BILL ANALYSIS �
AB 2444
Page 1
Date of Hearing: April 24, 2012
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2444 (Portantino) - As Introduced: February 24, 2012
SUMMARY : Provides that grand theft occurs where money, labor,
or real or personal property in an aggregate amount of $950 is
taken as a result of an agreement or prior arrangement to take
and the taking is made in concert with one or more other
individuals.
EXISTING LAW :
1)States that if two or more persons conspire to commit any
crime, or to cheat and defraud any person of any property, by
any means which are in themselves criminal, or to obtain money
or property by false pretenses or by false promises with
fraudulent intent not to perform those promises they are
punishable as follows: When they conspire to commit any
felony, they shall be punishable in the same manner and to the
same extent as is provided for the punishment of that felony.
If the felony is one for which different punishments are
prescribed for different degrees, the jury or court which
finds the defendant guilty thereof shall determine the degree
of the felony the defendant conspired to commit. If the degree
is not so determined, the punishment for conspiracy to commit
the felony shall be that prescribed for the lesser degree,
except in the case of conspiracy to commit murder, in which
case the punishment shall be that prescribed for murder in the
first degree. �Penal Code Section 182(a).]
2)If the felony is conspiracy to commit two or more felonies
which have different punishments and the commission of those
felonies constitute but one offense of conspiracy, the penalty
shall be that prescribed for the felony which has the greater
maximum term. �Penal Code Section 182(a).]
3)Upon a trial for conspiracy, in a case where an overt act is
necessary to constitute the offense, the defendant cannot be
convicted unless one or more overt acts are expressly alleged
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in the indictment or information, nor unless one of the acts
alleged is proved; but other overt acts not alleged may be
given in evidence. �Penal Code Section 182(a).]
4)States that no agreement amounts to a conspiracy, unless some
act, beside such agreement, be done within this state to
effect the object thereof, by one or more of the parties to
such agreement and the trial of cases of conspiracy may be
held in any county in which any such act be done. (Penal Code
Section 184.)
5)Defines "grand theft" as any theft where the money, labor, or
real or personal property taken or when the property is taken
from the person of another is of a value exceeding $950.
�Penal Code Sections 487(a) and 487(c).]
6)Provides that grand theft is committed when the money, labor,
or real or personal property taken is of a value in excess of
$950, except as specified. �Penal Code Section 487(a).]
7)Provides that notwithstanding the value of the property taken,
grand theft is committed in any of the following cases �Penal
Code Section 487(b)]:
a) When domestic fowls, avocados, or other farm crops are
taken of a value exceeding $250;
b) When fish or other aquacultural products are taken from
a commercial or research operation that is producing that
product of a value exceeding $250;
c) Where money, labor or property is taken by a servant or
employee from his or her principal and aggregates $950 or
more in any consecutive 12-month period;
d) When the property is taken from the person of another;
or,
e) When the property taken is, among other things, an
automobile, horse or firearm. Provides that if the grand
theft involves the theft of a firearm, it is punishable by
imprisonment in state prison for 16 months, 2 or 3 years.
(Penal Code Section 489.)
8)Provides that in all other cases, grand theft is punishable by
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imprisonment in county jail for not more than one year or in
the state prison. (Penal Code Section 489.)
9)Provides that theft in other cases is petty theft. (Penal
Code Section 488.)
10)States that petty theft is punishable by a fine not exceeding
$1,000; by imprisonment in the county jail not exceeding six
months; or both. (Penal Code Section 490.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Under existing
law, 'flash rob' participants who have organized to steal
property from a retailer and who each steal less than $950 may
only be charged with petty theft. The net loss to the
retailer however may be in the thousands of dollars.
"AB 2444 is intended to recognize that these individuals are
not operating alone and that their criminal activity often
results in losses much greater than the $950 threshold between
grand and petty theft. Knowing they could be charged with
grand theft will deter participants from engaging in "flash
rob" behavior.
"Making the theft of amounts in excess of $950 by the taking
in concert by groups of people more accurately reflects the
nature of the crime. AB 2444 will also give local law
enforcement and district attorneys greater discretion in the
filing and disposition of criminal cases."
2)Conspiracy : A punishable conspiracy exists when at least two
people form an agreement to commit a crime, and at least one
of them does some act in furtherance to committing the crime.
Each person is punishable in the same manner and to the same
extent as is provided for the punishment of the crime itself.
Both parties share the punishment for the total acts committed
by all conspirators. A conspiracy requires an agreement to
commit an offense, and an act in furtherance of the offense
(overt act).
This bill is completely duplicative of existing law. This
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current bill requires an agreement, and an act in furtherance
(theft). Under current law, two or more individuals who
engage in the act proscribed are guilty of grand theft under a
conspiracy theory. The law under existing conspiracy law is
as old as the California Penal Code and well settled.
Creating an entire new section for one small area of law would
confuse courts. Stare decisis is a legal principle by which
judges are obliged to respect the precedents established by
prior decisions. By creating a duplicative and non-settled
area of the penal code, courts would be confused and well
established precedents would be thrown out of balance.
3)Argument in Support : None submitted.
4)Argument in Opposition: According to the California Attorneys
for Criminal Justice, "By creating an entirely new statute
that duplicates an existing crime this bill will inevitably
result in overcharging by prosecutors. Additionally, courts
are required to assume the Legislature drafts new statute with
the intent of covering new crimes, acts that are not now
subject to criminal prosecution. If this bill is adopted,
courts are likely to interpret the language as reducing,
increasing or eliminating the elements of conspiracy. The
court is not permitted to believe that a statute was intended
to be duplicative. Therefore, designing a statute to address
a 'fad' will clog our courts with unnecessary legal challenges
and could result in an unintended conclusion.
"Under current law, however, a violation of the proposed
language is punishable under section 487 as either a
conspiracy (Penal Code Section 182), or aiding and abetting
(Penal Code Section 31). Under conspiracy, a conviction
requires proof that the defendant and another person had the
specific intent to agree or conspire to commit an offense, as
well as the specific intent to commit the elements of that
offense, together with proof of the commission of an overt act
by one or more of the parties to such an agreement in the
furtherance of the conspiracy (People v. Morante (1999) 20
Cal.4th 403, 416; accord, People v. Russo (2001) 25 Cal.4th
1124, 1131). Under an aiding and abetting theory, an
accomplice is one who aids or promotes the perpetrator's crime
with the knowledge of the perpetrator's unlawful purpose and
an intent to assist in the commission of the target crime, and
an accomplice may be guilty of the target crime and also of
other crimes that are considered the natural and probable
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consequence of the target crime. (People v. Williams (2008)
43 Cal4th 587, 637.)"
REGISTERED SUPPORT / OPPOSITION :
Support
California District Attorneys Association
California Grocers Association
California Police Chiefs Association
Opposition
Books Not Bars
California Attorneys for Criminal Justice
California Public Defenders Association
Drug Policy Alliance
Friends Committee on Legislation of California
Legal Services for Prisoners with Children
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744