BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 930 (Berryhill)
As Introduced February 3, 2014
Hearing date: March 25, 2014
Penal Code (Urgency)
JM:mc
ARSON: MONETARY DAMAGES
HISTORY
Source: Author
Prior Legislation: AB 27 (Jeffries) - Ch. 71, Stats. 2009
AB 1907 (Pacheco) - Ch. 135, Stats. 2004
SB 555 (Karnette) - Ch. 518, Stats. 1999
SB 1309 (Craven) - Ch. 421, Stats. 1994
Support: California District Attorneys Association; California
Police Chiefs Association; California State Sheriffs'
Association
Opposition:None known
KEY ISSUE
SHOULD THE STATUTE PROVIDING THAT AGGRAVATED ARSON INCLUDES ARSON
CAUSING DAMAGES IN EXCESS OF $6,500,000 - A STATUTE THAT SUNSET ON
JANUARY 1, 2014 - BE REENACTED?
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PURPOSE
The purpose of this bill is to reenact the statute defining
aggravated arson to include arson in which the damages exceed
$6,500,000, as that provision sunset on January 1, 2014.
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 three, four, or five-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
unlawfully causing a fire of property is a misdemeanor. (Pen.
Code � 452.)
Existing law 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; or
] The fire caused damage to, or the destruction of, five or more
inhabited structures. (Pen. Code � 451.5.)
Existing law provides that the provision defining aggravated
arson as including arson that caused damages in excess of $6.5
million - including the cost of fire suppression - shall sunset
on January 1, 2014. (Pen. Code � 451.5, subd. (a)(1)(B).)
Existing law includes legislative intent, stated in 2004 and
2009, that the aggravated arson law be reviewed within five
years to determine the effect of inflation on the monetary
threshold for the crime. A sunset clause was added to the
statute in each of those years. (Pen. Code � 451.5, subd.
(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
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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 reenacts the statutory provision defining aggravated
arson to include arson in which the damages exceed $6,500,000,
as that provision was repealed on January 1, 2014, by a sunset
clause.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
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submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
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created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated February 18, 2014, the
state reported that as of February 12, 2014, California's 33
prisons were at 144.3 percent capacity, with 117,686 inmates.
8,768 inmates were housed in out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for this Bill
According to the author:
Aggravated arsons are those which are intended to
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cause great bodily injury or damage to structures,
which cause more than $6.5 million, or were committed
by a recidivist arsonist. In 2009, the Legislature
unanimously approved extending the "cost of fire
suppression" when calculating the total property
damage caused by arson until 2014. The statute for
the ability to use the "cost of fire suppression" in
calculating the total amount of property damage in
meeting the $6,500,000 threshold for the crime of
"aggravated arson" was not extended when it was set to
sunset in January 1, 2014.
Due to California's geography, climate, and urban
expansion, this state has a long history of problems
with wildfires. Intentional fires can wreak havoc on
communities. Wildland fires can have large fire
suppression costs (24 fires have had fire suppression
costs over $6.5 million since 2010), and these costs
should be considered when prosecuting aggravated arson
cases.
Law enforcement and prosecutors have been prudent, but
effective, when using this statute to prosecute a
defendant, protecting the communities and natural
resources of California. Without legislative action,
law enforcement authorities will lose an important
tool in bringing arsonists to justice.
2. Consideration and Recalculation of Monetary Threshold for
Aggravated Arson
The aggravated arson statutes were last amended in 2009,
effective 2010. The amendments included a sunset date of 2014
and a statement of legislative intent that the monetary
threshold be evaluated within five years to determine the effect
of inflation on that amount.
The aggravated arson section (Pen. Code � 451.5) became
effective in 1995 through enactment of SB 1309 (Craven) Ch. 421,
Stats. 1994. As originally enacted, Penal Code section 451.5
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provided, in relevant part (with bold typeface added):
In calculating the total amount of property damage and
other losses under subparagraph (A) [which sets the
property damage element of aggravated arson at $5
million], the court shall consider the cost of fire
suppression. It is the intent
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of the Legislature that this paragraph be reviewed
within five years to consider the effects of inflation
on the dollar amount stated herein. For that reason,
this paragraph shall remain in effect only until
January 1, 1999, and as of that date is repealed,
unless a later enacted statute, which is enacted
before January 1, 1999, deletes or extends that date.
The aggravated arson statute - particularly the threshold for
aggravated arson based on the amount of damages - has been
amended three times since its enactment. In 2004, the threshold
was set at $5,600,000, and $6,500,500 in 2009. According to the
calculator provided on the Website of the United States
Department of Labor, the value of $6,500,000 in 2010 is equal to
$6,973,000 in 2014, a rate of inflation of about $100,000 per
year. As such, the value of the former aggravated arson
threshold by 2015 would be about $7 million.
The author has noted that since the monetary aggravated arson
threshold was set at $6.5 million, there have been 24 fires that
met that standard. Data from across the west indicates that
fire suppression costs of $6.5 million are not unexpected. The
Bureau of Land Management recently published a study<1> about
the costs of six wildfires across the Western United States.
Costs ranged from $9.5 million in a 2000 Montana wildfire to
$61.3 million in the 2003 Old, Grand- Prix, Padua California
wildfire, with the Grand Prix portion costing $11.6 million to
suppress and the Old Fire costing $37.7 million. The Piru fire
in 2003 cost $7.7 million to suppress.<2>
Even where the cost of fire suppression is not considered,
commercial and residential fires can cause damages in excess of
the aggravated arson threshold. For example, the Showcase.com
---------------------------
<1>
http://www.blm.gov/or/districts/roseburg/plans/collab_forestry/fi
les/TrueCostOfWilfire.pdf
<2>
http://www.fire.ca.gov/fire_protection/downloads/siege/AppendixI.
pdf
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commercial real estate Website<3> lists 375 commercial
properties in and around Sacramento being offered for between
$6.5 and $7.5 million. The Zillow real estate Website<4> lists
seven houses in Placer County, two in El Dorado County, eight in
Marin County, seven in San Francisco, 14 in Santa Clara County,
31 in Los Angeles County, 38 in Orange County and 13 in San
Diego County selling for between $6.5 and $7 million.
SHOULD THE FORM OF AGGRAVATED ARSON BASED ON A FINDING THAT THE
DEFENDANT CAUSED MORE THAN $6.5 MILLION IN DAMGES BE REENACTED?
AS EXISTING LAW PROVIDES THAT THE LEGISLATURE SHOULD DETERMINE
THE EFFECT OF INFLATION ON THE MONETARY THRESHOLD FOR AGGRAVATED
ARSON, SHOULD THIS THRESHOLD BE SET AT $7,000,000 TO ACCOUNT FOR
INFLATION SINCE IT WAS SET IN 2010?
SHOULD A FIVE-YEAR SUNSET AGAIN BE INCLUDED IN THE AGGRAVATED
ARSON LAW TO ALLOW THE LEGISLATURE TO CONSIDER THE EFFECTS OF
INFLATION ON THE AMOUNT OF DAMAGES ESTABLISHING THE CRIME?
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<3>wEXAQURV29ya2Zsb3dIaXN0b3J5SUQFJGQzZjA1OTIzLTQxNGUtNDkxNy1hOTk
1LTllN2Y3MTQxMTk0NClCvHDviNjoHQgSPz0ewQtioaWN
<4>
http://www.zillow.com/ca/#/homes/for_sale/CA/9_rid/6000000-700000
0_price/23355-27247_mp/days_sort/43.044805,-116.746216,37.492294,
-122.107544_rect/6_zm/