BILL ANALYSIS
AB 576
Page 1
Date of Hearing: March 31, 2009
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 576 (Torres) - As Amended: March 26, 2009
SUMMARY : Expands the definition of a "victim" for the purposes
of restitution to include any governmental entity responsible
for repairing, replacing or restoring public and privately owned
property defaced with graffiti or other inscribed material, as
specified, and has sustained economic loss as a result.
Specifically, this bill :
1)Creates a mandatory fine of $50 for all persons convicted of
or suffered a sustained petition for vandalism, as specified,
to be placed in the Graffiti Intelligence and Technology Fund
(GITF) in each city or county where the offense occurred
provided the defendant or juvenile offender have the ability
to pay.
2)Requires the $50 fee collected, as specified, by any county
shall be deposited into the GITF, a special account that shall
be created in each county exclusively to fund the following:
a) The costs incurred by law enforcement in the development
and maintenance of technology for identifying graffiti
offenders, in connection with criminal investigations
conducted within both the incorporated or unincorporated
portions of the county;
b) The purchase and maintenance of equipment necessary to
use the technology, and;
c) The continuing education and training required to use
the technology.
3)States money in the GITF shall be in addition to any
allocations specified in existing law.
EXISTING LAW :
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1)Provides that every person who maliciously defaces real or
personal property with graffiti or other inscribed material is
guilty of vandalism, which is punishable as an alternate
felony/misdemeanor. (Penal Code Section 594.)
2)States that if the amount of damage is $400 or more, vandalism
is punishable by imprisonment in the county jail or state
prison not exceeding one year or by a fine of not more than
$10,000. If the amount of damage is $10,000 or more, by a
fine of not more than $50,000 or by both that fine and
imprisonment. [Penal Code Section 594(b)(1).]
3)States that if the amount of damage is less than $400,
vandalism is punishable by imprisonment in a county jail not
exceeding one year; or by a fine of not more than $1,000; or
by both that fine and imprisonment. [Penal Code Section
594(b)(2)(A).]
4)Provides that if the amount of damage is less than $400 and
the defendant has been previously convicted of vandalism or
affixing graffiti or other inscribed material, as specified,
vandalism is punishable by imprisonment in a county jail for
not more than one year; by a fine of not more than $5,000; or
by both that fine and imprisonment. [Penal Code Section
594(b)(2)(B).]
5)Defines "graffiti or other inscribed material" for purposes of
Penal Code Section 594 as including any unauthorized
inscription, word, figure, mark, or design that is written,
marked, etched, scratched, drawn, or painted on real or
personal property. [Penal Code Section 594(e).]
6)Provides that the court may order any person convicted of
vandalism to perform community service or graffiti removal.
[Penal Code Section 594(f).]
7)Provides that every person who is convicted of vandalism may
be ordered by the court as a condition of probation to perform
community service not to exceed 300 hours over a period not to
exceed 240 days during a time other than his or her hours of
school attendance or employment. (Penal Code Section 594.6.)
8)States any person who defaces with graffiti or other inscribed
material the interior or exterior of the facilities or
vehicles of a governmental entity, as defined by the
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Government Code or the interior or exterior of the facilities
or vehicles of a public transportation system as defined by
the Public Utilities Code, or the interior or exterior of the
facilities of or vehicles operated by entities subsidized by
the Department of Transportation or the interior or exterior
of any leased or rented facilities or vehicles for which any
of the above entities incur costs of less than $250 for
cleanup, repair, or replacement is guilty of an infraction,
punishable by a fine not to exceed $1,000 and by a minimum of
48 hours of community service for a total time not to exceed
200 hours over a period not to exceed 180 days, during a time
other than his or her hours of school attendance or
employment. This subdivision does not preclude application of
provisions related to vandalism. [Penal Code Section
640.5(d)(1).]
9)Provides that any person who is violates the graffiti or
vandalism statutes on or within 100 feet of a highway or its
appurtenances is guilty of a misdemeanor, punishable by
imprisonment in a county jail not exceeding six months; or by
a fine not exceeding $1,000; or by both that imprisonment and
fine. A second conviction is punishable by imprisonment in a
county jail not exceeding one year; by a fine not exceeding
$1,000; or by both that imprisonment and fine. (Penal Code
Section 640.7.)
10)Provides that a city, county, or city and county may enact an
ordinance to provide for the use of city or county funds to
remove graffiti or other inscribed material from publicly or
privately owned real or personal property located within the
city, county, or city and county and to replace or repair
public or privately owned property within that city, county,
or city and county that has been defaced with graffiti or
other inscribed material that cannot be removed cost
effectively. [Government Code Section 53069.3(a).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Graffiti is a
costly and pervasive problem affecting all residents, property
owners, businesses, and public agencies across the state. The
California Research Bureau estimates that the statewide cost
of graffiti abatement is potentially upwards of $350 million
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annually. The majority of these costs are borne entirely by
local governments. One of the main reasons local governments
continue to shoulder the economic impact of graffiti because
cost recovery procedures are too cumbersome and ineffective.
"While these numbers are staggering, perhaps more disturbing is
the power graffiti has to cause fear and insecurity within a
community. The graffiti epidemic is an assault on an
individual's peace of mind, making graffiti a social crime
that directly targets the quality of life and freedom citizens
are both entitled to and desire within their neighborhoods.
Graffiti, distinct from many other crimes, requires proactive
enforcement and dedicated investigation. However, the ability
of local law enforcement to diligently investigate and
prosecute individuals committing acts of graffiti is hampered
only by law enforcement's limited resources. To be successful
in our continued fight against graffiti, it is critical that
law enforcement has the necessary resources to employ the
latest enforcement strategies and that local governments are
able to recover the costs of graffiti abatement via criminal
restitution.
2)Definition of Direct Victim for Purposes of Restitution : When
a person is convicted of a criminal offense, he or she is
generally ordered to pay restitution to the victim. For
instance, if a person vandalizes the property of another, he
or she will be ordered to compensate the victim for the loss
of the property. Although the concept of restitution, or
"restoring" the victim dates back to English common law,
California memorialized its commitment to restitution when it
enacted Proposition 115, also known as the "Victim's Bill of
Rights" and states:
"It is the unequivocal intention of the People of the State of
California that all persons who suffer losses as a result of
criminal activity shall have the right to restitution from the
persons convicted of the crimes for losses they suffer.
Restitution shall be ordered from the convicted persons in
every case, regardless of the sentence or disposition imposed,
in which a crime victim suffers a loss, unless compelling and
extraordinary reasons exist to the contrary." [Cal. Const.
Art. I 28(b).]
Existing law further clarifies what constitutes a loss and who
may claim reimbursement. The court may impose a specific
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restitution fine beyond any court-ordered fees or actual loss
which is placed in the Victim Restitution fund. [Penal Code
Section 1202.4(b).] A "victim" is defined in relevant part as
"the immediate surviving family of the actual victim or any
corporation, business, trust, estate, partnership,
association, joint venture, governmental subdivision, agency,
or instrumentality, or any other legal or commercial entity
when that entity is a direct victim of the crime." [Penal
Code Section 1202.4(k)(1) and (2).] The purpose of criminal
restitution is to make the victim whole and to punish and
rehabilitate the defendant. [People v. Moser (1996) 50
Cal.App.4th 130.] This bill includes instances of vandalism
where the government incurs the cost of clean-up so as to
recover those costs from the defendant.
3)Relevant Case law : Several cases have further defined under
what circumstances a government may recover losses from a
defendant. A government agency, such as a defrauded welfare
department, may be a victim of crime and eligible for
restitution. [People v. Crow (1993) 6 Cal.4th 952, 960.]
However, a government entity that incurs costs in prosecution
is not a victim of crime. [People v. Baker (1974) 39
Cal.App.4th 550, 559-560.] In People v. Torres, the trial
court ordered the defendant to pay restitution to Sonoma
County for the costs of undercover officers' purchases of
cocaine from the defendant. However, the court in Torres
overturned the restitution order, holding: "[W]e conclude the
Legislature did not intend to include as a 'direct victim of
crime' a law enforcement agency that in the course of
investigating criminal activity purchases illegal drugs."
[People vs. Torres, 59 Cal.App.4th 1, at pp. 4-5.) Torres
noted that "earlier cases make a fairly obvious distinction
between the costs attendant upon enforcing the criminal law
and restitution to victims of crime." (Ibid.) "A law
enforcement agency that, in the course of investigating
criminal activity, purchases illegal drugs is not a direct
victim of a crime entitling it to receive direct restitution
reimbursing it for the cash it spent on the drugs under Penal
Code Section 1202.4." (Id at 5.)
The California Supreme Court also ruled on the issue of
restitution to a government entity in People vs. Martinez. In
that case, the defendant was convicted of attempt to
manufacture methamphetamine. The Department of Toxic
Substances Control was charged with cleaning and disposing of
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the hazardous materials used in manufacturing the
methamphetamine. The lower court required the defendant to
reimburse the Department of Toxic Substances Control for the
cost of the cleanup. The California Supreme Court reversed
and stated:
"The Attorney General argues that restitution to the Department
under Penal Code Section 1202.4(f) is proper, indeed
compelled, because that broader provision reflects our state's
constitutional mandate that all persons who suffer losses as a
result of criminal activity have a right to receive
restitution from convicted criminals whose crimes result in
that loss (internal citation omitted). Our answer is that the
Legislature has carried out that constitutional mandate by
enacting a comprehensive scheme that allows the government to
recoup its crime-related losses. When the government is a
direct victim of crime, it is entitled to restitution under
section 1202.4(k)(2). When, as in this case, the governmental
agency must dispose of hazardous substances or their
precursors at an illegal drug manufacturing site, it can
recoup its costs by bringing a civil action under Health and
Safety Code Section 11470.1 or it can seek recovery of its
costs in the criminal proceeding pending against the
defendant, as set forth in Health and Safety Code Section
11470.2." [People vs. Martinez (2005) 36 Cal.4th 384, 394.]
However, if a defendant commits an act of vandalism where the
government is responsible for the clean-up or repair, it seems
reasonable to conclude that the defendant should be
responsible.
4)Argument in Support : According to the Office of the City
Attorney, City of Los Angeles , "Existing law only permits
restitution to a business or governmental entity when it is a
direct victim of crime. This bill would expand the definition
of 'direct victim' to include government entities that abate
graffiti on public and private property. Additionally, AB 576
would require the graffiti offender to pay a $50 fee to help
costs incurred by law enforcement for the development and
maintenance of technology in identification graffiti
offenders, provided that the court determines that the
defendant has the ability to pay. The California Research
Bureau estimates that the statewide cost of graffiti abatement
is potentially upwards of $350 million annually. The majority
of these costs are borne entirely by local governments. Just
as graffiti offenders change their methods and locations to
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avoid apprehension, law enforcement must change their
strategies. AB 576 would decrease the number of graffiti
incidents, reduce costs associated with graffiti, and help
make our communities cleaner, safer places."
5)Prior Legislation : SB 1267 (Battin), Chapter 281, Statutes of
2002, required a defendant to pay the costs of a responding
police, fire or other government entity, or any private entity
to a false bomb report, false bomb delivery, placement, or a
violation of "any other provision of law by a false threat or
hoax." SB 1267 was signed into law without these provisions.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County
and Municipal Employees
California District Attorneys Office
City Attorney of Los Angeles
City of Santa Rosa
League of California Cities
Los Angeles County District Attorney's Office,
Bureau of Prosecution Support Operations
Two private individuals
Opposition
American Civil Liberties Union
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744