Existing law prohibits the theft of merchandise from a retail establishment. Existing law authorizes a court, upon sentencing a person for specified offenses, including stalking and elder abuse, to issue a criminal protective order prohibiting the person from contacting any victim of their offense.

This bill would authorize a court, when sentencing a person for an offense involving theft from a retail establishment, vandalism of a retail establishment, or battery of an employee of a retail establishment, to issue a criminal protective order prohibiting a person from entering the retail establishment, including any parking lots and including other franchise or chain locations of the retail establishment, as specified.

The bill would also authorize a prosecuting attorney, city attorney, county counsel, or attorney representing a retail establishment to file a petition for the issuance of a criminal protective order of this type against a person who has been arrested, including, but not limited to, the issuance of a citation in lieu of a custodial arrest, 2 or more times for any of the offenses at the same retail establishment, as specified. The bill would also make conforming changes.

The bill would make a violation of these orders punishable as a misdemeanor. By creating a new crime, this bill would impose a state-mandated local program.

Existing law requires a person arrested for a misdemeanor to be issued a written notice to appear and to be released upon their signed promise to appear, except as otherwise provided.

This bill would exempt a violation of a retail establishment restraining order from that requirement.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law prohibits the theft of merchandise from a retail establishment. Existing law authorizes a court, upon sentencing a person for specified offenses, including stalking and elder abuse, to issue a criminal protective order prohibiting the person from contacting any victim of their offense.

This bill would authorize a court, when sentencing a person for an offense involving theft from a retail establishment, vandalism of a retail establishment, or battery of an employee of a retail establishment, to issue a criminal protective order prohibiting a person from entering the retail establishment, including any parking lots and including other franchise or chain locations of the retail establishment, as specified.

The bill would also authorize a prosecuting attorney, city attorney, county counsel, or attorney representing a retail establishment to file a petition for the issuance of a criminal protective order of this type against a person who has been arrested, including, but not limited to, the issuance of a citation in lieu of a custodial arrest, 2 or more times for any of the offenses at the same retail establishment, as specified. The bill would also make conforming changes.

The bill would make a violation of these orders punishable as a misdemeanor. By creating a new crime, this bill would impose a state-mandated local program.

Existing law requires a person arrested for a misdemeanor to be issued a written notice to appear and to be released upon their signed promise to appear, except as otherwise provided.

This bill would exempt a violation of a retail establishment restraining order from that requirement.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law prohibits the theft of merchandise from a retail establishment. Existing law authorizes a court, upon sentencing a person for specified offenses, including stalking and elder abuse, to issue a criminal protective order prohibiting the person from contacting any victim of their offense.

This bill would authorize a court, when sentencing a person for an offense involving theft from a retail establishment, vandalism of a retail establishment, or battery of an employee of a retail establishment, to issue a criminal protective order prohibiting a person from entering the retail establishment, including any parking lots and including other franchise or chain locations of the retail establishment, as specified.

The bill would also authorize a prosecuting attorney, city attorney, county counsel, or attorney representing a retail establishment to file a petition for the issuance of a criminal protective order of this type against a person who has been arrested, including, but not limited to, the issuance of a citation in lieu of a custodial arrest, 2 or more times for any of the offenses at the same retail establishment, as specified. The bill would also make conforming changes.

The bill would make a violation of these orders punishable as a misdemeanor. By creating a new crime, this bill would impose a state-mandated local program.

Existing law requires a person arrested for a misdemeanor to be issued a written notice to appear and to be released upon their signed promise to appear, except as otherwise provided.

This bill would exempt a violation of a retail establishment restraining order from that requirement.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law prohibits the theft of merchandise from a retail establishment. Existing law authorizes a court, upon sentencing a person for specified offenses, including stalking and elder abuse, to issue a criminal protective order prohibiting the person from contacting any victim of their offense.

This bill would authorize a court, when sentencing a person for an offense involving theft from a retail establishment, vandalism of a retail establishment, or battery of an employee of a retail establishment, to issue a criminal protective order prohibiting a person from entering the retail establishment, including any parking lots and including other franchise or chain locations of the retail establishment, as specified.

The bill would also authorize a prosecuting attorney, city attorney, county counsel, or attorney representing a retail establishment to file a petition for the issuance of a criminal protective order of this type against a person who has been arrested, including, but not limited to, the issuance of a citation in lieu of a custodial arrest, 2 or more times for any of the offenses at the same retail establishment, as specified. The bill would also make conforming changes.

The bill would make a violation of these orders punishable as a misdemeanor. By creating a new crime, this bill would impose a state-mandated local program.

Existing law requires a person arrested for a misdemeanor to be issued a written notice to appear and to be released upon their signed promise to appear, except as otherwise provided.

This bill would exempt a violation of a retail establishment restraining order from that requirement.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law prohibits the theft of merchandise from a retail establishment. Existing law authorizes a court, upon sentencing a person for specified offenses, including stalking and elder abuse, to issue a criminal protective order prohibiting the person from contacting any victim of their offense.

This bill would authorize a court, when sentencing a person for an offense involving theft from a retail establishment, vandalism of a retail establishment, or battery of an employee of a retail establishment, to issue a criminal protective order prohibiting a person from entering the retail establishment, including any parking lots and including other franchise or chain locations of the retail establishment, as specified.

The bill would also authorize a prosecuting attorney, city attorney, county counsel, or attorney representing a retail establishment to file a petition for the issuance of a criminal protective order of this type against a person who has been arrested, including, but not limited to, the issuance of a citation in lieu of a custodial arrest, 2 or more times for any of the offenses at the same retail establishment, as specified.

The bill would make a violation of these orders punishable as a misdemeanor. By creating a new crime, this bill would impose a state-mandated local program.

Existing law requires a person arrested for a misdemeanor to be issued a written notice to appear and to be released upon their signed promise to appear, except as otherwise provided.

This bill would exempt a violation of a retail establishment restraining order from that requirement.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law prohibits the theft of merchandise from a retail establishment. Existing law authorizes a court, upon sentencing a person for specified offenses, including stalking and elder abuse, to issue a criminal protective order prohibiting the person from contacting any victim of their offense.

This bill would authorize a court, when sentencing a person for an offense involving theft from a retail establishment, vandalism of a retail establishment, or battery of an employee of a retail establishment, to issue a criminal protective order prohibiting a person from entering the retail establishment, including any parking lots and including other franchise or chain locations of the retail establishment, as specified.

The bill would also authorize a prosecuting attorney, city attorney, county counsel, or attorney representing a retail establishment to file a petition for the issuance of a criminal protective order of this type against a person who has been arrested arrested, including, but not limited to, the issuance of a citation in lieu of a custodial arrest, 2 or more times for any of the offenses at the same retail establishment, as specified.

The bill would make a violation of these orders punishable as a misdemeanor. By creating a new crime, this bill would impose a state-mandated local program.

Existing law requires a person arrested for a misdemeanor to be issued a written notice to appear and to be released upon their signed promise to appear, except as otherwise provided.

This bill would exempt a violation of a retail establishment restraining order from that requirement.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law establishes the California Community Colleges, under the administration of the Board of Governors of the California Community Colleges, as one of the 3 segments of public postsecondary education in this state. Existing law establishes community college districts throughout the state, and authorizes them to provide instruction to students at community college campuses.

Existing law requires each campus of the California Community Colleges, no later than July 1, 2022, to establish the position of Basic Needs Coordinator to assist students with on- and off-campus housing, food, mental health, and other basic needs services and resources, among other responsibilities, and to establish a Basic Needs Center where basic needs services, resources, and staff are made available to students, as specified. Existing law requires each community college campus to report certain information to the office of the Chancellor of the California Community Colleges related to basic needs services and resources. Existing law requires the chancellors office to develop and submit a report to the Governor and the Legislature every year beginning on or before May 1, 2023, based on the data and information received from campuses and information on the use of funds made available to implement these provisions.

This bill would instead require the chancellors office to develop and submit the report to the Governor and the Legislature every year on or before June 1, as provided.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 3209

Author:(Berman and Robert Rivas)

As Amended Ver:June 29, 2024

Majority vote

SUMMARY

Allows a court to issue an order prohibiting a person from being present on the grounds of, or any parking lot adjacent to and used to service, a retail establishment and any other retail establishments in that chain or franchise, as specified, and makes a violation of the order would be punishable as a misdemeanor punishable by incarceration in county jail for up to six months.

Senate Amendments

1. Clarify that the prohibition on a person subject to a retail crime restraining order from entering a parking lot adjacent to a retail establishment only applies to adjacent parking lots used to service the retail establishment.
2. Clarify that the requirement that courts consider, when determining whether to impose a retail crime restraining order, specified hardships that the order may create for the individual, also applies to the court's consideration of a petition for a retail crime restraining order made by a prosecuting attorney or other specified parties.
3. Require a retail crime restraining order, if a person subject to the order was not present in court when it was issued or renewed, to be personally served on the person by a law enforcement officer or a non-party person at least 18 years of age.
4. Authorize Judicial Council to promulgate any rules and to prescribe the form of the petitions, orders and any other documents necessary for the issuance of retail crime restraining orders.
5. Add retail crime restraining orders to the list of protective and restraining orders for which the Department of Justice must be immediately notified.
6. Make technical clarifying changes.

COMMENTS

As passed by the Assembly, this bill:

1. Allowed the court to issue the order when sentencing the defendant for any of the following offenses:
   1. Shoplifting;
   2. Theft from a retail establishment;
   3. Organized retail theft;
   4. Any vandalism of a retail establishment; or,
   5. Any assault or battery of an employee of a retail establishment while that person is working at the retail establishment.
2. Allowed a prosecuting attorney, city attorney, county counsel, or attorney representing a retail establishment to petition for the order for an individual who been arrested (including receiving a citation in lieu of a custodial arrest) two or more times for any of the above offenses.
3. In response to a petition, the court can impose the order under the following circumstances:
   1. Pursuant to a hearing at which the petitioner bears the burden of proving, by a preponderance of the evidence, that the respondent, on two or more separate occasions, committed one of the follow offenses within the retail establishment or on the grounds thereof:
      1. Shoplifting;
      2. Theft from a retail establishment;
      3. Organized retail theft;
      4. Any vandalism of a retail establishment; or,
      5. Any assault or battery of an employee of a retail establishment while that person is working at the retail establishment.
   2. The respondent is personally served with a notice of the hearing;
   3. The respondent shall be entitled to representation by court-appointed counsel;
   4. The court must find by a preponderance of the evidence that both of the following are true:
      1. The respondent, on two or more separate occasions, committed any of the offenses within the retail establishment or on the grounds thereof; and,
      2. There is a substantial likelihood that the individual will return to the retail establishment.
4. Provided that the order shall prohibit the restrained person from entering the retail establishment, or being present on the grounds of, or any parking lot adjacent to, the retail establishment.
5. Allowed, if the retail establishment is part of a chain or franchise, the court to include other retail establishments in that chain or franchise within a specified geographic range in the order.
6. Required, when determining whether to impose the order, the court to consider whether the retail establishment is the only place that sells food, pharmaceuticals, or other basic life necessities within one mile of where the individual resides, or otherwise creates undue hardship for the individual.
7. Made a violation of the order a misdemeanor punishable by imprisonment in the county jail not exceeding six months, or by a fine not exceeding $1,000, or by both.
8. Authorized an officer to arrest a person for a violation of the order instead of releasing the person pursuant to a written notice to appear.

According to the Author

"AB 3209 would authorize a court to impose a Retail Crime Restraining Order for a theft offense, vandalism within the store, or battery of an employee within the store. With the rise in retail theft and robbery in California, solutions needs to find the balance of strengthening enforcement while not perpetuating the underlying causes of retail theft, such as poverty. Addressing the issues of retail theft, vandalism, and assaults on employees are important to ensure safety in our communities and businesses. This bill strikes a balance between providing a necessary enforcement tool to keep stores, customers, and workers safe and ensuring that the consequences fit the offense."

Arguments in Support

According to the California Retailers Association, "Retail theft has become an increasingly prevalent problem across California, with detrimental effects on both local businesses and consumers. The significant losses incurred by retailers due to theft not only threaten their financial stability, but also jeopardize their ability to provide essential goods and services to the communities they serve. Moreover, the rise in organized retail crime has led to safety concerns for both employees and customers, further exacerbating the problem.

"The introduction of Retail Theft Restraining Orders presents a proactive and effective approach to combatting this growing issue. By enabling retailers to obtain civil restraining orders against habitual offenders, this legislation empowers businesses to protect themselves and deter potential thieves from engaging in criminal activities. Additionally, RTROs provide law enforcement with valuable tools to address repeat offenders, disrupt organized retail crime networks, and enhance public safety.

"Furthermore, the implementation of RTROs offers a balanced solution that upholds the rights of both retailers and individuals while holding accountable those who repeatedly engage in criminal behavior. By targeting habitual offenders and providing avenues for rehabilitation and support, this legislation not only addresses the symptoms of retail theft, but also tackles the underlying issues contributing to criminal behavior."

Arguments in Opposition

According to Vera California, "AB 3209 would create a harmful new process whereby attorneys representing retailers—not district attorneys nor individual victims—could seek a two-year "retail theft restraining order" for petty theft or vandalism. Such an order could be sought either at sentencing (after conviction), or merely if someone has been arrested (but not convicted) of such an offense twice. This would expand criminal consequences based on a lower standard of proof (preponderance of the evidence, rather than beyond a reasonable doubt) and eliminate key procedural protections in the case of restraining orders sought by attorney representing retailers. Weakening these key tenets of both state and federal law raises significant concerns.

"The bill would also interrupt the ability of assistant district attorneys to effectively and justly carry out their duties. Assistant district attorneys are hired by prosecutor's offices, receive job-specific training, and swear oaths to uphold their additional burdens before obtaining the power to request criminal protective orders on behalf of the district attorney under California law. This discretion is bestowed upon prosecutors for a reason—because issuance of criminal charges and orders is within their mandate to promote safety and justice in the community. By expanding this power to attorneys representing retail establishments, AB 3209 improperly grants quasi-law enforcement authority to lawyers who represent private interests rather than public safety, and it potentially gives power to retail chain lawyers that not even criminal judges have.

"Additionally, this bill subverts the intent of criminal protective orders—which is to protect people. Allowing such orders to apply to retail establishments or chains of retail establishments instead of individuals is misaligned with the legislative intent of Cal Penal Code Section 136.2. Prosecutors and retail stores have historically combatted theft using theft or trespass charges. Those tools are still available, and they are more than sufficient for non-violent theft and vandalism offenses. For offenses involving violence against retail workers, the harmed employee still has all rights available to them as a crime victim—but should not have more rights than any other victim in the community.4 This legislation elevates well-resourced retail chains above other victims needing protection, including both victims of violent crime and smaller retail stores without the means to hire counsel.

"The restraining order would also apply to any store within a franchise or chain, which suggests that retail workers may be tasked with enforcing the restraining order based on photos of someone who may have visited another chain store within the past two years. A large majority of wrongful convictions stem from eyewitness misidentifications—and the problem only worsens by over 50% for cross racial identifications—raising the specter of racial profiling and dangerous consequences.

"Further, by permitting law enforcement officers to arrest, as opposed to cite and release, those suspected of violating a restraining order, AB 3209 will not make our communities safer. Years of research shows that pretrial detention decreases community safety in the long run—a landmark study of more than 1.5 million cases found that any amount of time in jail beyond 23 hours makes a person more likely to be arrested again in the future. This is because even a short period in jail can result in someone losing their job, their housing, or custody of their children.

"Finally, AB 3209 may worsen racial disparities by expanding warrantless detentions by law enforcement officers. A long trail of evidence indicates that when law enforcement has expanded authority to detain individuals for low-level offenses, as for example in the case of low-level traffic stops, racial disparities may ensue. For sake of safety and justice, policing should follow procedures that ensure accountability, including requiring warrants for low-level offenses.

"When we blame the wrong problems, we miss the right solutions. As sensational claims about organized retail theft have been debunked and data shows that retail theft is not rising statewide, responses need to be tailored to the facts. The legislature should respond to concerns from the community and local businesses with evidence-backed solutions.

"Increasing arrests for non-violent retail crimes will do little to make our communities safer. Unlike the community-based programs funded by Proposition 47, which have reduced recidivism, sending people to jail and prison makes them more likely to reoffend, while costing local governments dearly amid a budget deficit.

"To deter and address retail theft, we need to take on its drivers. When people shoplift as part of an organized retail theft operation, law enforcement should investigate and hold accountable the people who profit most from these sophisticated operations. However, we know from past experience that arresting low-level offenders to find those driving sophisticated organized retail theft will not be particularly successful. Legislators can also help by regulating online marketplaces to make it harder to sell stolen goods. Supporting retail workers by requiring employers to enhance pay, increase staffing (instead of using self-checkout or surveillance based technology), and provide training can also help.

"When people are arrested for stealing out of need, we need to make sure they don't need to do it again. Instead of reducing public safety through unnecessary criminalization, we can effectively intervene by meeting their needs and connecting them to stable housing, jobs, and other treatment and services. Cities around the country have effectively employed this model, while similar models have proved effective in California thanks to community funding created by Prop 47.

"It is long past time to reject the reach for "tough" policies in favor of real solutions."

FISCAL COMMENTS

According to the Senate Appropriations Committee:

1. Cost pressures (Trial Court Trust Fund, General Fund) of an unknown but potentially significant amount to the courts to hear and adjudicate applications for retail crime restraining orders and misdemeanor violations of those orders. Actual costs will depend on the number of orders sought, the number of violations prosecuted, and the number of cases in which court-appointed counsel is warranted. It generally costs about $1,000 to operate a courtroom for one hour. If retail crime restraining order applications and related misdemeanor cases take 150 or more hours of court time statewide, cost pressures would exceed $150,000 annually. Although courts are not funded on the basis of workload, increased pressure on the Trial Court Trust Fund may create a need for increased funding for courts from the General Fund. The Governor's 2024-25 May Revision proposes reducing $97 million ongoing from the General Fund to the trial courts.
2. Potential costs (local funds, General Fund) to the counties to incarcerate people convicted of violating retail crime restraining orders. The average annual cost to incarcerate a defendant in county jail is $29,000. If 50 defendants must each serve two months in county jail for violating a retail crime restraining order, the resulting incarceration cost to the counties would be $241,000. California county jails are increasingly overcrowded – particularly since the enactment of public safety realignment in 2011. Although new crimes are not considered reimbursable state mandates pursuant to Proposition 30 (2012), overcrowding in county jails creates cost pressure on the General Fund because the state has historically granted new funding to counties to offset overcrowding.

VOTES:

ASM PUBLIC SAFETY: 8-0-0

YES: McCarty, Alanis, Lackey, Stephanie Nguyen, Reyes, Ting, Wilson, Zbur

ASM APPROPRIATIONS: 10-0-5

YES: Wicks, Arambula, Calderon, Wendy Carrillo, Mike Fong, Grayson, Haney, Hart, Pellerin, Villapudua

ABS, ABST OR NV: Sanchez, Bryan, Dixon, Jim Patterson, Ta

ASSEMBLY FLOOR: 68-1-11

YES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Juan Carrillo, Wendy Carrillo, Chen, Connolly, Davies, Dixon, Flora, Mike Fong, Vince Fong, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Hoover, Irwin, Jackson, Jones-Sawyer, Lackey, Low, Lowenthal, Maienschein, McCarty, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

NO: Bryan

ABS, ABST OR NV: Calderon, Cervantes, Megan Dahle, Essayli, Friedman, Holden, Kalra, Lee, Mathis, McKinnor, Luz Rivas

SENATE FLOOR: 38-0-2

YES: Allen, Alvarado-Gil, Archuleta, Ashby, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Umberg, Wahab, Wiener, Wilk

ABS, ABST OR NV: Atkins, Stern

UPDATED

VERSION: June 29, 2024

CONSULTANT: Ilan Zur / PUB. S. / (916) 319-3744 FN: 0003812

 THIRD READING  

Bill No: AB 3209

Author: Berman (D) and Robert Rivas (D), et al.

Amended: 6/29/24 in Senate

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 4-0, 6/11/24

AYES: Wahab, Bradford, Skinner, Wiener

NO VOTE RECORDED: Seyarto

SENATE APPROPRIATIONS COMMITTEE: 5-0, 6/17/24

AYES: Caballero, Ashby, Becker, Bradford, Wahab

NO VOTE RECORDED: Jones, Seyarto

ASSEMBLY FLOOR: 68-1, 5/22/24 - See last page for vote

SUBJECT: Crimes: theft: retail theft restraining orders

SOURCE: Author

DIGEST:

This bill authorizes a court, when sentencing a person for an offense involving theft of, vandalism of, or battery of an employee of a retail establishment, to issue a criminal protective order prohibiting the person from entering the retail establishment, as specified, and allows specified parties to file a petition for a restraining order against an individual who has been arrested twice, but not charged or convicted, with any of the crimes listed above at the same retail establishment.

Senate Floor Amendments of 6/29/24 remove the urgency clause and the inoperative clause.

ANALYSIS:

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. 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 § 490.)
4. 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. Shoplifting shall be punished as a misdemeanor, except as specified. (Pen. Code, § 459.5.)
5. States that any act of shoplifting must be charged as such, and that a person charged with shoplifting cannot also be charged with burglary or theft of the same property. (Pen. Code, § 459.5, subd. (b).)
6. Provides that every person who defaces, damages or destroys real or personal property that is not their own, is guilty of vandalism. If the amount of the damage is less than $400, the offense is a misdemeanor, punishable by imprisonment in a county jail not exceeding one year, by a fine of $1,000, or by both. If the amount of the damage is $400 or more, the offense is a felony, punishable by imprisonment in a county jail not exceeding one year, by a fine of not more than $10,000, or both. (Pen. Code, § 594 subd. (b).)
7. Defines “battery” as any unlawful use of force or violence upon the person of another. (Pen. Code, § 242.)
8. States that simple battery is punishable by a fine of up to $2,000, or by imprisonment in county jail not exceeding 6 months, or by both a fine and imprisonment. (Pen. Code, § 243, subd. (a).)
9. Creates, until January 1, 2026, the crime of organized retail theft which is defined as:
   1. Acting in concert with one or more persons to steal merchandise from one or more merchant’s premises or online marketplace with the intent to sell, exchange, or return the merchandise for value;
   2. Acting in concert with two or more persons to receive, purchase, or possess merchandise knowing or believing it to have been stolen;
   3. Acting as the agent of another individual or group of individuals to steal merchandise from one or more merchant’s premises or online marketplaces as part of a plan to commit theft; or,
   4. Recruiting, coordinating, organizing, supervising, directing, managing, or financing another to undertake acts of theft. (Pen. Code, § 490.4, subd. (a).)
10. Punishes, until January 1, 2026, organized retail theft as follows:
    1. If violations of the above provisions, except the recruiting, coordinating, organizing, supervising, directing, managing, or financing another provision, are committed on two or more separate occasions within a one-year period, and if the aggregated value of the merchandise stolen, received, purchased, or possessed within that period exceeds $950 the offense is punishable as either a misdemeanor by imprisonment in a county jail not exceeding one year or as a jail-eligible felony;
    2. Any other violation of the above provisions, except the recruiting, coordinating, organizing, supervising, directing, managing, or financing another provision, is punishable as a misdemeanor by imprisonment in a county jail not exceeding one year; and,
    3. A violation of the recruiting, coordinating, organizing, supervising, directing, managing, or financing another provision is punishable as either a misdemeanor by imprisonment in a county jail not exceeding one year or as a jail-eligible felony. (Pen. Code, § 490.1, subd. (b).)
11. Provides, until January 1, 2026, that for the purpose of determining whether the defendant acted in concert with another person or persons in any proceeding, the trier of fact may consider any competent evidence, including, but not limited to, all of the following:
    1. The defendant has previously acted in concert with another person or persons in committing acts constituting theft, or any related offense, including any conduct that occurred in counties other than the county of the current offense, if relevant to demonstrate a fact other than the defendant’s disposition to commit the act;
    2. That the defendant used or possessed an artifice, instrument, container, device, or other article capable of facilitating the removal of merchandise from a retail establishment without paying the purchase price and use of the artifice, instrument, container, or device or other article is part of an organized plan to commit theft; or,
    3. The property involved in the offense is of a type or quantity that would not normally be purchased for personal use or consumption and the property is intended for resale. (Pen. Code, § 490.4, subd. (c).)
12. States that upon a conviction for organized retail theft, the court shall consider ordering, as a condition of probation, that the defendant stay away from retail establishments with a reasonable nexus to the crime committed. (Pen. Code § 490.4, subd. (e).)
13. Provides that any intentional and knowing violation of a protective order is a misdemeanor crime punishable by up to one year in county jail, by a fine of up to $1,000, or both. (Pen. Code, § 273.6.)
14. Authorizes a court with jurisdiction over a criminal matter, upon good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur, to issue a criminal protective order during the pendency of criminal proceedings. (Pen. Code, § 136.2, subd. (a).)
15. States that a court shall consider issuing an order against a defendant who has been convicted of domestic violence, human trafficking, rape, statutory rape, pimping and pandering, gang activity, or any crime requiring sex offender registration. The order may be valid for up to ten years as determined by the court, restraining the defendant from any contact with a victim of the crime. (Pen. Code, § 136.2, subd. (i).)

This bill:

1. States that a court shall consider issuing an order restraining order against a defendant convicted of any of the following offenses from entering the premises of the retail establishment, that may be valid for up to two years, as determined by the court:
   1. Shoplifting;
   2. Any theft from a retail establishment;
   3. Organized retail theft;
   4. Vandalism of a retail establishment; or,
   5. Any assault or battery of an employee of a retail establishment while working at the retail establishment.
2. Specifies that the order shall prohibit the restrained person from entering the retail establishment, or being present on the grounds of, or any parking lot adjacent to, the retail establishment.
3. Provides that if the retail establishment is part of a chain or franchise, the court may include other retail establishments in that chain or franchise within a specified geographic range in the order.
4. States that in determining whether to impose a restraining order under the provisions of this bill, the court shall consider whether the retail establishment is the only place that sells food, pharmaceuticals, or other basic life necessities within one mile of where the individual resides, or otherwise creates undue hardship for the individual.
5. Authorizes a prosecuting attorney, city attorney, county counsel, or attorney representing a retail establishment may file a petition requesting a restraining order for an individual who has been arrested, including, but not limited to, the issuance of a citation in lieu of a custodial arrest, two or more times for any of the offenses listed in subdivision (b) within the same retail establishment.
6. Specifies that the court must hold a hearing to determine whether to issue the restraining order and that the respondent shall be personally served with notice of the hearing and shall be entitled to representation by court-appointed counsel.
7. States that the petitioner shall bear the burden of proving, by a preponderance of the evidence, that the respondent, on two or more separate occasions, committed a qualifying offense within the retail establishment or on the grounds thereof.
8. Authorizes the court to issue an order restraining the respondent from entering the premises of the retail establishment for a period not to exceed two years if the court finds by a preponderance of the evidence that both of the following are true:
   1. The respondent, on two or more separate occasions, committed a qualifying theft, vandalism or assault or battery offense within the retail establishment or on the grounds thereof; and,
   2. There is a substantial likelihood that the individual will return to the retail establishment.
9. States that the order shall prohibit the restrained person from entering the retail establishment, or being present on the grounds of, or any parking lot adjacent to and used to service the retail establishment.
10. Provides that if the retail establishment is part of a chain or franchise, the court may include other retail establishments in that chain or franchise within a specified geographic range in the order.
11. Specifies that a violation of an order issued pursuant to the provisions of this bill is punishable as a misdemeanor.
12. States that an officer arresting a person for a violation of an order pursuant to this bill’s provisions is not required to cite and release the person.
13. States, declarative of existing law, that a court may offer an individual charged with a violation of an order issued pursuant to the bill’s provisions an opportunity to participate in a diversion program for which they are eligible.
14. Authorizes the retail theft restraining orders created by this bill to be entered into the California Law Enforcement Telecommunications System and the California Restraining and Protective Order System.
15. Require personal service of an order if the person subject to the order was not present in court at the time it was issued or renewed.
16. Allows the Judicial Council to prescribe the form of the petitions and orders, and to promulgate any rules of court necessary to implement this bill’s provisions.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

According to the Senate Committee on Appropriations:

• Cost pressures (Trial Court Trust Fund, General Fund) of an unknown but potentially significant amount to the courts to hear and adjudicate applications for retail crime restraining orders and misdemeanor violations of those orders. Actual costs will depend on the number of orders sought, the number of violations prosecuted, and the number of cases in which court-appointed counsel is warranted. It generally costs about $1,000 to operate a courtroom for one hour. If retail crime restraining order applications and related misdemeanor cases take 150 or more hours of court time statewide, cost pressures would exceed $150,000 annually. Although courts are not funded on the basis of workload, increased pressure on the Trial Court Trust Fund may create a need for increased funding for courts from the General Fund. The Governor’s 2024-25 May Revision proposes reducing $97 million ongoing from the General Fund to the trial courts.
• Potential costs (local funds, General Fund) to the counties to incarcerate people convicted of violating retail crime restraining orders. The average annual cost to incarcerate a defendant in county jail is $29,000. If 50 defendants must each serve two months in county jail for violating a retail crime restraining order, the resulting incarceration cost to the counties would be $241,000. California county jails are increasingly overcrowded – particularly since the enactment of public safety realignment in 2011. Although new crimes are not considered reimbursable state mandates pursuant to Proposition 30 (2012), overcrowding in county jails creates cost pressure on the General Fund because the state has historically granted new funding to counties to offset overcrowding.

SUPPORT: (Verified 6/29/24)

Association of California Cities - Orange County

Calchamber
California Department of Justice
California Downtown Association
California Retailers Association et al.
City of Agoura Hills
City of Artesia
City of Buena Park
City of Cypress
City of Fountain Valley
City of Fullerton 
City of Grand Terrace
City of Lafayette 
City of Lakeport
City of Los Alamitos
City of Mission Viejo 
City of Oakdale
City of Palmdale
City of Paramount
City of Rancho Palos Verdes
City of Riverside
City of Rohnert Park
City of Rolling Hills Estates
City of San Luis Obispo
City of Stanton

City of Stockton
City of Whittier
Darrell Steinberg, Mayor of Sacramento
Downtown Santa Monica
League of California Cities
Los Angeles County Democratic Party
Los Angeles County Sheriff's Department
Mayor Todd Gloria, City of San Diego
Town of Apple Valley

OPPOSITION: (Verified 6/29/24)

ACLU California Action
Legal Services for Prisoner with Children
San Francisco Public Defender
Vera Institute of Justice

Yuba County District Attorney's Office

ARGUMENTS IN SUPPORT: According to CalChamber:

This legislation would provide a new enforcement tool that will keep stores and workers safe from crime as rates of retail theft and robbery have risen in California. According to the Public Policy Institute of California (PPIC), in 2022 California saw a 28.7% increase in commercial shoplifting and a 15.7% increase in burglaries of items totaling more than $950 between 2019 and 2022. Retail theft has become an increasingly prevalent problem across California, with detrimental effects on both local businesses and consumers. The significant losses incurred by retailers due to theft not only threaten their financial stability, but also jeopardize their ability to provide essential goods and services to the communities they serve. Moreover, the rise in organized retail crime has led to safety concerns for both employees and customers, further exacerbating the problem. The introduction of Retail Theft Restraining Orders (RTROs) presents a proactive and effective approach to combatting this growing issue. By enabling retailers to obtain civil restraining orders against habitual offenders, this legislation empowers businesses to protect themselves and deter potential thieves from engaging in criminal activities. Additionally, RTROs provide law enforcement with valuable tools to address repeat offenders, disrupt organized retail crime networks, and enhance public safety. Furthermore, the implementation of RTROs offers a balanced solution that upholds the rights of both retailers and individuals while holding accountable those who repeatedly engage in criminal behavior. By targeting habitual offenders and providing avenues for rehabilitation and support, this legislation not only and support, this legislation not only addresses the symptoms of retail theft, but also tackles the underlying issues contributing to criminal behavior.

ARGUMENTS IN OPPOSITION: According to Vera Institute of Justice:

AB 3209 would create a harmful new process whereby attorneys representing retailers— not district attorneys nor individual victims—could seek a two-year “retail theft restraining order” for petty theft or vandalism. Such an order could be sought either at sentencing (after conviction), or merely if someone has been arrested (but not convicted) of such an offense twice. This would expand criminal consequences based on a lower standard of proof (preponderance of the evidence, rather than beyond a reasonable doubt) and eliminate key procedural protections in the case of restraining orders sought by attorney representing retailers. Weakening these key tenets of both state and federal law raises significant concerns.

. . . .

Prosecutors and retail stores have historically combatted theft using theft or trespass charges. Those tools are still available, and they are more than sufficient for non-violent theft and vandalism offenses. For offenses involving violence against retail workers, the harmed employee still has all rights available to them as a crime victim—but should not have more rights than any other victim in the community. This legislation elevates well-resourced retail chains above other victims needing protection, including both victims of violent crime and smaller retail stores without the means to hire counsel.

The restraining order would also apply to any store within a franchise or chain, which suggests that retail workers may be tasked with enforcing the restraining order based on photos of someone who may have visited another chain store within the past two years. A large majority of wrongful convictions stem from eyewitness misidentifications—and the problem only worsens by over 50 percent for cross racial identifications—raising the specter of racial profiling and dangerous consequences.

Further, by permitting law enforcement officers to arrest, as opposed to cite and release, those suspected of violating a restraining order, AB 3209 will not make our communities safer. Years of research shows that pretrial detention decreases community safety in the long run—a landmark study of more than 1.5 million cases found that any amount of time in jail beyond 23 hours makes a person more likely to be arrested again in the future. This is because even a short period in jail can result in someone losing their job, their housing, or custody of their children.

Finally, AB 3209 may worsen racial disparities by expanding warrantless detentions by law enforcement officers. A long trail of evidence indicates that when law enforcement has expanded authority to detain individuals for low-level offenses, as for example in the case of low-level traffic stops, racial disparities may ensue. For sake of safety and justice, policing should follow procedures that ensure accountability, including requiring warrants for low-level offense.

ASSEMBLY FLOOR: 68-1, 5/22/24

AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Juan Carrillo, Wendy Carrillo, Chen, Connolly, Davies, Dixon, Flora, Mike Fong, Vince Fong, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Hoover, Irwin, Jackson, Jones-Sawyer, Lackey, Low, Lowenthal, Maienschein, McCarty, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

NOES: Bryan

NO VOTE RECORDED: Calderon, Cervantes, Megan Dahle, Essayli, Friedman, Holden, Kalra, Lee, Mathis, McKinnor, Luz Rivas

Prepared by: Stella Choe / PUB. S. /

7/2/24 9:32:09

**** END ****

 THIRD READING  

Bill No: AB 3209

Author: Berman (D) and Robert Rivas (D), et al.

Amended: 6/20/24 in Senate

Vote: 27- Urgency

SENATE PUBLIC SAFETY COMMITTEE: 4-0, 6/11/24

AYES: Wahab, Bradford, Skinner, Wiener

NO VOTE RECORDED: Seyarto

SENATE APPROPRIATIONS COMMITTEE: 5-0, 6/17/24

AYES: Caballero, Ashby, Becker, Bradford, Wahab

NO VOTE RECORDED: Jones, Seyarto

ASSEMBLY FLOOR: 68-1, 5/22/24 - See last page for vote

SUBJECT: Crimes: theft: retail theft restraining orders

SOURCE: Author

DIGEST:

This bill authorizes a court, when sentencing a person for an offense involving theft of, vandalism of, or battery of an employee of a retail establishment, to issue a criminal protective order prohibiting the person from entering the retail establishment, as specified, and allows specified parties to file a petition for a restraining order against an individual who has been arrested twice, but not charged or convicted, with any of the crimes listed above at the same retail establishment.

ANALYSIS:

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. 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 § 490.)
4. 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. Shoplifting shall be punished as a misdemeanor, except as specified. (Pen. Code, § 459.5.)
5. States that any act of shoplifting must be charged as such, and that a person charged with shoplifting cannot also be charged with burglary or theft of the same property. (Pen. Code, § 459.5, subd. (b).)
6. Provides that every person who defaces, damages or destroys real or personal property that is not their own, is guilty of vandalism. If the amount of the damage is less than $400, the offense is a misdemeanor, punishable by imprisonment in a county jail not exceeding one year, by a fine of $1,000, or by both. If the amount of the damage is $400 or more, the offense is a felony, punishable by imprisonment in a county jail not exceeding one year, by a fine of not more than $10,000, or both. (Pen. Code, § 594 subd. (b).)
7. Defines “battery” as any unlawful use of force or violence upon the person of another. (Pen. Code, § 242.)
8. States that simple battery is punishable by a fine of up to $2,000, or by imprisonment in county jail not exceeding six months, or by both a fine and imprisonment. (Pen. Code, § 243, subd. (a).)
9. Creates, until January 1, 2026, the crime of organized retail theft which is defined as:
   1. Acting in concert with one or more persons to steal merchandise from one or more merchant’s premises or online marketplace with the intent to sell, exchange, or return the merchandise for value;
   2. Acting in concert with two or more persons to receive, purchase, or possess merchandise knowing or believing it to have been stolen;
   3. Acting as the agent of another individual or group of individuals to steal merchandise from one or more merchant’s premises or online marketplaces as part of a plan to commit theft; or,
   4. Recruiting, coordinating, organizing, supervising, directing, managing, or financing another to undertake acts of theft. (Pen. Code, § 490.4, subd. (a).)
10. Punishes, until January 1, 2026, organized retail theft as follows:
    1. If violations of the above provisions, except the recruiting, coordinating, organizing, supervising, directing, managing, or financing another provision, are committed on two or more separate occasions within a one-year period, and if the aggregated value of the merchandise stolen, received, purchased, or possessed within that period exceeds $950 the offense is punishable as either a misdemeanor by imprisonment in a county jail not exceeding one year or as a jail-eligible felony;
    2. Any other violation of the above provisions, except the recruiting, coordinating, organizing, supervising, directing, managing, or financing another provision, is punishable as a misdemeanor by imprisonment in a county jail not exceeding one year; and,
    3. A violation of the recruiting, coordinating, organizing, supervising, directing, managing, or financing another provision is punishable as either a misdemeanor by imprisonment in a county jail not exceeding one year or as a jail-eligible felony. (Pen. Code, § 490.1, subd. (b).)
11. Provides, until January 1, 2026, that for the purpose of determining whether the defendant acted in concert with another person or persons in any proceeding, the trier of fact may consider any competent evidence, including, but not limited to, all of the following:
    1. The defendant has previously acted in concert with another person or persons in committing acts constituting theft, or any related offense, including any conduct that occurred in counties other than the county of the current offense, if relevant to demonstrate a fact other than the defendant’s disposition to commit the act;
    2. That the defendant used or possessed an artifice, instrument, container, device, or other article capable of facilitating the removal of merchandise from a retail establishment without paying the purchase price and use of the artifice, instrument, container, or device or other article is part of an organized plan to commit theft; or,
    3. The property involved in the offense is of a type or quantity that would not normally be purchased for personal use or consumption and the property is intended for resale. (Pen. Code, § 490.4, subd. (c).)
12. States that upon a conviction for organized retail theft, the court shall consider ordering, as a condition of probation, that the defendant stay away from retail establishments with a reasonable nexus to the crime committed. (Pen. Code § 490.4, subd. (e).)
13. Provides that any intentional and knowing violation of a protective order is a misdemeanor crime punishable by up to one year in county jail, by a fine of up to $1,000, or both. (Pen. Code, § 273.6.)
14. Authorizes a court with jurisdiction over a criminal matter, upon good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur, to issue a criminal protective order during the pendency of criminal proceedings. (Pen. Code, § 136.2, subd. (a).)
15. States that a court shall consider issuing an order against a defendant who has been convicted of domestic violence, human trafficking, rape, statutory rape, pimping and pandering, gang activity, or any crime requiring sex offender registration. The order may be valid for up to ten years as determined by the court, restraining the defendant from any contact with a victim of the crime. (Pen. Code, § 136.2, subd. (i).)

This bill:

1. States that a court shall consider issuing an order restraining order against a defendant convicted of any of the following offenses from entering the premises of the retail establishment, that may be valid for up to two years, as determined by the court:
   1. Shoplifting;
   2. Any theft from a retail establishment;
   3. Organized retail theft;
   4. Vandalism of a retail establishment; or,
   5. Any assault or battery of an employee of a retail establishment while working at the retail establishment.
2. Specifies that the order shall prohibit the restrained person from entering the retail establishment, or being present on the grounds of, or any parking lot adjacent to, the retail establishment.
3. Provides that if the retail establishment is part of a chain or franchise, the court may include other retail establishments in that chain or franchise within a specified geographic range in the order.
4. States that in determining whether to impose a restraining order under the provisions of this bill, the court shall consider whether the retail establishment is the only place that sells food, pharmaceuticals, or other basic life necessities within one mile of where the individual resides, or otherwise creates undue hardship for the individual.
5. Authorizes a prosecuting attorney, city attorney, county counsel, or attorney representing a retail establishment may file a petition requesting a restraining order for an individual who has been arrested, including, but not limited to, the issuance of a citation in lieu of a custodial arrest, two or more times for any of the offenses listed in subdivision (b) within the same retail establishment.
6. Specifies that the court must hold a hearing to determine whether to issue the restraining order and that the respondent shall be personally served with notice of the hearing and shall be entitled to representation by court-appointed counsel.
7. States that the petitioner shall bear the burden of proving, by a preponderance of the evidence, that the respondent, on two or more separate occasions, committed a qualifying offense within the retail establishment or on the grounds thereof.
8. Authorizes the court to issue an order restraining the respondent from entering the premises of the retail establishment for a period not to exceed two years if the court finds by a preponderance of the evidence that both of the following are true:
   1. The respondent, on two or more separate occasions, committed a qualifying theft, vandalism or assault or battery offense within the retail establishment or on the grounds thereof; and,
   2. There is a substantial likelihood that the individual will return to the retail establishment.
9. States that the order shall prohibit the restrained person from entering the retail establishment, or being present on the grounds of, or any parking lot adjacent to and used to service the retail establishment.
10. Provides that if the retail establishment is part of a chain or franchise, the court may include other retail establishments in that chain or franchise within a specified geographic range in the order.
11. Specifies that a violation of an order issued pursuant to the provisions of this bill is punishable as a misdemeanor.
12. States that an officer arresting a person for a violation of an order pursuant to this bill’s provisions is not required to cite and release the person.
13. States, declarative of existing law, that a court may offer an individual charged with a violation of an order issued pursuant to the bill’s provisions an opportunity to participate in a diversion program for which they are eligible.
14. Authorizes the retail theft restraining orders created by this bill to be entered into the California Law Enforcement Telecommunications System (CLETS) and the California Restraining and Protective Order System.
15. Requires personal service of an order if the person subject to the order was not present in court at the time it was issued or renewed.
16. Allows the Judicial Council to prescribe the form of the petitions and orders, and to promulgate any rules of court necessary to implement this bill’s provisions.
17. Contains an urgency clause.
18. Provides that if the proposed initiative measure titled “The Homeless, Drug Addiction and Theft Reduction Act” (Initiative 23-0017A1) is approved by the voters at the statewide general election on November 5, 2024, this section shall become inoperative and shall be repealed on January 1, 2025.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

According to the Senate Appropriations Committee:

• Cost pressures (Trial Court Trust Fund, General Fund) of an unknown but potentially significant amount to the courts to hear and adjudicate applications for retail crime restraining orders and misdemeanor violations of those orders. Actual costs will depend on the number of orders sought, the number of violations prosecuted, and the number of cases in which court-appointed counsel is warranted. It generally costs about $1,000 to operate a courtroom for one hour. If retail crime restraining order applications and related misdemeanor cases take 150 or more hours of court time statewide, cost pressures would exceed $150,000 annually. Although courts are not funded on the basis of workload, increased pressure on the Trial Court Trust Fund may create a need for increased funding for courts from the General Fund. The Governor’s 2024-25 May Revision proposes reducing $97 million ongoing from the General Fund to the trial courts.
• Potential costs (local funds, General Fund) to the counties to incarcerate people convicted of violating retail crime restraining orders. The average annual cost to incarcerate a defendant in county jail is $29,000. If 50 defendants must each serve two months in county jail for violating a retail crime restraining order, the resulting incarceration cost to the counties would be $241,000. California county jails are increasingly overcrowded – particularly since the enactment of public safety realignment in 2011. Although new crimes are not considered reimbursable state mandates pursuant to Proposition 30 (2012), overcrowding in county jails creates cost pressure on the General Fund because the state has historically granted new funding to counties to offset overcrowding.

SUPPORT: (Verified 6/20/24)

Association of California Cities - Orange County
CalChamber
California Department of Justice
California Downtown Association
California Retailers Association et al.
City of Agoura Hills
City of Artesia
City of Buena Park
City of Cypress
City of Fountain Valley
City of Fullerton 
City of Grand Terrace
City of Lafayette 
City of Lakeport
City of Los Alamitos
City of Mission Viejo 
City of Oakdale
City of Palmdale
City of Paramount
City of Rancho Palos Verdes
City of Riverside
City of Rohnert Park
City of Rolling Hills Estates
City of San Luis Obispo
City of Stanton

City of Stockton
City of Whittier
Darrell Steinberg, Mayor of Sacramento
Downtown Santa Monica
League of California Cities
Los Angeles County Democratic Party
Los Angeles County Sheriff's Department
Mayor Todd Gloria, City of San Diego
Town of Apple Valley

OPPOSITION: (Verified 6/20/24)

ACLU California Action
Legal Services for Prisoner with Children
San Francisco Public Defender
Vera Institute of Justice

Yuba County District Attorney's Office (unless amended)

ARGUMENTS IN SUPPORT: According to CalChamber:

This legislation would provide a new enforcement tool that will keep stores and workers safe from crime as rates of retail theft and robbery have risen in California. According to the Public Policy Institute of California (PPIC), in 2022 California saw a 28.7% increase in commercial shoplifting and a 15.7% increase in burglaries of items totaling more than $950 between 2019 and 2022. Retail theft has become an increasingly prevalent problem across California, with detrimental effects on both local businesses and consumers. The significant losses incurred by retailers due to theft not only threaten their financial stability, but also jeopardize their ability to provide essential goods and services to the communities they serve. Moreover, the rise in organized retail crime has led to safety concerns for both employees and customers, further exacerbating the problem. The introduction of Retail Theft Restraining Orders (RTROs) presents a proactive and effective approach to combatting this growing issue. By enabling retailers to obtain civil restraining orders against habitual offenders, this legislation empowers businesses to protect themselves and deter potential thieves from engaging in criminal activities. Additionally, RTROs provide law enforcement with valuable tools to address repeat offenders, disrupt organized retail crime networks, and enhance public safety. Furthermore, the implementation of RTROs offers a balanced solution that upholds the rights of both retailers and individuals while holding accountable those who repeatedly engage in criminal behavior. By targeting habitual offenders and providing avenues for rehabilitation and support, this legislation not only and support, this legislation not only addresses the symptoms of retail theft, but also tackles the underlying issues contributing to criminal behavior.

ARGUMENTS IN OPPOSITION: According to Vera Institute of Justice:

AB 3209 would create a harmful new process whereby attorneys representing retailers— not district attorneys nor individual victims—could seek a two-year “retail theft restraining order” for petty theft or vandalism. Such an order could be sought either at sentencing (after conviction), or merely if someone has been arrested (but not convicted) of such an offense twice. This would expand criminal consequences based on a lower standard of proof (preponderance of the evidence, rather than beyond a reasonable doubt) and eliminate key procedural protections in the case of restraining orders sought by attorney representing retailers. Weakening these key tenets of both state and federal law raises significant concerns.

. . . .

Prosecutors and retail stores have historically combatted theft using theft or trespass charges. Those tools are still available, and they are more than sufficient for non-violent theft and vandalism offenses. For offenses involving violence against retail workers, the harmed employee still has all rights available to them as a crime victim—but should not have more rights than any other victim in the community. This legislation elevates well-resourced retail chains above other victims needing protection, including both victims of violent crime and smaller retail stores without the means to hire counsel.

The restraining order would also apply to any store within a franchise or chain, which suggests that retail workers may be tasked with enforcing the restraining order based on photos of someone who may have visited another chain store within the past two years. A large majority of wrongful convictions stem from eyewitness misidentifications—and the problem only worsens by over 50 percent for cross racial identifications—raising the specter of racial profiling and dangerous consequences.

Further, by permitting law enforcement officers to arrest, as opposed to cite and release, those suspected of violating a restraining order, AB 3209 will not make our communities safer. Years of research shows that pretrial detention decreases community safety in the long run—a landmark study of more than 1.5 million cases found that any amount of time in jail beyond 23 hours makes a person more likely to be arrested again in the future. This is because even a short period in jail can result in someone losing their job, their housing, or custody of their children.

Finally, AB 3209 may worsen racial disparities by expanding warrantless detentions by law enforcement officers. A long trail of evidence indicates that when law enforcement has expanded authority to detain individuals for low-level offenses, as for example in the case of low-level traffic stops, racial disparities may ensue. For sake of safety and justice, policing should follow procedures that ensure accountability, including requiring warrants for low-level offense.

ASSEMBLY FLOOR: 68-1, 5/22/24

AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Juan Carrillo, Wendy Carrillo, Chen, Connolly, Davies, Dixon, Flora, Mike Fong, Vince Fong, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Hoover, Irwin, Jackson, Jones-Sawyer, Lackey, Low, Lowenthal, Maienschein, McCarty, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

NOES: Bryan

NO VOTE RECORDED: Calderon, Cervantes, Megan Dahle, Essayli, Friedman, Holden, Kalra, Lee, Mathis, McKinnor, Luz Rivas

Prepared by: Stella Choe / PUB. S. /

6/21/24 11:05:55

**** END ****

SENATE COMMITTEE ON

Senator Anna Caballero, Chair

2023 - 2024 Regular Session

AB 3209 (Berman) - Crimes: theft: retail theft restraining orders

Bill Summary:

AB 3209 creates retail theft restraining orders, as specified.

Fiscal Impact:

• Cost pressures (Trial Court Trust Fund, General Fund) of an unknown but potentially significant amount to the courts to hear and adjudicate applications for retail crime restraining orders and misdemeanor violations of those orders. Actual costs will depend on the number of orders sought, the number of violations prosecuted, and the number of cases in which court-appointed counsel is warranted. It generally costs about $1,000 to operate a courtroom for one hour. If retail crime restraining order applications and related misdemeanor cases take 150 or more hours of court time statewide, cost pressures would exceed $150,000 annually. Although courts are not funded on the basis of workload, increased pressure on the Trial Court Trust Fund may create a need for increased funding for courts from the General Fund. The Governor’s 2024-25 May Revision proposes reducing $97 million ongoing from the General Fund to the trial courts.
  
• Potential costs (local funds, General Fund) to the counties to incarcerate people convicted of violating retail crime restraining orders. The average annual cost to incarcerate a defendant in county jail is $29,000. If 50 defendants must each serve two months in county jail for violating a retail crime restraining order, the resulting incarceration cost to the counties would be $241,000. California county jails are increasingly overcrowded – particularly since the enactment of public safety realignment in 2011. Although new crimes are not considered reimbursable state mandates pursuant to Proposition 30 (2012), overcrowding in county jails creates cost pressure on the General Fund because the state has historically granted new funding to counties to offset overcrowding.

Background:

Existing law provides a number of circumstance-specific restraining orders intended to help a person who requests protection from a person who has made credible threats against them. These include gun violence restraining orders, domestic violence restraining orders, workplace violence restraining orders, and school violence restraining orders.

Proposed Law:

As discussed above, this bill creates a retail crime restraining order. A retail crime restraining order may be ordered by the court at sentencing for certain theft-related offenses, including shoplifting, organized retail theft, vandalism of a retail establishment, or assault of an employee at a retail establishment. Alternatively, a public prosecutor or private attorney representing a retail establishment (“petitioner”) may petition the court for a retail crime restraining order. Upon application, the court will hold a hearing and the petitioner must demonstrate, by a preponderance of the evidence, that the person against whom the order is sought (“respondent”) committed specified retail offenses within the retail establishment on two or more separate occasions and there is a substantial likelihood that the petitioner will return to the retail establishment. Once issued, a retail crime restraining order prohibits the respondent from entering a retail establishment or the area around a retail establishment. Violation of a retail crime restraining order is a misdemeanor punishable by imprisonment in county jail up to six months, or a fine of up to $1,000, or both jail and a fine.

Related Legislation:

AB 1794 (McCarty) authorizes counties to operate a program to allow retailers to submit details of alleged shoplifting, organized retail theft, or grand theft directly to the district attorney through an online portal on the district attorney’s internet website. AB 1794 will be heard by this Committee today.

AB 1779 (Irwin) allows specified criminal actions for thefts to be consolidated and brought in any jurisdiction, subject to a hearing on consolidation of the offenses, as specified. AB 1779 will be heard by this Committee today.

AB 1802 (Jones-Sawyer) removes the sunset date on the organized retail theft statute and the regional property crimes task force. AB 1802 will be heard by this Committee today.

AB 1960 (Soria) creates sentencing enhancements for taking, damaging, or destroying property in the commission or attempted commission of a felony, as specified. AB 1960 will be heard by this Committee today.

AB 1972 (Alanis) requires the regional crimes property task force to assist railroad police and specifies cargo theft as a property crime for consideration by the regional property crimes task force. AB 1972 will be heard by this Committee today.

AB 2943 (Zbur) makes it a crime for any person to possess property unlawfully that was acquired through one or more acts of shoplifting, theft, or burglary from a retail business, if the property is not possessed for personal use and the person has intent to sell, exchange, or return the merchandise for value, or the intent to act in concert with one or more persons to sell, exchange, or return the merchandise for value, and the value of the possessed property exceeds $950. AB 2943 will be heard by this Committee today.

SB 1144 (Skinner) revises the types of transactions that qualify a third-party seller as a “high-volume third-party seller,” relating to online marketplaces, as specified. SB 1144 is pending in the Assembly Appropriations Committee.

SB 1416 (Newman) reinstates sentencing enhancements for selling, exchanging, or returning for value, or attempting to sell, exchange, or return for value, any property acquired through one or more acts of shoplifting, theft, or burglary from a retail business, if the property value exceeds specified amounts. SB 1416 is pending in the Assembly Appropriations Committee.

SB 905 (Wiener) creates the new crime of forcibly entering a vehicle with intent to commit theft therein, as specified. SB 905 is pending in the Assembly Appropriations Committee.

SB 982 (Wahab) removes the sunset date on the organized retail theft statute. SB 982 is pending in the Assembly Appropriations Committee.

SB 1242 (Min) makes it a factor in aggravation if arson was carried out within a merchant’s premises in order to facilitate organized retail theft. SB 1242 is pending in the Assembly Appropriations Committee.

Staff Comments:

The fiscal impact of this bill cannot be known with certainty, as the actual impact will be dependent on numerous factors, including, but not limited to, judicial and prosecutorial discretion, and the factors unique to each case. As discussed above, this bill would increase incarceration costs which would substantially impact the General Fund. This is significant given that, according to the LAO, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years.

Proposed Amendments:

This bill will be amended to contain an urgency clause, allowing the bill’s provisions to take effect immediately upon approval of the Governor. Additionally, the bill will be amended to contain an inoperability clause stating that its provisions will become inoperative if the proposed initiative measure titled, “The Homelessness, Drug Addition, and Theft Reduction Act” (Initiative 23-0017A1) is approved by the voters at the statewide general election on November 5, 2024.

Substantively, this bill will be amended to authorize the retail theft restraining orders created by this bill to be entered into the California Law Enforcement Telecommunications System (CLETS) and the California Restraining and Protective Order System; to require personal service of an order if the person subject to the order was not present in court at the time it was issued or renewed; and, to allow the Judicial Council to prescribe the form of the petitions and orders, and to promulgate any rules of court necessary to implement this bill’s provisions.

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SENATE COMMITTEE ON PUBLIC SAFETY

Senator Aisha Wahab, Chair

2023 - 2024 Regular

Bill No: AB 3209 Hearing Date: June 11, 2024

Subject: Crimes: theft: retail theft restraining orders

HISTORY

Source: Author

Prior Legislation: AB 331 (Jones-Sawyer), Chapter 113, Statutes of 2021

AB 2294 (Jones-Sawyer), Chapter 856, Statutes of 2022

AB 2356 (Rodriguez), Chapter 22, Statues of 2022

AB 1065 (Jones-Sawyer), Ch. 803, Stats. 2018

Support: Association of California Cities - Orange County (ACC-OC); California Builders Alliance; California Business Properties Assoc.; California Business Roundtable; CalChamber; California Downtown Association; California Retailers Association; California Restaurant Association; City of Agoura Hills; City of Artesia; City of Buena Park; City of Cypress; City of Fountain Valley; City of Fullerton; City of Grand Terrace; City of Lafayette; City of Lakeport; City of Oakdale; City of Paramount; City of Rancho Palos Verdes; City of Rohnert Park; City of Rolling Hills Estates; City of San Luis Obispo; City of Stanton; City of Mission Viejo; City of Whittier; Darrell Steinberg, Mayor of Sacramento; Downtown Santa Monica; El Dorado Chamber of Commerce; Elk Grove Chamber of Commerce; League of California Cities; Lincoln Area Chamber of Commerce; Los Angeles County Business Federation; Los Angeles County Democratic Party; Los Angeles County Sheriff's Department; Mayor Todd Gloria, City of San Diego; Orange County Business Council; Orange County Tax Payers Association; Ranch Cordova Chamber of Commerce; Rocklin Area Chamber of Commerce; Roseville Chamber of Commerce; Sacramento Regional Builders Exchange; Shingle Springs Cameron Park Chamber of Commerce; Southern California Leadership Council; United Chamber of Advocacy Network; Yuba-Sutter Chamber of Commerce

Opposition: ACLU California Action; San Francisco Public Defender; Vera Institute of Justice

Assembly Floor Vote: 68 - 1

PURPOSE

The purpose of this bill is to authorize a court, when sentencing a person for an offense involving theft of, vandalism of, or battery of an employee of a retail establishment, to issue a criminal protective order prohibiting the person from entering the retail establishment, as specified, and to allow specified parties to file a petition for a restraining order against an individual who has been arrested twice, but not charged or convicted, with any of the crimes listed above at the same retail establishment.

Existing law divides theft into two degrees, petty theft and grand theft. (Pen. Code, § 486.)

Existing law 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.)

Existing law 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 § 490.)

Existing law 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. Shoplifting shall be punished as a misdemeanor, except as specified. (Pen. Code, § 459.5.)

Existing law states that any act of shoplifting must be charged as such, and that a person charged with shoplifting cannot also be charged with burglary or theft of the same property. (Pen. Code, § 459.5, subd. (b).)

Existing law provides that every person who defaces, damages or destroys real or personal property that is not their own, is guilty of vandalism. If the amount of the damage is less than $400, the offense is a misdemeanor, punishable by imprisonment in a county jail not exceeding one year, by a fine of $1,000, or by both. If the amount of the damage is $400 or more, the offense is a felony, punishable by imprisonment in a county jail not exceeding one year, by a fine of not more than $10,000, or both. (Pen. Code, § 594 subd. (b).)

Existing law defines “battery” as any unlawful use of force or violence upon the person of another. (Pen. Code, § 242.)

Existing law states that simple battery is punishable by a fine of up to $2,000, or by imprisonment in county jail not exceeding 6 months, or by both a fine and imprisonment. (Pen. Code, § 243, subd. (a).)

Existing law, until January 1, 2026, creates the crime of organized retail theft which is defined as:

• Acting in concert with one or more persons to steal merchandise from one or more merchant’s premises or online marketplace with the intent to sell, exchange, or return the merchandise for value;
• Acting in concert with two or more persons to receive, purchase, or possess merchandise knowing or believing it to have been stolen;
• Acting as the agent of another individual or group of individuals to steal merchandise from one or more merchant’s premises or online marketplaces as part of a plan to commit theft; or,
• Recruiting, coordinating, organizing, supervising, directing, managing, or financing another to undertake acts of theft. (Pen. Code, § 490.4, subd. (a).)

Existing law, until January 1, 2026, punishes organized retail theft as follows:

• If violations of the above provisions, except the recruiting, coordinating, organizing, supervising, directing, managing, or financing another provision, are committed on two or more separate occasions within a one-year period, and if the aggregated value of the merchandise stolen, received, purchased, or possessed within that period exceeds $950 the offense is punishable as either a misdemeanor by imprisonment in a county jail not exceeding one year or as a jail-eligible felony;
• Any other violation of the above provisions, except the recruiting, coordinating, organizing, supervising, directing, managing, or financing another provision, is punishable as a misdemeanor by imprisonment in a county jail not exceeding one year; and,
• A violation of the recruiting, coordinating, organizing, supervising, directing, managing, or financing another provision is punishable as either a misdemeanor by imprisonment in a county jail not exceeding one year or as a jail-eligible felony. (Pen. Code, § 490.1, subd. (b).)

Existing law, until January 1, 2026, provides that for the purpose of determining whether the defendant acted in concert with another person or persons in any proceeding, the trier of fact may consider any competent evidence, including, but not limited to, all of the following:

• The defendant has previously acted in concert with another person or persons in committing acts constituting theft, or any related offense, including any conduct that occurred in counties other than the county of the current offense, if relevant to demonstrate a fact other than the defendant’s disposition to commit the act;
• That the defendant used or possessed an artifice, instrument, container, device, or other article capable of facilitating the removal of merchandise from a retail establishment without paying the purchase price and use of the artifice, instrument, container, or device or other article is part of an organized plan to commit theft; or,
• The property involved in the offense is of a type or quantity that would not normally be purchased for personal use or consumption and the property is intended for resale. (Pen. Code, § 490.4, subd. (c).)

Existing law, until January 1, 2026, states that upon a conviction for organized retail theft, the court shall consider ordering, as a condition of probation, that the defendant stay away from retail establishments with a reasonable nexus to the crime committed. (Pen. Code § 490.4, subd. (e).)

Existing law provides that any intentional and knowing violation of a protective order is a misdemeanor crime punishable by up to one year in county jail, by a fine of up to $1,000, or both. (Pen. Code, § 273.6.)

Existing law authorizes a court with jurisdiction over a criminal matter, upon good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur, to issue a criminal protective order during the pendency of criminal proceedings. (Pen. Code, § 136.2, subd. (a).)

Existing law states that a court shall consider issuing an order against a defendant who has been convicted of domestic violence, human trafficking, rape, statutory rape, pimping and pandering, gang activity, or any crime requiring sex offender registration. The order may be valid for up to ten years as determined by the court, restraining the defendant from any contact with a victim of the crime. (Pen. Code, § 136.2, subd. (i).)

This bill states that a court shall consider issuing an order restraining order against a defendant convicted of any of the following offenses from entering the premises of the retail establishment, that may be valid for up to two years, as determined by the court:

• Shoplifting;
• Any theft from a retail establishment;
• Organized retail theft;
• Vandalism of a retail establishment; or,
• Any assault or battery of an employee of a retail establishment while working at the retail establishment.

This bill specifies that the order shall prohibit the restrained person from entering the retail establishment, or being present on the grounds of, or any parking lot adjacent to, the retail establishment.

This bill provides that if the retail establishment is part of a chain or franchise, the court may include other retail establishments in that chain or franchise within a specified geographic range in the order.

This bill states that in determining whether to impose a restraining order under the provisions of this bill, the court shall consider whether the retail establishment is the only place that sells food, pharmaceuticals, or other basic life necessities within one mile of where the individual resides, or otherwise creates undue hardship for the individual.

This bill authorizes a prosecuting attorney, city attorney, county counsel, or attorney representing a retail establishment may file a petition requesting a restraining order for an individual who has been arrested, including, but not limited to, the issuance of a citation in lieu of a custodial arrest, two or more times for any of the offenses listed in subdivision (b) within the same retail establishment.

This bill specifies that the court must hold a hearing to determine whether to issue the restraining order and that the respondent shall be personally served with notice of the hearing and shall be entitled to representation by court-appointed counsel.

This bill states that the petitioner shall bear the burden of proving, by a preponderance of the evidence, that the respondent, on two or more separate occasions, committed a qualifying offense within the retail establishment or on the grounds thereof.

This bill authorizes the court to issue an order restraining the respondent from entering the premises of the retail establishment for a period not to exceed two years if the court finds by a preponderance of the evidence that both of the following are true:

• The respondent, on two or more separate occasions, committed a qualifying theft, vandalism or assault or battery offense within the retail establishment or on the grounds thereof; and,
• There is a substantial likelihood that the individual will return to the retail establishment.

This bill states that the order shall prohibit the restrained person from entering the retail establishment, or being present on the grounds of, or any parking lot adjacent to and used to service the retail establishment.

This bill provides that if the retail establishment is part of a chain or franchise, the court may include other retail establishments in that chain or franchise within a specified geographic range in the order.

This bill specifies that a violation of an order issued pursuant to the provisions of this bill is punishable as a misdemeanor.

Existing law states that when a person is arrested for a misdemeanor and does not demand to be taken before a magistrate, that person shall be released with a written notice to appear in court unless specified reasons for nonrelease are present. (Pen. Code, § 853.6, subd. (a)(1) & (i).)

Existing law, until January 1, 2026, provide when the person has been cited, arrested, or convicted for misdemeanor or felony theft from a store in the previous six months, or when there is probable cause to believe that the person arrested is guilty of committing organized retail theft as additional reasons for nonrelease. (Pen. Code, § 853.6, subd. (i)(11)-(12).)

This bill states that an officer arresting a person for a violation of an order pursuant to this bill’s provisions is not required to cite and release the person.

This bill states, declarative of existing law, that a court may offer an individual charged with a violation of an order issued pursuant to the bill’s provisions an opportunity to participate in a diversion program for which they are eligible.

COMMENTS

1. Need for This Bill

According to the author of this bill:

AB 3209 would authorize a court to impose a Retail Crime Restraining Order for a theft offense, vandalism within the store, or battery of an employee within the store. With the rise in retail theft and robbery in California, solutions needs to find the balance of strengthening enforcement while not perpetuating the underlying causes of retail theft, such as poverty. Addressing the issues of retail theft, vandalism, and assaults on employees are important to ensure safety in our communities and businesses. This bill strikes a balance between providing a necessary enforcement tool to keep stores, customers, and workers safe and ensuring that the consequences fit the offense.

1. Background: Restraining Orders in Criminal Cases

As a general matter, a court can issue a restraining order in any criminal proceeding pursuant to Penal Code Section 136.2 where it finds good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur. Protective orders issued under this provision are valid only during the pendency of the criminal proceedings. (People v. Ponce (2009) 173 Cal.App.4th 378, 382.)

When criminal proceedings have concluded and the defendant has been convicted, the court has the authority to issue restraining orders as a condition of probation in cases where probation was granted. In some cases in which probation has not been granted, the court also has the authority to issue post-conviction protective orders. The court is authorized to issue no-contact orders for up to 10 years when a defendant has been convicted of willful infliction of corporal injury to a spouse, former spouse, cohabitant, former cohabitant, or the mother or father of the defendant's child. The court can also issue no-contact post-conviction orders lasting up to 10 years in cases involving a domestic violence-related offense, rape, statutory rape, pimping and pandering, stalking, gang activity, elder abuse, or any crime requiring sex offender registration. (Pen. Code, §§ 136.2, subd. (i)(1), 368, subd.(l) and 646.9, subd. (k).)

Relevant to this bill, existing law already authorizes the court to order, as a condition of probation, that the defendant stay away from retail establishments with a reasonable nexus to the crime committed. (Pen. Code, § 490.4, subd. (e).)

Disobedience of a court order may be punished as criminal contempt. The crime of contempt is a general intent crime. It is proven by showing that the defendant intended to commit the prohibited act, without any additional showing that he or she intended “to do some further act or achieve some additional consequence.” (People v. Greenfield (1982) 134 Cal.App.3d Supp. 1, 4.) Nevertheless, a violation must also be willful, which in the case of a court order encompasses both intent to disobey the order, and disregard of the duty to obey the order.” (In re Karpf (1970) 10 Cal.App.3d 355, 372.)

Violations of a protective order issued by a civil court for domestic violence, civil harassment, workplace violence, school violence, or elder abuse, may be punished as a misdemeanor unless otherwise specified. (Pen. Code, § 273.6.)

This bill provides that a court sentencing a defendant for a violation of shoplifting, theft from a retail establishment, organized retail theft, vandalism of a retail establishment, or assault or battery of an employee of a retail establishment while that person is working at the retail establishment shall consider issuing an order restraining the defendant from entering the premises of the retail establishment. This bill states that the order shall prohibit the restrained person from entering the retail establishment, or being present on the grounds of, or any parking lot adjacent to and used to service, the retail establishment. This bill authorizes a court to include other retail establishments in a chain or franchise within a specified geographic range in the order. This order may be valid for up to two years.

This bill specifies that in determining whether to impose a restraining order under the bill’s provisions, the court shall consider whether the retail establishment is the only place that sells food, pharmaceuticals, or other basic life necessities within one mile of where the individual resides, or otherwise creates undue hardship for the individual.

As discussed above, a court generally has discretion to issue a protective order or stay-away order when the defendant has been convicted of a crime as a reasonable condition of probation. This bill adds a new statute authorizing courts to issue a restraining order to protect a business from an individual convicted of various theft offenses, vandalism of a retail establishment, or assault or battery against an employee of a retail establishment and specifies the areas the defendant must be ordered to stay away from.

While it is possible that a stay-away order based on a conviction of one of the specified underlying crimes would be reasonable depending on the circumstances, specifying that the court shall consider issuing such an order which shall broadly cover inside the establishment, the grounds of, or any parking lot that services the retail establishment may cause an increase of these types of orders to be issued when the circumstances do not warrant it. Specifying that other retail establishments that were not the target of the original crime may also be protected under the order could lead to overly punitive restrictions without the necessary connection to the crime as well as potential misidentification of persons who were not the actual perpetrator by store employees who have never interacted with the restrained individual.

Additionally, specifying that the order may be valid for up to two years based on a misdemeanor offense seems at odds with the overall probation scheme in California that establishes a general one-year limit on probation, especially without some showing that the defendant is likely to commit another crime or otherwise cause harm at that retail establishment.

1. Creation of a New Type of Restraining Order

In addition to the post-conviction restraining order discussed in note 2, this bill creates a new type of restraining order called a retail crime restraining order which appears to be a hybrid of a criminal procedures applied to civil restraining orders.

Specifically, this bill authorizes a prosecuting attorney, city attorney, county counsel, or attorney representing a retail establishment to file a petition requesting a retail crime restraining order for an individual who has been arrested, including, but not limited to, the issuance of a citation in lieu of a custodial arrest, two or more times for shoplifting, organized retail theft, vandalism, or assault or battery against an employee within the same retail establishment. This bill requires the respondent to be personally served with notice of the hearing and entitles the respondent to court-appointed counsel.

The bill does not specify how old the prior arrests may be nor whether the petition would be filed in criminal court or civil court. Criminal restraining orders are generally requested by the prosecuting attorney of a pending criminal case and the purpose is to protect the victim or witnesses from intimidation or dissuasion during the criminal proceedings.

Normally in criminal courts, the district attorney is charged with filing criminal actions and when a defendant cannot afford counsel, a public defender will be appointed to the case. Private attorneys not representing defendants, county counsel, and in most instances city attorneys do

not have power to file criminal actions or petitions in criminal court. However, if the bill were to allow the new restraining order to be filed in civil court, even though its provisions are in the Penal Code, it is unclear who would be appointed to represent the respondent since there are no criminal charges and the public defender is supposed to be appointed at arraignment of criminal charges. Public defenders are not present in civil court as a general matter to accept appointment.

Additionally, authorizing a district attorney to petition for a civil restraining order raises concerns over mixing criminal matters with civil matters which generally have different rules and purposes. Some victims prefer to handle personal matters through civil court because they have less control over what happens in a criminal case and having a district attorney present during civil matters may create a chilling effect for those victims.

Two or more arrests for allegedly committing one of qualifying crimes within the same retail establishment regardless of how long ago the prior arrest/s occurred triggers the ability of the petitioner to file for a restraining order. A private attorney representing a retail establishment, nor county counsel and in most cases the city attorney, do not have the ability to bring criminal charges against an individual after an arrest and may find the restraining order created by this bill a useful tool. The district attorney, however, is in an entirely different position. The district attorney has sole discretion to file whatever criminal charges they deem to be appropriate thus it is unclear why the district attorney would need to file a petition for a restraining order instead of filing criminal charges especially against a person with multiple arrests at the same location.

A violation of the restraining order would be a misdemeanor and the burden of proof required to obtain the restraining order is lower than what is required for a criminal conviction (preponderance of the evidence versus beyond a reasonable doubt) so this bill may unintentionally incentivize the use of the restraining order without ever charging or convicting the individual for the alleged offenses. The bill’s provisions state, albeit declarative of existing law, that an individual who violates a restraining order authorized by this bill may be given the opportunity to participate in a diversion program for which they are eligible. There are a variety of diversion programs currently available in existing law, including misdemeanor diversion and mental health diversion. If a person who has been arrested two times but the district attorney decides not to file criminal charges, perhaps due to the person’s mental illness or other reason that a conviction for the underlying alleged crime may not be desirable, the person may nevertheless end up booked and held in jail rather than cited and released based on violating the restraining order.

Unlike the post-conviction restraining order created by this bill discussed in note 3, this new type of restraining order does not require a showing that the person restrained actually committed the alleged underlying crimes, only that they were arrested twice, but they will have their liberty substantially restricted in the same way as someone who has been convicted of those offenses.

1. Renewed Efforts to Combat Property Crimes

“The Homelessness, Drug Addition, and Theft Reduction Act” is a new initiative that would make specific changes to laws enacted by Proposition 47, also known as the Safe Neighborhoods and Schools Act which was approved by the voters in November 2014. 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. (See Legislative Analyst's Office analysis of Proposition 47 (See http://www.lao.ca.gov/ballot/2014/prop-47-110414.pdf [as of June 3, 2024].)

Specifically, the new initiative would reenact felony sentencing for petty theft with two prior thefts, allow multiple petty thefts to be aggregated to meet the $950 threshold without a showing that the acts were connected, and create new enhancements depending on the amount of property stolen or damaged. The initiative would also increase penalties for certain drug crimes, mandate treatment for certain offenders, and require courts to warn people convicted of drug distribution that they may be charged with murder in the future if someone dies after taking an illegal drug provided by that person. (https://ballotpedia.org/California_Drug_and_Theft_Crime_Penalties_and_Treatment-Mandated_Felonies_Initiative_(2024) [as of June 3, 2024].) The initiative is supported by various law enforcement, public officials, district attorneys, small businesses and retail corporations. (Id.) To qualify for the November 2024 ballot, the law requires 546,651 valid signatures by June 27, 2024; as of January 25, 2024, the campaign had notified the Secretary of State that 25% of the required signatures had been collected. (Id.) The initiative is currently pending signature verification. (https://www.sos.ca.gov/elections/ballot-measures/initiative-and-referendum-status/initiatives-and-referenda-pending-signature-verification [as of June 3, 2024].)

On January 9, 2024, Governor Newsom called for legislation to crack down on large scale property crimes committed by organized groups who profit from resale of stolen goods. (https://www.gov.ca.gov/2024/01/09/property-crime-framework/ [as of June 3, 2024).) The proposals include: 1) creating new penalties targeting those engaged in retail theft to resell, and those that resell the stolen property; 2) clarifying existing arrest authority so that police can arrest suspects of retail theft, even if they didn’t witness the crime in progress; 3) clarifying that theft amounts may be aggregated to reach the grand theft threshold; 4) creating new penalties for professional auto burglary, increasing penalties for the possession of items stolen from a vehicle with intent to resell, regardless of whether the vehicle was locked; 5) eliminating the sunset date for the organized retail crime statute; and 6) increasing penalties for large-scale resellers of stolen goods.

Both houses of the Legislature have announced legislative packages that include parts of the Governor’s proposals. (See https://www.latimes.com/california/story/2024-02-26/senate-leaders-respond-to-states-fentanyl-crisis-and-organized-retail-theft-problem-with-new-legislation [as of June 3, 2024) and https://www.latimes.com/california/story/2024-02-15/democratic-lawmakers-introduce-legislation-to-target-organized-retail-theft-online-resellers#:~:text=If%20passed%2C%20the%20bill%20would,if%20there%20were%20separate%20victims [as of June 3, 2024].)

1. Amendments to be Taken in Appropriations Committee

This bill will be amended to contain an urgency clause, allowing the bill’s provisions to take effect immediately upon approval of the Governor. Additionally, the bill will be amended to contain an inoperability clause stating that its provisions will become inoperative if the proposed initiative measure titled, “The Homelessness, Drug Addition, and Theft Reduction Act” (Initiative 23-0017A1) is approved by the voters at the statewide general election on November 5, 2024 and shall be repealed on January 1, 2025.

1. Arguments in Support

According to CalChamber:

This legislation would provide a new enforcement tool that will keep stores and workers safe from crime as rates of retail theft and robbery have risen in California. According to the Public Policy Institute of California (PPIC), in 2022 California saw a 28.7% increase in commercial shoplifting and a 15.7% increase in burglaries of items totaling more than $950 between 2019 and 2022. Retail theft has become an increasingly prevalent problem across California, with detrimental effects on both local businesses and consumers. The significant losses incurred by retailers due to theft not only threaten their financial stability, but also jeopardize their ability to provide essential goods and services to the communities they serve. Moreover, the rise in organized retail crime has led to safety concerns for both employees and customers, further exacerbating the problem. The introduction of Retail Theft Restraining Orders (RTROs) presents a proactive and effective approach to combatting this growing issue. By enabling retailers to obtain civil restraining orders against habitual offenders, this legislation empowers businesses to protect themselves and deter potential thieves from engaging in criminal activities. Additionally, RTROs provide law enforcement with valuable tools to address repeat offenders, disrupt organized retail crime networks, and enhance public safety. Furthermore, the implementation of RTROs offers a balanced solution that upholds the rights of both retailers and individuals while holding accountable those who repeatedly engage in criminal behavior. By targeting habitual offenders and providing avenues for rehabilitation and support, this legislation not only and support, this legislation not only addresses the symptoms of retail theft, but also tackles the underlying issues contributing to criminal behavior.

1. Arguments in Opposition

According to Vera Institute of Justice:

AB 3209 would create a harmful new process whereby attorneys representing retailers— not district attorneys nor individual victims—could seek a two-year “retail theft restraining order” for petty theft or vandalism. Such an order could be sought either at sentencing (after conviction), or merely if someone has been arrested (but not convicted) of such an offense twice. This would expand criminal consequences based on a lower standard of proof (preponderance of the evidence, rather than beyond a reasonable doubt) and eliminate key procedural protections in the case of restraining orders sought by attorney representing retailers. Weakening these key tenets of both state and federal law raises significant concerns.

. . . .

Prosecutors and retail stores have historically combatted theft using theft or trespass charges. Those tools are still available, and they are more than sufficient for non-violent theft and vandalism offenses. For offenses involving violence against retail workers, the harmed employee still has all rights available to them as a crime victim—but should not have more rights than any other victim in the community. This legislation elevates well-resourced retail chains above other victims needing protection, including both victims of violent crime and smaller retail stores without the means to hire counsel.

The restraining order would also apply to any store within a franchise or chain, which suggests that retail workers may be tasked with enforcing the restraining order based on photos of someone who may have visited another chain store within the past two years. A large majority of wrongful convictions stem from eyewitness misidentifications—and the problem only worsens by over 50 percent for cross racial identifications—raising the specter of racial profiling and dangerous consequences.

Further, by permitting law enforcement officers to arrest, as opposed to cite and release, those suspected of violating a restraining order, AB 3209 will not make our communities safer. Years of research shows that pretrial detention decreases community safety in the long run—a landmark study of more than 1.5 million cases found that any amount of time in jail beyond 23 hours makes a person more likely to be arrested again in the future. This is because even a short period in jail can result in someone losing their job, their housing, or custody of their children.

Finally, AB 3209 may worsen racial disparities by expanding warrantless detentions by law enforcement officers. A long trail of evidence indicates that when law enforcement has expanded authority to detain individuals for low-level offenses, as for example in the case of low-level traffic stops, racial disparities may ensue. For sake of safety and justice, policing should follow procedures that ensure accountability, including requiring warrants for low-level offense.

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ASSEMBLY THIRD READING

ATR Bill Id:AB 3209

Author:(Berman and Robert Rivas)

As Amended Ver:May 16, 2024

Majority vote

SUMMARY

Allows a court to issue an order prohibiting a person from being present on the grounds of, or any parking lot adjacent to, a retail establishment and any other retail establishments in that chain or franchise, as specified, and provides that a violation of the order would be punishable as a misdemeanor.

Major Provisions

1. Allows the court to issue the order when sentencing the defendant for any of the following offenses:
   1. Shoplifting;
   2. Theft from a retail establishment;
   3. Organized retail theft;
   4. Any vandalism of a retail establishment; or,
   5. Any assault or battery of an employee of a retail establishment while that person is working at the retail establishment.
2. Allows a prosecuting attorney, city attorney, county counsel, or attorney representing a retail establishment to petition for the order for an individual who been arrested (including receiving a citation in lieu of a custodial arrest) two or more times for any of the above offenses.
3. In response to a petition, the court can impose the order under the following circumstances:
   1. Pursuant to a hearing at which the petitioner bears the burden of proving, by a preponderance of the evidence, that the respondent, on two or more separate occasions, committed one of the follow offenses within the retail establishment or on the grounds thereof:
      1. Shoplifting;
      2. Theft from a retail establishment;
      3. Organized retail theft;
      4. Any vandalism of a retail establishment; or,
      5. Any assault or battery of an employee of a retail establishment while that person is working at the retail establishment.
   2. The respondent is personally served with a notice of the hearing;
   3. The respondent shall be entitled to representation by court-appointed counsel;
   4. The court must find by a preponderance of the evidence that both of the following are true:
      1. The respondent, on two or more separate occasions, committed any of the offenses within the retail establishment or on the grounds thereof; and,
      2. There is a substantial likelihood that the individual will return to the retail establishment.
4. Provides that the order shall prohibit the restrained person from entering the retail establishment, or being present on the grounds of, or any parking lot adjacent to, the retail establishment.
5. Allows, if the retail establishment is part of a chain or franchise, the court to include other retail establishments in that chain or franchise within a specified geographic range in the order.
6. Requires, when determining whether to impose the order, the court to consider whether the retail establishment is the only place that sells food, pharmaceuticals, or other basic life necessities within one mile of where the individual resides, or otherwise creates undue hardship for the individual.
7. Makes a violation of the order a crime, punishable as a misdemeanor, punishable by punishable by imprisonment in the county jail not exceeding six months, or by a fine not exceeding $1,000, or by both.
8. Authorizes an officer to arrest a person for a violation of the order instead of releasing the person pursuant to a written notice to appear.

COMMENTS

According to the Author

"AB 3209 would authorize a court to impose a Retail Crime Restraining Order for a theft offense, vandalism within the store, or battery of an employee within the store. With the rise in retail theft and robbery in California, solutions needs to find the balance of strengthening enforcement while not perpetuating the underlying causes of retail theft, such as poverty. Addressing the issues of retail theft, vandalism, and assaults on employees are important to ensure safety in our communities and businesses. This bill strikes a balance between providing a necessary enforcement tool to keep stores, customers, and workers safe and ensuring that the consequences fit the offense."

Arguments in Support

According to the California Retailers Association, "Retail theft has become an increasingly prevalent problem across California, with detrimental effects on both local businesses and consumers. The significant losses incurred by retailers due to theft not only threaten their financial stability, but also jeopardize their ability to provide essential goods and services to the communities they serve. Moreover, the rise in organized retail crime has led to safety concerns for both employees and customers, further exacerbating the problem.

"The introduction of Retail Theft Restraining Orders presents a proactive and effective approach to combatting this growing issue. By enabling retailers to obtain civil restraining orders against habitual offenders, this legislation empowers businesses to protect themselves and deter potential thieves from engaging in criminal activities. Additionally, RTROs provide law enforcement with valuable tools to address repeat offenders, disrupt organized retail crime networks, and enhance public safety.

"Furthermore, the implementation of RTROs offers a balanced solution that upholds the rights of both retailers and individuals while holding accountable those who repeatedly engage in criminal behavior. By targeting habitual offenders and providing avenues for rehabilitation and support, this legislation not only addresses the symptoms of retail theft, but also tackles the underlying issues contributing to criminal behavior."

Arguments in Opposition

According to Vera California, "AB 3209 would create a harmful new process whereby attorneys representing retailers—not district attorneys nor individual victims—could seek a two-year "retail theft restraining order" for petty theft or vandalism. Such an order could be sought either at sentencing (after conviction), or merely if someone has been arrested (but not convicted) of such an offense twice. This would expand criminal consequences based on a lower standard of proof (preponderance of the evidence, rather than beyond a reasonable doubt) and eliminate key procedural protections in the case of restraining orders sought by attorney representing retailers. Weakening these key tenets of both state and federal law raises significant concerns.

"The bill would also interrupt the ability of assistant district attorneys to effectively and justly carry out their duties. Assistant district attorneys are hired by prosecutor's offices, receive job-specific training, and swear oaths to uphold their additional burdens before obtaining the power to request criminal protective orders on behalf of the district attorney under California law. This discretion is bestowed upon prosecutors for a reason—because issuance of criminal charges and orders is within their mandate to promote safety and justice in the community. By expanding this power to attorneys representing retail establishments, AB 3209 improperly grants quasi-law enforcement authority to lawyers who represent private interests rather than public safety, and it potentially gives power to retail chain lawyers that not even criminal judges have.

"Additionally, this bill subverts the intent of criminal protective orders—which is to protect people. Allowing such orders to apply to retail establishments or chains of retail establishments instead of individuals is misaligned with the legislative intent of Cal Penal Code Section 136.2. Prosecutors and retail stores have historically combatted theft using theft or trespass charges. Those tools are still available, and they are more than sufficient for non-violent theft and vandalism offenses. For offenses involving violence against retail workers, the harmed employee still has all rights available to them as a crime victim—but should not have more rights than any other victim in the community.4 This legislation elevates well-resourced retail chains above other victims needing protection, including both victims of violent crime and smaller retail stores without the means to hire counsel.

"The restraining order would also apply to any store within a franchise or chain, which suggests that retail workers may be tasked with enforcing the restraining order based on photos of someone who may have visited another chain store within the past two years. A large majority of wrongful convictions stem from eyewitness misidentifications—and the problem only worsens by over 50% for cross racial identifications—raising the specter of racial profiling and dangerous consequences.

"Further, by permitting law enforcement officers to arrest, as opposed to cite and release, those suspected of violating a restraining order, AB 3209 will not make our communities safer. Years of research shows that pretrial detention decreases community safety in the long run—a landmark study of more than 1.5 million cases found that any amount of time in jail beyond 23 hours makes a person more likely to be arrested again in the future. This is because even a short period in jail can result in someone losing their job, their housing, or custody of their children.

"Finally, AB 3209 may worsen racial disparities by expanding warrantless detentions by law enforcement officers. A long trail of evidence indicates that when law enforcement has expanded authority to detain individuals for low-level offenses, as for example in the case of low-level traffic stops, racial disparities may ensue. For sake of safety and justice, policing should follow procedures that ensure accountability, including requiring warrants for low-level offenses.

"When we blame the wrong problems, we miss the right solutions. As sensational claims about organized retail theft have been debunked and data shows that retail theft is not rising statewide, responses need to be tailored to the facts. The legislature should respond to concerns from the community and local businesses with evidence-backed solutions.

"Increasing arrests for non-violent retail crimes will do little to make our communities safer. Unlike the community-based programs funded by Proposition 47, which have reduced recidivism, sending people to jail and prison makes them more likely to reoffend, while costing local governments dearly amid a budget deficit.

"To deter and address retail theft, we need to take on its drivers. When people shoplift as part of an organized retail theft operation, law enforcement should investigate and hold accountable the people who profit most from these sophisticated operations. However, we know from past experience that arresting low-level offenders to find those driving sophisticated organized retail theft will not be particularly successful. Legislators can also help by regulating online marketplaces to make it harder to sell stolen goods. Supporting retail workers by requiring employers to enhance pay, increase staffing (instead of using self-checkout or surveillance based technology), and provide training can also help.

"When people are arrested for stealing out of need, we need to make sure they don't need to do it again. Instead of reducing public safety through unnecessary criminalization, we can effectively intervene by meeting their needs and connecting them to stable housing, jobs, and other treatment and services. Cities around the country have effectively employed this model, while similar models have proved effective in California thanks to community funding created by Prop 47.

"It is long past time to reject the reach for "tough" policies in favor of real solutions."

FISCAL COMMENTS

According to the Assembly Appropriations Committee:

1. Cost pressures (Trial Court Trust Fund, General Fund) of an unknown but potentially significant amount to the courts to hear and adjudicate applications for retail crime restraining orders and misdemeanor violations of those orders. Actual costs will depend on the number of orders sought, the number of violations prosecuted, and the number of cases in which court-appointed counsel is warranted. It generally costs about $1,000 to operate a courtroom for one hour. If retail crime restraining order applications and related misdemeanor cases take 150 or more hours of court time statewide, cost pressures would exceed this committee's suspense threshold. Although courts are not funded on the basis of workload, increased pressure on the Trial Court Trust Fund may create a need for increased funding for courts from the General Fund. The Governor's 2024-25 budget proposes $83.1 million ongoing from the General Fund to backfill declining revenue to the Trial Court Trust Fund.
2. Potential nonreimbursable costs (local funds, General Fund) to the counties to incarcerate people convicted of violating retail crime restraining orders. The average annual cost to incarcerate a defendant in county jail is $29,000. If 50 defendants must each serve two months in county jail for violating a retail crime restraining order, the resulting incarceration cost to the counties would be $241,000. California county jails are increasingly overcrowded – particularly since the enactment of public safety realignment in 2011. Although new crimes are not considered reimbursable state mandates pursuant to Proposition 30 (2012), overcrowding in county jails creates cost pressure on the General Fund because the state has historically granted new funding to counties to offset overcrowding.

According to the Legislative Analyst's Office, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years.

VOTES

ASM PUBLIC SAFETY: 8-0-0

YES: McCarty, Alanis, Lackey, Stephanie Nguyen, Reyes, Ting, Wilson, Zbur

ASM APPROPRIATIONS: 10-0-5

YES: Wicks, Arambula, Calderon, Wendy Carrillo, Mike Fong, Grayson, Haney, Hart, Pellerin, Villapudua

ABS, ABST OR NV: Sanchez, Bryan, Dixon, Jim Patterson, Ta

UPDATED

VERSION: May 16, 2024

CONSULTANT: Ilan Zur / PUB. S. / (916) 319-3744 FN: 0003314

Date of Hearing: April 17, 2024

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

ABPCA Bill Id:AB 3209

Author:(Berman) – As Amended Ver:April 1, 2024

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill allows a court to issue a restraining order prohibiting a person from being present on the grounds or adjacent parking lot of a retail establishment. A court may make such an order upon petition or at sentencing for specified retail offenses.

FISCAL EFFECT:

1. Cost pressures (Trial Court Trust Fund, General Fund) of an unknown but potentially significant amount to the courts to hear and adjudicate applications for retail crime restraining orders and misdemeanor violations of those orders. Actual costs will depend on the number of orders sought, the number of violations prosecuted, and the number of cases in which court-appointed counsel is warranted. It generally costs about $1,000 to operate a courtroom for one hour. If retail crime restraining order applications and related misdemeanor cases take 150 or more hours of court time statewide, cost pressures would exceed this committee’s suspense threshold. Although courts are not funded on the basis of workload, increased pressure on the Trial Court Trust Fund may create a need for increased funding for courts from the General Fund. The Governor’s 2024-25 budget proposes $83.1 million ongoing from the General Fund to backfill declining revenue to the Trial Court Trust Fund.
2. Potential nonreimbursable costs (local funds, General Fund) to the counties to incarcerate people convicted of violating retail crime restraining orders. The average annual cost to incarcerate a defendant in county jail is $29,000. If 50 defendants must each serve two months in county jail for violating a retail crime restraining order, the resulting incarceration cost to the counties would be $241,000. California county jails are increasingly overcrowded – particularly since the enactment of public safety realignment in 2011. Although new crimes are not considered reimbursable state mandates pursuant to Proposition 30 (2012), overcrowding in county jails creates cost pressure on the General Fund because the state has historically granted new funding to counties to offset overcrowding.

According to the Legislative Analyst’s Office, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years.

COMMENTS:

1. Purpose. According to the author:

With the rise in retail theft and robbery in California, solutions needs to find the balance of strengthening enforcement while not perpetuating the underlying causes of retail theft, such as poverty. Addressing the issues of retail theft, vandalism, and assaults on employees are important to ensure safety in our communities and businesses. This bill strikes a balance between providing a necessary enforcement tool to keep stores, customers, and workers safe and ensuring that the consequences fit the offense.

1. Background. Existing law provides a number of circumstance-specific restraining orders intended to help a person who requests protection from a person who has made credible threats against them. These include gun violence restraining orders, domestic violence restraining orders, workplace violence restraining orders, and school violence restraining orders.

This bill creates a retail crime restraining order. A retail crime restraining order may be ordered by the court at sentencing for certain theft-related offenses, including shoplifting, organized retail theft, vandalism of a retail establishment, or assault of an employee at a retail establishment. Alternatively, a public prosecutor or private attorney representing a retail establishment (“petitioner”) may petition the court for a retail crime restraining order. Upon application, the court will hold a hearing and the petitioner must demonstrate that the person against whom the order is sought (“respondent”) committed specified retail offenses within the retail establishment on two or more separate occasions and there is a substantial likelihood that the petitioner will return to the retail establishment. Once issued, a retail crime restraining order prohibits the respondent from entering a retail establishment or the area around a retail establishment. Violation of a retail crime restraining order is a misdemeanor punishable by imprisonment in county jail up to six months, or a fine of up to $1,000, or both jail and a fine.

Analysis Prepared by: Annika Carlson / APPR. / (916) 319-2081

Date of Hearing: April 9, 2024

Counsel: Liah Burnley

ASSEMBLY COMMITTEE ON

Kevin McCarty, Chair

ABPCA Bill Id:

Author:() – As Ver:

SUMMARY:

Allows a court to issue an order prohibiting a person from being present on the grounds of, or any parking lot adjacent to, a retail establishment and any other retail establishments in that chain or franchise, as specified, and provides that a violation of the order would be punishable as a misdemeanor. Specifically, this bill:

1. Allows the court to issue the order when sentencing the defendant for any of the following offenses:
   
   1. Shoplifting;
      
   2. Theft from a retail establishment;
      
   3. Organized retail theft;
      
   4. Any vandalism of a retail establishment; or,
      
   5. Any assault or battery of an employee of a retail establishment while that person is working at the retail establishment.
      
2. Allows a prosecuting attorney, city attorney, county counsel, or attorney representing a retail establishment to petition for the order. In response to a petition, the court can impose the order under the following circumstances:
   
   1. Pursuant to a hearing at which the petitioner bears the burden of proving, by a preponderance of the evidence, that the respondent, on two or more separate occasions, committed one of the follow offenses within the retail establishment or on the grounds thereof:
      
      1. Shoplifting;
         
      2. Theft from a retail establishment;
         
      3. Organized retail theft;
         
      4. Any vandalism of a retail establishment; or,
         
      5. Any assault or battery of an employee of a retail establishment while that person is working at the retail establishment.
         
   2. The respondent is personally served with a notice of the hearing;
      
   3. The respondent shall be entitled to representation by court-appointed counsel;
      
   4. The court must find by a preponderance of the evidence that both of the following are true:
      
      1. The respondent, on two or more separate occasions, committed any of the offenses within the retail establishment or on the grounds thereof; and,
         
      2. There is a substantial likelihood that the individual will return to the retail establishment.
         
3. Provides that the order shall prohibit the restrained person from entering the retail establishment, or being present on the grounds of, or any parking lot adjacent to, the retail establishment.
   
4. Allows, if the retail establishment is part of a chain or franchise, the court to include other retail establishments in that chain or franchise within a specified geographic range in the order.
   
5. Requires, when determining whether to impose the order, the court to consider whether the retail establishment is the only place that sells food, pharmaceuticals, or other basic life necessities within one mile of where the individual resides, or otherwise creates undue hardship for the individual.
   
6. Makes a violation of the order a crime, punishable as a misdemeanor, punishable by punishable by imprisonment in the county jail not exceeding six months, or by a fine not exceeding $1,000, or by both.
   
7. Authorizes an officer to arrest a person for a violation of the order instead of releasing the person pursuant to a written notice to appear.

EXISTING LAW:

1. States that a person who commits any of the following acts is guilty of organized retail theft:
   
   1. Acts in concert with one or more persons to steal merchandise from one or more merchant’s premises or online marketplace with the intent to sell, exchange, or return the merchandise for value;
      
   2. Acts in concert with two or more persons to receive, purchase, or possess merchandise knowing or believing it to have been stolen;
      
   3. Acts as an agent of another individual or group of individuals to steal merchandise from one or more merchant’s premises or online marketplaces as part of an organized plan to commit theft; or,
      
   4. Recruits, coordinates, organizes, supervises, directs, manages, or finances another to undertake any of these acts or any other statute defining theft of merchandise. (Pen. Code, § 490.4, subd. (a).)
      
2. Punishes organized retail theft, as follows:
   
   1. If violations of the provisions directed at acting in concert or as an agent are committed on two or more separate occasions within a one-year period, and if the aggregated value of the merchandise stolen, received, purchased, or possessed within that period exceeds $950, the offense is punishable as an alternate felony-misdemeanor (a “wobbler”);
      
   2. Any other violation of the provisions directed at acting in concert or as an agent is punishable as a misdemeanor by imprisonment in a county jail not exceeding one year; and,
      
   3. A violation of the recruiting, coordinating, organizing, supervising, directing, managing, or financing provision is punishable as a wobbler. (Pen. Code, § 490.4, subd. (b).)
      
3. States that every person who steals, takes, carries, leads, or drives away the personal property of another is guilty of theft. (Pen. Code, § 484, subd. (a).)
   
4. Defines grand theft as theft of money, labor, real or personal property of a value exceeding $950. Grand theft is a wobbler, punishable by imprisonment in a county jail not exceeding one year, or as a felony by imprisonment in the county jail for 16 months, two years, or three years (Pen. Code, §§ 487, 489.)
   
5. 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 states that petty theft is a misdemeanor, punishable by a fine not exceeding $1,000 or by imprisonment in the county jail not exceeding six months, or both. (Pen. Code, §§ 490, 490.2, subd. (a).)
   
6. Provides that the value of the money, labor, real property, or personal property taken exceeds $950 over the course of distinct but related acts, the value of the money, labor, real property, or personal property 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. (Pen. Code, § 487, subd. (e).)
   
7. 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. Shoplifting shall be punished as a misdemeanor, except as specified. (Pen. Code, § 459.5.)
8. Provides that every person who defaces, damages or destroys real or personal property that is not their own, is guilty of vandalism. If the amount of the damage is less than $400, the offense is a misdemeanor, punishable by imprisonment in a county jail not exceeding one year, by a fine of $1,000, or by both. If the amount of the damage is $400 or more, the offense is a felony, punishable by imprisonment in a county jail not exceeding one year, by a fine of not more than $10,000, or both. (Pen. Code, § 594 subd. (b).)
   
9. Provides that a person is guilty of trespass where the person enters private property, whether or not the property is open to the public, and the following circumstances apply:
   
   1. The person has been previously convicted of a violent felony on the property, as defined;
      
   2. The owner, the owner’s agent, or lawful possessor, has requested a peace officer to inform the person that the property is not open to him or her;
      
   3. The peace officer has informed the person that he or she may not enter the property and informs the person that the notice has been given at the request of the owner or other authorized person; and,
      
   4. The person fails to leave the property upon being asked to do so. (Pen. Code, §602, subd. (t).)
      
10. Provides that any intentional and knowing violation of a protective order is a misdemeanor crime punishable by up to one year in county jail, by a fine of up to $1,000, or both. (Pen. Code, § 273.6.)
    
11. Provides that, unless a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, by fine not exceeding $1,000, or by both. (Pen. Code, § 19.)
    

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “AB 3209 would authorize a court to impose a Retail Crime Restraining Order for a theft offense, vandalism within the store, or battery of an employee within the store. With the rise in retail theft and robbery in California, solutions needs to find the balance of strengthening enforcement while not perpetuating the underlying causes of retail theft, such as poverty. Addressing the issues of retail theft, vandalism, and assaults on employees are important to ensure safety in our communities and businesses. This bill strikes a balance between providing a necessary enforcement tool to keep stores, customers, and workers safe and ensuring that the consequences fit the offense.”
   
2. Effect of this Bill: This bill would allow a court, when sentencing a defendant for specified theft, to consider issuing a restring order prohibiting the defendant from entering the retail theft establishment. This bill would also allow a prosecuting attorney, city attorney, county counsel, or attorney representing a retail establishment to file a petition requesting a retail crime restraining order.
   
   The restraining orders created by this bill would prohibit a person from entering a retail establishment, or being present on the grounds of, any parking lot adjacent to the retail establishment. This bill would give a court authority to include in the order other retail establishments in the chain or franchise within a specific geographic range. This bill contains no definition for “specific geographic range,” and as such, this consideration would be left to the discretion of the court. This bill also requires, when imposing a retail crime restraining order, the court to consider whether the retail establishment is the only place that sells food, pharmaceuticals, or other basic life necessities within one mile of where the individual resides, or whether the order otherwise creates undue hardship for the individual.

The order created by this bill would remain in effect for a period of up to two years. Violation of the order would be a misdemeanor, punishable by a fine of up to $1,000 or six months imprisonment in county jail, or both. In addition, this bill would not require an officer making an arrest to cite and release the person with a notice to appear for violation of the restraining order. Instead, the officer would have the discretion to arrest the person without a warrant and book the person into custody.

Orders issued pursuant to a petition can only be issued after a noticed hearing in which the respondent would be entitled to court-appointed counsel. The petitioner would have the burden of proving, by a preponderance of the evidence, that the respondent on two or more separate occasions committed an offense within the retail establishment. Notably, in these instances, the person did not have to have a conviction –or even be charged with the prior offenses. The petitioner only need to prove “by a preponderance of the evidence” that the respondent, on two or more separate occasions, committed theft within the retail establishment or on the grounds thereof and that there is a “substantial likelihood” that the individual will return to the retail establishment. This bill does not require that the petitioner prove the person was convicted of two or more thefts, just that the thefts were committed. This distinction deserves considerable attention, given that the restraining order created by this bill would create a substantial restriction on a person’s liberty and allow officers to arrest and book a person for violating the order.

Given the disparities in the criminal justice system^[1], the Legislature should consider the fact that this bill will have the unintended consequence of, intentionally or unintentionally, excluding low income, unhoused, LGBTQ, and people of color from public spaces.

1. Restraining Orders: There are several different types of restraining orders, including domestic violence restraining orders (DVROs), civil harassment restraining orders, elder abuse restraining orders, gun violence restraining orders (GVRO), workplace violence protective orders, and school violence protective orders. These restraining orders are usually requested by the victim. (Judicial Branch of California, Types of Restraining Orders. Available at <https://selfhelp.courts.ca.gov/types-restraining-orders>.) In addition, police can seek emergency protective orders (EPOs) and courts can issue criminal protective orders as part of a criminal case. (Ibid.) An EPO usually last for a short period of time, and can order a defendant stay a certain distance away from people or places by the order. (Ibid.) A criminal protective order stays in place throughout the criminal proceedings, and can be dismissed if the case is dismissed. A judge can issue a new criminal protective order at the time of sentencing if the person is convicted. A criminal protective order can remain valid for up to 10 years. (Ibid.) Generally, violation of a restraining order is a misdemeanor punishable by up to one year in county jail, by a fine of up to $1,000, or both. (Pen. Code, § 273.6.)
   
2. Argument in Support: According to the California Retailers Association, “Retail theft has become an increasingly prevalent problem across California, with detrimental effects on both local businesses and consumers. The significant losses incurred by retailers due to theft not only threaten their financial stability, but also jeopardize their ability to provide essential goods and services to the communities they serve. Moreover, the rise in organized retail crime has led to safety concerns for both employees and customers, further exacerbating the problem.
   

“The introduction of Retail Theft Restraining Orders presents a proactive and effective approach to combatting this growing issue. By enabling retailers to obtain civil restraining orders against habitual offenders, this legislation empowers businesses to protect themselves and deter potential thieves from engaging in criminal activities. Additionally, RTROs provide law enforcement with valuable tools to address repeat offenders, disrupt organized retail crime networks, and enhance public safety.

“Furthermore, the implementation of RTROs offers a balanced solution that upholds the rights of both retailers and individuals while holding accountable those who repeatedly engage in criminal behavior. By targeting habitual offenders and providing avenues for rehabilitation and support, this legislation not only addresses the symptoms of retail theft, but also tackles the underlying issues contributing to criminal behavior.”

1. Argument in Opposition: According to Vera California, “AB 3209 would create a harmful new process whereby attorneys representing retailers—not district attorneys nor individual victims—could seek a two-year “retail theft restraining order” for petty theft or vandalism. Such an order could be sought either at sentencing (after conviction), or merely if someone has been arrested (but not convicted) of such an offense twice. This would expand criminal consequences based on a lower standard of proof (preponderance of the evidence, rather than beyond a reasonable doubt) and eliminate key procedural protections in the case of restraining orders sought by attorney representing retailers. Weakening these key tenets of both state and federal law raises significant concerns.
   
   “The bill would also interrupt the ability of assistant district attorneys to effectively and justly carry out their duties. Assistant district attorneys are hired by prosecutor’s offices, receive job-specific training, and swear oaths to uphold their additional burdens before obtaining the power to request criminal protective orders on behalf of the district attorney under California law. This discretion is bestowed upon prosecutors for a reason—because issuance of criminal charges and orders is within their mandate to promote safety and justice in the community. By expanding this power to attorneys representing retail establishments, AB 3209 improperly grants quasi-law enforcement authority to lawyers who represent private interests rather than public safety, and it potentially gives power to retail chain lawyers that not even criminal judges have.
   
   “Additionally, this bill subverts the intent of criminal protective orders—which is to protect people. Allowing such orders to apply to retail establishments or chains of retail establishments instead of individuals is misaligned with the legislative intent of Cal Penal Code §136.2. Prosecutors and retail stores have historically combatted theft using theft or trespass charges. Those tools are still available, and they are more than sufficient for non-violent theft and vandalism offenses. For offenses involving violence against retail workers, the harmed employee still has all rights available to them as a crime victim—but should not have more rights than any other victim in the community.4 This legislation elevates well-resourced retail chains above other victims needing protection, including both victims of violent crime and smaller retail stores without the means to hire counsel.
   

“The restraining order would also apply to any store within a franchise or chain, which suggests that retail workers may be tasked with enforcing the restraining order based on photos of someone who may have visited another chain store within the past two years. A large majority of wrongful convictions stem from eyewitness misidentifications—and the problem only worsens by over 50 percent for cross racial identifications—raising the specter of racial profiling and dangerous consequences.

“Further, by permitting law enforcement officers to arrest, as opposed to cite and release, those suspected of violating a restraining order, AB 3209 will not make our communities safer. Years of research shows that pretrial detention decreases community safety in the long run—a landmark study of more than 1.5 million cases found that any amount of time in jail beyond 23 hours makes a person more likely to be arrested again in the future. This is because even a short period in jail can result in someone losing their job, their housing, or custody of their children.

“Finally, AB 3209 may worsen racial disparities by expanding warrantless detentions by law enforcement officers. A long trail of evidence indicates that when law enforcement has expanded authority to detain individuals for low-level offenses, as for example in the case of low-level traffic stops, racial disparities may ensue. For sake of safety and justice, policing should follow procedures that ensure accountability, including requiring warrants for low-level offenses.

“When we blame the wrong problems, we miss the right solutions. As sensational claims about organized retail theft have been debunked and data shows that retail theft is not rising statewide, responses need to be tailored to the facts. The legislature should respond to concerns from the community and local businesses with evidence-backed solutions.

“Increasing arrests for non-violent retail crimes will do little to make our communities safer. Unlike the community-based programs funded by Proposition 47, which have reduced recidivism, sending people to jail and prison makes them more likely to reoffend, while costing local governments dearly amid a budget deficit.

“To deter and address retail theft, we need to take on its drivers. When people shoplift as part of an organized retail theft operation, law enforcement should investigate and hold accountable the people who profit most from these sophisticated operations. However, we know from past experience that arresting low-level offenders to find those driving sophisticated organized retail theft will not be particularly successful. Legislators can also help by regulating online marketplaces to make it harder to sell stolen goods. Supporting retail workers by requiring employers to enhance pay, increase staffing (instead of using self-checkout or surveillance based technology), and provide training can also help.

“When people are arrested for stealing out of need, we need to make sure they don’t need to do it again. Instead of reducing public safety through unnecessary criminalization, we can effectively intervene by meeting their needs and connecting them to stable housing, jobs, and other treatment and services. Cities around the country have effectively employed this model, while similar models have proved effective in California thanks to community funding created by Prop 47.

“It is long past time to reject the reach for “tough” policies in favor of real solutions.”

1. Related Legislation:
   
   1. AB 1802 (Jones-Sawyer) would eliminate the sunset date for organized retail theft. AB 1802 is pending in this Committee.
      
   2. AB 1960 (Soria) would reenact sentence enhancement for theft offenses when the loss exceeds specified dollar amounts. AB 1960 is pending in this Committee.
      
   3. AB 1990 (W. Carrillo) would authorize peace officers to make a warrantless arrest for misdemeanor shoplifting, as specified. AB 1990 is pending in this Committee.
      
   4. AB 1779 (Irwin) would allow, a prosecutor to bring a case in any county where theft offenses occurred for offenses that occur in multiple jurisdictions, as specified. AB 1779 is pending in this Committee.
      
   5. AB 1787 (Villapudua) would among other things, repeal the sunset provision in the organized retail theft statute, thereby extending the crime indefinitely. AB 1787 is pending in this Committee.
      
   6. AB 1794 (McCarty) states the intent of the Legislature to enact legislation relating to theft. AB 1794 is pending in this Committee.
      
   7. AB 2406 (Davies) would make it a felony, punishable by imprisonment in state prison, to use two or more minors to engage in theft related offenses. AB 2406 is pending in this Committee.
      
   8. AB 2438 (Petrie-Norris) would make any person who acts in concert with two or more persons to take, attempt to take, damage, or destroy any property in the commission or attempted commission of a felony punishable by an additional and consecutive term of imprisonment of one, two or three years. AB 2438 is pending in this Committee.
      
   9. AB 2943 (Zbur) would, among other things, extend the organized retail theft statute until January 2031, and make it a crime for any person to possess property unlawfully that was acquired through one or more acts of shoplifting, theft, or burglary from a retail business, if the property is not possessed for personal use and the person has intent to sell, exchange, or return the merchandise for value, or the intent to act in concert with one or more persons to sell, exchange, or return the merchandise for value, and the value of the possessed property exceeds $950. AB 2943 is pending in this committee.
      
   10. SB 923 (Archuleta) would revise the definition of shoplifting to require an intent to steal retail property or merchandise and would require a person convicted of petty theft or shoplifting, if the person has two or more prior convictions for specified theft-related offenses, to be punished by imprisonment in the county jail for up to one year, or for 16 months, or two or three years. SB 923 is pending in Senate Public Safety Committee.
       
   11. SB 928 (Niello) would remove the sunset date for organized retail theft. SB 928 is pending in Senate Public Safety Committee.
       
   12. SB 982 (Wahab) would remove the sunset date for organized retail theft. SB 982 is pending in Senate Appropriations Committee.
       
   13. SB 1416 (Newman) would create sentencing enhancements for selling, exchanging, or returning for value, or attempting to sell, exchange, or return for value, any property acquired through one or more acts of shoplifting, theft, or burglary from a retail business, if the property value exceeds specified amounts and would make these enhancements apply to any person acting in concert with another person to commit these offenses. SB 1416 is pending in Senate Public Safety Committee.
       
2. Prior Legislation:
   
   1. AB 329 (Ta), of the 2023-2024 Legislative Session, would have expanded the territorial jurisdiction in which the Attorney General can prosecute specified theft offenses and associated offenses connected together in their commission to include cargo theft. AB 329 failed passage in this Committee.
      
   2. AB 335 (Alanis), of the 2023-2024 Legislative Session, would have required the Little Hoover Commission to submit a report to the Legislature describing the reported retail thefts, as specified. AB 335 was held under submission in Assembly Appropriations Committee.
      
   3. AB 331 (Jones-Sawyer), Chapter 113, Statutes of 2021, extended the sunset date for organized retail theft through January 1, 2026.
      
   4. AB 23 (Muratsuchi), of the 2023-2024 Legislative Session, would have decreased the threshold amount for grand theft from $950 to $400. The hearing on AB 23 was canceled the request of the author.
      
   5. AB 329 (Ta) would have imposed higher penalties for shoplifting and petty theft if the crime is committed by a non-citizen of the state of California. AB 329 failed passage in this committee.
      
   6. AB 2294 (Jones-Sawyer), Chapter 856, Statutes of 2022, authorized the misdemeanor arrest of a person that has a prior arrest, citation or conviction for theft, as specified, and authorized a city or county prosecuting authority or county probation department to create a diversion or deferred entry of judgment program for persons who commit a theft offense or repeat theft offenses.
      
   7. AB 2356 (Rodriguez), Chapter 22, Statues of 2022, expanded the definition of “grand theft” where the aggregate amount taken by all participants exceeds $950.
      
   8. AB 1603 (Salas), of the 2021-2022 Legislative Session, would have reduced the threshold amount for petty theft and shoplifting to be punished as a misdemeanor from $950 to $400. AB 1603 failed passage in this Committee.
      
   9. AB 2390 (Muratsuchi), of the 2021-2022 Legislative Session, would have authorized the aggregation of the value of property from one or more acts of theft or shoplifting, as specified. AB 2390 failed passage in this Committee.
      
   10. AB 1065 (Jones-Sawyer), Chapter 803, Statutes of 2018, created the crime of organized retail theft and expanded jurisdiction to prosecute cases of theft or receipt of stolen merchandise.
       

REGISTERED SUPPORT / OPPOSITION:

Support

Calchamber

California Retailers Association

League of California Cities

Oppose

Vera Institute of Justice

Analysis Prepared by:

1. (See, National Conference of State Legislatures, Racial and Ethnic Disparities in the Criminal Justice System. Available at: <https://www.ncsl.org/civil-and-criminal-justice/racial-and-ethnic-disparities-in-the-criminal-justice-system>.) ↑