BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 1302 (Cannella) 2
As Amended April 12, 2012
Hearing date: April 24, 2012
Penal Code
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AGGRAVATED ARSON: LIVESTOCK OPERATIONS
HISTORY
Source: Western United Dairymen
Prior Legislation: AB 27 (Jeffries) - Ch. 71, Stats. 2009
Support: California Farm Bureau Federation; Alliance of Western
Milk Producers; California State Sheriffs' Association
Opposition:None known
KEY ISSUE
SHOULD AGGRAVATED ARSON, WITH A PRISON TERM OF 10-YEARS TO LIFE,
INCLUDE ANY ARSON IN WHICH DEFENDANT INTENTIONALLY TARGETED A
COMMERCIAL ANIMAL FEEDING OPERATION OR LIVESTOCK SALESYARD AND
CAUSED AT LEAST $100,000 IN DAMAGE?
PURPOSE
The purpose of this bill is to define an arson in which the
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defendant intentionally targeted
and disrupted the commercial operations of an animal feeding
operation, feedlot or livestock salesyard and caused at least
$100,000 in damages or losses as aggravated arson, with a prison
term of 10-years-to-life.
Existing law provides that arson that causes great bodily injury
is a felony, punishable by imprisonment in the state prison for
five, seven, or nine years. (Pen. Code � 451, subd. (a).)
Existing law provides that arson of an inhabited dwelling or
inhabited structure is a felony, punishable by imprisonment in
the state prison for three, five, or eight years. (Pen. Code �
451, subd. (b).)
Existing law provides that arson of a forestland or structure is
a felony punishable by imprisonment in the state prison for two,
four, or six years. (Pen. Code � 451, subd. (c).)
Existing law provides that arson of property is a felony,
punishable by imprisonment in the state prison for 16 months, 2
or 3 years. (Pen. Code � 451, subd. (d).)
Existing law provides that any person convicted of arson shall
be punished by a 3, 4, or 5-year enhancement if one or more of
the following circumstances are found to be true: a) The
defendant was previously convicted of felony arson; b) A peace
officer, firefighter, or other emergency personnel suffered
great bodily injury; c) The defendant proximately caused great
bodily injury to more than one victim in a single incident; d)
The defendant proximately caused multiple structures to burn;
and, e) The defendant committed arson by use of a device
designed to accelerate the fire, or delay ignition. (Pen. Code
� 451.1.)
Existing law provides that a person is guilty of unlawfully
causing a fire when he or she recklessly sets fire to or causes
to be burned any structure, forestland, or property a)
unlawfully causing a fire that causes great bodily injury is a
felony, punishable by imprisonment in the state prison for two,
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four, or six years; by imprisonment in the county jail not to
exceed one year, by a fine, or by both imprisonment and a fine;
b) unlawfully causing a fire that causes an inhabited structure
or property to burn is a felony, punishable by imprisonment in
the state prison for two, three, or four years, by imprisonment
in the county jail not to exceed one year; by a fine, or by both
imprisonment and a fine; c) unlawfully causing a fire of a
structure or forestland is a felony punishable by imprisonment
in the state prison for 16 months, 2 or 3 years; by imprisonment
in the county jail not to exceed one year, by a fine, or by both
imprisonment and a fine; and d) unlawfully causing a fire of
property is a misdemeanor. (Pen. Code � 452.)
Existing law (Pen. Code � 451.5) provides that any person who
willfully, maliciously, or deliberately, with premeditation and
with intent to cause injury or to cause damage to property under
circumstances likely to produce injury or to cause damage to one
or more structures or inhabited dwellings, sets fire to, burns,
or causes to be burned any residence or structure is guilty of
aggravated arson, punishable by 10-years-to-life in the state
prison if one or more of the following aggravating factors
exist:
] The defendant was previously convicted of arson on one or more
occasions within the past 10 years;
] The fire caused damage to, or the destruction of, five or more
inhabited structures; and
] The fire caused damage, including fire suppression, in excess
of $6,500,000.
Existing law provides that possession of an incendiary device
with the intent to set a fire is punishable by one year in the
county jail or by 16 months, 2 or 3 years in the state prison.
(Pen. Code � 453.)
Existing law includes legislative intent that the aggravated
arson law be reviewed within five years to determine the effect
of inflation on the monetary threshold for the crime. To
provide for consideration of the aggravated arson threshold, the
current statute sunsets in 2014. (Pen. Code � 451.5, subd.
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(b)(2)(B).)
Existing law provides that a person convicted of arson,
aggravated arson, and attempted arson must register with local
law enforcement. The duty to register is a lifetime requirement
except for a person convicted before 1995. The registration
requirement applies to a conviction for Penal Code section 453 -
possession or manufacture or an incendiary device with intent to
maliciously burn any structure, forest land, or property. (Pen.
Code � 457.1, subd. (b)(2).)
This bill provides that arson that was intended to disrupt the
commercial operations of an animal feeding operation, animal
feedlot or livestock salesyard and that causes more than
$100,000 in property damage and other losses is aggravated
arson.
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
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.
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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
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
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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.
The author has been informed that this bill appears to aggravate
the prison overcrowding crisis described above under ROCA.
COMMENTS
1. Need for This Bill
According to the author:
SB 1302 proposes to amend Penal Code Section 451.5 to
specify that an aggravating factor exists if a fire
was set with the intent to disrupt the commercial
operations of an animal feeding operation, animal
feedlot or livestock salesyard and the fire causes
damage in excess of $100,000.
2. Incident that May Have Prompted Introduction of This Bill
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This bill appears to have been prompted by arson on January 8,
2012, at the Harris Ranch in Fresno County. According to a
story in the January 11, 2012, edition of the San Francisco
Chronicle about the incident, "14 cattle trucks" were destroyed
at the "feed lot truck storage facility at the ranch?." The
Chronicle reported that the North American Animal Liberation
Press Office sent an e-mail to media outlets explaining the
organization had received an anonymous message with specific
information about the fire.
As reported by the Chronicle, the Animal Liberation Press Office
e-mail included the following:
Containers of accelerant were placed beneath a row of
14 trucks with four digital timers used to light four
of the containers and kerosene soaked rope carrying
the fire to the other 10. �] We were extremely
pleased to see all 14 trucks "were a total loss."
We're not delusional enough to believe that this
action will shut down the Harris feeding company, let
alone have any effect on factory farming as a whole.
But we maintain that this type of action still has
worth, if not solely for the participant's peace of
mind, then to show that despite guards, a constant
worker presence and razor wire fence, the enemy is
still vulnerable.
On January 10, 2012, the Website of KGPE CBS47 TV in Fresno
paraphrased the Animal Liberation Press Office's statement
about the Harris Ranch incident and other related acts:
"The North American Animal Liberation Press Office does not
participate in illegal activity but distributes messages
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from those who sometimes do, group spokeswoman said."<1>
On February 21, 2012, a story published on the Website of
KSEE 24 TV in Fresno reported that a $100,000 reward had
been offered for information leading to the conviction of
the perpetrators of the arson at the Harris Ranch
feedlot.<2> The KSEE story stated that the damages in the
arson exceeded $2 million.
3. Proportionality Issue - Comparison of this Bill with
Aggravated Arson in Existing Law
Under existing law, aggravated arson has relatively complex
elements, or essential facts that must each be proved to
establish the offense. These are the elements of aggravated
arson:
The defendant acted willfully, maliciously, or
deliberately; and
The defendant acted with premeditation and with intent
to cause injury or to cause damage to property under
circumstances likely to produce injury or to cause damage
to one or more structures or inhabited dwellings; and
One of the following is shown:
1. The defendant was previously convicted of
arson within the past 10 years;
2. The defendant caused damage to, or the
destruction of, five or more inhabited structures
3. The fire caused damage, including fire
suppression, in excess of $6,500,000.
---------------------
<1>
http://www.cbs47.tv/news/local/story/Animal-Rights-Activists-Tied
-to-Harris-Ranch-Arson/lGZxj1oUxUe5izWgP_L9_A.cspx
<2>
http://www.ksee24.com/news/local/Big-Reward-Offered-in-Harris-Ran
ch-Arson-Case-139877993.html
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Thus, under existing law, aggravated arson is a particularly
egregious offense. In each form of aggravated arson, the
defendant must have acted with premeditation. He or she must
also have caused a tremendous amount of damage - $6,500,000; or,
he or she must have destroyed or damaged at least five inhabited
structures thus threatening death or serious injury to many
people; or, in perhaps the least egregious form of aggravated
arson, he or she has been previously convicted of arson within
the previous 10 years.
This bill would make an arson in which the defendant
intentionally targeted an animal feedlot or livestock salesyard
and caused $100,000 in damages equivalent to causing $6.5
million in damages or committing arson as to five or more
inhabited dwellings. The form of aggravated arson defined by
this bill need not have involved a structure. The $100,000
threshold could be met by a fire to a single livestock barn or a
single semi-trailer truck.
Arguably, this bill imposes a life-term penalty for conduct that
is much less egregious than the forms of aggravated arson
defined in existing law.
DOES THE FORM OF AGGRAVATED ARSON DEFINED BY THIS BILL -
INTENTIONALLY CAUSING OVER $100,000 IN DAMAGE AT AN ANIMAL FEEDLOT
- IMPOSE DISPROPORTIONATE PUNISHMENT IN COMPARISON WITH OTHER
FORMS
OF AGGRAVATED ARSON, INCLUDING ARSON OF FIVE OR MORE INHABITED
DWELLINGS AND ARSON CAUSING $6.5 MILLION IN DAMAGES?
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