BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 1034 (Ducheny) 4
As Amended April 14, 2010
Hearing date: April 20, 2010
Public Resources Code
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ARCHAEOLOGICAL RESOURCES: CIVIL PENALTIES
HISTORY
Source: The Society for California Archaeology
Prior Legislation: None applicable
Support: The Barona Band of Mission Indians; The California
State Park Rangers Association; California State Parks
Foundation; The Trust for Public Lands; Save Our
Heritage Organization; California Communities United
Institute
Opposition:None known
KEY ISSUES
SHOULD THE FINE FOR THEFT OF ARCHAEOLOGICAL RESOURCES BE INCREASED?
SHOULD THE LAW CLARIFY HOW RESTITUTION FOR ARCHAEOLOGICAL
RESOURCES SHALL BE DETERMINED?
SHOULD FORFEITURE BE ALLOWED FOR VEHICLES AND EQUIPMENT USED IN
THEFT OF ARCHAEOLOGICAL RESOURCES UNDER SPECIFIED CIRCUMSTANCES?
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PURPOSE
The purpose of this bill is to increase the penalties and
clarify the restitution for theft of archaeological resources.
Existing law makes it a misdemeanor to knowingly and willfully
excavate upon, or remove, destroy, injury, or deface, any
historic or prehistoric ruins, burial grounds, archaeological or
vertebrate paleontological site, including fossilized
footprints, inscriptions made by human agency, rock art, or any
other archaeological paleontological or historical feature,
situated on public lands, except with the express permission of
the public agency having jurisdiction over the lands. (Public
Resources Code 5097.5.)
This bill makes the misdemeanor penalty for the above offense up
to one year in the county jail and/or a fine of up to $10,000
plus penalty assessments.
This bill also clarifies that restitution shall be ordered by
the court to the state agency that oversees the archaeological
site that was defaced and sets forth how the commercial or
archeological value shall be determined and what the restitution
costs shall include.
This bill provides that upon conviction of the above offense,
the following items may be subject to forfeiture:
The archeological resource that was the subject of the
violation, and that is in the possession of the person.
A vehicle that was used in connection with the violation
if the vehicle to be forfeited was not merely a means of
transportation to the site, but was either of the
following:
o The vehicle was specifically modified or
designed to assist in the commission of the crime.
o The vehicle was used as part of a pattern or
scheme to commit the offense.
Equipment used in the violation.
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This bill provides that a vehicle that is subject to forfeiture
shall be released to the legal owner or his agent pursuant to
procedures set forth in the Vehicle Code.
This bill provides that if there is a community property
interest in the vehicle subject to forfeiture, the court shall
consider whether there is another vehicle available to the party
with that interest before ordering forfeiture of the vehicle.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
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neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<1>
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<1> Three Judge Court Opinion and Order, 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 (August 4, 2009).
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The court stayed implementation of its January 12, 2010 ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. That appeal, and the final outcome of this litigation,
is not anticipated until later this year or 2011.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
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COMMENTS
1. Need for This Bill
According to the author:
Current law does not adequately protect our
archaeological resources and provide for adequate
restitution when those resources are damaged. The
federal Archaeological Resources Protection Act (ARPA)
is far more stringent and does a better job of
protecting irreplaceable artifacts. Currently, state
law contains penalties that are far lower and impart
minimal financial burden upon criminals caught for the
determination of archeological value and the cost of
restoration. By adopting stricter penalties enforce
stricter penalties for these illegal activities and
ensure that California continues to be a responsible
steward of these precious resources.
2. Increased Penalties
Existing law has the standard up to 6 months in jail and up to a
$1,000 fine for theft of archeological resources. This bill
increases the penalties to up to one year in jail and up to a
$10,000 fine which, plus penalty assessments, would be a fine up
to $38,000.<2> The supporters note that these are precious
resources and their theft and destruction should be deterred.
3. Restitution
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<2> Until the budget year 2002-2003, there was 170% in penalty
assessments applied to every fine, the current penalty
assessments are approximately 270%. (See Penal Code 1464;
Penal Code 1465.7; Penal Code 1465.8 Government Code
70372; Government Code 7600.5 Government Code 76000 et seq;
Government Code 76104.6)
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Currently, a court may order restitution in a case where a
person is convicted of theft of an archeological resource.
However, since determining the value can be difficult, the
sponsor notes that the restitution ordered is rarely adequate to
cover the cost of repair. This bill sets forth a process for
the court to determine restitution in these cases. It also
clarifies that for purposes of restitution the victim in these
cases shall include any department of the state, a conservancy,
or other instrumentality of the state that has the primary
management authority over the public lands where the violation
occurs.
4. Forfeiture
This bill allows for forfeiture when a person is convicted of
archaeological theft. There is forfeiture of the archeological
resource that is in the possession of the person, any equipment
that was used in the crime and a vehicle under the following
circumstances:
o The vehicle was specifically modified to assist in the
commission of the crime; or
o The vehicle was used as part of a pattern or scheme to
commit the offense.
The court shall consider the availability of other
transportation if there is a community property interest in a
vehicle before ordering forfeiture.
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