BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 1387 (Emmerson) 7
As Amended April 19, 2012
Hearing date: April 24, 2012
Business & Prof., Penal Codes
SM:mc
METAL THEFT
HISTORY
Source: Eastern Municipal Water District
Prior Legislation: AB 316 (Carter) - Chapter 317, Statutes of
2011
AB 2372 (Ammiano) - Chapter 693, Statutes of 2010
AB 237 (Carter) - failed passage in Senate Public
Safety, 2009
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) - failed passage in Senate Public
Safety, 2008
Support: Association of California Water Agencies;
California Association of Sanitation Agencies;
California Chamber of Commerce; California District
Attorneys Association; California Municipal Utilities
Association; California Special Districts Association;
California State Sheriffs' Association; Cathedral
City; City of Canyon Lake; City of San Jacinto; East
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Bay Municipal Utility District; Elsinore Valley
Municipal Water District; Lake Hemet Municipal Water
District; League of California Cities; San Bernardino
County Sheriff; Three Valleys Municipal Water
District; Rancho California Water District; Walnut
Valley Water District; Western Municipal Water
District; Western Riverside Council of Governments
Opposition:None known
KEY ISSUES
SHOULD JUNK DEALERS AND RECYCLERS BE PROHIBITED FROM POSSESSING FIRE
HYDRANTS, MANHOLE COVERS OR BACKFLOW DEVICES WITHOUT PROPER
CERTIFICATION, AS SPECIFIED?
SHOULD POSSESSION OF STOLEN FIRE HYDRANTS, MANHOLE COVERS OR
BACKFLOW DEVICES BE PUNISHABLE BY AN ADDITIONAL FINE?
PURPOSE
The purpose of this bill is to (1) make specified findings and
declarations; (2) prohibit junk dealers and recyclers from
possessing fire hydrants, manhole covers or backflow devices
without proper certification, as specified; and (3) provide that
possession of stolen fire hydrants, manhole covers or backflow
devices by persons engaged in the salvage, recycling, purchase
or sale of scrap metal, shall be punishable by an additional
fine.
Existing law provides that theft in any of the following cases
is grand theft:
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When the money, labor, or real or personal property
taken is of a value exceeding nine hundred fifty dollars
($950);
When domestic fowls, avocados, olives, citrus or
deciduous fruits, other fruits, vegetables, nuts,
artichokes, or other farm crops are taken of a value
exceeding two hundred fifty dollars ($250);
When fish, shellfish, mollusks, crustaceans, kelp,
algae, or other aquacultural products are taken from a
commercial or research operation which is producing that
product, of a value exceeding two hundred fifty dollars
($250);
Where the money, labor, or real or personal property is
taken by a servant, agent, or employee from his or her
principal or employer and aggregates nine hundred fifty
dollars ($950) or more in any 12 consecutive month period;
When the property is taken from the person of another;
When the property taken is an automobile, horse, mare,
gelding, any bovine animal, any caprine animal, mule, jack,
jenny, sheep, lamb, hog, sow, boar, gilt, barrow, or pig;
Theft of a firearm. (Penal Code � 487.)
Existing law provides that grand theft is punishable as follows:
When the grand theft involves the theft of a firearm, by
imprisonment in the state prison for 16 months, 2, or 3
years.
In all other cases, by imprisonment in a county jail not
exceeding one year or in the state prison for 16 months, 2,
or 3 years. (Penal Code � 489.)
Existing law provides that every junk dealer and every recycler,
as defined, in this state is hereby 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:
(1) The place and date of each sale or purchase
of junk made in the conduct of his or her business as
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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
report described in this section on a weekly basis if
there is an ongoing investigation of the junk dealer
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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).)
Existing law defines a "secondhand dealer" as any person or
entity taking in pawn, accepting for sale of consignment,
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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.
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
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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 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
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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.
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.)
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
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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
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 provides that any person who buys or receives, for
purposes of salvage, any part of a fire hydrant or fire
department connection, including, but not limited to, bronze or
brass fittings and parts, that has been stolen or obtained in
any manner constituting theft or extortion, knowing the property
to be so stolen or obtained, shall, in addition to any other
penalty provided by law, be subject to a criminal fine of not
more than $3,000. (Penal Code � 496e.)
This bill would provide that no junk dealer or recycler shall
possess any fire hydrant, or fire department connection,
including, but not limited to, brass fittings and parts, or
manhole cover or lid or part of that cover or lid, or backflow
device or connection to that device or part of that device in
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the absence of a written certification on the letterhead of the
agency or utility owning or previously owning the material
described in the certification that the agency has either sold
the material described or is offering the material for sale,
salvage, or recycling, and that the person possessing the
certification and identified in the certification is authorized
to negotiate the sale of that material.
This bill would recast the provisions of section 496e, detailed
above, dealing with receiving stolen fire hydrants, etc., and
add to the items covered under that statute manhole covers or
lids, or any part of those covers and lids and backflow devices
and connections to that device, or any part of that device.
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.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
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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
than the following:
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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:
Metal theft is on the rise as the price of metal
continues to climb. The theft of metals has
devastated both public and private property and has
harmed critical public infrastructure, making it
difficult to deliver essential utilities to customers.
Moreover, the theft of certain metal devices can
seriously threaten public health and safety. For
instance, individuals have been severely injured
falling down uncovered manholes and vehicles have
incurred damage driving over manholes where the covers
have been stolen. In addition, stolen backflow
devices leave potable water sources vulnerable to
cross-contamination while stolen fire hydrants render
properties defenseless to fire. While several laws
have been enacted to curb metal theft, it is still
prevalent throughout California. SB 1387 seeks to
address this metal theft epidemic and strengthen
current law.
Specifically, this bill would prohibit a junk dealer
or recycler from possessing manhole covers, backflow
devices, and fire hydrants without written
certification on the letterhead of the agency or
utility that owns or previously owned the material.
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The lack of written certification gives rise to a
presumption that the property was stolen. As a
result, this bill would relieve junk dealers or
recyclers from the responsibility of determining
whether or not any of the three items in question are
stolen since they will no longer be eligible for
recycling without an appropriate certification.
Failure to comply with this provision would result in
a criminal fine of up to $3,000 for stealing either a
manhole cover or backflow device, similar to current
law for stealing a fire hydrant. SB 1387 would
eliminate the attractiveness of manhole covers,
backflow devices, and fire hydrants to metal thieves
as there would no longer be a buyer for these stolen
items.
2. What this Bill Would Do
This bill 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, which
states that the agency has sold the material or is offering it
for salvage or recycling and the person possessing the
certificate is authorized to negotiate the sale of that
material. A failure on the part of junk dealers and recyclers
to keep any of the records required of them is punishable as a
misdemeanor, as detailed in the 'existing law' section above.
(Bus. & Prof. Code � 21608.)
In addition, this bill 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.)
3. Previous Legislation to Curb Metal Theft
In 2009, the Legislature passed the following measures to
address the growing problem of metal theft:
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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
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.
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