)Author's Statement : According to the author, " Political
signs allow citizens to exercise their first amendment right
and to represent their position on a given issue or candidate.
Many times people have a deep moral, faith-based, financial,
familial, and or strong emotional connection to a particular
issue, causing them to rally and take action either in support
or opposition. Regardless of the motive, intention or
position, it is illegal to vandalize and or infringe upon the
property and free speech of another.
"However, there continue to be cases where political signs are
confiscated, covered with other propaganda and used for
opposing campaign purposes. Moreover, there are situations
where major theft or misuse occurs, but such cases are
difficult to prosecute because existing code is vague in
determining whether or not certain misuses are a crime.
"Often, criminal motive can be difficult to prove because of
circumstances unique to a political campaign. This bill would
clarify that without express permission from the campaign or
without being exempted, it is a crime to move, take, misuse or
damage political signs. The intent of this bill is to target
major theft, which infringes on the political process and
compromises our democracy."
2)Comments : This bill makes it an alternate felony/misdemeanor
to take, possess, damage, reuse, or move any political sign or
signs having an aggregate value of $400 or more without
authorization from the owner. Under existing law, the theft
of the personal property of another where the value of the
property is less than $400 is petty theft punishable be up to
six months in a county, or by a fine not to exceed $1,000, or
by both a fine and imprisonment. (Penal Code Sections 488 and
490.) Grand theft is when the value of the property taken is
more than $400, and grand theft is punishable by 16 months, 2
or 3 years in the state prison, or by up to one year in a
county jail. (Penal Code Sections 487 and 489.) This bill
allows the prosecution to aggregate the value of campaign
signs taken, possessed, moved, or damaged in separate and
distinct incidents in order to prosecute the offense as a
felony when the total value is in excess of $400. Under
existing law, several instances of theft may be cumulated into
AB 362
Page 4
one felon count if the evidence disclosed one overall scheme
People v. Bailey (1961) 55 Cal. 2nd 514. Thus, this bill
eliminates the common scheme or plan requirement and allow for
easier felony prosecution of campaign sign theft.
3)Prison Overcrowding : The California Policy Research Center
(CPRC) recently issued a report on the status of California's
prisons. The report stated, "California has the largest
prison population of any state in the nation, with more than
171,000 inmates in 33 adult prisons, and the state's annual
correctional spending, including jails and probation, amounts
to $8.92 billion. Despite the high cost of corrections, fewer
California prisoners participate in relevant treatment
programs than comparable states, and its inmate-to-officer
ratio is considerably higher. While the nation's prisons
average one correctional officer to every 4.5 inmates, the
average California officer is responsible for 6.5 inmates.
Although officer salaries are higher than average, their ranks
are spread dangerously thin and there is a severe vacancy
rate." (Petersilia, Understanding California Corrections,
California Policy Research Center, May 2006). California's
prison population will likely exceed 180,000 by 2010.
According to the Little Hoover Commission, "Lawsuits filed in
three federal courts alleging that the current level of
overcrowding constitutes cruel and unusual punishment ask that
the courts appoint a panel of federal judges to manage
California's prison population. United States District Judge
Lawrence Karlton, the first judge to hear the motion, gave the
State until June 2007 to show progress in solving the
overpopulation crisis. Judge Karlton clearly would prefer not
to manage California's prison population. At a December 2006
hearing, Judge Karlton told lawyers representing the
Schwarzenegger administration that he is not inclined 'to
spend forever running the state prison system.' However, he
also warned the attorneys, 'You tell your client June 4 may be
the end of the line. It may really be the end of the line.'
"Despite the rhetoric, thirty years of 'tough on crime' politics
has not made the state safer. Quite the opposite: today
thousands of hardened, violent criminals are released without
regard to the danger they present to an unsuspecting public.
Years of political posturing have taken a good idea -
determinate sentencing - and warped it beyond recognition with
a series of laws passed with no thought to their cumulative
AB 362
Page 5
impact. And these laws stripped away incentive s for
offenders to change or improve themselves while incarcerated.
"Inmates, who are willing to improve their education, learn a
job skill or kick a drug habit find that programs are few and
far between, a result of budget choices and overcrowding.
Consequently, offenders are released into California
communities with the criminal tendencies and addictions that
first led to their incarceration. They are ill-prepared to do
more than commit new crimes and create new victims . . . . "
[Little Hoover Commission Report, Solving California's
Corrections Crisis: Time is Running Out, pg. 1, 2 (2007).]
According to the California Department of Corrections and
Rehabilitation, in 2007, there were 2,818 inmates admitted to
the state prison for the crime of possession of
methamphetamine for the purposes of sale (Health and Safety
Code Section 11378) and 1,564 inmates committed for the sale
of methamphetamine (Health and Safety Code Section 11379).
This bill increases the base term for these offenses by one
additional year, which would severely aggravate California's
already overcrowded correctional system.
On February 9, 2009, a United States district court three-judge
panel issued a tentative ruling mandating the State of
California to resolve chronic prison overcrowding. In the
tentative ruling, the judges stated "[t]he evidence is
compelling that there is no relief other than a prisoner
release order that will remedy the unconstitutional prison
conditions." Given the fact that California prisons are
housing twice the population they were built to accommodate,
and with the prospect of early release of inmates imminent,
should the Legislature further contribute to the state's
mounting overcrowding problem by creating a new felony for
taking, possessing, damaging, or moving campaign signs with an
aggregate value of over $400?
4)Prior Legislation : AB 1628 (Runner), of the 2007-08
Legislative Session, would have provided that more than one
act of vandalism committed in any consecutive 12-month period
may be aggregated by determining the dollar amount of the
defacement or damage for the purpose of charging an alternate
misdemeanor/felony if the vandalism was the result of a common
scheme, purpose or plan. AB 1628 failed passage in this
AB 362
Page 6
Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
Riverside County District Attorney (Sponsor)
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
Analysis Prepared by : Gregory Pagan / PUB. S. / (916)
319-3744