BILL NUMBER: AB 960	AMENDED
	BILL TEXT

	AMENDED IN SENATE  JUNE 3, 2010
	AMENDED IN SENATE  APRIL 12, 2010
	AMENDED IN SENATE  JANUARY 21, 2010

INTRODUCED BY   Assembly Member V. Manuel Perez
    (   Coauthors:  
Assembly Members   Block, 
  Emmerson,    
Hill,     Nava,  
  Nestande,    
and Skinner   ) 
    (   Coauthors:  
Senators   Harman   
 and Leno   ) 

                        FEBRUARY 26, 2009

    An act to amend Section 12370 of the Penal Code, relating
to body armor, and declaring the urgency thereof, to take effect
immediately.   An act to amend Sections 2069 and 2099 of
the Fish and Game Code, and to amend Section 25524 of the Public
Resources Code, relating to renewable energy resources, and making an
appropriation therefor. 


	LEGISLATIVE COUNSEL'S DIGEST


   AB 960, as amended, V. Manuel Perez.  Body armor.
  Renewable energy resources: powerplant siting:
California Endangered Species Act: mitigation measures.  
   (1) The Warren-Alquist State Energy Resources Conservation and
Development Act establishes the State Energy Resources Conservation
and Development Commission (Energy Commission) and requires it to
certify sufficient sites and related facilities that are required to
provide a supply of electricity sufficient to accommodate projected
demand for power statewide. The act grants the Energy Commission the
exclusive authority to certify any stationary or floating electrical
generating facility using any source of thermal energy, with a
generating capacity of 50 megawatts or more, and any facilities
appurtenant thereto. Existing law requires the Energy Commission to
establish a process for certain applicants for certification of a
solar thermal powerplant that are proposed to be constructed in the
planning area for the Desert Renewable Energy Conservation Plan, as
defined, that allows the applicant to elect to pay additional fees to
be used by the Energy Commission to contract with 3rd parties to
assist the Energy Commission staff in performing the analysis
otherwise performed by staff in determining whether or not to issue a
certification.  
   This bill additionally would require the Energy Commission to
establish a process for certain applicants for certification of a
geothermal powerplant that is proposed to be constructed in the
planning area for the Desert Renewable Energy Conservation Plan, that
allows the applicant to elect to pay additional fees to be used by
the Energy Commission to contract with 3rd parties to assist the
Energy Commission staff in performing the analysis otherwise
performed by staff in determining whether or not to issue a
certification.  
   (2) The California Endangered Species Act (CESA) requires the Fish
and Game Commission to establish a list of endangered species and a
list of threatened species and requires the Department of Fish and
Game to recommend, and the commission to adopt, criteria for
determining if a species is endangered or threatened. CESA states
that state agencies should not approve projects, as defined, that
would jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse
modification of habitat essential to the continued existence of the
species if there are reasonable and prudent alternatives available
consistent with conserving the species or its habitat that would
prevent jeopardy. CESA further declares that in the event specific
economic, social, or other conditions make infeasible these
alternatives, individual projects may be approved if appropriate
mitigation and enhancement measures are provided. CESA authorizes the
department to authorize the take of threatened species, endangered
species, or candidate species by permit if certain requirements are
met. CESA authorizes the department, in consultation with the Energy
Commission and, to the extent practicable, the United States Fish and
Wildlife Service and the United States Bureau of Land Management, to
design and implement actions to protect, restore, or enhance the
habitat of plants and wildlife that can be used to fully mitigate the
impacts of the take of endangered, threatened, or candidate species
(mitigation actions) resulting from certain solar thermal and
photovoltaic powerplants in the planning area of the Desert Renewable
Energy Conservation Plan.  
   This bill additionally would authorize the department to design
and implement mitigation actions for proposed wind and geothermal
powerplants in the planning area of the Desert Renewable Energy
Conservation Plan and would eliminate certain requirements for
participation in the department's mitigation actions.  
   (3) Existing law establishes the Renewable Energy Resources
Development Fee Trust Fund as a continuously appropriated fund in the
State Treasury to serve, and be managed, as an optional, voluntary
method for developers or owners of eligible projects, as defined, to
deposit fees sufficient to complete mitigation actions established by
the department and thereby meet their requirements pursuant to CESA
or the certification authority of the Energy Commission. The
definition of eligible projects is limited to certain solar thermal
powerplants and photovoltaic powerplants proposed to be constructed
in the planning area of the Desert Renewable Energy Conservation
Plan.  
   This bill would expand the definition of eligible projects to
include wind powerplants and geothermal powerplants proposed to be
constructed in the planning area of the Desert Renewable Energy
Conservation Plan. By expanding the purposes for which moneys in this
continually appropriated fund may be used, this bill would make an
appropriation. 
   Existing law provides that any person who has been convicted of a
violent felony who purchases, owns, or possesses body armor, as
defined in the California Code of Regulations, except as authorized,
is guilty of a felony, punishable by imprisonment in a state prison
for 16 months, or 2 or 3 years. However, the court, in People v.
Saleem (Cal.App. 2nd Dist., Dec. 17, 2009, B204646), held that this
provision, with body armor so defined, is unconstitutionally vague in
violation of due process.  
   This bill would revise the definition of body armor for these
purposes, as specified.  
   By expanding the scope of an existing crime, this bill would
impose a state-mandated local program.  
   The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.  
   This bill would provide that no reimbursement is required by this
act for a specified reason.  
   This bill would declare that it is to take effect immediately as
an urgency statute.
   Vote:  2/3   majority  . Appropriation:
 no   yes  . Fiscal committee: yes.
State-mandated local program:  yes   no  .


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    Section 2069 of the   Fish and
Game Code   is amended to read: 
   2069.  (a) For purposes of this section, the following terms have
the following meanings:
   (1) "Desert Renewable Energy Conservation Plan" means the
completed conservation plan in the Mojave and Colorado Desert regions
adopted pursuant to the Natural Community Conservation Planning Act
(Chapter 10 (commencing with Section 2800)), and covers the
geographical area described in Section 4 of, and depicted in Exhibit
A to, the "Draft Planning Agreement by and among California
Department of Fish and Game, California Energy Commission, United
States Bureau of Land Management, and United States Fish and Wildlife
Service for the Desert Renewable Energy Conservation Plan," document
REAT-1000-2009-034, dated October 2009.
   (2) "Energy Commission" means the State Energy Resources
Conservation and Development Commission.
   (b) The department, in consultation with the Energy Commission
and, to the extent practicable, the United States Fish and Wildlife
Service and the United States Bureau of Land Management, may design
and implement actions, including the purchase of land and
conservation easements, to protect, restore, or enhance the habitat
of plants and wildlife that can be used to fully mitigate the impacts
of the take of endangered species, threatened species, or candidate
species, for purposes of paragraph (2) of subdivision (b) of Section
2081 and Chapter 6 (commencing with Section 25500) of Division 15 of
the Public Resources Code, resulting from solar thermal  and
  ,  photovoltaic  , wind, and geothermal 
powerplants in the Desert Renewable Energy Conservation Plan
planning area  that meet each of the following requirements:
  .  
   (1) Either the Energy Commission determines that the application
for certification was complete by February 1, 2010, or the local
government in which the project is located has determined the project
permit application is complete or has issued a notice of preparation
of an environmental impact statement pursuant to Division 13
(commencing with Section 21000) of the Public Resources Code by
February 1, 2010.  
   (2) The developer or owner of the proposed powerplant or
generation facility has applied for, and would qualify for, funding
under the federal American Recovery and Reinvestment Act of 2009
(Public Law 111-5). For purposes of this subparagraph, "funding"
means a loan guarantee made pursuant to Section 406 of the act (42
U.S.C. Sec. 16516) or a grant for specified energy property in lieu
of a tax credit provided pursuant to Section 1603 of Division B of
the act, which division is titled the American Recovery and
Reinvestment Tax Act of 2009. 
   (c) A mitigation action may only be used for the mitigation
purposes described in subdivision (b) if it meets one of the
following conditions:
   (1) The department has implemented the mitigation action and
determined that the action has resulted in the protection,
restoration, or enhancement of the habitat of one or more species
that are proposed to be covered by the Desert Renewable Energy
Conservation Plan, and that are located in the planning area, and,
based upon that determination, can be used, for purposes of paragraph
(2) of subdivision (b) of Section 2081, to fully mitigate the
impacts of the take of the species from one or more projects
identified in subdivision (b).
   (2) The mitigation action is included in an interim mitigation
strategy for projects identified in subdivision (b). An interim
mitigation strategy pursuant to this paragraph shall be developed by
the department, in consultation with the Energy Commission and, to
the extent practicable, the United States Fish and Wildlife Service
and the United States Bureau of Land Management, and shall include
all of the following:
   (A) A description of specific mitigation areas and specific
actions on public or private land within the Desert Renewable Energy
Conservation Plan planning area that are to be implemented, including
a focus on habitat preservation, while also including enhancement or
restoration actions that will do all of the following:
   (i) Contribute to the conservation of each candidate species,
threatened species, or endangered species for which a permit is
issued.
   (ii) Adopt a regional planning perspective that provides a
foundation for, or that will complement, any conservation strategy to
be developed for the Desert Renewable Energy Conservation Plan.
   (iii) Implement mitigation actions within a reasonable period of
time relative to the impact to the affected candidate species,
threatened species, or endangered species, including, where feasible,
advance mitigation. For purposes of this clause, "advance mitigation"
means mitigation implemented before, and in anticipation of, future
impacts to natural resources.
   (iv) Include a description of the species that would be benefited
by each mitigation action and how it would be benefited.
   (B) A cost estimate for each action, whether on public or private
land, using total cost accounting, including, as applicable, land
acquisition costs, conservation easement costs, monitoring costs,
transaction costs, restoration costs, the amount of a nonwasting
endowment account for land management or easement stewardship costs
by the department or other management entity, and administrative
costs.
   (d) The interim mitigation strategy shall be based on best
available science and shall be reviewed by the Desert Renewable
Energy Conservation Plan independent science advisors. The department
shall seek and consider comments from the Desert Renewable Energy
Conservation Plan independent science advisors in the design and
location of each mitigation action implemented pursuant to this
section. If the department elects to not incorporate comments of the
independent science advisors into mitigation actions, the department
shall explain the reasons for that decision in writing.
   (e) The interim mitigation strategy shall be completed by the
department no later than 60 days following the operative date of the
act adding this section.
   (f) (1) Nothing in this section shall modify the requirements of
Section 2081, including the requirement to, where feasible, avoid and
minimize impacts, the requirements of Division 13 (commencing with
Section 21000) of, or the requirements of Chapter 6 (commencing with
Section 25500) of Division 15 of, the Public Resources Code, or
affect the existing authority of the department to authorize
mitigation actions to comply with this chapter.
   (2) With respect to the Energy Commission, in the case of an
applicant seeking certification for a solar thermal  power
plant   or geothermal powerplant  pursuant to
Chapter 6 (commencing with Section 25500) of Division 15 of the
Public Resources Code, or a lead agency, as defined in Section 21067
of the Public Resources Code, in the case of an applicant seeking
approval of a photovoltaic  or wind  powerplant,  or a
solar thermal powerplant or geothermal powerplant with a generating
capacity of less than 50 megawatts,  the sole effect of a
mitigation action described in subdivision (c), and paid for through
the deposit of fees as described in Section 2099, is to relieve an
applicant of the obligation to directly take actions which are taken
instead by the department or its contractor or designee pursuant to
subdivision (b) to meet the applicant's obligations with respect to
the powerplant's impacts to species and habitat. The mitigation
action and deposit of fees shall not relieve the applicant of any
other obligation, or the Energy Commission or the lead agency of any
of its existing requirements of Division 13 (commencing with Section
21000) of, or the requirements of Chapter 6 (commencing with Section
25500) of Division 15 of, the Public Resources Code to analyze,
avoid, minimize, or mitigate impacts to species and habitat, or make
the findings required by those statutes.
   (g) The mitigation actions implemented pursuant to this section
shall be incorporated into the Desert Renewable Energy Conservation
Plan upon the finalization of the plan, to the extent the mitigation
actions are consistent with the plan's conservation strategy.
   SEC. 2.    Section 2099 of the   Fish and
Game Code   is amended to read: 
   2099.  (a) For purposes of this section, the following terms have
the following meanings:
   (1) "Eligible project" means a solar thermal powerplant 
or  ,  photovoltaic powerplant  , wind
powerplant, or geothermal powerplant  meeting the requirements
 of paragraphs (1) and (2)  of subdivision (b) of
Section 2069.
   (2) "Energy Commission" means the State Energy Resources
Conservation and Development Commission.
   (b) (1) The Renewable Energy Resources Development Fee Trust Fund
is hereby established in the State Treasury. The department shall
collect a fee from the owner or developer of an eligible project that
elects to use mitigation actions developed and approved by the
department pursuant to Section 2069, and all moneys received for
purposes of mitigation actions pursuant to Section 2069 shall be
deposited in the fund and shall be held in trust and be expended
solely for the purposes of, and in conformity with, that section,
applicable permit or certification requirements for eligible
projects, and any contractual agreement between the Energy Commission
or department and the owner or developer of an eligible project. The
department may contract with, or award grants to, third parties to
implement mitigation actions in conformity with Section 2069 and this
section.
   (2) Upon direction by the department, the Controller shall create
any accounts or subaccounts within the fund that the department
determines are necessary or convenient to facilitate management of
the fund.
   (3) The fund shall serve, and be managed, as an optional,
voluntary method for developers or owners of eligible projects to
deposit fees to complete mitigation actions meeting the conditions of
subdivision (c) of Section 2069 and for the purpose of meeting the
requirements of this chapter or the requirements of Chapter 6
(commencing with Section 25500) of Division 15 of the Public
Resources Code. Notwithstanding Section 13340 of the Government Code,
the money in the fund is hereby continuously appropriated to the
department, without regard to fiscal years, for the purposes
enumerated in this section and Section 2069. An expenditure shall not
be made from the fund except as authorized by the department.
   (4) The sum of ten million dollars ($10,000,000) is hereby
transferred, as a loan, from the Renewable Resource Trust Fund to the
fund. This loan shall be repaid from the fund to the Renewable
Resource Trust Fund no later than December 31, 2012. The department
shall use these funds, pursuant to paragraph (1) of subdivision (c)
of Section 2069, to purchase mitigation lands or conservation
easements, and to cover related restoration, monitoring, and
transaction costs incurred in advance of the receipt of fees pursuant
to paragraph (5) and to cover the department's administrative costs
for the program.
   (5) A developer or owner of an eligible project that elects to use
mitigation actions developed and authorized by the department
pursuant to Section 2069 shall remit fees to the department for
deposit into the fund for those mitigation actions in an amount that
reflects the determination by the Energy Commission, with respect to
a solar thermal powerplant  or geothermal powerplant with a
generating capacity of 50 megawatts or more  , or the
department, with respect to a solar photovoltaic powerplant  or
wind powerplant, or a solar thermal powerplant or geothermal 
 powerplant with a generating capacity of less than 50 megawatts
 , of the costs attributable to the mitigation actions that meet
the standards of this chapter. The amount of fees to be paid by a
developer or owner of an eligible project to meet the standards of
this chapter shall be calculated on a per acre basis, using total
cost accounting, and shall include, as applicable, land acquisition
or conservation easement costs, monitoring costs, restoration costs,
transaction costs, the amount of a nonwasting endowment account for
land management or easement stewardship costs by the department or
other management entity, and administrative costs and funds
sufficient to repay any expenditure of state funds made pursuant to
paragraph (4). To ensure the funds deposited pursuant to this section
are sufficient to meet the standards of this chapter, the project
developer or owner, in addition to payment of those funds, shall
provide security, in a form and amount, not to exceed 5 percent of
the amount of the funds, excluding any portion of the funds to be
used for a nonwasting endowment, to be determined by the Energy
Commission, with respect to a solar thermal powerplant  or
geothermal powerplant with a generating capacity of 50 megawatts or
more  , or to be determined by the department, with respect to a
solar photovoltaic powerplant  or wind powerplant, or a solar
thermal powerplant or geothermal powerplant with a generating
capacity of less than 50 megawatts  .
   (c) The department shall monitor the implementation of the
mitigation actions and the progress of the construction of the
eligible projects. The department shall report all deposits, and the
source of those deposits, on its Internet Web site. The department
shall also report all expenditures from the fund on its Internet Web
site and identify the mitigation activities or programs that each
expenditure funded and its relationship to the permitted project. The
Energy Commission, with respect to a solar thermal powerplant, and
the department, with respect to a solar photovoltaic powerplant,
shall ensure that moneys paid pursuant to this section are used only
for purposes of satisfying the standards of paragraph (2) of
subdivision (b) of Section 2081. Where moneys are used to fund
mitigation actions, including the acquisition of lands or
conservation easements, or the restoration of lands, that use shall
be in addition to, and not duplicative of, mitigation obtained
through any other means.
   (d) The department and the Energy Commission shall not allow any
use of the interim mitigation strategy subsequent to a determination
by the department that the time and extent of mitigation actions are
not being implemented in rough proportion to the impacts of those
projects. The department shall reinstitute the use of the interim
mitigation strategy when the department determines the rough
proportionality between mitigation actions and impacts of eligible
projects has been reestablished by the completion of additional
mitigation actions.
   SEC. 3.    Section 25524 of the   Public
Resources Code   is amended to read: 
   25524.  (a) "Qualified applicant" means an applicant for
certification of a solar thermal powerplant  that meets each
of the following requirements:   or geothermal
powerplant that is proposed to be constructed in the planning area
for the Desert Renewable Energy Conservation Plan, as defined in
Section 2069 of the Fish and Game Code.  
   (1) The commission has determined that the application for
certification was completed by February 1, 2010.  
   (2) The solar thermal powerplant is proposed to be constructed in
the planning area for the Desert Renewable Energy Conservation Plan,
as defined in Section 2069 of the Fish and Game Code. 

   (3) The developer or owner of the proposed solar thermal
powerplant has applied for, and would qualify for funding under the
federal American Recovery and Reinvestment Act of 2009 (Public Law
111-5). For purposes of this paragraph, "funding" includes a loan
guarantee made pursuant to Section 406 of the act (42 U.S.C. Sec.
16516) or a grant for specified energy property in lieu of a tax
credit provided pursuant to Section 1603 of Division B of the act,
which division is titled the American Recovery and Reinvestment Tax
Act of 2009. 
   (b) The commission shall establish a process to allow a qualified
applicant to elect to pay additional fees to be used by the
commission to contract with a third party, or more than one third
party, to assist commission staff in performing the analysis
otherwise performed by commission staff in determining whether or not
to issue a certification. The commission shall retain discretion as
to when this option will be offered to a qualified applicant.
   (c) The amount of the fees charged by the commission pursuant to
this section shall be conditioned upon the qualified applicant
agreeing to that amount and electing to proceed with the retention of
the third party or parties pursuant to subdivision (b).
   (d) All fees paid by a qualified applicant shall be used
exclusively for analysis of that applicant's application for
certification. 
  SECTION 1.    Section 12370 of the Penal Code is
amended to read:
   12370.  (a) A person who has been convicted of a violent felony,
as defined in subdivision (c) of Section 667.5, under the laws of the
United States, the State of California, or any other state,
government, or country, who purchases, owns, or possesses body armor,
as defined in subdivision (f), except as authorized under
subdivision (b), is guilty of a felony, punishable by imprisonment in
a state prison for 16 months, or two or three years.
   (b) A person whose employment, livelihood, or safety is dependent
on the ability to legally possess and use body armor, who is subject
to the prohibition imposed by subdivision (a) due to a prior violent
felony conviction, may file a petition with the chief of police or
county sheriff of the jurisdiction in which he or she seeks to
possess and use the body armor for an exception to this prohibition.
The chief of police or sheriff may reduce or eliminate the
prohibition, impose conditions on reduction or elimination of the
prohibition, or otherwise grant relief from the prohibition as he or
she deems appropriate, based on the following:
   (1) A finding that the petitioner is likely to use body armor in a
safe and lawful manner.
   (2) A finding that the petitioner has a reasonable need for this
type of protection under the circumstances.
   In making its decision, the chief of police or sheriff shall
consider the petitioner's continued employment, the interests of
justice, any relevant evidence, and the totality of the
circumstances. It is the intent of the Legislature that law
enforcement officials exercise broad discretion in fashioning
appropriate relief under this paragraph in cases in which relief is
warranted. However, this paragraph may not be construed to require
law enforcement officials to grant relief to any particular
petitioner. Relief from this prohibition does not relieve any other
person or entity from any liability that might otherwise be imposed.
   (c) The chief of police or sheriff shall require, as a condition
of granting an exception under subdivision (b), that the petitioner
agree to maintain on his or her person a certified copy of the law
enforcement official's permission to possess and use body armor,
including any conditions or limitations.
   (d) Law enforcement officials who enforce the prohibition
specified in subdivision (a) against a person who has been granted
relief pursuant to subdivision (b), shall be immune from any
liability for false arrest arising from the enforcement of this
subdivision unless the person has in his or her possession a
certified copy of the permission granting the person relief from the
prohibition, as required by subdivision (c). This immunity from
liability does not relieve any person or entity from any other
liability that might otherwise be imposed.
   (e) For purposes of this section only, "violent felony" refers to
the specific crimes listed in subdivision (c) of Section 667.5, and
to crimes defined under the applicable laws of the United States or
any other state, government, or country that are reasonably
equivalent to the crimes listed in subdivision (c) of Section 667.5.
   (f) For purposes of this section, "body armor" means any bullet
resistant material intended to provide ballistic and trauma
protection for the person wearing the body armor.  
  SEC. 2.   No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.  
  SEC. 3.    This act is an urgency statute
necessary for the immediate preservation of the public peace, health,
or safety within the meaning of Article IV of the Constitution and
shall go into immediate effect. The facts constituting the necessity
are:
   In order to protect the public and law enforcement in California
from current and ongoing crimes involving the possession and use of
body armor by persons previously convicted of violent felonies, it is
necessary that this legislation take effect immediately.