Existing law authorizes courts generally to suspend a criminal sentence and make and enforce terms of probation for a period not to exceed 2 years. Existing law authorizes courts in misdemeanor cases to suspend a sentence and make and enforce terms of probation for a period not to exceed one year.

This bill would instead authorize a court, for entities with more than 10 employees, to impose a period of probation for a maximum period of 5 years in specified crimes relating to, among other things, dumping in waterways, pesticides, oil dumping and spills, waste management, and animal cruelty. By expanding the punishment for a crime, this bill would impose a state-mandated local program.

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 authorizes courts generally to suspend a criminal sentence and make and enforce terms of probation for a period not to exceed 2 years. Existing law authorizes courts in misdemeanor cases to suspend a sentence and make and enforce terms of probation for a period not to exceed one year.

This bill would instead authorize a court, for entities with more than 10 employees, to impose a period of probation for a maximum period of 5 years in specified crimes relating to, among other things, dumping in waterways, pesticides, oil dumping and spills, waste management, and animal cruelty. By expanding the punishment for a crime, this bill would impose a state-mandated local program.

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 authorizes courts generally to suspend a criminal sentence and make and enforce terms of probation for a period not to exceed 2 years. Existing law authorizes courts in misdemeanor cases to suspend a sentence and make and enforce terms of probation for a period not to exceed one year.

This bill would instead authorize a court court, for entities with more than 10 employees, to impose a period of probation for a maximum period of 5 years in specified crimes relating to, among other things, fish and game, dumping in waterways, pesticides, oil dumping and spills, waste management, and animal cruelty. By expanding the punishment for a crime, this bill would impose a state-mandated local program.

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 authorizes courts generally to suspend a criminal sentence and make and enforce terms of probation for a period not to exceed 2 years. Existing law authorizes courts in misdemeanor cases to suspend a sentence and make and enforce terms of probation for a period not to exceed one year.

This bill would instead authorize a court to impose a period of probation for a maximum period of 5 years in specified crimes relating to, among other things, fish and game, pesticides, oil dumping and spills, waste management, and animal cruelty. By expanding the punishment for a crime, this bill would impose a state-mandated local program.

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.

 THIRD READING  

Bill No: AB 508

Author: Petrie-Norris (D), et al.

Amended: 3/7/23 in Assembly

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 4-0, 7/11/23

AYES: Bradford, Ochoa Bogh, Skinner, Wiener

NO VOTE RECORDED: Wahab

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 80-0, 5/31/23 - See last page for vote

SUBJECT: Probation: environmental crimes

SOURCE: California District Attorneys Association

Orange County District Attorney

DIGEST:

This bill extends the maximum allowable period of probation for specified environmental crimes when they are committed by an entity with more than 10 employees.

ANALYSIS:

Existing law:

1. Defines “probation” as “the suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer.” (Pen. Code, § 1203, subd. (a).)
2. Defines “conditional sentence” as “the suspension of the imposition or execution of a sentence and the order of revocable release in the community subject to conditions established by the court without the supervision of a probation officer.” (Pen. Code, § 1203, subd. (a).)
3. Limits the period of probation for a misdemeanor to no longer than one year, unless the offense includes specific probation lengths within its provisions. (Pen. Code, § 1203a.)
4. Sets limits period of probation for a felony to no longer than two years, except as specified. (Pen. Code, § 1203.1, subds. (a) & (l).)
5. Authorizes the court to impose and require any or all reasonable conditions of probation as it may determine are fitting and proper to the end that justice may be done, that amends may be done to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer. (Pen. Code, § 1203.1, subd. (j).)
6. Authorizes the court to revoke, modify, or terminate its order of probation. (Pen. Code, §§ 1203.2 & 1203.3.)
7. Requires a court which grants probation to make payment of victim restitution a condition of probation. Provides that any unsatisfied amount of restitution after a defendant is no longer on probation is enforceable as a civil judgment. (Pen. Code, § 1202.4, subd. (l).)
8. Authorizes the court to modify the dollar amount of restitution at any time during the term of probation. (Pen. Code, § 1203.3, subd. (b)(5).)
9. Requires the court to consider whether, as a condition of probation, the defendant shall make restitution to a public agency for the costs of an emergency response, as specified. (Pen. Code, § 1203.1, subd. (e).)

This bill:

1. Includes codified legislative findings and declarations that environmental crimes are public welfare offenses resulting from violations of statutes designed to safeguard against threats or injury to the health and safety of the public and California’s environment and precious natural resources.
2. Authorizes a term of probation not to exceed five years if an entity is granted probation upon conviction of an environmental crime.
3. Specifies that environmental crimes means violations of any crimes in the following sections:
4. Specified provisions of the Fish and Game Code related to the unlawful taking of birds, mammals, fish, reptiles, or amphibians; the sale, purchase or capture of desert tortoises; the unlawful use of explosives in state waters inhabited by fish; and discharge of specified substances into the waters of the State;
5. Specified provisions of the Food and Agriculture Code related to pesticides;
6. Specified provision of the Harbors and Navigation Code related to discharging cargo overboard from a vessel, and discharging oil upon navigable waters;
7. Specified provisions of the Health and Safety Code known as the Medical Waste Management Act, and the Aboveground Petroleum Storage Act;
8. Specified provisions of the Health and Safety Code relating to non-vehicular air pollution control, hazardous waste control, underground storage of hazardous substances, and hazardous materials release;
9. Specified provisions of the Government Code known as the Lempert–Keene–Seastrand Oil Spill Prevention and Response Act;
10. Specified provisions of the Penal Code related to malicious discharge of any substance capable of causing substantial damage or harm to the operation of a public sewer system; illegal dumping; grease waste hauling violations; depositing hazardous substances; animal cruelty; importation, possession for sale, or sale of endangered species; and possession or sale of a dead seal;
11. Vehicular transportation of hazardous material, and hazardous material transportation in violation of regulations of the Department of the California Highway Patrol; and,
12. Specified provisions of the Water Code mandating compliance with the Federal Clean Water Act.
13. Requires that an entity, including a trust, firm, partnership, joint stock company, joint venture, association, limited liability company, corporation, or other legal entity, employ more than ten individuals in order for the extended probation term for environmental crimes to be authorized.

Background

1. Corporate Criminal Liability. Corporations can be subject to criminal liability. The Penal Code defines “person"” to include a corporation as well as a natural person. (Pen. Code, § 7.) However, unlike a natural person, a corporation cannot be incarcerated as a form of punishment after being convicted of a crime.

An example of a corporation being found criminally liable for its actions is PG&E’s convictions stemming from the 2010 San Bruno natural gas pipeline explosion. In 2016, a federal jury found PG&E guilty of obstruction and five counts of pipeline safety violations after the pipeline blast in 2010 sent a plume of fire into the air, killing eight people and destroying 38 homes. PG&E employees were not individually charged, so no one faced incarceration due to the criminal conduct. (Associated Press, PG&E is Found Guilty of Obstructing Investigators After Deadly 2010 Pipeline Blast (Aug. 9, 2016) available at <https://www.latimes.com/business/la-fi-pge-san-bruno-pipeline-blast-20160809-snap-story.html .)

1. Probation Supervision. Probation is the suspension of a custodial sentence and a conditional release of a defendant into the community. Probation can be “formal” or “informal.” Formal probation is under the direction and supervision of a probation officer. Under informal probation, a defendant is not supervised by a probation officer but instead reports to the court. Probation supervision is intended to facilitate rehabilitation and ensure defendant accountability. The court has broad discretion to impose conditions that foster the defendant’s rehabilitation and protect the public safety. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120. A valid condition must be reasonably related to the offense and aimed at deterring such misconduct in the future. (Id. at p. 1121.)

In 2020, AB 1950 (Kamlager, Chapter 328, Statutes of 2020) was enacted. It reduced the maximum length of probation for both misdemeanor and felony cases (in most cases). For felonies, the term of probation was reduced from five years—where the punishment did not exceed five years—to two years. (Pen. Code, § 1203.1.) For misdemeanors the term of probation was reduced from three years to one year. (Pen. Code, § 1203a.) In both types of cases, there was an exception made if a specific probation length was already dictated in statute for a particular offense. (Ibid.)

Proponents of this bill argue that because many environmental crimes are classified as misdemeanors, the reduced period of probation is insufficient to hold corporate wrongdoers accountable. This bill extends the possible probationary term for specified environmental crimes committed by a business entity, as defined, to a maximum of five years.

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

SUPPORT: (Verified 8/14/23)

California District Attorneys Association (co-source)

Orange County District Attorney (co-source)

OPPOSITION: (Verified 8/14/23)

None received

ASSEMBLY FLOOR: 80-0, 5/31/23

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

Prepared by: Stephanie Jordan / PUB. S. /

8/16/23 14:42:34

**** END ****

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Aisha Wahab, Chair

2023 - 2024 Regular

Bill No: AB 508 Hearing Date: July 11, 2023

Subject: Probation: environmental crimes

HISTORY

Source: California District Attorneys Association

Orange County District Attorney

Prior Legislation: AB 1950 (Kamlager), Ch. 328, Stats. 2020

Support: California District Attorneys Association, Orange County District Attorney

Opposition: None known

Assembly Floor Vote: 80 - 0

PURPOSE

The purpose of this bill is extend the maximum allowable period of probation for specified environmental crimes when they are committed by an entity with more than 10 employees.

Existing law defines “probation” as “the suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer.” (Pen. Code, § 1203, subd. (a).)

Existing law defines “conditional sentence” as “the suspension of the imposition or execution of a sentence and the order of revocable release in the community subject to conditions established by the court without the supervision of a probation officer.” (Pen. Code, § 1203, subd. (a).)

Existing law limits the period of probation for a misdemeanor to no longer than one year, unless the offense includes specific probation lengths within its provisions. (Pen. Code, § 1203a.)

Existing law sets limits period of probation for a felony to no longer than two years, except as specified. (Pen. Code, § 1203.1, subds. (a) & (l).)

Existing law authorizes the court to impose and require any or all reasonable conditions of probation as it may determine are fitting and proper to the end that justice may be done, that amends may be done to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer. (Pen. Code, § 1203.1, subd. (j).)

Existing law authorizes the court to revoke, modify, or terminate its order of probation. (Pen. Code, §§ 1203.2 & 1203.3.)

Existing law requires a court which grants probation to make payment of victim restitution a condition of probation. Provides that any unsatisfied amount of restitution after a defendant is no longer on probation is enforceable as a civil judgment. (Pen. Code, § 1202.4, subd. (l).)

Existing law authorizes the court to modify the dollar amount of restitution at any time during the term of probation. (Pen. Code, § 1203.3, subd. (b)(5).)

Existing law requires the court to consider whether, as a condition of probation, the defendant shall make restitution to a public agency for the costs of an emergency response, as specified. (Pen. Code, § 1203.1, subd. (e).)

This bill includes codified legislative findings and declarations that environmental crimes are public welfare offenses resulting from violations of statutes designed to safeguard against threats or injury to the health and safety of the public and California’s environment and precious natural resources.

This bill authorizes a term of probation not to exceed five years if an entity is granted probation upon conviction of an environmental crime.

This bill specifies that environmental crimes means violations of any crimes in the following sections:

• Specified provisions of the Fish and Game Code related to the unlawful taking of birds, mammals, fish, reptiles, or amphibians; the sale, purchase or capture of desert tortoises; the unlawful use of explosives in state waters inhabited by fish; and discharge of specified substances into the waters of the State;
• Specified provisions of the Food and Agriculture Code related to pesticides;
• Specified provision of the Harbors and Navigation Code related to discharging cargo overboard from a vessel, and discharging oil upon navigable waters;
• Specified provisions of the Health and Safety Code known as the Medical Waste Management Act, and the Aboveground Petroleum Storage Act.
• Specified provisions of the Health and Safety Code relating to non-vehicular air pollution control, hazardous waste control, underground storage of hazardous substances, and hazardous materials release;
• Specified provisions of the Government Code known as the Lempert–Keene–Seastrand Oil Spill Prevention and Response Act;
• Specified provisions of the Penal Code related to malicious discharge of any substance capable of causing substantial damage or harm to the operation of a public sewer system; illegal dumping; grease waste hauling violations; depositing hazardous substances; animal cruelty; importation, possession for sale, or sale of endangered species; and possession or sale of a dead seal;
• Vehicular transportation of hazardous material, and hazardous material transportation in violation of regulations of the Department of the California Highway Patrol; and,
• Specified provisions of the Water Code mandating compliance with the Federal Clean Water Act.

This bill requires that an entity, including a trust, firm, partnership, joint stock company, joint venture, association, limited liability company, corporation, or other legal entity, employ more than ten individuals in order for the extended probation term for environmental crimes to be authorized.

COMMENTS

1. Need For This Bill

According to the author:

AB 508 will help ensure corporations and other business entities who violate California environmental laws and are placed on probation complete the corresponding terms and conditions by expanding the probation time limit to a maximum of five years. This will ensure that corporate violators complete the requirements of their probation, including changing policies, training, and updating their industrial processes.

The need for extended regulatory oversight was exemplified in the 2022 oil spill case in Orange County, where the defendants (two corporations and an LLC) pled no contest to the criminal charges of failing to immediately report a discharge of oil into waters of the state, water pollution, and killing of protected wildlife. The defendant was ordered to pay state criminal fines totaling $4.9 million dollars and was placed on probation. The probation terms included significant training requirements, updating internal procedures, submitting new contingency plans, revising inspection timeframes, amongst other requirements. A one-year probation term does not allow nearly enough time for the appropriate regulatory oversight to ensure the defendant has made the necessary changes to ensure such a violation does not occur again. AB 508 is needed to protect our communities from serious environmental hazards.

1. Corporate Criminal Liability

Corporations can be subject to criminal liability. The Penal Code defines “person"” to include a corporation as well as a natural person. (Pen. Code, § 7.) However, unlike a natural person, a corporation cannot be incarcerated as a form of punishment after being convicted of a crime.

An example of a corporation being found criminally liable for its actions is PG&E’s convictions stemming from the 2010 San Bruno natural gas pipeline explosion. In 2016, a federal jury found PG&E guilty of obstruction and five counts of pipeline safety violations after the pipeline blast six sent a plume of fire into the air, killing eight people and destroying 38 homes. PG&E employees were not individually charged, so no one faced incarceration due to the criminal conduct. (Associated Press, PG&E is Found Guilty of Obstructing Investigators After Deadly 2010 Pipeline Blast (Aug. 9, 2016) available at <https://www.latimes.com/business/la-fi-pge-san-bruno-pipeline-blast-20160809-snap-story.html>.)

1. Probation Supervision

Probation is the suspension of a custodial sentence and a conditional release of a defendant into the community. Probation can be “formal” or “informal.” Formal probation is under the direction and supervision of a probation officer. Under informal probation, a defendant is not supervised by a probation officer but instead reports to the court. Probation supervision is intended to facilitate rehabilitation and ensure defendant accountability. The court has broad discretion to impose conditions that foster the defendant’s rehabilitation and protect the public safety. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120. A valid condition must be reasonably related to the offense and aimed at deterring such misconduct in the future. (Id. at p. 1121.)

In 2020, AB 1950 (Kamlager, Chapter 328) was enacted. It reduced the maximum length of probation for both misdemeanor and felony cases (in most cases). For felonies, the term of probation was reduced from five years—where the punishment did not exceed five years—to two years. (Pen. Code, § 1203.1.) For misdemeanors the term of probation was reduced from three years to one year. (Pen. Code, § 1203a.) In both types of cases, there was an exception made if a specific probation length was already dictated in statute for a particular offense. (Ibid.)

Proponents of this bill argue that because many environmental crimes are classified as misdemeanors, the reduced period of probation is insufficient to hold corporate wrongdoers accountable. This bill extends the possible probationary term for specified environmental crimes committed by a business entity, as defined, to a maximum of five years.

1. Argument in Support

The Orange County District Attorney’s Office, the bill’s sponsor writes:

As background, most environmental defendants are placed on informal probation and do not report to the probation department. The terms and conditions of this informal probation are narrowly tailored to the specific regulatory crime that was violated with the goal of preventing its recurrence and abating the harm caused. The need for extended regulatory oversight was exemplified by the 2022 oil spill in Orange County, where the defendant pled no contest to the criminal charges of failing to report a discharge of oil into waters of the state, water pollution, and killing of protected wildlife. The defendant was ordered to pay state criminal fines totaling $4.9 million dollars and was placed on probation. The probation terms included vast training requirements, updating internal procedures, submitting updated contingency plans, revising inspection timeframes, amongst other requirements. A one-year probation term does not allow enough time for the appropriate regulatory oversight to endure the defendant has made the necessary changes to ensure such an egregious violation does not occur again.

AB 508 is needed to ensure corporations and other business entities who violate California environmental laws and are placed on probation will be required to follow those terms and conditions of probation longer than just one year. It often takes environmental violators a period of time to revise and alter their policies, procedures, training programs, and update their industrial processes. AB 508 is needed to help protect the health and safety of the people of California and our environment.

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 508

Author:(Petrie-Norris)

As Amended Ver:March 7, 2023

Majority vote

SUMMARY

Extends the maximum allowable period of probation for specified environmental crimes when they are committed by an entity with more than 10 employees.

Major Provisions

1. States that notwithstanding other statutes limiting the length of a probationary term to one year in misdemeanor cases and two years in felony cases, if an entity is granted probation based on conviction of an "environmental crime," the term of probation can be set at up to five years.
2. Defines environmental crimes for purposes of extending probation as the following:
   1. Specified provisions of the Fish and Game Code related to the unlawful taking of birds, mammals, fish, reptiles, or amphibians; the sale, purchase or capture of desert tortoises; the unlawful use of explosives in state waters inhabited by fish; and discharge of specified substances into the waters of the State;
   2. Specified provisions of the Food and Agriculture Code related to pesticides;
   3. Specified provision of the Harbors and Navigation Code related to discharging cargo overboard from a vessel, and discharging oil upon navigable waters;
   4. Specified provisions of the Health and Safety Code known as the Medical Waste Management Act, and the Aboveground Petroleum Storage Act.
   5. Specified provisions of the Health and Safety Code relating to non-vehicular air pollution control, hazardous waste control, underground storage of hazardous substances, and hazardous materials release;
   6. Specified provisions of the Government Code known as the Lempert–Keene–Seastrand Oil Spill Prevention and Response Act;
   7. Specified provisions of the Penal Code related to malicious discharge of any substance capable of causing substantial damage or harm to the operation of a public sewer system; illegal dumping; grease waste hauling violations; depositing hazardous substances; animal cruelty; importation, possession for sale, or sale of endangered species; and possession or sale of a dead seal;
   8. Vehicular transportation of hazardous material, and hazardous material transportation in violation of regulations of the Department of the California Highway Patrol; and,
   9. Specified provisions of the Water Code mandating compliance with the Federal Clean Water Act.
3. Defines "entity" as "a trust, firm, partnership, joint stock company, joint venture, association, limited liability company, corporation, or other legal entity with more than 10 employees."

COMMENTS

According to the Author

"AB 508 will help ensure corporations and other business entities who violate California environmental laws and are placed on probation complete the corresponding terms and conditions by expanding the probation time limit to a maximum of five years. This will ensure that corporate violators complete the requirements of their probation, including changing policies, training, and updating their industrial processes.

"The need for extended regulatory oversight was exemplified in the 2022 oil spill case in Orange County, where the defendants (two corporations and an LLC) pled no contest to the criminal charges of failing to immediately report a discharge of oil into waters of the state, water pollution, and killing of protected wildlife. The defendant was ordered to pay state criminal fines totaling $4.9 million dollars and was placed on probation. The probation terms included significant training requirements, updating internal procedures, submitting new contingency plans, revising inspection timeframes, amongst other requirements. A one-year probation term does not allow nearly enough time for the appropriate regulatory oversight to ensure the defendant has made the necessary changes to ensure such a violation does not occur again. AB 508 is needed to protect our communities from serious environmental hazards."

Arguments in Support

According to the Office of the Orange County District Attorney, the sponsor of this bill, "As background, most environmental defendants are placed on informal probation and do not report to the probation department. The terms and conditions of this informal probation are narrowly tailored to the specific regulatory crime that was violated with the goal of preventing its recurrence and abating the harm caused. The need for extended regulatory oversight was exemplified by the 2022 oil spill in Orange County, where the defendant pled no contest to the criminal charges of failing to report a discharge of oil into waters of the state, water pollution, and killing of protected wildlife. The defendant was ordered to pay state criminal fines totaling $4.9 million dollars and was placed on probation. The probation terms included vast training requirements, updating internal procedures, submitting updated contingency plans, revising inspection timeframes, amongst other requirements. A one-year probation term does not allow enough time for the appropriate regulatory oversight to endure the defendant has made the necessary changes to ensure such an egregious violation does not occur again.

"AB 508 is needed to ensure corporations and other business entities who violate California environmental laws and are placed on probation will be required to follow those terms and conditions of probation longer than just one year. It often takes environmental violators a period of time to revise and alter their policies, procedures, training programs, and update their industrial processes. AB 508 is needed to help protect the health and safety of the people of California and our environment."

Arguments in Opposition

No longer applicable.

FISCAL COMMENTS

According to the Assembly Appropriations Committee, "Potentially significant cost pressures to the courts (Trial Court Trust Fund, General Fund) due to longer periods of probation authorized by this bill. Informal probation is overseen directly by the courts, so longer periods of court-supervised probation would result in additional workload to the courts. 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. If funding is not provided for the new workload created by this bill, it may result in delays and prioritization of court cases."

VOTES

ASM PUBLIC SAFETY: 8-0-0

YES: Jones-Sawyer, Alanis, Bonta, Bryan, Lackey, Ortega, Santiago, Zbur

ASM APPROPRIATIONS: 15-0-1

YES: Holden, Megan Dahle, Bryan, Calderon, Wendy Carrillo, Dixon, Mike Fong, Hart, Lowenthal, Mathis, Papan, Pellerin, Sanchez, Weber, Ortega

ABS, ABST OR NV: Robert Rivas

UPDATED

VERSION: March 7, 2023

CONSULTANT: Sandy Uribe / PUB. S. / (916) 319-3744 FN: 0000713

Date of Hearing: May 3, 2023

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Chris Holden, Chair

ABPCA Bill Id:AB 508

Author:(Petrie-Norris) – As Amended Ver:March 7, 2023

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

SUMMARY:

This bill increases the maximum probation period from one year to five years for an entity, as defined, convicted of certain environmental crimes.

FISCAL EFFECT:

Potentially significant cost pressures to the courts (Trial Court Trust Fund, General Fund) due to longer periods of probation authorized by this bill. Informal probation is overseen directly by the courts, so longer periods of court-supervised probation would result in additional workload to the courts. 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. If funding is not provided for the new workload created by this bill, it may result in delays and prioritization of court cases.

COMMENTS:

1. Author’s Statement. According to the author:

AB 508 will help ensure corporations and other business entities who violate California environmental laws and are placed on probation complete the corresponding terms and conditions by expanding the probation time limit to a maximum of five years. This will ensure that corporate violators complete the requirements of their probation, including changing policies, training, and updating their industrial processes.

The need for extended regulatory oversight was exemplified in the 2022 oil spill case in Orange County, where the defendants (two corporations and an LLC) pled no contest to the criminal charges of failing to immediately report a discharge of oil into waters of the state, water pollution, and killing of protected wildlife. The defendant was ordered to pay state criminal fines totaling $4.9 million dollars and was placed on probation. The probation terms included significant training requirements, updating internal procedures, submitting new contingency plans, revising inspection timeframes, amongst other requirements. A one-year probation term does not allow nearly enough time for the appropriate regulatory oversight to ensure the defendant has made the necessary changes to ensure such a violation does not occur again.

1. Background. Probation is the suspension of execution of a sentence and the order of conditional and revocable release in the community. Generally, probation means that someone who is convicted of a crime will spend a set period of time in the community under the supervision of the court or a probation officer, rather than serving their sentence in jail or prison. If the defendant violates the conditions of their probation set by the court, the court may impose the defendant’s suspended sentence and incarcerate them. Courts have broad discretion to impose conditions of probation that encourage the defendant’s rehabilitation, hold the defendant accountable, and benefit public safety.

Although business entities cannot be incarcerated, they can be convicted of criminal offenses and, if convicted, may be ordered by a court to complete probation. In the case of a business entity convicted of an environmental crime, the court may impose conditions of probation intended to remedy the environmental harm caused by the defendant or prevent a similar harm in the future. For example, the court may require the business entity to update its training programs, revise its inspection protocols, or submit contingency plans. Of course, a business entity cannot be incarcerated if it violates the conditions of its probation, so probation may be a less effective consequence for a corporation than for a person.

This bill would increase the maximum probation period for an entity, as specified, that is convicted of certain environmental crimes, such as vehicular transportation of hazardous material or discharge of specified substances into state waters. In these circumstances, the bill gives a judge discretion to impose up to five years of probation, compared to one year of probation authorized under current law. Only business entities with more than 10 employees would be subject to extended probation terms under this bill.

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

Date of Hearing:

Chief Counsel: Sandy Uribe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 508

Author:(Petrie-Norris) – As Amended Ver:March 7, 2023

SUMMARY:

Extends the maximum allowable period of probation for specified environmental crimes when they are committed by an entity with more than 10 employees. Specifically, this bill:

1. States that notwithstanding other statutes limiting the length of a probationary term to one year in misdemeanor cases and two years in felony cases, if an entity is granted probation based on conviction of an “environmental crime,” the term of probation can be set at up to five years.
   
2. Defines environmental crimes for purposes of extending probation as the following:
   
   1. Specified provisions of the Fish and Game Code related to the unlawful taking of birds, mammals, fish, reptiles, or amphibians; the sale, purchase or capture of desert tortoises; the unlawful use of explosives in state waters inhabited by fish; and discharge of specified substances into the waters of the State;
      
   2. Specified provisions of the Food and Agriculture Code related to pesticides;
      
   3. Specified provision of the Harbors and Navigation Code related to discharging cargo overboard from a vessel, and discharging oil upon navigable waters;
      
   4. Specified provisions of the Health and Safety Code known as the Medical Waste Management Act, and the Aboveground Petroleum Storage Act.
      
   5. Specified provisions of the Health and Safety Code relating to non-vehicular air pollution control, hazardous waste control, underground storage of hazardous substances, and hazardous materials release;
      
   6. Specified provisions of the Government Code known as the Lempert–Keene–Seastrand Oil Spill Prevention and Response Act;
      
   7. Specified provisions of the Penal Code related to malicious discharge of any substance capable of causing substantial damage or harm to the operation of a public sewer system; illegal dumping; grease waste hauling violations; depositing hazardous substances; animal cruelty; importation, possession for sale, or sale of endangered species; and possession or sale of a dead seal;
      
   8. Vehicular transportation of hazardous material, and hazardous material transportation in violation of regulations of the Department of the California Highway Patrol; and,
      
   9. Specified provisions of the Water Code mandating compliance with the Federal Clean Water Act.
      
3. Defines “entity” as “a trust, firm, partnership, joint stock company, joint venture, association, limited liability company, corporation, or other legal entity with more than 10 employees.”

EXISTING LAW:

1. Defines “probation” as “the suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer.” (Pen. Code, § 1203, subd. (a).)
   
2. Defines “conditional sentence” as “the suspension of the imposition or execution of a sentence and the order of revocable release in the community subject to conditions established by the court without the supervision of a probation officer.” (Pen. Code, § 1203, subd. (a).)
   
3. Sets the period of probation for a misdemeanor to no longer than one year, unless the offense includes specific probation lengths within its provisions. (Pen. Code, § 1203a.)
   
4. Sets the period of probation for a felony to no longer than two years, except as specified (Pen. Code, § 1203.1, subds. (a) & (l).)
   
5. Authorizes the court to impose and require any or all reasonable conditions of probation as it may determine are fitting and proper to the end that justice may be done, that amends may be done to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer. (Pen. Code, § 1203.1, subd. (j).)
   
6. Authorizes the court to revoke, modify, or terminate its order of probation. (Pen. Code, §§ 1203.2 & 1203.3.)
   
7. Requires a court which grants probation to make payment of victim restitution a condition of probation. Any unsatisfied amount of restitution after a defendant is no longer on probation is enforceable as a civil judgment. (Pen. Code, § 1202.4, subd. (l).)
   
8. Authorizes the court to modify the dollar amount of restitution at any time during the term of probation. (Pen. Code, § 1203.3, subd. (b)(5).)
   
9. Requires the court to consider whether, as a condition of probation, the defendant shall make restitution to a public agency for the costs of an emergency response, as specified. (Pen. Code, § 1203.1, subd. (e).)
   

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “AB 508 will help ensure corporations and other business entities who violate California environmental laws and are placed on probation complete the corresponding terms and conditions by expanding the probation time limit to a maximum of five years. This will ensure that corporate violators complete the requirements of their probation, including changing policies, training, and updating their industrial processes.
   
   “The need for extended regulatory oversight was exemplified in the 2022 oil spill case in Orange County, where the defendants (two corporations and an LLC) pled no contest to the criminal charges of failing to immediately report a discharge of oil into waters of the state, water pollution, and killing of protected wildlife. The defendant was ordered to pay state criminal fines totaling $4.9 million dollars and was placed on probation. The probation terms included significant training requirements, updating internal procedures, submitting new contingency plans, revising inspection timeframes, amongst other requirements. A one-year probation term does not allow nearly enough time for the appropriate regulatory oversight to ensure the defendant has made the necessary changes to ensure such a violation does not occur again. AB 508 is needed to protect our communities from serious environmental hazards.”
   
2. Corporate Criminal Liability: Corporations can be subject to criminal liability. The Penal Code applies to corporations, and it defines "person" to include a corporation as well as a natural person. (Pen. Code, § 7.) Of course, unlike a natural person, a corporation cannot be incarcerated as a form of punishment after being convicted of a crime.
   
   For example, in 2016 a federal jury found Pacific Gas & Electric Co. guilty of obstruction and five counts of pipeline safety violations after natural gas pipeline blast six sent a plume of fire into the air, killing eight people and destroying 38 homes in San Bruno, California. PG&E employees were not individually charged, so no one faced incarceration due to the criminal conduct. (PG&E is Found Guilty of Obstructing Investigators After Deadly 2010 Pipeline Blast, Associated Press, Aug. 9, 2016., https://www.latimes.com/business/la-fi-pge-san-bruno-pipeline-blast-20160809-snap-story.html [as of March 9, 2023].)
   
3. Probation Supervision: Probation is the suspension of a custodial sentence and a conditional release of a defendant into the community. Probation can be “formal” or “informal.” “Formal” probation is under the direction and supervision of a probation officer. Under “Informal” probation, a defendant is not supervised by a probation officer but instead reports to the court. Probation supervision is intended to facilitate rehabilitation and ensure defendant accountability. The court has broad discretion to impose conditions that foster the defendant’s rehabilitation and protect the public safety. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120. A valid condition must be reasonably related to the offense and aimed at deterring such misconduct in the future. (Id. at 1121.)
   

In 2020, the Legislature passed AB 1950 (Kamlager) Chapter 328, which went into effect on January 1, 2021, and reduces the maximum length of probation for both misdemeanor and felony cases (in most cases). For felonies, the term of probation was reduced from five years (where the punishment did not exceed five years) to two years. (Pen. Code, § 1203.1.) For misdemeanors the term of probation was reduced from three years to one year. (Pen. Code, § 1203a.) In both types of cases, there was an exception made if a specific probation length was already dictated in statute describing the punishment for a particular criminal offense. (Ibid.)

Since many environmental crimes are classified as misdemeanors, proponents of this bill argue that the reduced period of probation is insufficient to hold corporate wrongdoers accountable. This bill would extend the possible probationary term for specified environmental crimes committed by a business entity, as defined, to a maximum of five years.

1. Other Possible Remedies: Criminal liability is not the only response to corporate wrongdoing. And extending the length of a probationary term does not necessarily ensure that a business entity is held accountable for its criminal conduct. When an individual is granted probation, the possibility of incarceration in jail or prison looms, as a probationer who violates a condition of probation can have their probation revoked and the their suspended criminal sentence executed, or have a sentence imposed if one has not yet been imposed. However, with a business entity who will not suffer incarceration for criminal wrongdoing, there is no similar incentive to comply and successfully complete probation, no matter the length of the probationary period.
   
   For example, the federal judge who supervised PG&E during its five-year probationary period, noted the utility’s failure to reform despite five years on probation. The judge acknowledge the failure: “While on probation, PG&E has set at least 31 wildfires, burned nearly one and one-half million acres, burned 23,956 structures, and killed 113 Californians.” “In probation, with a goal of rehabilitation in mind, we always prefer that criminal offenders learn to accept responsibility for their actions,” the judge wrote. “Sadly, during all five years of probation, PG&E has refused to accept responsibility for its actions until convenient to its cause or until it is forced to do so.” (PG&E Probation Ends, But Judge Offers Harsh comments, W. Shuck, Capitol Weekly, Jan. 25, 2022, https://capitolweekly.net/pge-probation-ends-but-judge-offers-harsh-comments/ [as of March 9, 2023].)
   
   There are other, possibly more effective, ways to ensure compliance. Many corporations and other business entities are subject to state and federal regulatory agencies and licensing boards. Failure to address cleanup/abatement, and/or follow through with remedial plans and training could be handled by these administrative bodies. Further, a business entity may also be liable in civil court for damages arising from the business's criminal conduct. Arguably, financial penalties is what will most impact a business entity.
   
2. Argument in Support: According to the Office of the Orange County District Attorney, the sponsor of this bill, “As background, most environmental defendants are placed on informal probation and do not report to the probation department. The terms and conditions of this informal probation are narrowly tailored to the specific regulatory crime that was violated with the goal of preventing its recurrence and abating the harm caused. The need for extended regulatory oversight was exemplified by the 2022 oil spill in Orange County, where the defendant pled no contest to the criminal charges of failing to report a discharge of oil into waters of the state, water pollution, and killing of protected wildlife. The defendant was ordered to pay state criminal fines totaling $4.9 million dollars and was placed on probation. The probation terms included vast training requirements, updating internal procedures, submitting updated contingency plans, revising inspection timeframes, amongst other requirements. A one-year probation term does not allow enough time for the appropriate regulatory oversight to endure the defendant has made the necessary changes to ensure such an egregious violation does not occur again.
   
   “AB 508 is needed to ensure corporations and other business entities who violate California environmental laws and are placed on probation will be required to follow those terms and conditions of probation longer than just one year. It often takes environmental violators a period of time to revise and alter their policies, procedures, training programs, and update their industrial processes. AB 508 is needed to help protect the health and safety of the people of California and our environment.”
   
3. Argument in Opposition: None submitted.
   
4. Prior Legislation:
   
   1. AB 1753 (Gallagher), of the 2021-2022 Legislative Session, would have extended the period of probation for up to three years for specified crimes of illegal poaching. AB 1753 was not heard by the Water, Parks, and Wildlife Committee.
      
   2. AB 645 (Gallagher) of the 2021-2022 Legislative Session, would have extended the period of probation for up to three years for specified crimes of illegal poaching. AB 654 was held in the Assembly Appropriations Committee.
      
   3. AB 1950 (Kamlager), Chapter 328, Statutes of 2020, limits the term of probation to no longer than two years for a felony conviction and one year for a misdemeanor conviction, except as specified.
      
   4. AB 2205 (Dodd), of the Legislative Session of 2015-2016, would have overturned a Supreme Court case holding that a court lacks jurisdiction to adjudicate violations of probation occurring after the original term of probation ends. AB 2205 was never heard in the Assembly Public Safety Committee.
      
   5. AB 2477 (Patterson), of the Legislative Session of 2015-2016, would have overturned case law holding that a court lacks jurisdiction to modify a restitution order after the defendant's probation expires, thereby extending jurisdiction for restitution indefinitely. AB 2477 failed passage in the Assembly Public Safety Committee.
      
   6. AB 2339 (Quirk), Legislative Session of 2013-2014, would have required that all terms and conditions of supervision shall remain in effect during the time period that the running of the period of supervision is tolled. AB 2339 was never heard in the Assembly Public Safety Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

Orange County District Attorney (Sponsor)

California District Attorneys Association (Co-Sponsor)

Orange County Coastkeeper

San Diego City Attorney's Office

San Luis Obispo County District Attorney

Opposition

None

Analysis Prepared by:

Sandy Uribe / PUB. S. / (916) 319-3744