Existing law, the Safe Neighborhoods and Schools Act, enacted as an initiative statute by Proposition 47, as approved by the electors at the November 4, 2014, statewide general election, makes the theft of money, labor, or property petty theft, punishable as a misdemeanor, whenever the value of the property taken does not exceed $950.

Existing California Supreme Court case law allows the value of property taken pursuant to distinct acts of theft to be aggregated to a single count of grand theft if motivated by one intention, one general impulse, and one plan. Existing appellate case law allows the value of property from more than one victim to be aggregated if the thefts were accomplished as a result of one scheme or plan to defraud the victims and a single intent to act.

This bill would specify that if the value of the money, labor, real property, or personal property taken or intended to be taken exceeds $950 over the course of distinct but related acts, whether committed against one or more victims, the value of the money, labor, real property, or personal property taken or intended to be taken may properly be aggregated to charge a count of grand theft, if the acts are motivated by one intention, one general impulse, and one plan. The bill would state that these changes are declaratory of existing law.

Date of Hearing:

Counsel: David Billingsley

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 3011

Author:(Chau) – As Introduced Ver:February 16, 2018

SUMMARY:

Specifies that if the value of the property taken or intended to be taken exceeds $950 over the course of distinct but related acts, whether committed against one or more victims, the value of the property taken or intended to be taken may properly be aggregated to charge a count of grand theft, if the acts are motivated by one intention, one general impulse, and one plan.

EXISTING LAW:

1. Divides theft into two degrees, petty theft and grand theft. (Pen. Code, § 486.)
   
2. Defines grand theft as when the money, labor, or real or personal property taken is of a value exceeding $950 dollars, except as specified. (Pen. Code, § 487.)
   
3. Defines petty theft as obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed $950 and makes it punishable as a misdemeanor, except in the case where a person has a prior super strike or registrable sex conviction. (Pen. Code, § 490.2, subd. (a).) This provision does not apply to theft of a firearm. (Pen. Code, § 490.2, subd. (c).)
   
4. Lists the theft- related offenses which qualify a defendant for enhanced status for the crime of petty theft with a prior as:
   
   1. Petty theft;
      
   2. Grand theft;
      
   3. Theft, embezzlement, forgery, fraud, and identity theft committed against an elder or dependent adult;
      
   4. Auto theft;
      
   5. Burglary;
      
   6. Carjacking;
      
   7. Robbery; and,
      
   8. Receiving stolen property. (Pen. Code, § 666.)
      
5. Defines shoplifting as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed $950 dollars, and makes it punishable as a misdemeanor, except where a person has a prior super strike or registrable sex conviction. Any act of shoplifting must be charged as shoplifting. (Pen. Code, § 459.5, subd. (a).)
   
6. Requires generally that a person who is arrested for a misdemeanor be released upon his or her promise to appear in court at a later specified date, unless one of specified reasons exists for non-release, including a reasonable likelihood that the offense or offenses will continue or resume, or that the safety of persons or property would be imminently endangered by release of the arrested person. (Pen. Code, § 853.6.)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "Since the enactment of Proposition 47 in 2014, there has been an increase in theft crimes occurring in my district. In fact, if you analyze the data reported to the California Department of Justice, from the cities within the 49^th Assembly District, you see a stark rise in crime. Between 2014, when Prop. 47 was passed, and 2016, the most recent year data that is available, property crimes are up 25.6% in AD 49. AB 3011 would try to bring some relief and clarity to this situation by allowing distinct, but related incidents of theft, whether committed against one or more victims, to be aggregated to a charge of grand theft.”
   
2. Proposition 47 and Theft: Proposition 47, also known as the Safe Neighborhoods and Schools Act, was approved by the voters in November 2014. According to the California Secretary of State’s web site, 59.6 percent of voters approved Proposition 47. (See (http://elections.cdn.sos.ca.gov/sov/2014-general/pdf/2014-complete-sov.pdf)
   

Proposition 47 reduced the penalties for certain drug and property crimes and directed that the resulting state savings be directed to mental health and substance abuse treatment, truancy and dropout prevention, and victims’ services. Specifically, the initiative reduced the penalties for possession for personal use of most illegal drugs to misdemeanors. The initiative also reduced the penalties for theft valued at $950 or less from felonies to misdemeanors. However, the measure limited the reduced penalties to offenders who do not have designated prior convictions for specified serious or violent felonies (super strikes) and who are not required to register as sex offenders. (See Legislative Analyst's Office analysis of Proposition 47 (http://www.lao.ca.gov/ballot/2014/prop-47-110414.pdf)

Among the theft crimes made misdemeanors by Proposition 47, where the value of the property is $950 or less, are forgery (Pen. Code, § 473), making or delivering a check with insufficient funds (Pen. Code, § 476a), petty theft (Pen. Code, § 490.2), and receiving stolen property (Pen. Code, § 496). (See People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.)

The offenses made misdemeanors by Proposition 47 also include: the new offense of commercial burglary where the value of the property taken or intended to be taken is $950 or less (Pen. Code, § 459.5; People v. Sherow (2015) 239 Cal.App.4th 875, 879); and petty theft with a prior theft conviction. (Pen. Code, § 666; People v. Rivera, supra, 233 Cal.App.4th at p. 1091.) Specifically, Proposition 47 eliminated the penalties formerly associated with the “petty theft with a prior” statute except for a narrow category of sex offenders, persons with qualifying “super strikes,” and those persons convicted of theft from elders or dependent adults. Those persons are still eligible for felony punishment in state prison sentence. (Pen. Code, § 666.)

“One of Proposition 47’s primary purposes is to reduce the number of nonviolent offenders in state prisons, thereby saving money and focusing prison on offenders considered more serious under the terms of the initiative.” (Harris v. Superior Court (2016) 1 Cal.5th 984, 992, citing Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70.) These policies are supported by a liberal construction clause in Proposition 47, sections 15 and 18. (http://vig.cdn.sos.ca.gov/2014/general/pdf/text-of-proposed-laws1.pdf#prop47)

1. Aggregation and Theft Offenses Committed as Part of One Intention, Impulse and Plan: Repeated acts of theft can be aggregated and prosecuted as one felony if they are conducted pursuant to one intention, one general impulse, and one plan. (See People v. Bailey (1961) 55 Cal.2d 514, 518-519.) The defendant in Bailey made a single fraudulent misrepresentation about her household income that caused her to receive a stream of welfare payments. (Id. at pp. 515–516.) While each individual payment fell below the felony threshold, the aggregated total constituted grand theft. (Id. at p. 518.) The Supreme Court concluded that the payments could be aggregated because “the evidence established that there was only one intention, one general impulse, and one plan.” (Id. at p. 519; see also CALCRIM No. 1802 [Theft: As Part of Overall Plan].)
   
   The California Supreme Court addressed the Bailey rule in People v. Whitmer (2014) 59 Cal.4^th 733. In Whitmer, the defendant arranged for the fraudulent sale of 20 motorcycles, motorized dirt bikes, all-terrain vehicles, and similar recreational vehicles. The defendant was convicted of multiple thefts. The defendant appealed arguing that under Bailey he should have been convicted of a single theft. The Supreme Court distinguished the facts in Whitmer from what occurred in Bailey, and found that multiple theft convictions were appropriate because each count of theft was based on a separate and distinct fraudulent act. (Id. at 740.) The court in Whitmer pointed out that Bailey concerned a single fraudulent act followed by a series of payments. Justice Liu distinguished acts committed with a common scheme from acts committed as part of a single impulse. (Id. at 748, concur. opn. J. Liu.) Justice Liu went on to state that “. . ., separate and distinct takings do not fall under Bailey's aggregation rule simply because, as here, they were all done the same way. But neither does the mere fact that multiple takings are separate and distinct entail a finding of multiple thefts in every case. If the takings were committed pursuant to a single intention, impulse, and plan, then under Bailey they amount to only one theft.”

Where multiple victims are involved, courts disagree about applying the Bailey rule and cumulating the charges even if a single plan or intent is demonstrated. In People v. Columbia Research Corp. (1980) 103 Cal.App.3d Supp. 33, the court applied Bailey and approved aggregation where the defendant was charged with grand theft based on a series of petty thefts that occurred over a 10-month period, pursuant to a single plan and intent, and involved different victims. (Id. at p. 40.) In People v. Garcia (1990) 224 Cal.App.3d 297, the defendant filed fraudulent bonds at different times involving different victims. The court found multiple convictions proper. (Id. at pp. 308-309.)
Current law allows a prosecutor to consolidate similar thefts, after a case has already been filed, where the offenses possess common characteristics or attributes. (Pen. Code, § 954.) In People v. Feigelman (1924) 65 Cal.App. 319, the court upheld the consolidation of two grand thefts, though the first was committed one year before the second. (Id. at p. 320.) Thus, while a defendant’s exposure for one shoplifting might be six months in jail, an individual convicted of multiple shoplifting offenses can face multiple six-month terms in the county jail.

Moreover “[u]nder California law, if two or more persons conspire to commit any crime, even misdemeanor petty theft or shoplifting, they can be charged with a felony for the conspiracy itself. Thus, any time there is more than one person involved in any act of theft, it is can [sic.] be charged as felony conspiracy, regardless of the value of the items stolen.” (Pen. Code, § 182.)

This bill is intended to be declaratory of existing law. The conduct and mental state required to establish a single or multiple theft is not changed by the language of this bill.

1. Argument in Support: According to the San Diego County District Attorney’s Office, “AB 2011 would address the unintended consequences of recent criminal justice reforms, such as Proposition 47, by allowing multiple incident of theft to be aggregated into a charge of grand theft in order to prevent criminals from getting away with committing more frequent, smaller crimes. This bill would specify that if the value of the money, labor, real property, or personal property taken or intended to be taken exceeds $95 over the course of distinct but related acts, whether committed against one or more victims, the value of the money, labor real property, or personal property taken or intended to be taken may property be aggregated to charge a count of grand theft, if the acts are motivated by one intention, one general impulse, and one plan. This bill would state that these changes are declaratory of existing law.”
   
2. Argument in Opposition: According to the California Public Defenders Association, “AB 3011 incorrectly declares that would be declaratory of existing law. It is not. The voters specifically did allow aggregation in the case of insufficient funds checks. If they had intended to allow aggregation in other cases, the drafters of Proposition 47, and the voters, would have said so. Likewise, in the related area of forgery, which was similarly amended by Proposition 47, the court in People v. Salmorin (2016) 1 Cal.App.5th 738, quoting People v. Hoffman (2015) 241 Cal.App.4th 1304, 1310, said that the relevant statute, there ‘[Penal Code] section 473 does not authorize the trial court to aggregate check values.’ In other words, the voters meant what they said – and did not say – in Proposition 47.
   
   “AB 3011 cites a case from 1961 and another from 1980, to support its argument that this is what the voters intend. But those cases are about prior law, and do not show what the voters intended in 2014’s Proposition 47.
   
   “There is also an important technical point that must be considered. The Legislative Counsel’s Digest for this bill says that only a majority vote is required. But, even if AB 3011 were declaratory of the voter’s will in enacting Proposition 47, it would still require a 2/3 vote of each house of the legislature to enact.
   
   “Section 15 of Proposition 47 says that it “may be amended by a two-thirds vote of the members of each house of the Legislature and signed by the Governor so long as the amendments are consistent with and further the intent of this act. The Legislature may by majority vote amend, add, or repeal provisions to further reduce the penalties for any of the offenses addressed by this act.”
   

“In other words, unless the amendment reduces penalties –which this one does not – even a bill that is consistent with and furthers Proposition 47, must be passed by a 2/3 majority of both houses.”

1. Related Legislation: AB 1065 (Jones-Sawyer), would create the new crime of organized retail theft and specifies the penalties for violations of the new provisions. AB 1065 is awaiting hearing in the Senate Appropriations Committee.
   
2. Prior Legislation:
   
   1. Proposition 47 of the November 2014 general election, the Safe Neighborhoods and Schools Act, reduced the penalties for certain drug and property crimes, including reducing petty theft with a prior theft conviction to a misdemeanor, except in the case where the person has a prior super strike conviction or a conviction for a specified theft-related offense against an elder or dependent adult.
      
   2. AB 2372 (Ammiano), Chapter 693, Statutes of 2010, increased the threshold amount that constitutes grand theft from $400 to $950.
      
   3. AB 1844 (Fletcher), Chapter 219, Statutes of 2010, amended petty theft with a prior to require three prior theft-related convictions.
      

REGISTERED SUPPORT / OPPOSITION:

Support

California District Attorneys Association
San Diego County District Attorney’s Office

United Chamber Advocacy Network of California

Opposition

California Public Defenders Association

Analysis Prepared by:

David Billingsley / PUB. S. / (916) 319-3744