BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
1
9
7
AB 1971 (Buchanan) 1
As Amended April 30, 2012
Hearing date: June 12, 2012
Penal Code
SM:mc
METAL THEFT
HISTORY
Source: Bay Area Rapid Transit (BART)
Prior Legislation: AB 316 (Carter) - Chapter 317, Statutes of
2011
AB 2372 (Ammiano) - Chapter 693, Statutes of 2010
AB 237 (Carter) - 2009, failed passage in Senate
Public Safety
SB 447 (Maldonado) - Chapter 732, Statutes of 2008
SB 691 (Calderon) - Chapter 720, Statutes of 2008
AB 844 (Berryhill) - Chapter 731, Statutes of 2008
AB 1778 (Ma) - Chapter 733, Statutes of 2008
AB 1859 (Adams) - Chapter 659, Statutes of 2008
AB 2724 (Benoit) - 2008, failed passage in Senate
Public Safety
Support: California Farm Bureau Federation; California Railroad
Industry; California Transit Association; Central
Valley Flood Control Association; East Valley Water
District; El Dorado Irrigation District; Orchard Dale
Water District; Rowland Water District; San Diego
County Board of Supervisors; San Gabriel Valley Water
Association; Santa Clara Valley Transit Authority;
Southern California Edison; Eastern Municipal Water
(More)
AB 1971 (Buchanan)
Page 2
District; AT&T
Opposition:None known
Assembly Floor Vote: Ayes 76 - Noes 0
KEY ISSUES
SHOULD THE MAXIMUM FINE FOR JUNK AND SECONDHAND DEALERS WHO
KNOWINGLY PURCHASE METALS USED IN TRANSPORTATION OR PUBLIC UTILITY
SERVICES WITHOUT DUE DILIGENCE BE INCREASED FROM $250 TO $1,000?
SHOULD IT BE CLARIFIED THAT, FOR PURPOSES OF THE VANDALISM STATUTE,
"DAMAGES" INCLUDES DAMAGE CAUSED TO PUBLIC TRANSIT PROPERTIES AND
FACILITIES, PUBLIC PARK PROPERTIES AND FACILITIES, AND PUBLIC
UTILITIES AND WATER PROPERTIES AND FACILITIES?
PURPOSE
The purpose of this bill is to increase the maximum fine for
junk and second-hand dealers who knowingly purchase metals used
in transportation or public utility services without due
diligence from $250 to $1,000; (2) clarify that, for purposes of
the vandalism statute, "damages" includes damage caused to
public transit properties and facilities, public park properties
and facilities, and public utilities and water properties and
facilities; and (3) make specified findings and declarations.
Existing law states that every person who, being a dealer in or
collector of junk, metals or secondhand materials, or the agent,
employee, or representative of such dealer or collector, buys or
receives any wire, cable, copper, lead, solder, mercury, iron or
brass which he or she knows or reasonably should know is
ordinarily used by or ordinarily belongs to a railroad or other
transportation, telephone, telegraph, gas, water or electric
(More)
AB 1971 (Buchanan)
Page 3
light company or county, city, city and county or other
political subdivision of this state engaged in furnishing public
utility service without using due diligence to ascertain that
the person selling or delivering the same has a legal right to
do so, is guilty of criminally receiving that property, and is
punishable, by imprisonment in a county jail for not more than
one year, or by imprisonment pursuant to subdivision (h) of
Section 1170, or by a fine of not more than $250, or by both
that fine and imprisonment.
Any person buying or receiving material described above shall
obtain evidence of his or her identity from the seller
including, but not limited to, that person's full name,
signature, address, driver's license number, vehicle license
number, and the license number of the vehicle delivering the
material.
The record of the transaction shall include an appropriate
description of the material purchased and such record shall be
maintained pursuant to Section 21607 of the Business and
Professions Code. (Penal Code � 496a.)
Existing law states that every person who steals, takes, or
carries away copper materials of another, including, but not
limited to, copper wire, copper cable, copper tubing, and copper
piping, which are of a value exceeding $950 is guilty of grand
theft. Grand theft of copper shall be punishable as a
misdemeanor, by a fine not exceeding $2,500, by imprisonment in
a county jail not exceeding one year, or by both that fine and
imprisonment, or as a felony, punishable by 16 months, two or
three years in the county jail, pursuant to subdivision (h) of
Section 1170 and a fine not exceeding $10,000.
Existing law provides that every junk dealer and every recycler,
as defined, in this state is required to keep a written record
of all sales and purchases made in the course of his or her
business. (Bus. & Prof. Code � 21605.) Those records must
include:
(More)
AB 1971 (Buchanan)
Page 4
(1) The place and date of each sale or purchase
of junk made in the conduct of his or her business as
a junk dealer or recycler.
(2) The name, valid driver's license number and
state of issue or California-issued identification
card number, and vehicle license number including the
state of issue of any motor vehicle used in
transporting the junk to the junk dealer's or
recycler's place of business.
(3) The name and address of each person to whom
junk is sold or disposed of, and the license number of
any motor vehicle used in transporting the junk from
the junk dealer's or recycler's place of business.
(4) A description of the item or items of junk
purchased or sold, including the item type and
quantity, and identification number, if visible.
(5) A statement indicating either that the seller
of the junk is the owner of it, or the name of the
person he or she obtained it from, as shown on a
signed transfer document.
(6) Any person who makes, or causes to be made, any
false or fictitious statement regarding any
information required by this section, is guilty of a
misdemeanor.
(7) Every junk dealer and every recycler shall report
the above information to the chief of police, if the
dealer's or recycler's business is located in a city,
or to the sheriff, if the dealer's or recycler's
business is located in an unincorporated part of a
county, upon request of the chief of police or sheriff
and on a monthly basis, except:
(8) The chief of police or sheriff may request the
(More)
AB 1971 (Buchanan)
Page 5
report described in this section on a weekly basis if
there is an ongoing investigation of the junk dealer
or recycler concerning possible criminal activity.
The chief of police or sheriff may request weekly
reports for no more than a two-month period unless the
investigation of the junk dealer or recycler continues
and the chief of police or sheriff makes a subsequent
request for weekly reports for an additional two-month
period or part thereof. (Bus. & Prof. Code � 21606.)
Existing law provides that any junk dealer or recycler who fails
to keep the required written records, or who refuses, upon
demand, as specified, to exhibit the required written record, or
who destroys that record within two years after making the final
entry of any purchase or sale of junk therein is guilty of a
misdemeanor. (Bus. & Prof. Code � 21608 (a).) Violations are
punishable as follows:
(1) For a first offense, by a fine of not less
than $500, or by imprisonment in the county jail for
not less than 30 days, or both.
(2) For a second offense, by a fine of not less
than $1000, or by imprisonment in the county jail
for not less than 30 days, or both. In addition to
any other sentence imposed pursuant to this
paragraph, the court may order the defendant to stop
engaging in business as a junk dealer or recycler
for a period not to exceed 30 days.
(3) For a third or any subsequent offense, by a
fine of not less than $2000, or by imprisonment in
the county jail for not less than six months, or
both. In addition to any other sentence imposed
pursuant to this paragraph, the court shall order
the defendant to stop engaging in business as a junk
dealer or recycler for a period of 30 days. (Bus. &
Prof. Code � 21608 (b).)
(More)
AB 1971 (Buchanan)
Page 6
Existing law defines a "secondhand dealer" as any person or
entity taking in pawn, accepting for sale of consignment,
trading, et cetera, any tangible personal property. (Bus. &
Prof. Code � 21625.)
Existing law defines a pawnbroker as a "person engaged in the
business of receiving goods in pledge for security for a loan."
(Fin. Code � 21000.)
Existing law provides that, except as specified, a junk dealer
or recycler in this state shall not provide payment for
nonferrous material unless, in addition to meeting the written
record requirements of Sections 21605 and 21606, all of the
following requirements are met:
The payment for the material is made by cash or
check. The check may be mailed to the seller at a
verified address, as specified below, or the cash or
check may be collected by the seller from the junk
dealer or recycler on the third business day after the
date of sale.
At the time of sale, the junk dealer or recycler
obtains a clear photograph or video of the seller.
Except as provided below, the junk dealer or
recycler obtains a copy of the valid driver's license
of the seller containing a photograph and an address
of the seller or a copy of a state or federal
government-issued identification card containing a
photograph and an address of the seller.
(More)
AB 1971 (Buchanan)
Page 7
If the seller prefers to have the check for the
material mailed to an alternative address other than a
post office box, the junk dealer or recycler shall
obtain a copy of a driver's license or identification
card, as specified, and a gas or electric utility bill
addressed to the seller at that alternative address
with a payment due date no more than two months prior
to the date of sale. For purposes of this paragraph,
"alternative address" means an address that is
different from the address appearing on the seller's
driver's license or identification card.
The junk dealer or recycler obtains a clear
photograph or video of the nonferrous material being
purchased.
The junk dealer or recycler shall preserve the
information obtained pursuant to this paragraph for a
period of two years after the date of sale.
The junk dealer or recycler obtains a thumbprint of
the seller, as prescribed by the Department of
Justice. The junk dealer or recycler shall keep this
thumbprint with the information obtained under this
subdivision and shall preserve the thumbprint in
either hardcopy or electronic format for a period of
two years after the date of sale.
Inspection or seizure of the thumbprint shall only
be performed by a peace officer acting within the
scope of his or her authority in response to a
(More)
AB 1971 (Buchanan)
Page 8
criminal search warrant signed by a magistrate and
served on the junk dealer or recycler by the peace
officer. Probable cause for the issuance of that
warrant must be based upon a theft specifically
involving the transaction for which the thumbprint was
given. (Bus. & Prof. Code � 21608.5.)
Existing law (subdivisions of Bus. & Prof. Code � 21628)
provides that pawnbrokers and secondhand dealers shall report
daily on forms approved or provided by the Department of
Justice, all personal property purchased, taken in trade, taken
in pawn, et cetera, to local law enforcement. The report shall
include the following information:
The name and current address and identification of
the intended seller or pledgor of the property (subds.
(a)-(b));
A complete and reasonably accurate description of
serialized or nonserialized property (subds. (c)-(d));
A certification by the intended seller or pledgor
that he or she is the owner of the property, or has
the authority of the owner to sell or pledge the
property and that any information provided is true and
complete (subds. (e)-(f)); and
A legible fingerprint taken from the intended
seller or pledgor (subd. (g)).
Existing law provides that the Department of Justice ("DOJ")
shall, in consultation with local law enforcement, develop clear
and comprehensive categories of property subject to reporting
requirements in Business and Professions Code Section 21628.
The categories shall be incorporated by secondhand dealers and
coin dealers (Bus. & Prof. Code � 21626) for reporting
requirements. DOJ and local law enforcement, in consultation
with secondhand dealer and coin dealer representatives, shall
develop a standard statewide format for electronic reporting.
(More)
AB 1971 (Buchanan)
Page 9
Twelve months after the format and the categories have been
developed, each secondhand dealer and coin dealer shall make
reports electronically. Until that time, each secondhand dealer
and coin dealer may either continue to report this information
using existing forms and procedures or may begin electronically
reporting this information under the reporting categories and
using the new format when it has been developed. (Bus. & Prof.
Code � 21628.)
Existing law requires a secondhand dealer to make acquired
property available for law enforcement inspection for specified
time periods. (Bus. & Prof. Code � 21636.)
This bill increases the maximum fine for junk and secondhand
dealers who knowingly purchase metals used in transportation or
public utility services without due diligence from $250 to
$1,000.
This bill clarifies that, for purposes of the vandalism statute,
"damages" includes damage caused to public transit properties
and facilities, public park properties and facilities, and
public utilities and water properties and facilities.
This bill makes various findings and declarations.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
(More)
AB 1971 (Buchanan)
Page 10
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). 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 January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
(More)
AB 1971 (Buchanan)
Page 11
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for This Bill
According to the Author:
The demand for copper has been increasing globally and
has thereby intensified thieves' efforts to obtain it.
In 2001, scrap copper sold for 65 cents a pound.
Copper now draws more than $4 a pound. And
California's infrastructure is rich with copper.
In California, thieves frequently strip the copper
wire from signal lights, streetlamps, heating and air
conditioning units, utility department transformers
and public transit track. The loss of copper and
damaged property is costing the taxpayers millions of
(More)
AB 1971 (Buchanan)
Page 12
dollars.
Copper theft has cost the City of Fremont over
$460,000 in repairs, Bay Area Rapid Transit (BART) has
been saddled with millions in damages and delays and
the City of Sacramento Transportation Department has
had to fund over $160,000 in copper-related repairs,
which includes the repairs of more than 1,000 disabled
street lamps.
Current law tries to discourage copper theft by fining
buyers of stolen copper. Without anyone to buy the
stolen metal, thieves would be discouraged from taking
it in the first place. To that end, the law currently
imposes a fine for buyers of stolen nonferrous
materials of up to $250. This $250 fine has not been
adjusted since it was established in 1919.
As an additional measure to discourage copper theft,
AB 844 (Berryhill) from 2008, required junk dealers
and recyclers to comply with recordkeeping
requirements and payment restrictions when purchasing
nonferrous materials. The minimum fine for failing to
comply was set at $1,000.
AB 1971 will bring the fine for purchasing stolen
metal up to the same level as failing to keep proper
records of metal sales.
2. Effect of the Bill
Under existing law every junk dealer or secondhand dealer who
buys or receives any wire, cable, copper, lead, solder, mercury,
iron or brass which he or she knows or reasonably should know is
ordinarily used by or ordinarily belongs to a railroad or other
transportation, telephone, telegraph, gas, water or electric
light company or county, city, city and county or other
political subdivision of this state engaged in furnishing public
utility service without using due diligence to ascertain that
(More)
AB 1971 (Buchanan)
Page 13
the person selling or delivering the same has a legal right to
do so, is guilty of
criminally receiving that property, and is punishable by
imprisonment in a county jail for not more than one year, or by
imprisonment pursuant to subdivision (h) of Section 1170, or by
a fine of not more than $250, or by both that fine and
imprisonment.
(More)
This bill would increase the fine for that offense from $250 to
$1,000.
This bill would also clarify that, for purposes of the vandalism
statute, "damages" includes damage caused to public transit
properties and facilities, public park properties and
facilities, and public utilities and water properties and
facilities. This bill states that this is declaratory of
existing law.
3. Previous Legislation to Curb Metal Theft
Earlier this year, this Committee approved SB 1387 (Emmerson),
which would prohibit junk dealers and recyclers from possessing
any fire hydrant, fire department connection, manhole cover or
backflow device without a written certification on the
letterhead of the agency previously owning the material, and
adds fire hydrants, manhole covers and backflow devices to the
list of items which, if any person possesses, knowing they were
stolen, would receive an additional fine of up to $3,000.
(Penal Code � 496e.)
In 2011 the Legislature created a separate offense of grand
theft of copper material. (AB 316 (Carter), Chapter 317,
Statutes of 2011.)
In 2009, the Legislature passed the following measures to
address the growing problem of metal theft:
SB 447 (Maldonado), Chapter 732, Statutes of 2009,
assists local law enforcement officials in quickly
investigating stolen metal and apprehending thieves by
requiring scrap metal dealers and recyclers to report
what materials are being scraped at their facilities
and by whom on a daily basis. These rules already
apply to pawn shop dealers.
SB 691 (Calderon), Chapter 720, Statutes of 2009,
requires junk dealers and recyclers to take
(More)
AB 1971 (Buchanan)
Page 15
thumbprints of individuals selling copper, copper
alloys, aluminum, and stainless steel. Sellers must
also show a government identification (ID) and proof
of their current address. Recyclers who violate the
law face suspension or revocation of their business
license and increased fines and jail time.
AB 844 (Berryhill), Chapter 731, Statutes of 2009,
requires recyclers to hold payment for three days,
check a photo ID and take a thumbprint of anyone
selling scrap metals. AB 844 also requires any person
convicted of metal theft to pay restitution for the
materials stolen and for any collateral damage caused
during the theft.
4. Argument in Support
The Santa Clara Valley Transportation Authority states:
Since 2008, a series of bills have been enacted at the
state level to combat metal theft generally. These
measures have focused on placing reporting
requirements on junk dealers and recyclers comparable
to those that exist for pawnbrokers and secondhand
dealers, and on enhancing certain fines and other
penalties for metal theft. However, the recent rise
in scrap metal values has made the theft and sale
of these materials increasingly profitable and,
therefore, metal theft continues to be a problem. AB
1971 will address an inconsistency in the fine
pertaining to certain acts undertaken by a buyer of
copper, and will ensure that copper wiring theft
resulting in damage to the property and facilities of
public transit agencies, as well as to certain other
public property and facilities, can be prosecuted as
vandalism.
***************
AB 1971 (Buchanan)
Page 16