Existing law prohibits the production, development, duplication, distribution, or possession, as specified, of matter, in specified formats, that depicts a person under 18 years of age engaging in or simulating sexual conduct, as defined. Existing law separately prohibits this conduct where it is done for consideration or where such matter is shared with a minor.

Existing law also prohibits the employment or use of a minor, or the permitting by a parent or guardian of the employment or use of a minor for the production of such matter. Existing law authorizes the forfeiture and destruction of such matter regardless of whether a conviction is sought or obtained.

This bill would expand the scope of certain of these provisions to include matter that is digitally altered or generated by the use of artificial intelligence, as such matter is defined.

By expanding the scope of an existing 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.

This bill would become operative only if AB 1831 of the 202324 Regular Session is enacted and takes effect on or before January 1, 2025.

Existing law prohibits the production, development, duplication, distribution, or possession, as specified, of matter, in specified formats, that depicts a person under 18 years of age engaging in or simulating sexual conduct, as defined. Existing law separately prohibits this conduct where it is done for consideration or where such matter is shared with a minor.

Existing law also prohibits the employment or use of a minor, or the permitting by a parent or guardian of the employment or use of a minor for the production of such matter. Existing law authorizes the forfeiture and destruction of such matter regardless of whether a conviction is sought or obtained.

This bill would expand the scope of certain of these provisions to include matter that is digitally altered or generated by the use of artificial intelligence, as such matter is defined.

By expanding the scope of an existing 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.

This bill would become operative only if AB 1831 of the 202324 Regular Session is enacted and takes effect on or before January 1, 2025.

Existing law makes it an infraction, punishable by a fine not to exceed $1,000, to deface real or personal property with graffiti, and a misdemeanor, punishable by imprisonment and a fine not to exceed $3,000, if the person has previously been convicted of specified vandalism offenses on 2 separate occasions.

This bill would decrease the above fines to $900 and $2,500, respectively.

 UNFINISHED BUSINESS  

Bill No: SB 1381

Author: Wahab (D) and Ochoa Bogh (R), et al.

Amended: 8/27/24

Vote: 21

PRIOR VOTES NOT RELEVANT

ASSEMBLY FLOOR: 52-1, 8/31/24 – Roll call vote not available

SUBJECT: Crimes: child pornography

SOURCE: Los Angeles County District Attorney

DIGEST:

This bill expands existing provisions of law related to child pornography and obscene matter depicting a minor engaged in sexual conduct to include matter that is digitally altered or generated by the use of artificial intelligence (AI).

Assembly Amendments

delete the Senate version of the bill and add provisions related to child pornography.

ANALYSIS:

Existing law:

1. Prohibits, except as provided, the act of knowingly sending or bringing into this state for sale or distribution, or possessing, preparing, publishing, producing, developing, duplicating, or printing in this state any representation of information, data, or image, including a non-exhaustive list of types of medium, that contains or incorporates in any manner, any film or filmstrip, with the intent to distribute, exhibit or exchange with others any obscene matter, knowing that the matter depicts a person under the age of 18 years personally engaging in or personally simulating sexual conduct, as defined. (Pen. Code, § 311.1, subd. (a).)
2. Prohibits every person who knowingly sends or brings into this state for sale or distribution, or possesses, prepares, publishes, produces, or prints, with intent to distribute or to exhibit to others, or who offers to distribute, distributes, or exhibits to others, any obscene matter. (Pen. Code, § 311.2, subd. (a).)
3. Prohibits, except as provided, the act of knowingly sending or bringing into this state for sale or distribution, or possessing, preparing, publishing, producing, developing, duplicating, or printing in this state any representation of information, data, or image, including a non-exhaustive list of types of medium, that contains or incorporates in any manner, any film or filmstrip, with intent to distribute, exhibit or exchange with others for commercial consideration, any obscene matter, knowing that the matter depicts a person under the age of 18 years personally engaging in or personally simulating sexual conduct. (Pen. Code, § 311.2, subd. (b).)
4. Prohibits, except as provided, the act of knowingly sending or bringing into this state for sale or distribution, or possessing, preparing, publishing, producing, developing, duplicating, or printing in this state any representation of information, data, or image, including a non-exhaustive list of types of medium, images that contains or incorporates in any manner, any film or filmstrip, with intent to distribute, exhibit or exchange with a person 18 years of age or older, any matter, knowing that the matter depicts a person under the age of 18 years personally engaging in or personally simulating sexual conduct. (Pen. Code, § 311.2, subd. (c).)
5. Prohibits, except as provided, the act of knowingly sending or bringing into this state for sale or distribution, or possessing, preparing, publishing, producing, developing, duplicating, or printing in this state any representation of information, data, or image, including a non-exhaustive list of types of medium, that contains or incorporates in any manner, any film or filmstrip, with intent to distribute or exhibit to, or to exchange with, a person under 18 years of age, any matter, knowing that the matter depicts a person under the age of 18 years personally engaging in or personally simulating sexual conduct. (Pen. Code, § 311.2, subd. (d).)
6. Makes a person, except as provided, guilty of sexual exploitation of a child if the person knowingly develops, duplicates, prints, or exchanges any representation of information, data, or image, including a non-exhaustive list of types of medium, that contains or incorporates in any manner, any film or filmstrip that depicts a person under the age of 18 years engaged in an act of sexual conduct, as defined. (Pen. Code, § 311.3, subd. (a).)
7. Defines “sexual conduct” for purposes of sexual exploitation of a child to mean any of the following:
   1. Sexual intercourse;
   2. Penetration of the vagina or rectum by any object;
   3. Masturbation for the purpose of sexual stimulation of the viewer;
   4. Sadomasochistic abuse for the purpose of sexual stimulation of the viewer;
   5. Exhibition of the genitals or the pubic or rectal area of any person for the purpose of sexual stimulation of the viewer; or,
   6. Defecation or urination for the purpose of sexual stimulation of the viewer. (Pen. Code, § 311.3, subd. (b).)
8. Prohibits, except as provided, a person who, with knowledge that a person is a minor, or who, while in possession of any facts on the basis of which they should reasonably know that the person is a minor, hires, employs, or uses the minor to participate in the production, distribution or exhibition of child pornography in violation of Penal Code section 311.2. (Pen. Code, § 311.4, subd. (a).)
9. Prohibits, except as provided, a person who knows that a person is a minor under the age of 18 years, or who should reasonably know that the person is a minor under the age of 18 years, knowingly promoting, employing, using, persuading, inducing, or coercing a minor under the age of 18 years to engage in or assist others to engage in either posing or modeling alone or with others for purposes of preparing any representation of information, data, or image, including a non-exhaustive list of types of medium that contains or incorporates in any manner, any film, filmstrip, or a live performance involving sexual conduct by a minor for commercial purposes. (Pen. Code, § 311.4, subd. (b).)
10. Prohibits, except as provided, a person who, with knowledge that a person is a minor under the age of 18 years, or who, while in possession of any facts on the basis of which he or she they should reasonably know that the person is a minor under the age of 18 years, knowingly promoting, employing, using, persuading, inducing, or coercing a minor under the age of 18 years to engage in either posing or modeling alone or with others for purposes of preparing any representation of information, data, or image, including a non-exhaustive list of types of medium, that contains or incorporates in any manner, any film, filmstrip, or a live performance involving, sexual conduct by a minor under the age of 18 years alone or with other persons or animals. (Pen. Code, § 311.4, subd. (c).)
11. Defines “sexual conduct” for purposes of Penal Code section 311.4 to mean “any of the following, whether actual or simulated: sexual intercourse, oral copulation, anal intercourse, anal oral copulation, masturbation, bestiality, sexual sadism, sexual masochism, penetration of the vagina or rectum by any object in a lewd or lascivious manner, exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer, any lewd or lascivious sexual act as defined in Section 288, or excretory functions performed in a lewd or lascivious manner, whether or not any of the above conduct is performed alone or between members of the same or opposite sex or between humans and animals. An act is simulated when it gives the appearance of being sexual conduct.” (Pen. Code, § 311.4, subd. (d)(1).
12. Prohibits, except as provided, a person from knowingly possessing or controlling any matter, representation of information, data, or image, including a non-exhaustive list of types of medium, that contains or incorporates in any manner, any film or filmstrip, the production of which involves the use of a person under 18 years of age, knowing that the matter depicts a person under 18 years of age personally engaging in or simulating sexual conduct. (Pen. Code, § 311.11, subd. (a).)
13. States, except as provided, that any city, county, city and county, or state official or agency in possession of matter that depicts a person under the age of 18 years personally engaging in or personally simulating sexual conduct is subject to forfeiture. (Pen. Code, § 312.3, subd. (a).)
14. Defines “matter” to mean “any book, magazine, newspaper, or other printed or written material or any picture, drawing, photograph, motion picture, or other pictorial representation, or any statue or other figure, or any recording, transcription or mechanical, chemical or electrical reproduction, or any other articles, equipment, machines, or materials. “Matter” also means any representation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated equipment or any other computer-generated-image that contains or incorporates in any manner any film or filmstrip. (Pen. Code, § 312.3, subd. (h).)

This bill:

1. Expands the scope of certain provisions related to child pornography to include digitally-altered or AI-generated matter that depicts a person under 18 years of age engaged in sexual conduct, as provided.
2. Makes other technical changes.
3. Contains a contingency clause that states that this act shall become operative only if Assembly Bill 1831 (Berman) is also enacted.

Background

First Amendment: Relevant Case Law. In Free Speech Coalition, supra, the U.S. Supreme Court declared unconstitutional a federal law that defined child pornography to include visual depictions that appear to be of a minor, even if no minor was actually used. (535 U.S. 234.) The government argued that while real children were not harmed in the production of the materials, the materials could still lead to abuse of real children by pedophiles who “whet their own sexual appetites” with such materials. (Id. at p. 241.) Additionally, the government argued that as imaging technology improves, it becomes more difficult to prove that a particular picture was produced using actual children. (Id. at 242.) The Court found these arguments were insufficient reasons to treat virtual child pornography the same as child pornography made with a real minor. In Ferber, supra, the Court found that the production and distribution of child pornography are “intrinsically related” to the sexual abuse of the child because the material acts as a permanent record of the child’s abuse and the circulation of the material would harm the child’s reputation and emotional well-being. (Id. at p. 249.) The Court distinguished the harm in virtual child pornography created without using a real minor because it is not a recording of a criminal act nor is there continuing harm on a child victim by the distribution of the materials. (Id. at p. 250.)

The Free Speech Coalition ruling, albeit in dicta, did comment on the difference between pure virtual images versus morphing images where innocent pictures of real children are altered so that the children appear to be engaged in sexual activity. “Although morphed images may fall within the definition of virtual child pornography, they implicate the interests of real children and are in that sense closer to the images in Ferber. Respondents do not challenge this provision, and we do not consider it.” (Id. at p. 242.)

In U.S. v. Hotaling (2002), 599 F.Supp.2d 306, the Northern District Court of New York, relying on dicta from the Free Speech Coalition case, as well as other district court and U.S. appellate court cases, held that criminalizing morphed images of child pornography created without the filming or photography of actual sexual conduct on the part of the identifiable minor does not violate the First Amendment. (Id. at p. 321.) “An image of an identifiable, real child involving sadistic conduct -- even if manipulated to portray conduct that was not actually inflicted on that child -- is still harmful, and the amount of emotional harm inflicted will likely correspond to the severity of the conduct depicted.” (Id. at p. 320, citing U.S. v. Hoey (1st Cir. 2007) 508 F.3d 687, 693.) Hotaling also cited similar reasoning which was used by another appellate court in holding that an image in which the face of a known child was transposed onto the naked body of an unidentified child in a lascivious pose constituted child pornography outside the scope of the First Amendment protections. (Id. at p. 319, citing U.S. v. Bach (8th Cir. 2005) 400 F.3d 622.)

In contrast, a California appellate court held that the possession of morphed images, while morally repugnant, does not fall outside the protection of the First Amendment. (People v. Gerber (2011) 196 Cal.App.4th 368, 386.) The court looked at Legislative history of previously enacted statutes that contain the same language -- “personally engaging in or personally simulating sexual conduct” -- and found that it is “clear that the purpose of that legislation was to prevent exploitation of children used to make child pornography.” (Id. at p. 380, citing Sen. Com. on Judiciary, Analysis of Assem. Bill No. 1580 (1977-1978 Reg. Sess.) as amended Aug. 18, 1977, p. 1.) The court also noted that at the time that the Legislature enacted the crime of possession of child pornography, the term “child pornography” had a particular meaning under Ferber, supra. Specifically, not only must the offender have known that the matter depicts a person under the age of 18 years personally engaging in or simulating sexual conduct, production of the matter must have “involve[d] the use of a person under the age of 18 years…” (Id. at p. 382, citing Ferber, supra, 458 U.S. 747, and Cal. Pen. Code, § 311.11.)

Thus, Gerber held that “it would appear that a real child must have been used in the production and actually engaged in or simulated the sexual conduct depicted.” (Id. at p. 382.) The court acknowledged the dicta in Free Speech Coalition on morphed images, however, held that such altered materials are closer to virtual child pornography than to real child pornography because the act does not necessarily involve sexual exploitation of an actual child. (Id. at p. 386.) Relying on the rationales laid out in both Ferber, supra and Free Speech Coalition, the court emphasized that “Ferber’s judgment about child pornography was based upon how it was made, not on what it communicated and Ferber reaffirmed that where the speech is neither obscene nor the product of sexual abuse, it does not fall outside the protection of the First Amendment.” (Id. at p. 385, citing Free Speech Coalition, supra, 535 U.S. at pp. 250-251.)

The Supreme Court has distinguished between statutes that criminalize possession and distribution of child pornography versus an offer for a transaction to provide or receive child pornography, regardless of whether the child pornography exists or involves a real child or is obscene. (United States v. Williams (2008) 553 U.S. 285)

In response to the ruling in Free Speech Coalition, supra, Congress revised the invalidated statute to include among other provisions, making it a crime to provide or request to obtain child pornography rather than targeting the underlying material itself. In Williams, supra, the U.S. Supreme Court reviewed the revised federal law post-Free Speech Coalition, supra, which was challenged based on overbreadth and vagueness doctrines. The statute did not require the actual existence of child pornography which would only fall outside First Amendment protections if the matter involves the use of an actual child or if it is obscene. (Id. at p. 292.) However, the statute did require that speaker believes or intends the listener to believe that the subject of the proposed transaction depicts real children. (Id. at p. 303.) The Court ruled that this prohibition does not violate the First Amendment. The majority opinion reasoned that offers to engage in illegal transactions are categorically excluded from First Amendment protection. (Id. at p. 297.) The Court likened the crime to inchoate crimes – acts looking toward the commission of another crime, in this case the delivery of child pornography – and similar to attempt which is an inchoate crime, impossibility of completing the crime is not a defense. (Id. at p. 300.) The dissent argued that the new statute impermissibly undermines the Court’s prior ruling Free Speech Coalition, supra, by criminalizing the transaction of constitutionally protected material. (Id. at p. 323.)

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

SUPPORT: (Verified 8/29/24)

Los Angeles County District Attorney (source)

California Police Chiefs Association

Technet

OPPOSITION: (Verified 8/29/24)

None received

Prepared by: Stella Choe / PUB. S. / 8/31/24 23:10:29

**** END ****

SENATE THIRD READING

STR Bill Id:SB 1381

Author:(Wahab and Ochoa Bogh)

As Amended Ver:August 27, 2024

Majority vote

SUMMARY

Adds to the definition of "obscene matter" and "matter," any "digitally-altered or artificial-intelligence-generated matter," as it pertains to images of persons under the age of 18 engaged in sexual conduct, as specified.

Major Provisions

Delete the previous unrelated version of the bill and instead:

1. Expands the scope of existing provisions of law that prohibit the production, duplication, development, distribution, or possession, as specified, of matter pertaining to images of persons under the age of 18 engaged in or simulating or engaging in sexual conduct to include digitally altered or artificial intelligence generated matter
2. Provides that this bill shall only become operative if AB 1831 (Berman) is enacted and takes effect on or before January1, 2025.

COMMENTS

This bill was substantially amended on the Assembly Floor, but the subject matter was contained in AB 1831 (Berman) which was heard in the Assembly Public Safety Committee

According to the Author

"Our laws need to keep up with technology. New artificial intelligence (AI) tools allow anyone to create convincing images by typing a short description of what they want to see. The landscape of possibilities presented by artificial intelligence is changing rapidly. We must protect children from new forms of exploitation and ensure perpetrators are held responsible for their actions. As technology evolves, our laws must keep up to ensure children are safe."

Arguments in Support

No longer applicable.

Arguments in Opposition

No longer applicable.

FISCAL COMMENTS

Unknown.

VOTES: Prior votes no longer apply

SENATE FLOOR: 38-0-2

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

ABS, ABST OR NV: Grove, Niello

ASM PUBLIC SAFETY: 7-0-1

YES: McCarty, Alanis, Stephanie Nguyen, Holden, Ting, Wilson, Zbur

ABS, ABST OR NV: Gallagher

ASSEMBLY FLOOR: 36-16-27

YES: Aguiar-Curry, Arambula, Bauer-Kahan, Bennett, Berman, Bonta, Calderon, Juan Carrillo, Connolly, Mike Fong, Friedman, Gabriel, Gipson, Haney, Hart, Holden, Irwin, Jackson, Kalra, Low, Lowenthal, Muratsuchi, Ortega, Papan, Pellerin, Reyes, Santiago, Schiavo, Ting, Villapudua, Ward, Wicks, Wilson, Wood, Zbur, Robert Rivas

NO: Alanis, Chen, Megan Dahle, Davies, Dixon, Essayli, Flora, Gallagher, Hoover, Lackey, McKinnor, Jim Patterson, Joe Patterson, Sanchez, Ta, Wallis

ABS, ABST OR NV: Addis, Alvarez, Bains, Boerner, Bryan, Wendy Carrillo, Cervantes, Garcia, Grayson, Jones-Sawyer, Lee, Maienschein, Mathis, McCarty, Stephanie Nguyen, Pacheco, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Luz Rivas, Rodriguez, Blanca Rubio, Soria, Valencia, Waldron, Weber

ASM PUBLIC SAFETY: 5-2-1

YES: McCarty, Reyes, Ting, Wilson, Zbur

NO: Alanis, Lackey

ABS, ABST OR NV: Stephanie Nguyen

ASSEMBLY FLOOR: 63-0-16

YES: Addis, Aguiar-Curry, Alanis, Arambula, Bains, Bennett, Berman, Boerner, Bonta, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Chen, Connolly, Davies, Dixon, Essayli, Mike Fong, Friedman, Gallagher, Gipson, Grayson, Holden, Hoover, Irwin, Jones-Sawyer, Kalra, Lackey, Lee, Lowenthal, Maienschein, McCarty, McKinnor, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Quirk-Silva, Ramos, Rendon, Reyes, Luz Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wood, Zbur, Robert Rivas

ABS, ABST OR NV: Alvarez, Bauer-Kahan, Bryan, Megan Dahle, Flora, Gabriel, Garcia, Haney, Hart, Jackson, Low, Mathis, Muratsuchi, Petrie-Norris, Schiavo, Wilson

UPDATED

VERSION: August 27, 2024

CONSULTANT: Gregory Pagan / PUB. S. / (916) 319-3744 FN: 0005004

SENATE THIRD READING

STR Bill Id:SB 1381

Author:(Wahab and Ochoa Bogh)

As Amended Ver:August 27, 2024

Majority vote

SUMMARY

Adds to the definition of "obscene matter" and "matter," any "digitally-altered or artificial-intelligence-generated matter," as it pertains to images of persons under the age of 18 engaged in sexual conduct, as specified.

Major Provisions

Delete the previous unrelated version of the bill and instead:

1. Expands the scope of existing provisions of law that prohibit the production, duplication, development, distribution, or possession, as specified, of matter pertaining to images of persons under the age of 18 engaged in or simulating or engaging in sexual conduct to include digitally altered or artificial intelligence generated matter
2. Provides that this bill shall only become operative if AB 1831 (Berman) is enacted and takes effect on or before January1, 2025.

COMMENTS

This bill was substantially amended on the Assembly Floor, but the subject matter was contained in AB 1831 (Berman) which was heard in the Assembly Public Safety Committee

According to the Author

"Our laws need to keep up with technology. New artificial intelligence (AI) tools allow anyone to create convincing images by typing a short description of what they want to see. The landscape of possibilities presented by artificial intelligence is changing rapidly. We must protect children from new forms of exploitation and ensure perpetrators are held responsible for their actions. As technology evolves, our laws must keep up to ensure children are safe."

Arguments in Support

No longer applicable.

Arguments in Opposition

No longer applicable.

FISCAL COMMENTS

Unknown.

VOTES: Prior votes no longer apply

SENATE FLOOR: 38-0-2

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

ABS, ABST OR NV: Grove, Niello

ASM PUBLIC SAFETY: 7-0-1

YES: McCarty, Alanis, Stephanie Nguyen, Holden, Ting, Wilson, Zbur

ABS, ABST OR NV: Gallagher

ASSEMBLY FLOOR: 36-16-27

YES: Aguiar-Curry, Arambula, Bauer-Kahan, Bennett, Berman, Bonta, Calderon, Juan Carrillo, Connolly, Mike Fong, Friedman, Gabriel, Gipson, Haney, Hart, Holden, Irwin, Jackson, Kalra, Low, Lowenthal, Muratsuchi, Ortega, Papan, Pellerin, Reyes, Santiago, Schiavo, Ting, Villapudua, Ward, Wicks, Wilson, Wood, Zbur, Robert Rivas

NO: Alanis, Chen, Megan Dahle, Davies, Dixon, Essayli, Flora, Gallagher, Hoover, Lackey, McKinnor, Jim Patterson, Joe Patterson, Sanchez, Ta, Wallis

ABS, ABST OR NV: Addis, Alvarez, Bains, Boerner, Bryan, Wendy Carrillo, Cervantes, Garcia, Grayson, Jones-Sawyer, Lee, Maienschein, Mathis, McCarty, Stephanie Nguyen, Pacheco, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Luz Rivas, Rodriguez, Blanca Rubio, Soria, Valencia, Waldron, Weber

ASM PUBLIC SAFETY: 5-2-1

YES: McCarty, Reyes, Ting, Wilson, Zbur

NO: Alanis, Lackey

ABS, ABST OR NV: Stephanie Nguyen

ASSEMBLY FLOOR: 63-0-16

YES: Addis, Aguiar-Curry, Alanis, Arambula, Bains, Bennett, Berman, Boerner, Bonta, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Chen, Connolly, Davies, Dixon, Essayli, Mike Fong, Friedman, Gallagher, Gipson, Grayson, Holden, Hoover, Irwin, Jones-Sawyer, Kalra, Lackey, Lee, Lowenthal, Maienschein, McCarty, McKinnor, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Quirk-Silva, Ramos, Rendon, Reyes, Luz Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wood, Zbur, Robert Rivas

ABS, ABST OR NV: Alvarez, Bauer-Kahan, Bryan, Megan Dahle, Flora, Gabriel, Garcia, Haney, Hart, Jackson, Low, Mathis, Muratsuchi, Petrie-Norris, Schiavo, Wilson

UPDATED

VERSION: August 27, 2024

CONSULTANT: Gregory Pagan / PUB. S. / (916) 319-3744 FN: 0005004

SENATE THIRD READING

STR Bill Id:SB 1381

Author:(Wahab, et al.)

As Amended Ver:July 1, 2024

Majority vote

SUMMARY

Changes the cost saving formula for the Safe Neighborhoods and School Fund to give more money for mental health and substance abuse treatment; increases the penalty for selling, furnishing, administering, or giving away fentanyl under specified circumstances; requires a warning to person convicted of trafficking fentanyl that they could face murder charges if they provide fentanyl to someone who later dies of a drug overdose; expands the circumstances when acts of theft of property, money, or labor can be aggregated for the purpose of determining the degree of theft; and reinstates the crime of petty theft with a prior.

Major Provisions

1. Changes the disbursement formula for the Safe Neighborhoods and Schools Fund by increasing the percentage going to the Board of State and Community Corrections for a grant program supporting mental health treatment, substance abuse treatment and diversion programs for people in the criminal justice system from 65% to 75%; and, by decreasing the percentage going to the State Department of Education for a grant program aimed at improving outcomes for public school pupils in kindergarten and grades one through 12 by reducing truancy and supporting students who at risk of dropping out of school or victims of crime from 25% to 15%.
2. Provides that a person who sells, furnishes, administers, or gives away any mixture of controlled substances containing fentanyl, knowing fentanyl to be present within the mixture, unbeknownst to the purchaser or recipient, and without disclosing that presence to the purchaser or recipient, shall be punished by imprisonment for a term of four, five, or six years in county jail, unless otherwise specified.
3. Requires the court to advise a person who is convicted of, or who pleads guilty or no contest to, a specified violation for transporting, importing, selling, or administering a controlled substance, offering to transport, import, sell, or administer a controlled substance, or attempting to transport, import, sell, or administer a controlled substance, where the substance contained fentanyl or a fentanyl analog, of the following:

"You are hereby advised that all illicit drugs and counterfeit pills are dangerous to human life and become even deadlier when they are, sometimes unknowingly, mixed with substances such as fentanyl and analogs of fentanyl. People can and have died from these substances, even in very small doses. It is extremely dangerous and deadly to human life to sell or administer drugs, in any form, when not lawfully authorized to do so. If you do so in the future and a person dies as a result of that action, and you knew or should have known that the substance you provided contained fentanyl or a fentanyl analog, you may be charged with homicide, up to and including the crime of murder, within the meaning of Section 187 of the Penal Code. In addition, this conviction will be considered by a judge or jury as to whether you knew or should have known that the substance you provided to the decedent contained fentanyl."

1. Requires the court to additionally read the advisory statement in a case in which the person exchanged a controlled substance containing fentanyl or its analogs for anything else of value except when the controlled substance containing fentanyl or its analogs is exchanged for a controlled substance or alcohol.
2. Requires the advisory statement to be included in a plea form, if used, or the fact that the advisory was given to be specified on the record.
3. Requires the fact that the advisory was given to be recorded in the abstract of the conviction.
4. Provides that this advisement may not be used as evidence in the prosecution of a minor in juvenile court.
5. Deletes existing provisions regarding the aggregation the value of property, money, labor over the course of distinct but related acts for the purpose of determining the degree of theft.
6. Provide that, in any case involving one or more acts of theft or shoplifting, as specified, when the acts occurred within three years of each other, the value of the money, labor, real property, or personal property taken or merchandise stolen may be aggregated in a single count or charge, with the sum of the value of all money, labor, property, or merchandise being the value considered in determining the degree of theft. Aggregation may only be applied to theft or shoplifting offenses for which a conviction has not occurred.
7. Provides that a person is punishable by imprisonment in the county jail not exceeding one year or to 16 months, two years, or three years in county jail, unless as specified, if they meet all of the following:
   1. The person has two or more prior convictions for any of the specified offenses and those convictions occurred within three years of the current offense;
   2. The current conviction is petty theft or shoplifting; and,
   3. The value of the property taken, unlawfully received, or that otherwise provided the basis for conviction in each of the offenses is more than $50.
8. Provides that a person who has previously been sentenced under the above provision and who is within three years subsequently convicted of petty theft or shoplifting is punishable by imprisonment in county jail, unless as specified, for 16 months, two years, or three years.
9. Provides the above provision apply to the following offenses, including a conviction that occurred before the effective date of this section:
   1. Petty theft, as specified;
   2. Grand theft, as specified;
   3. Theft from an elder or dependent adult, as specified;
   4. The theft or unauthorized use of a vehicle, as specified;
   5. Burglary, as specified;
   6. Carjacking, as specified;
   7. Robbery, as specified;
   8. Receiving stolen property, as specified;
   9. Shoplifting, as specified; and,
   10. Identity theft and mail theft, as specified.
10. Provides that a person subject to charging, or actually charged, under this section may be referred by a prosecuting attorney's office or by a county probation department to a theft diversion or deferred entry of judgment program, as specified; and provides that, if appropriate, a person admitted to such a program may also be referred to a substance abuse treatment program.
11. Provides that, upon an arrest of a person for petty theft or shoplifting, who has two or more prior convictions within the past three years for any of the specified offenses, prior to release the court shall make an individualized determination of risk to public safety and likelihood to return to court.
12. Requires the court shall make the determination within 48 hours of detention and may do so through remote proceedings.
13. Contains findings and declarations.
14. Contains a severability clause.
15. Provides that, in the event that this act and another initiative measure or measures relating to the same subject, including by making any changes to laws enacted or amended by Proposition 47, appear on the same statewide ballot, all of the provisions of the other measure or measures shall be deemed to be in conflict with this measure. In the event this measure receives a greater number of affirmative votes than a measure deemed to be in conflict with it, the provisions of this measure shall prevail in their entirety, and the provisions of the other measure or measures shall be null and void.
16. Provides that, if this measure is approved by voters but superseded by law by any other conflicting measure approved by the voters at the same election, and the conflicting ballot measure is later held invalid, this measure shall be self-executing and given full force and effect.
17. Calls for a special election to be held on November 5, 2024, for approval by the voters, to be consolidated with the statewide general election to be held on that date.

COMMENTS

According to the Author

"SB 1381, the proposed ballot measure, will improve public safety and tackle the fentanyl crisis. This measure is a responsible approach to targeting these perpetrators, without resulting in mass incarceration. This measure adds new penalties for retail theft repeat offenders, as well as fentanyl dealers, while still increasing access to mental health and drug treatment programs. SB 1381 is the right approach to keeping everyone in our communities safe."

Arguments in Support

None submitted.

Arguments in Opposition

According to the California District Attorneys Association (CDAA), "CDAA shares your and many other legislators' concerns that action must be taken to address the retail theft crisis and fentanyl epidemic plaguing California. However, SB 1381 is certainly not the answer. The bill provides little to no accountability for fentanyl drug dealers. Unlike The Homelessness, Drug Addiction and Theft Reduction Act of 2024, there are no enhancements for those who traffic large quantities of fentanyl or who possess guns in their drug dealing. And it fails to address the humanitarian drug addiction and homelessness epidemic facing California; mandated drug and mental health treatment is essential to addressing this existential crisis.

"SB 1381's three-year restriction for prior convictions for theft crimes will only embolden criminals. With the extremely high rate of failure to appear on theft crimes, thieves will be incentivized to fail to appear in court and continue their rampant thievery. The mandate that any prior conviction must involve theft over $50 will make the provision moot. And, again, unlike The Homelessness, Drug Addiction and Theft Reduction Act of 2024, the bill fails to address the brazen smash and grab thefts occurring routinely across California."

FISCAL COMMENTS

Unknown.

VOTES

SENATE FLOOR: 38-0-2

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

ABS, ABST OR NV: Grove, Niello

ASM PUBLIC SAFETY: 7-0-1

YES: McCarty, Alanis, Stephanie Nguyen, Holden, Ting, Wilson, Zbur

ABS, ABST OR NV: Gallagher

ASSEMBLY FLOOR: 36-16-27

YES: Aguiar-Curry, Arambula, Bauer-Kahan, Bennett, Berman, Bonta, Calderon, Juan Carrillo, Connolly, Mike Fong, Friedman, Gabriel, Gipson, Haney, Hart, Holden, Irwin, Jackson, Kalra, Low, Lowenthal, Muratsuchi, Ortega, Papan, Pellerin, Reyes, Santiago, Schiavo, Ting, Villapudua, Ward, Wicks, Wilson, Wood, Zbur, Robert Rivas

NO: Alanis, Chen, Megan Dahle, Davies, Dixon, Essayli, Flora, Gallagher, Hoover, Lackey, McKinnor, Jim Patterson, Joe Patterson, Sanchez, Ta, Wallis

ABS, ABST OR NV: Addis, Alvarez, Bains, Boerner, Bryan, Wendy Carrillo, Cervantes, Garcia, Grayson, Jones-Sawyer, Lee, Maienschein, Mathis, McCarty, Stephanie Nguyen, Pacheco, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Luz Rivas, Rodriguez, Blanca Rubio, Soria, Valencia, Waldron, Weber

ASM PUBLIC SAFETY: 5-2-1

YES: McCarty, Reyes, Ting, Wilson, Zbur

NO: Alanis, Lackey

ABS, ABST OR NV: Stephanie Nguyen

ASSEMBLY FLOOR: 63-0-16

YES: Addis, Aguiar-Curry, Alanis, Arambula, Bains, Bennett, Berman, Boerner, Bonta, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Chen, Connolly, Davies, Dixon, Essayli, Mike Fong, Friedman, Gallagher, Gipson, Grayson, Holden, Hoover, Irwin, Jones-Sawyer, Kalra, Lackey, Lee, Lowenthal, Maienschein, McCarty, McKinnor, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Quirk-Silva, Ramos, Rendon, Reyes, Luz Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wood, Zbur, Robert Rivas

ABS, ABST OR NV: Alvarez, Bauer-Kahan, Bryan, Megan Dahle, Flora, Gabriel, Garcia, Haney, Hart, Jackson, Low, Mathis, Muratsuchi, Petrie-Norris, Schiavo, Wilson

UPDATED

VERSION: July 1, 2024

CONSULTANT: Elizabeth Potter / PUB. S. / (916) 319-3744 FN: 0003716

Date of Hearing: July 2, 2024

Counsel: Andrew Ironside

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Kevin McCarty, Chair

SBPCA Bill Id:SB 1381

Author:(Wahab) – As Amended Ver:July 1, 2024

SUMMARY: Changes the cost saving formula for the Safe Neighborhoods and School Fund to give more money for mental health and substance abuse treatment; increases the penalty for selling, furnishing, administering, or giving away fentanyl under specified circumstances; requires a warning to person convicted of trafficking fentanyl that they could face murder charges if they provide fentanyl to someone who later dies of a drug overdose; expands the circumstances when acts of theft of property, money, or labor can be aggregated for the purpose of determining the degree of theft; and reinstates the crime of petty theft with a prior. Specifically, this bill:

1. Changes the disbursement formula for the Safe Neighborhoods and Schools Fund by increasing the percentage going to the Board of State and Community Corrections for a grant program supporting mental health treatment, substance abuse treatment and diversion programs for people in the criminal justice system from 65% to 75%; and, by decreasing the percentage going to the State Department of Education for a grant program aimed at improving outcomes for public school pupils in kindergarten and grades 1 through 12 by reducing truancy and supporting students who at risk of dropping out of school or victims of crime from 25% to 15%.
2. Provides that a person who sells, furnishes, administers, or gives away any mixture of controlled substances containing fentanyl, knowing fentanyl to be present within the mixture, unbeknownst to the purchaser or recipient, and without disclosing that presence to the purchaser or recipient, shall be punished by imprisonment for a term of four, five, or six years in county jail, unless otherwise specified.
3. Requires the court to advise a person who is convicted of, or who pleads guilty or no contest to, a specified violation for transporting, importing, selling, or administering a controlled substance, offering to transport, import, sell, or administer a controlled substance, or attempting to transport, import, sell, or administer a controlled substance, where the substance contained fentanyl or a fentanyl analog, of the following:
   

“You are hereby advised that all illicit drugs and counterfeit pills are dangerous to human life and become even deadlier when they are, sometimes unknowingly, mixed with substances such as fentanyl and analogs of fentanyl. People can and have died from these substances, even in very small doses. It is extremely dangerous and deadly to human life to sell or administer drugs, in any form, when not lawfully authorized to do so. If you do so in the future and a person dies as a result of that action, and you knew or should have known that the substance you provided contained fentanyl or a fentanyl analog, you may be charged with homicide, up to and including the crime of murder, within the meaning of Section 187 of the Penal Code. In addition, this conviction will be considered by a judge or jury as to whether you knew or should have known that the substance you provided to the decedent contained fentanyl.”

Requires the court to additionally read the advisory statement in a case in which the person exchanged a controlled substance containing fentanyl or its analogs for anything else of value except when the controlled substance containing fentanyl or its analogs is exchanged for a controlled substance or alcohol.

1. Requires the advisory statement to be included in a plea form, if used, or the fact that the advisory was given to be specified on the record.
   
2. Requires the fact that the advisory was given to be recorded in the abstract of the conviction.
   
3. Provides that this advisement may not be used as evidence in the prosecution of a minor in juvenile court.
4. Deletes existing provisions regarding the aggregation the value of property, money, labor over the course of distinct but related acts for the purpose of determining the degree of theft.
5. Provide that, in any case involving one or more acts of theft or shoplifting, as specified, when the acts occurred within three years of each other, the value of the money, labor, real property, or personal property taken or merchandise stolen may be aggregated in a single count or charge, with the sum of the value of all money, labor, property, or merchandise being the value considered in determining the degree of theft. Aggregation may only be applied to theft or shoplifting offenses for which a conviction has not occurred.
6. Provides that a person is punishable by imprisonment in the county jail not exceeding one year or to 16 months, 2 years, or 3 years in county jail, unless as specified, if they meet all of the following:
   1. The person has two or more prior convictions for any of the specified offenses and those convictions occurred within three years of the current offense;
   2. The current conviction is petty theft or shoplifting; and,
   3. The value of the property taken, unlawfully received, or that otherwise provided the basis for conviction in each of the offenses is more than $50.
7. Provides that a person who has previously been sentenced under the above provision and who is within three years subsequently convicted of petty theft or shoplifting is punishable by imprisonment in county jail, unless as specified, for 16 months, 2 years, or 3 years.
   
8. Provides the above provision apply to the following offenses, including a conviction that occurred before the effective date of this section:
   
   1. Petty theft, as specified;
      
   2. Grand theft, as specified;
      
   3. Theft from an elder or dependent adult, as specified;
      
   4. The theft or unauthorized use of a vehicle, as specified;
      
   5. Burglary, as specified;
      
   6. Carjacking, as specified;
      
   7. Robbery, as specified;
      
   8. Receiving stolen property, as specified;
      
   9. Shoplifting, as specified; and,
      
   10. Identity theft and mail theft, as specified.
       
9. Provides that a person subject to charging, or actually charged, under this section may be referred by a prosecuting attorney's office or by a county probation department to a theft diversion or deferred entry of judgment program, as specified; and provides that, if appropriate, a person admitted to such a program may also be referred to a substance abuse treatment program.
   
10. Provides that, upon an arrest of a person for petty theft or shoplifting, who has two or more prior convictions within the past three years for any of the specified offenses, prior to release the court shall make an individualized determination of risk to public safety and likelihood to return to court.
    
11. Requires the court shall make the determination within 48 hours of detention and may do so through remote proceedings.
12. Contains findings and declarations.
13. Contains a severability clause.
14. Provides that, in the event that this act and another initiative measure or measures relating to the same subject, including by making any changes to laws enacted or amended by Proposition 47, appear on the same statewide ballot, all of the provisions of the other measure or measures shall be deemed to be in conflict with this measure. In the event this measure receives a greater number of affirmative votes than a measure deemed to be in conflict with it, the provisions of this measure shall prevail in their entirety, and the provisions of the other measure or measures shall be null and void.
15. Provides that, if this measure is approved by voters but superseded by law by any other conflicting measure approved by the voters at the same election, and the conflicting ballot measure is later held invalid, this measure shall be self-executing and given full force and effect.
16. Calls for a special election to be held on November 5, 2024, for approval by the voters, to be consolidated with the statewide general election to be held on that date.>

EXISTING LAW:

1. Requires the Controller, by August 15 of each fiscal year beginning in 2016, to disburse moneys deposited in the Safe Neighborhoods and Schools Fund as follows:
   
   1. Twenty-five percent to the State Department of Education, to administer a grant program to public agencies aimed at improving outcomes for public school pupils in kindergarten and grades 1 to 12, inclusive, by reducing truancy and supporting students who are at risk of dropping out of school or are victims of crime.
      
   2. Ten percent to the California Victim Compensation Board, to make grants to trauma recovery centers to provide services to victims of crime pursuant to Section 13963.1 of the Government Code.
      
   3. Sixty-five percent to the Board of State and Community Corrections, to administer a grant program to public agencies aimed at supporting mental health treatment, substance abuse treatment, and diversion programs for people in the criminal justice system, with an emphasis on programs that reduce recidivism of people convicted of less serious crimes, such as those covered by this measure, and those who have substance abuse and mental health problems.
      
2. Makes it unlawful for a person to possess for sale or purchase for purpose of sale specified controlled substances. (Health & Saf. Code, § 11351.)
   
3. Makes it unlawful for a person to transport, import, sell, furnish, administer, or give away, or offer or attempt to transport, import, sell, furnish, administer, or give away specified controlled substances. (Health & Saf. Code, § 11352.)
   
4. Makes it unlawful for a person to manufacture, compound, convert, produce, derive, process, or prepare, either directly or indirectly by chemical extraction or by means of chemical synthesis any controlled substance. (Health & Saf. Code, § 11379.6.)
   
5. Provides that murder is the unlawful killing of a human being, or a fetus, with malice aforethought. (Pen. Code, § 187, subd. (a).)
   
6. Provides that malice can be either express or implied:
   
   1. Express malice is when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature.
      
   2. Implied malice is when no considerable provocation appears, or when the circumstances attending the killing show an abandoned or malignant heart. (Pen. Code, § 188, subd. (a)(1)-(2).)
      
7. Provides that manslaughter is the unlawful killing of a human being without malice. (Pen. Code, § 192.)
   
8. Defines “shoplifting” as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed $950 dollars. (Pen. Code, § 459.5, subd. (a).)
   
9. 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).)
   
10. Defines “grand theft” as theft of money, labor, real or personal property of a value exceeding $950, and provides that grand theft is a wobbler, punishable by imprisonment in a county jail not exceeding one year, or a felony by imprisonment in county jail for 16 months, two years, or three years (Pen. Code, § 487, subd. (a), 489, subd. (c).)
    
11. Provides that if 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).)
    
12. Generally punishes petty theft as a misdemeanor, punishable by fine not exceeding $1,000, or by imprisonment in county jail not exceeding six months, or both. (Pen. Code, §490.)
    
13. Defines petty theft as obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed $950 and makes it punishable as a misdemeanor, except where a person has a prior specified serious or violent felony conviction, or a registerable sex conviction, in which case the offense is punishable as a felony by imprisonment in county jail pursuant to realignment. (Pen. Code, § 490.2, subds. (a).)
    
14. Provides that if a person is required to register as a sex offender, has a prior specified serious or violent felony conviction, or has a conviction for a specified theft-related offense against an elder or dependent adult, and also has been convicted of a specified theft-related offense for which they were imprisoned, and is subsequently convicted of petty theft, then the person is to receive an enhanced punishment of imprisonment in county jail not to exceed one year, or in the state prison. (Pen. Code, § 666.)
    
15. Provides that the theft-related offenses which qualify a defendant for enhanced status for the crime of petty theft with a prior are: 1) petty theft; 2) grand theft; 3) theft, embezzlement, forgery, fraud, or identity theft committed against an elder or dependent adult; 4) auto theft; 5) burglary; 6) carjacking; 7) robbery; and 8) a felony for receiving stolen property. (Pen. Code, § 666, subd. (a).)

FISCAL EFFECT: Unknown.

COMMENTS:

Author's Statement: “SB 1381, the proposed ballot measure, will improve public safety and tackle the fentanyl crisis. This measure is a responsible approach to targeting these perpetrators, without resulting in mass incarceration. This measure adds new penalties for retail theft repeat offenders, as well as fentanyl dealers, while still increasing access to mental health and drug treatment programs. SB 1381 is the right approach to keeping everyone in our communities safe.”

1. Related Legislation:
   
   1. AB 1848 (Davies), would expand an existing one year sentencing enhancement for any person over the age of 18 who induces a minor to transport, carry, sell, give away, prepare for sale, or sell heroin, cocaine, or cocaine base on any church, synagogue, youth center, day care, or public swimming pool grounds to include the transport, carry, sell, give away, prepare for sale, or sell heroin, cocaine, cocaine base, and fentanyl either on the grounds of, or within 1000 feet from a church, synagogue, youth center, day care, or public swimming pool. The hearing on AB 1848 in this committee was canceled at the request of the author.
      
   2. AB 2045 (Hoover), would increase the penalty for the crime of inducing a minor to sell or possess any controlled substance within 1,000 feet of a school crime as it relates to fentanyl to 5, 8, or 11 years and makes the 1,000 enhancement applicable to offenses involving fentanyl. AB 2045 was held in suspense in the Assembly Appropriations Committee.
      
   3. AB 2336 (Villapudua) would add a substance containing fentanyl to the list of controlled substances for which possession of those substances while armed with a loaded and operable firearm is a felony punishable in state prison by two, three, or four years. AB 2336 was held in suspense in the Assembly Appropriations Committee.
   4. AB 1802 (Jones-Sawyer) would extend the sunset date for organized retail theft to January 1, 2031. AB 1802 is pending a vote on the Senate floor.
      
   5. AB 1960 (Soria) would reenact sentence enhancement for theft offenses when the loss exceeds specified dollar amounts. AB 1960 is pending a vote on the Senate floor.
      
   6. AB 1990 (W. Carrillo) would authorize peace officers to make a warrantless arrest for misdemeanor shoplifting, as specified. AB 1990 is pending hearing in the Senate Public Safety Committee.
      
   7. 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 a vote on the Senate floor.
      
   8. AB 1794 (McCarty) would clarify aggregation requirements for grand theft, among other things. AB 1794 is pending hearing in the Senate Appropriations Committee.
      
   9. AB 2406 (Davies) would make it a felony to use two or more minors to engage in theft related offenses. AB 2406 failed passage in this Committee.
      
   10. AB 2438 (Petrie-Norris) would make any person who acts in concert to take, damage, or destroy any property in the commission of a felony punishable by an additional and consecutive term of imprisonment. AB 2438 failed passage in this Committee.
       
   11. AB 2943 (Zbur), would authorize peace officers to make warrantless arrests for misdemeanor shoplifting, as specified, among other provisions related to retail theft. AB 2943 is pending a vote on the Senate floor.
       
   12. 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. The hearing on SB 923 in Senate Public Safety Committee was canceled at the request of the author.
       
   13. SB 928 (Niello) would remove the sunset date for organized retail theft. SB 928 did not receive a hearing in Senate Public Safety Committee.
       
   14. SB 982 (Wahab) would remove the sunset date for organized retail theft. SB 982 is pending a vote on the Assembly floor.
       
   15. 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 a vote on the Assembly floor.
       
2. Prior Legislation:
   
   Increasing Penalties for Furnishing Fentanyl
   
   1. AB 367 (Maienschein), of the 2023-2024 Legislative Session, would have applied the “great bodily injury” enhancement to any person who sells, furnishes, administers, or gives away a controlled substance when the person to whom the substance was sold, furnished, administered or given suffers a significant or substantial physical injury from using the substance. AB 367 failed passage in this committee.
      
   2. AB 701 (Villapudua), Chapter 540, Statutes of 2023, applied the existing weight enhancements that increase the penalty and fine for trafficking controlled substances containing heroin, cocaine base, and cocaine to fentanyl.
      
   3. AB 955 (Petrie-Norris), of the 2023-2024 Legislative Session, would have created a new crime for selling fentanyl on a social media platform. AB 955 was sent for interim study.
      
   4. AB 2246 (Petrie-Norris), of the 2021-2022 Legislative Session, would have increased penalties for specified drug offenses involving fentanyl and applies a sentencing enhancement for specified drug trafficking offenses involving heroin, cocaine, or cocaine base to those involving fentanyl. AB 2246 failed passage in this committee.
      
   5. AB 3105 (Waldron), of the 2017-2018 Legislative Session, would have made sale of fentanyl punishable by a term of 10 years to life in a case involving 20 grams or more of a mixture or substance containing a detectable amount of fentanyl, as defined, or 5 grams or more of a mixture or substance containing an analogue. AB 3105 failed passage in this committee.
      

Advisement Following Conviction for Specified Drug Offenses

• 1. AB 18 (Joe Patterson), of the 2023-2024 Legislative Session, would have required the court to advise a person convicted of specified drug offenses that they could be charged with voluntary manslaughter or murder in the future if they manufacture or distribute controlled substances and somebody dies as a result. AB 18 failed passage in the Assembly Public Safety Committee.
     
  2. SB 44 (Umberg), of the 2023-2024 Legislative Session, was identical to this AB 18. SB 44 failed passage in the Senate Public Safety Committee.
     
  3. AB 2366 (Jim Patterson), of the 2021-2022 Legislative Session, was substantially similar to AB 18. The author pulled AB 2366 before the bill’s scheduled hearing in this committee.
     
  4. SB 350 (Melendez), of the 2021-2022 Legislative Session, was substantially similar to AB 18. SB 350 failed passage in the Senate Public Safety Committee.
     

Aggregation of Value for Determining Degree of Theft

• 1. AB 2390 (Muratsuchi), of the 2021-2022 Legislative Session, would have amended Proposition 47 by authorizing the aggregation of the value of property from one or more acts of theft or shoplifting in a case for determining the degree of theft. AB 2390 failed passage in this committee.
     
  2. AB 2356 (Rodriguez), Chapter 22, Statutes of 2022, would have specified that if the value of property taken, or intended to be taken, exceeds $950 over the course of distinct but related acts, the value of the property taken, or intended to be taken, may properly be aggregated to charge a count of grand theft, if the acts are motivated by one intention, one general impulse, and one plan. AB 2356 passed in this committee and is being processed on the Floor.
     
  3. AB 2543 (Fong), of the 2021-2022 Legislative Session, would have amended Proposition 47 by authorizing acts of shoplifting that occur on 2 or more separate occasions within a 12-month period, and the aggregated value of the property taken exceeds $950, to be punished as an alternate felony-misdemeanor, a “wobbler.” AB 2543 was not heard in this committee at the request of the author.
     

Petty Theft with a Prior

• 1. AB 75 (Hoover), of the 2023-2024 Legislative Session, would reinstate the offense of petty theft with a prior as it existed before it was eliminated by Prop. 47 and makes it applicable to the offense of shoplifting created by Prop.47, subject to approval by the voters. AB 75 failed passage in this committee.
     
  2. AB 1597 (Waldron), of the 2021-2022 Legislative Session, was practically identical to AB 75. AB 1597 failed passage in this committee.
     
  3. AB 2718 (Cooper), of the 2021-2022 Legislative Session, would have amended Proposition 47 by creating the new crime of “serial theft” for the theft of property valued over $500 where the offender has two or more prior convictions for specified theft offenses, and by redefining “petty theft” and “shoplifting,” subject to approval by the voters. AB 2718 failed passage in this committee.
     
  4. SB 1108 (Bates), of the 2021-2022 Legislative Session, would have reinstated a provision of law that was repealed by Proposition 47 that provides that a person who has been convicted 3 or more times of petty theft, grand theft, or other specified crimes and who is subsequently convicted of petty theft may be punished as an alternate felony-misdemeanor, a “wobbler.” SB 1108 failed passage in the Senate Public Safety Committee.
     
  5. Proposition 47 of the November 2014 general election, the Safe Neighborhoods and Schools Act, reduced the penalties for certain drug and property crimes, including reducing petty theft with a prior theft conviction to a misdemeanor, except in the case where the person has a prior super strike conviction or a conviction for a specified theft-related offense against an elder or dependent adult.
     

Analysis Prepared by: Andrew Ironside / PUB. S. / (916) 319-3744

SENATE THIRD READING

STR Bill Id:SB 1381

Author:(McGuire)

As Amended Ver:March 20, 2024

Majority vote

SUMMARY

Adds the sale of stolen goods to the Retail Theft Prevention Program's list of crimes that the regional property crimes task force, which is administered by the Department of Highway Patrol (CHP), should investigate.

Major Provisions

COMMENTS

Currently, the Organized Retail Theft Crime Task Force is responsible for assisting law enforcement agencies with the crimes associated with retail theft. This bill would add sale of stolen goods to the list of crimes to be considered in identifying geographic areas experiencing elevated levels of property crime, in the organized retail theft prevention program.

According to the Author

"The State of California has made more than $100 million dollars of investments to help law enforcement tackle retail theft in our community, including $85 million for local police, $6 million for the California Highway Patrol, and $10 million for prosecutors.

"This year, the California State Senate has unveiled a bipartisan package, the Safer California Plan, aimed at cracking down on professional thieves, making it harder to sell stolen goods online, strengthening tools for law enforcement to make arrests and prosecute brazen criminal activity, and disrupting the cycle of crime that's caused by addiction.

"Of the 14 bills authored by Democratic and Republican Senators aimed at addressing community-based crimes, there is a consistent theme in how we're tackling retail theft: curbing the sale of stolen goods.

SB 1381 specifically includes the sale of stolen goods in the mission of the regional property task force convened by the California Highway Patrol in coordination with the Department of Justice."

Arguments in Support

According to The Town of Apple Valley, "These bills propose several methods of addressing resale of stolen property and fencing locations that facilitate this illegal sale of stolen property. These methods range from providing funding and task forces for law enforcement to identify and crack down on these fencing operations, to creating sentencing enhancements for individuals convicted of selling property acquired through theft."

Arguments in Opposition

None submitted.

FISCAL COMMENTS

Unknown. This bill is keyed non-fiscal by Legislative Counsel.

VOTES

SENATE FLOOR: 38-0-2

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

ABS, ABST OR NV: Grove, Niello

ASM PUBLIC SAFETY: 7-0-1

YES: McCarty, Alanis, Stephanie Nguyen, Holden, Ting, Wilson, Zbur

ABS, ABST OR NV: Gallagher

ASSEMBLY FLOOR: 63-0-16

YES: Addis, Aguiar-Curry, Alanis, Arambula, Bains, Bennett, Berman, Boerner, Bonta, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Chen, Connolly, Davies, Dixon, Essayli, Mike Fong, Friedman, Gallagher, Gipson, Grayson, Holden, Hoover, Irwin, Jones-Sawyer, Kalra, Lackey, Lee, Lowenthal, Maienschein, McCarty, McKinnor, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Quirk-Silva, Ramos, Rendon, Reyes, Luz Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wood, Zbur, Robert Rivas

ABS, ABST OR NV: Alvarez, Bauer-Kahan, Bryan, Megan Dahle, Flora, Gabriel, Garcia, Haney, Hart, Jackson, Low, Mathis, Muratsuchi, Petrie-Norris, Schiavo, Wilson

UPDATED

VERSION: March 20, 2024

CONSULTANT: Elizabeth Potter / PUB. S. / (916) 319-3744 FN: 0003560

Date of Hearing: June 4, 2024

Consultant: Elizabeth Potter

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Kevin McCarty, Chair

SBPCA Bill Id:SB 1381

Author:(McGuire) – As Amended Ver:March 20, 2024

SUMMARY: Adds the sale of stolen goods to the Retail Theft Prevention Program’s list of crimes that the regional property crimes task force, which is administered by the Department of Highway Patrol (CHP), should investigate.

EXISTING LAW:

1. Requires CHP, in coordination with the Department of Justice (DOJ), to convene a regional property crimes task force to assist local law enforcement in counties identified by CHP as having elevated levels of property crime, including but not limited to, organized retail theft, vehicle burglary and theft of vehicle parts and accessories. (Pen. Code, § 13899.)
   
2. Instructs the regional property crimes task force to provide local law enforcement in the identified region with logistical support and other law enforcement resources, including, but not limited to, personnel and equipment, as determined to be appropriate by the CHP commissioner in consultation with task force members. (Pen. Code, § 13899.)
   
3. Repeals the property crimes task force on January 1, 2026. (Pen. Code, § 13899.1.)
   
4. Divides theft into two degrees, petty theft and grand theft. (Pen. Code, § 486.)
   
5. Defines “grand theft” as when the money, labor, or real or personal property taken is of a value exceeding $950 dollars or when the property is taken from a person, or when the property stolen is an automobile or firearm. (Pen. Code, § 487)
   
6. Defines “petty theft” as obtaining any property by theft where the value of the money, labor, or real or personal property taken does not exceed $950. (Pen. Code, § 490.2, subd. (a).)
   
7. Defines “receiving stolen property” as buying or receiving any property that has been stolen knowing the property is stolen, or concealing, selling, or withholding any property from the owner, knowing the property is stolen. (Pen. Code, § 496, subd. (a).)
   
8. Provides that receiving stolen property that exceeds $950 is a wobbler, punishable as a misdemeanor or a felony. (Pen. Code, § 496, subds. (a), (d).)
   
9. Provides that receiving stolen property that does not exceed $950 is a misdemeanor, but may be charged as a felony if a person has a prior “super strike,” or a registerable sex conviction, as specified. (Pen. Code, § 49, subd. (a).)
   
10. Establishes 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 as described, 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.
       
    4. Recruits, coordinates, organizes, supervises, directs, manages, or finances another to undertake any of the acts described, or any other statute defining theft of merchandise. (Pen. Code, § 490.4, subd. (a)(1)-(4).)
       

FISCAL EFFECT: Unknown.

COMMENTS:

1. Author's Statement: According to the author, ">
   
2. Efforts to Combat Retail Theft: On December 19, 2023, Governor Newsom announced, as part of Governor Newsom’s Real Public Safety  Plan, “in the first 11 months of the year alone, the California Highway Patrol (CHP) — through its Organized Retail Crime Task Force (ORCTF) — increased proactive organized retail crime operations by over 310%, made more than 1,000 arrests (a 109% year-over-year increase) and recovered 187,515 items stolen from retailers (38,600 more items than last year).” (<Combating Organized Retail Crime: California Highway Patrol Increases Operations by Over 310% | California Governor> [as of Apr. 3, 2024].)
   
   The Governor’s Public Safety Plan was originally unveiled on December 17, 2021, and identified three major goals, two of which were bolstering local law enforcement response to stop and apprehend criminals and having more prosecutors to hold perpetrators accountable.
   
   The Public Safety Plan breaks down these goals as follows:
   
   “BOLSTERING LOCAL LAW ENFORCEMENT RESPONSE TO STOP AND APPREHEND CRIMINALS:

• Increased Local Law Enforcement to Combat Retail Theft: The Real Public Safety Plan includes $255 million in grants for local law enforcement over the next three years to increase presence at retail locations and combat organized, retail crime so Californians and small businesses across the state can feel safe.
  
• Smash and Grab Enforcement Unit: Governor Newsom’s Plan includes a permanent Smash and Grab Enforcement Unit. Operated by the California Highway Patrol, the unit will consist of enforcement fleets that will work with local law enforcement to crack down on organized retail, auto and rail theft in the Bay Area, Sacramento, San Joaquin Valley, Los Angeles and San Diego regions.
• Keeping Our Roads Safe: With the Real Public Safety Plan, CHP will now be able to strategically deploy more patrols based on real-time data to help keep our roads safe. Governor Newsom will also work with the Legislature to upgrade highway camera technology to gather information to help solve crimes.
• Support for Small Businesses Victimized by Retail Theft: Governor Newsom’s Plan will create a new grant program to help small businesses that have been the victims of smash-and-grabs to get back on their feet quickly.

“MORE PROSECUTORS TO HOLD PERPETRATORS ACCOUNTABLE:

• Dedicated Retail Theft Prosecutors: The plan will ensure District Attorneys are effectively and efficiently prosecuting retail, auto and rail theft-related crime by providing an additional $30 million in grants for local prosecutors over three years.
• Fighting Crime Statewide: The Real Public Safety Plan will allow the Attorney General to continue leading anti-crime task forces around the state, including High Impact Investigation Teams, LA interagency efforts and task forces to combat human trafficking and gangs.
• Statewide Organized Theft Team: Governor Newsom’s plan includes $18 million over three years for the creation of a dedicated state team of special investigators and prosecutors in the Attorney General’s office to go after perpetrators of organized theft crime rings that cross jurisdictional lines.” (<Governor Newsom Unveils Public Safety Plan to Aggressively Fight and Prevent Crime in California | California Governor> [as of April 3, 2024].)

Currently, the Organized Retail Theft Crime Task Force is responsible for assisting law enforcement agencies with the crimes associated with retail theft. This bill would add sale of stolen goods to the list of crimes to be considered in identifying geographic areas experiencing elevated levels of property crime, in the organized retail theft prevention program.

1. Argument in Support: According to The Town of Apple Valley, “These bills propose several methods of addressing resale of stolen property and fencing locations that facilitate this illegal sale of stolen property. These methods range from providing funding and task forces for law enforcement to identify and crack down on these fencing operations, to creating sentencing enhancements for individuals convicted of selling property acquired through theft.”
   
2. Related Legislation:
   1. AB 1802 (Jones-Sawyer) would extend the sunset date for organized retail theft to January 1, 2031. AB 2943 is pending in Senate Public Safety Committee.
      
   2. 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 Senate Public Safety Committee.
      
3. Prior Legislation:
   
   1. AB 1653 (Patterson), Chapter 13, Statutes of 2022, added theft of vehicle parts and accessories to the property crimes that the California Highway Patrol’s Regional Property Crimes Task Force should prioritize.
      
   2. AB 331 (Jones-Sawyer), Chapter 113, Statutes of 2021, extended the sunset date for organized retail theft through January 1, 2026.
      
   3. 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. This law was set to expire on January 1, 2021.
      
   4. AB 2372 (Ammiano), Chapter 693, Statutes of 2010, raised the general value threshold for grand theft from $400 to $950.
      

REGISTERED SUPPORT / OPPOSITION:

Support

Buena Park; City of
California Association of Highway Patrolmen
City of Agoura Hills
City of Artesia
City of Buena Park
City of Citrus Heights
City of Cypress
City of El Cerrito
City of Fontana
City of Fountain Valley
City of Grand Terrace
City of Jackson
City of La Mirada
City of Lakeport
City of Lakewood CA
City of Los Alamitos
City of Manteca
City of Oakdale
City of Paramount
City of Port Hueneme
City of Rohnert Park
City of Rolling Hills Estates
City of Rosemead
City of San Luis Obispo
City of Stanton
Fullerton; City of
League of California Cities
Los Angeles County District Attorney's Office
Mission Viejo; City of
Oakley; City of
Town of Apple Valley

Opposition

None

Analysis Prepared by: Elizabeth Potter / PUB. S. / (916) 319-3744

 CONSENT  

Bill No: SB 1381

Author: McGuire (D)

Amended: 3/20/24

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 5-0, 4/9/24

AYES: Wahab, Seyarto, Bradford, Skinner, Wiener

SUBJECT: Property crimes: regional property crimes task force

SOURCE: Author

DIGEST:

This bill includes the sale of stolen goods as a property crime to be considered in the identification of geographic areas experiencing increased levels of property crimes for purposes of the regional property crimes task force.

ANALYSIS:

Existing law:

1. Requires, until January 1, 2026, the Department of Highway Patrol (CHP) to convene a regional property crimes task force to assist local law enforcement in counties identified by CHP as having elevated levels of property crime, including but not limited to organized retail theft, vehicle burglary and theft of vehicle parts and accessories. (Pen. Code, § 13899.)
2. States, until January 1, 2026, that the task force shall provide local law enforcement in the identified region with logistical support and other law enforcement resources, including, but not limited to, personnel and equipment, as determined to be appropriate by the Commissioner of CHP in consultation with task force members. (Pen. Code, § 13899.)

This bill includes the sale of stolen goods as property crime to be considered in the identification of geographic areas experiencing increased levels of property crime for purposes of the property crimes task force.

Background

The Regional Property Crimes Task Force was enacted by AB 1065 (Jones-Sawyer, Chapter 803, Statutes of 2018). That bill required CHP, until July 1, 2021, to coordinate with Department of Justice (DOJ) to convene a regional property crimes task force to identify geographic areas experiencing increased levels of property crimes and assist local law enforcement with resources, such as personnel and equipment. AB 331 (Jones-Sawyer, Chapter 113, Statutes of 2021), extended the operation of the regional property crimes task force until January 1, 2026.

According to CHP’s website:

As reported by the National Retail Federation, organized retail theft accounts for nearly $30 billion in economic loss per year. This loss is carried by retailers on several levels but is ultimately passed on to consumers through price inflation to offset economic loss. While the problem is most commonly associated with shoplifting, it extends well beyond into associated organized criminal activity. Commercial burglary, vehicle burglary, identity theft, credit card fraud, forgery, and fencing (selling or distribution of) stolen property are part of a bigger picture that finance ongoing criminal operations.

In response to AB 1065, the CHP, in consultation with the DOJ, developed a task force concept to work with allied agencies to combat organized retail theft. Three regional task forces, known as Organized Retail Crime Task Forces (ORCTF), were established by the CHP in three field Divisions with the greatest need for immediate action: Golden Gate Division (encompassing the greater Bay Area), Southern Division (encompassing the greater Los Angeles region), and Border Division (encompassing Orange and San Diego counties).

(See https://www.chp.ca.gov/notify-chp/organized-retail-theft-program [as of Mar. 27, 2024].)

As of August 2023, since the inception of the ORCTF, there have been more than 1,850 investigations into retail crimes in California that have resulted in over 1,250 arrests. One key to the ORCTF’s success is the partnership with retailers, local law enforcement, and district attorneys, to effectively disrupt organized retail theft rings and prosecute organized retail crimes. (https://www.chp.ca.gov/PressReleases/Pages/CHP-RAMPS-UP-EFFORTS-TO-DISRUPT-RETAIL-THEFT-RINGS-STATEWIDE.aspx [as of Mar. 27, 2024].)

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

SUPPORT: (Verified 4/9/24)

League of California Cities

OPPOSITION: (Verified 4/9/24)

None received

Prepared by: Stella Choe / PUB. S. /

4/10/24 10:12:45

**** END ****

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Aisha Wahab, Chair

2023 - 2024 Regular

Bill No: SB 1381 Hearing Date: April 9, 2024

Subject: Property crimes: regional property crimes task force

HISTORY

Source: Author

Prior Legislation: AB 1653 (Patterson), Ch. 105, Stats. 2022

AB 331 (Jones-Sawyer), Ch. 113, Stats. 2021

SB 985 (Portantino), held in Senate Public Safety, 2020

AB 94 (Comm. on Budget and Fiscal Rev.), Ch. 25, Stats. 2019

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

Support: Unknown

Opposition: None known

PURPOSE

The purpose of this bill is to include the sale of stolen goods as a property crime to be considered in the identification of geographic areas experiencing increased levels of property crimes for purposes of the property crimes task force.

Existing law, until January 1, 2026, requires the Department of Highway Patrol (CHP) to convene a regional property crimes task force to assist local law enforcement in counties identified by CHP as having elevated levels of property crime, including but not limited to organized retail theft, vehicle burglary and theft of vehicle parts and accessories. (Pen. Code, § 13899.)

Existing law, until January 1, 2026, states that the task force shall provide local law enforcement in the identified region with logistical support and other law enforcement resources, including, but not limited to, personnel and equipment, as determined to be appropriate by the Commissioner of CHP in consultation with task force members. (Pen. Code, § 13899.)

This bill includes the sale of stolen goods as property crime to be considered in the identification of geographic areas experiencing increased levels of property crime for purposes of the property crimes task force.

COMMENTS

1. Need for This Bill

According to the author of this bill:

The State of California has made more than $100 million dollars of investments to help law enforcement tackle retail theft in our community, including $85 million for local police, $6 million for the California Highway Patrol, and $10 million for prosecutors.

This year, the California State Senate has unveiled a bipartisan package, the Safer California Plan, aimed at cracking down on professional thieves, making it harder to sell stolen goods online, strengthening tools for law enforcement to make arrests and prosecute brazen criminal activity, and disrupting the cycle of crime that’s caused by addiction.

Of the 14 bills authored by Democratic and Republican Senators aimed at addressing community-based crimes, there is a consistent theme in how we’re tackling retail theft: curbing the sale of stolen goods.

SB 1381 specifically includes the sale of stolen goods in the mission of the regional property task force convened by the California Highway Patrol in coordination with the Department of Justice.

1. Background: Organized Retail Theft Law

Proposition 47, also known as the Safe Neighborhoods and Schools Act, 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. Specifically, the initiative reduced the penalties for possession for personal use of most illegal drugs to misdemeanors. The initiative also reduced the penalties for theft, shoplifting, receiving stolen property, writing bad checks, and check forgery valued at $950 or less from alternate felony-misdemeanors to straight misdemeanors. Among the crimes reduced to misdemeanors by Proposition 47 “are certain second degree burglaries where the defendant enters a commercial establishment with the intent to steal. Such offense is now characterized as shoplifting as defined in new [Penal Code] section 459.5.” (People v. Sherow (2015) 239 Cal.App.4th 875, 879.) The measure limited the reduced penalties to offenders who do not have designated prior convictions for serious or violent felonies and who are not required to register as sex offenders. (See Legislative Analyst's Office analysis of Proposition 47 <http://www.lao.ca.gov/ballot/2014/prop-47-110414.pdf>.)

Prior to Proposition 47, most theft offenses had to meet the $950 threshold in order to be charged as a felony. However, this threshold did not apply to certain offenses such as receiving stolen property, fraud and forgery which were punishable as either a felony or misdemeanor, also known as “wobblers.” Also, in cases of retail theft, prosecutors had the option of charging a person with second degree burglary, which was punishable as a wobbler without having to reach the $950 threshold. However, the provisions of Proposition 47 specifically required that the crime of “shoplifting” be punished as a misdemeanor. “Shoplifting” was defined by the initiative 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.” (Pen. Code, § 459.5; Proposition 47, approved by California voters on Nov. 4, 2014.)

Because Proposition 47 reduced the number of crimes that can be punished as felonies, it reduced the number of people that could be sentenced to state prison. Proposition 47 requires that the estimated annual savings to the state resulting from Proposition 47’s sentencing changes be spent on mental health and substance use services, truancy and dropout prevention, and victim services. According to the Legislative Analyst’s Office, last year, the estimated state savings was about $113 million. (https://lao.ca.gov/ballot/2023/230474.pdf [as of Mar. 27, 2024].)

After the passage of Proposition 47, opponents of the measure argued that because shoplifting had to be charged as a misdemeanor unless the amount stolen exceeds $950, repeat offenders and those who work in concert with others in an organized retail theft ring were not being appropriately punished. (Grocery stores are pushing California to be tougher on crime, LA Times < https://www.latimes.com/business/story/2020-09-16/california-grocery-industry-supports-tougher-crime-laws > [as of Mar. 27, 2024].)

In 2018, a coalition of law enforcement and victims’ advocate groups started gathering signatures to put a new initiative on the ballot that would undo some of the changes made by Proposition 47. That measure, Proposition 20, would have allowed thefts of property worth $250 or more to be punished as felonies and would have created the crime of serial theft and organized retail theft. Proposition 20 qualified to be placed on the ballot for the November 2020 general election and was ultimately rejected by California voters.

Also in 2018, the Legislature passed AB 1065 (Jones-Sawyer), Ch. 803, Stats. 2018, which created the crime of organized retail theft and allowed the crime to be punished as a wobbler, along with several other provisions related to the prosecution of the new crime and the creation of the CHP property crimes task force to assist local efforts to combat organized property crimes. That law contained a sunset date of January 1, 2021. Since the passage of the organized retail theft law, the sunset has been extended several times. (See AB 94 (Committee on Budget and Fiscal Rev.), Ch. 25, Stats. 2019 and AB 331 (Jones-Sawyer), Ch. 113, Stats. 2021.)

This bill includes the sale of stolen goods as property crime to be considered in the identification of geographic areas experiencing increased levels of property crime for purposes of the property crimes task force.

1. CHP Task Force

The Regional Property Crimes Task Force was enacted by AB 1065 (Jones-Sawyer), Chapter 803, Statutes of 2018. That bill required CHP, until July 1, 2021, to coordinate with Department of Justice (DOJ) to convene a regional property crimes task force to identify geographic areas experiencing increased levels of property crimes and assist local law enforcement with resources, such as personnel and equipment. AB 331 (Jones-Sawyer), Chapter 113, Statutes of 2021, extended the operation of the regional property crimes task force until January 1, 2026.

According to CHP’s website:

As reported by the National Retail Federation, organized retail theft accounts for nearly $30 billion in economic loss per year. This loss is carried by retailers on several levels but is ultimately passed on to consumers through price inflation to offset economic loss. While the problem is most commonly associated with shoplifting, it extends well beyond into associated organized criminal activity. Commercial burglary, vehicle burglary, identity theft, credit card fraud, forgery, and fencing (selling or distribution of) stolen property are part of a bigger picture that finance ongoing criminal operations.

In response to AB 1065, the CHP, in consultation with the DOJ, developed a task force concept to work with allied agencies to combat organized retail theft. Three regional task forces, known as Organized Retail Crime Task Forces (ORCTF), were established by the CHP in three field Divisions with the greatest need for immediate action: Golden Gate Division (encompassing the greater Bay Area), Southern Division (encompassing the greater Los Angeles region), and Border Division (encompassing Orange and San Diego counties).

(See https://www.chp.ca.gov/notify-chp/organized-retail-theft-program [as of Mar. 27, 2024].)

As of August 2023, since the inception of the ORCTF, there have been more than 1,850 investigations into retail crimes in California that have resulted in over 1,250 arrests. One key to the ORCTF’s success is the partnership with retailers, local law enforcement, and district attorneys, to effectively disrupt organized retail theft rings and prosecute organized retail crimes. (https://www.chp.ca.gov/PressReleases/Pages/CHP-RAMPS-UP-EFFORTS-TO-DISRUPT-RETAIL-THEFT-RINGS-STATEWIDE.aspx [as of Mar. 27, 2024].)

This bill includes the sale of stolen goods as property crime to be considered in the identification of geographic areas experiencing increased levels of property crime for purposes of the property crimes task force.

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. Specifically, the 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 Mar. 27, 2024].) The initiative is supported by various law enforcement, public officials, district attorneys, 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.)

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 Mar. 27, 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 Mar. 27, 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 Mar. 27, 2024].)

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