BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
5
7
6
AB 576 (Torres)
As Amended April 21, 2009
Hearing date: June 9, 2009
Penal Code; Welfare and Institutions Code
MK:br
VANDALISM: GRAFFITI: RECOVERY OF COSTS
HISTORY
Source: Los Angeles City Attorney's Office
Prior Legislation: None
Support: California District Attorneys Association; California
Business Properties Association; San Bernardino County
Sheriff; AFSCME, AFL-CIO; City of Los Angeles; City of
Santa Rosa; City of Huntington Park; League of
California Cities; City of Oxnard; Association for Los
Angeles Deputy Sheriffs; Riverside Sheriffs'
Association; LA County Probation Officers Union,
AFSCME, Local 685
Opposition:None known
Assembly Floor Vote: Ayes 76 - Noes 0
KEY ISSUE
(More)
AB 576 (Torres)
PageB
SHOULD GOVERNMENTAL ENTITIES THAT ARE RESPONSIBLE FOR THE REPAIR
AND REPLACEMENT OF PROPERTY BE INCLUDED IN THE DEFINITION OF
VICTIM FOR THE PURPOSES OF RESITUTION IN VANDALISM CASES?
PURPOSE
The purpose of this bill is to allow governmental entities
responsible for the clean-up of property that has been
vandalized to receive restitution from a person who has been
convicted of or adjudicated of the vandalism.
Existing law 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 594.)
Existing law 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 594 (b)(1).)
Existing law 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 $1000; or
by both that fine and imprisonment. (Penal Code 594
(b)(2)(A).)
Existing law 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
$5000; or by both that fine and imprisonment. (Penal Code 594
(More)
AB 576 (Torres)
PageC
(b)(2)(B).)
Existing law 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 594 (e).)
Existing law provides that the court may order any person
convicted of vandalism to perform community service or graffiti
removal. (Penal Code 594 (f).)
Existing law 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 594.6.)
Existing law 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 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 $1000 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 640.5 (d)(1).)
Existing law provides that any person who violates the graffiti
or vandalism statutes on or within 100 feet of a highway or its
appurtenances is guilty of a misdemeanor, punishable by
(More)
AB 576 (Torres)
PageD
imprisonment in a county jail not exceeding six months; or by a
fine not exceeding $1000; 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 $1000; or
by both that imprisonment and fine. (Penal Code 640.7.)
Existing law 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 53069.3 (a).)
Existing law provides that in every case where a person is
convicted of a crime the court shall impose a separate and
additional restitution fine, unless it finds a compelling and
extraordinary reasons for not doing so, and states those reasons
on the record. (Penal Code 1202.4 (b).)
Existing law provides that the restitution fine shall be between
$200 and $10,000 if the person is convicted of a felony and
between $100 and $1000 if the person is convicted of a
misdemeanor. (Penal Code 1202 (b)(1).)
Existing law provides that in every case in which a victim has
suffered economic loss as a result of the victim's conduct, the
court shall require that the defendant make restitution to the
victim or victims in an amount established by court order, based
on the amount of loss claimed by the victim or victims or any
other showing to the court and defines "victim" for the purposes
of restitution. (Penal Code 1202 (f) and (k).)
This bill includes in the definition of "victim" for the purpose
of restitution "any governmental entity that is responsible for
repairing, replacing, or restoring public or privately owned
property that has been defaced with graffiti or other inscribed
material as defined in subdivision (e) of Section 594, that has
(More)
AB 576 (Torres)
PageE
sustained an economic loss as the result of a violation of
Sections 594.3, 594.4, 640.5, 640.6 or 640.7 of the Penal Code."
Existing law provides that when a juvenile has been adjudicated
to have committed one or more felony offenses the court shall
impose a separate and additional restitution fine. If the minor
is found to have committed one or more felony offenses the
restitution shall be not less than $100 or more than $1000 and
if found to have committed one or more misdemeanor offenses the
restitution fine shall not exceed $100. (Welfare and
Institutions Code 730.6 (b).)
Existing law also provides that a minor adjudicated of an
offense shall also be ordered to pay restitution in the
amount of losses as determined by the court. (Welfare and
Institutions Code 730.6 (h).)
Existing law defines victim for purposes of restitution in a
juvenile case. (Welfare and Institutions Code 730.6 (j).)
This bill includes in the definition of "victim" for the purpose
of restitution "any governmental entity that is responsible for
repairing, replacing, or restoring public or privately owned
property that has been defaced with graffiti or other inscribed
material as defined in subdivision (e) of Section 594, that has
sustained an economic loss as the result of a violation of
Sections 594.3, 594.4, 640.5, 640.6 or 640.7 of the Penal Code."
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
(More)
AB 576 (Torres)
PageF
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
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.
. . .
----------------------
<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).)
(More)
AB 576 (Torres)
PageG
Although the evidence may be less than perfectly
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
---------------------------
<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).
(More)
AB 576 (Torres)
PageH
1. Need for This Bill
According to the author:
This bill attempts to address the problems caused by
graffiti. Currently, government entities are not
considered victims when it comes to damages caused by
graffiti, even though they may be the ones incurring the
cost of cleaning it up.
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
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 is 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 local governments are able
to recover costs of graffiti abatement via criminal
restitution.
(More)
AB 576 (Torres)
PageI
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
restitution fine beyond any court-ordered fees or actual loss
which is placed in the Victim Restitution Fund. (Penal Code
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
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.)
3. Relevant Case Law
(More)
AB 576 (Torres)
PageJ
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 v. 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 v. Martinez. In
that case, the defendant was convicted of attempting to
manufacture methamphetamine. The Department of Toxic Substances
Control was charged with cleaning and disposing of 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:
(More)
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 v. Martinez (2005) 36
Cal.4th 384, 394.)
4. Government Entity Victim in Vandalism
This bill specifically includes a governmental entity that is
responsible for the replacing or restoring public or private
property that has been vandalized in the definition of victim
for the purposes of restitution. In support of this bill the
California Business Properties Association notes that this bill
will "allow property owners and local governments to work
together to address and abate graffiti."
SHOULD A GOVERNMENTAL ENTITY THAT IS RESPONSIBLE FOR CLEANING UP
PROPERTY THAT HAS BEEN VANDALIZED BE CONSIDERED A VICTIM FOR THE
PURPOSES OF RESTITUTION?
(More)
AB 576 (Torres)
PageL
***************