Existing law defines types of theft, including petty theft, grand theft, and shoplifting. Existing law also defines the crime of burglary, which consists of entering specified buildings, places, or vehicles with the intent to commit grand or petty theft or a felony.

This bill would, until January 1, 2030, 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. The bill would additionally make these enhancements apply to any person acting in concert with another person to violate these provisions. By adding new sentencing enhancements, this bill would impose a state-mandated local program.

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

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

Existing law defines types of theft, including petty theft, grand theft, and shoplifting. Existing law also defines the crime of burglary, which consists of entering specified buildings, places, or vehicles with the intent to commit grand or petty theft or a felony.

This bill would, until January 1, 2030, 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. The bill would additionally make these enhancements apply to any person acting in concert with another person to violate these provisions. By adding new sentencing enhancements, this bill would impose a state-mandated local program.

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

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

Existing law defines types of theft, including petty theft, grand theft, and shoplifting. Existing law also defines the crime of burglary, which consists of entering specified buildings, places, or vehicles with the intent to commit grand or petty theft or a felony.

This bill would, until January 1, 2030, 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. The bill would additionally make these enhancements apply to any person acting in concert with another person to violate these provisions. By adding new sentencing enhancements, this bill would impose a state-mandated local program.

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

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

Existing law defines types of theft, including petty theft, grand theft, and shoplifting. Existing law also defines the crime of burglary, which consists of entering specified buildings, places, or vehicles with the intent to commit grand or petty theft or a felony.

This bill would, until January 1, 2030, 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. The bill would additionally make these enhancements apply to any person acting in concert with another person to violate these provisions. By adding new sentencing enhancements, this bill would impose a state-mandated local program.

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

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

Existing law defines types of theft, including petty theft, grand theft, and shoplifting. Existing law also defines the crime of burglary, which consists of entering specified buildings, places, or vehicles with the intent to commit grand or petty theft or a felony.

This bill would would, until January 1, 2030, 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. The bill would additionally make these enhancements apply to any person acting in concert with another person to violate these provisions. By adding new sentencing enhancements, this bill would impose a state-mandated local program.

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

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

Existing law defines types of theft, including petty theft, grand theft, and shoplifting. Existing law also defines the crime of burglary, which consists of entering specified buildings, places, or vehicles with the intent to commit grand or petty theft or a felony.

This bill 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. The bill would additionally make these enhancements apply to any person acting in concert with another person to violate these provisions. By adding new sentencing enhancements, this bill would impose a state-mandated local program.

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

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

Existing law defines types of theft, including petty theft, grand theft, and shoplifting. Existing law also defines the crime of burglary, which consists of entering specified buildings, places, or vehicles with the intent to commit grand or petty theft or a felony.

This bill 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. The bill would additionally make these enhancements apply to any person acting in concert with another person to violate these provisions. By adding new sentencing enhancements, this bill would impose a state-mandated local program.

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

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

Existing law, the Safe Neighborhoods and Schools Act, enacted as an initiative statute by Proposition 47, as approved by the voters at the November 4, 2014, statewide general election, makes the theft of money, labor, or property petty theft punishable as a misdemeanor, whenever the value of the property taken does not exceed $950. Under existing law, if the value of property taken exceeds $950, the theft is grand theft, punishable as a misdemeanor or a felony. Existing law defines shoplifting as entering a commercial establishment with intent to commit larceny while the establishment is open during regular business hours and prohibits prosecution for an act of shoplifting under any other law.

This bill would state the Legislatures intent to enact legislation relating to retail theft.

 UNFINISHED BUSINESS  

Bill No: SB 1416

Author: Newman (D), et al.

Amended: 7/1/24

Vote: 21

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

AYES: Wahab, Seyarto, Bradford, Skinner, Wiener

SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/16/24

AYES: Caballero, Jones, Ashby, Becker, Bradford, Seyarto, Wahab

SENATE FLOOR: 39-0, 5/22/24

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

NO VOTE RECORDED: Allen

ASSEMBLY FLOOR: 59-6, 8/8/24 - See last page for vote

SUBJECT: Sentencing enhancements: sale, exchange, or return of stolen property

SOURCE: Author

DIGEST:

This bill creates, until January 1, 2030, new sentencing enhancements of 1, 2, 3, or 4 years respectively 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 $50,000, $200,000, $1,000,000, or $3,000,000.

Assembly Amendments

add a five year sunset date so that its provisions may be reviewed to consider the effects of inflation on the additional terms imposed.

ANALYSIS:

Existing law:

1. Divides theft into two degrees, petty theft and grand theft. (Pen. Code, § 486.)
2. Defines grand theft as when the money, labor, or real or personal property taken is of a value exceeding $950 dollars, except as specified. (Pen. Code, § 487.)
3. States that petty theft is punishable by a fine not exceeding $1,000, by imprisonment in the county jail not exceeding six months, or both. (Penal Code § 490.)
4. Defines “shoplifting” as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed $950 dollars. (Pen. Code, § 459.5, subd. (a).)
5. States that any act of shoplifting must be charged as such, and that a person charged with shoplifting cannot also be charged with burglary or theft of the same property. (Pen. Code, § 459.5, subd. (b).)
6. Punishes shoplifting as a misdemeanor, except where a person has a prior “super strike” or a registrable sex conviction, in which case the offense is punished as a felony by imprisonment in the county jail pursuant to realignment. (Pen. Code, § 459.5, subd. (a).)
7. Provides that, notwithstanding the punishment for petty theft, if a person is required to register as a sex offender, has a prior “super strike 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 he or she was imprisoned, and is subsequently convicted of petty theft, then the person is to receive an enhanced punishment of imprisonment in the county jail not to exceed one year, or in the state prison. (Pen. Code, § 666.)
8. Prohibits the possession or receipt of stolen property knowing the property to be stolen and punishes a person guilty of this offense by imprisonment in county jail for not more than one year, or 16 months, or 2 or 3 years. If the value of the property does not exceed $950, the person shall be punished by imprisonment in county jail not exceeding one year, except as specified. (Pen. Code, § 496.)

This bill:

1. Provides that when any person sells, exchanges, or returns for value, or attempts to sell, exchange, or return for value, property acquired through one or more acts of shoplifting, theft, or burglary from a retail business, whether or not the person committed the act of shoplifting, theft, or burglary, the court shall impose an additional term as follows:
   1. If the value of the property exceeds $50,000 the court, in addition and consecutive to the punishment prescribed for the crime of which the defendant has been convicted, shall impose an additional term of one year;
   2. If the value of the property exceeds $200,000 the court, in addition and consecutive to the punishment prescribed for the crime of which the defendant has been convicted, shall impose an additional term of two years;
   3. If the value of the property exceeds $1,000,000, the court, in addition and consecutive to the punishment prescribed for the crime of which the defendant has been convicted, shall impose an additional term of three years;
   4. If the value of the property exceeds $3,000,000, the court, in addition and consecutive to the punishment prescribed for the crime of which the defendant has been convicted, shall impose an additional term of four years;
   5. For each property value of $3,000,000, the court shall impose a term of one year in addition to the term specified above.
2. States that when any person acts in concert with another to sell, exchange, or return for value, or attempts to sell, exchange, or return for value, property acquired through one or more acts of shoplifting, theft, or burglary from a retail business, whether or not the person committed the act of shoplifting, theft, or burglary, the court shall impose the additional terms specified above.
3. Authorizes aggregation of multiple charges of sales, exchanges, or returns for value, or attempts to do the same so that the additional terms provided by this bill may be imposed if the aggregate value of the property involved exceeds the amounts specified and arises from a common scheme or plan. All pleadings under this section are subject to the rules of joinder and severance stated in existing provisions of law.
4. States that the additional terms provided by this bill shall not be imposed unless the facts relating to the required amounts are charged in the accusatory pleading and admitted by the defendant or found to be true by the trier of fact.
5. States that notwithstanding any other law, the court may impose an enhancement pursuant to the provisions of this bill and another section on a single count.

Comments

According to the author:

SB 1416 is an important step in more effectively combating retail theft as part of the “Working Together for a Safer California” legislative package. When passed, it will impose progressively stronger penalties for crimes involving the sale, exchange, return, or attempted resale of items acquired through retail theft, depending on the aggregate value of those items. Organized retail theft is an expanding criminal trend in California, and law enforcement faces significant challenges in prosecuting the organizers of these crimes. SB 1416 will give law enforcement another important tool to effectively prosecute, as well as deter, those who would seek to coordinate and benefit from large-scale organized retail theft.

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

According to the Assembly Appropriations Committee:

Costs (local funds, General Fund) of an unknown but significant amount to the counties and the California Department of Corrections and Rehabilitation to incarcerate people for longer periods of time due to the enhancement created by this bill. Actual incarceration costs will depend on the number of enhancements imposed, the length of each enhancement, and whether the defendants is incarcerated in county jail or state prison. The average annual cost to incarcerate one person in county jail is approximately $29,000. The Legislative Analyst’s Office (LAO) estimates the average annual cost to incarcerate one person in state prison is $133,000. Although county incarceration costs are generally not considered reimbursable state mandates pursuant to Proposition 30 (2012), overcrowding in county jails creates cost pressure on the General Fund because the state has historically granted new funding to counties to offset overcrowding resulting from 2011 public safety realignment.

According to the LAO, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years. 

SUPPORT: (Verified 7/3/24)

California Police Chiefs Association
California Retailers Association
City of Agoura Hills
City of Artesia
City of Buena Park
City of Cypress
City of El Cerrito
City of Fontana
City of Fountain Valley
City of Fullerton

City of Grand Terrace
City of Jackson
City of La Mirada
City of Lakeport
City of Lakewood CA
City of Lodi
City of Los Alamitos
City of Manteca
City of Merced
City of Mission Viejo

City of Oakdale
City of Oakley

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
Town of Apple Valley

OPPOSITION: (Verified 7/3/24)

ACLU California Action

Ella Baker Center for Human Rights

ASSEMBLY FLOOR: 59-6, 8/8/24

AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Bains, Bennett, Berman, Boerner, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Chen, Connolly, Megan Dahle, Davies, Dixon, Essayli, Flora, Mike Fong, Friedman, Gabriel, Gallagher, Gipson, Grayson, Hoover, Irwin, Lackey, Low, Lowenthal, Maienschein, Mathis, McCarty, Muratsuchi, Stephanie Nguyen, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Quirk-Silva, Ramos, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Villapudua, Waldron, Wallis, Ward, Wicks, Wilson, Wood, Zbur, Robert Rivas

NOES: Bryan, Jackson, Jones-Sawyer, Kalra, Lee, McKinnor

NO VOTE RECORDED: Arambula, Bauer-Kahan, Bonta, Garcia, Haney, Hart, Holden, Ortega, Petrie-Norris, Rendon, Reyes, Luz Rivas, Valencia, Weber

San Francisco Public Defender

Prepared by: Stella Choe / PUB. S. /

8/9/24 16:38:08

**** END ****

SENATE THIRD READING

STR Bill Id:SB 1416

Author:(Newman)

As Amended Ver:July 1, 2024

Majority vote

SUMMARY

Creates new sentencing enhancements of 1, 2, 3, or 4 years respectively 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 $50,000, $200,000, $1,000,000, or $3,000,000.

Major Provisions

1. Provides that the court shall impose an additional term when a person sells, exchanges, or returns for value, or attempts to sell, exchange, or return for value, property acquired through one or more acts of shoplifting, theft, or burglary from a retail business, whether or not the person committed the act of shoplifting, theft, or burglary, as follows:
   1. If the property value exceeds fifty thousand dollars ($50,000), the court, in addition and consecutive to the punishment prescribed for the crime of which the defendant has been convicted, shall impose an additional term of one year.
   2. If the property value exceeds two hundred thousand dollars ($200,000), the court, in addition and consecutive to the punishment prescribed for the crime of which the defendant has been convicted, shall impose an additional term of two years.
   3. If the property value exceeds one million dollars ($1,000,000), the court, in addition and consecutive to the punishment prescribed for the crime of which the defendant has been convicted, shall impose an additional term of three years.
   4. If the property value exceeds three million dollars ($3,000,000), the court, in addition and consecutive to the punishment prescribed for the crime of which the defendant has been convicted, shall impose an additional term of four years.
   5. For each property value of three million dollars ($3,000,000), the court shall impose a term of one year in addition to the term specified in paragraph (4).
2. Provides that when a person acts in concert with another to sell, exchange, or return for value, or attempts to sell, exchange, or return for value, property acquired through one or more acts of shoplifting, theft, or burglary from a retail business, the court shall impose the additional term whether or not the person committed the act of shoplifting, theft, or burglary.
3. Provides that, in an accusatory pleading involving multiple charges of sales, exchanges, or returns for value, or attempts to do the same, the additional term may be imposed when the aggregate value of the property involved exceeds the specified amount and arises from a common scheme or plan.
4. Provides that the additional terms shall not be imposed unless the facts relating to the amounts are charged in the accusatory pleading and admitted by the defendant or found to be true by the trier of fact.
5. Provides that the court may impose additional term and another enhancement under a different statute on a single count.
6. Provides a sunset date of January 1, 2030.

COMMENTS

According to the Author

"SB 1416 is an important step in more effectively combating retail theft as part of the "Working Together for a Safer California" legislative package. When passed, it will impose progressively stronger penalties for crimes involving the sale, exchange, return, or attempted resale of items acquired through retail theft, depending on the aggregate value of those items. Organized retail theft is an expanding criminal trend in California, and law enforcement faces significant challenges in prosecuting the organizers of these crimes. SB 1416 will give law enforcement another important tool to effectively prosecute, as well as deter, those who would seek to coordinate and benefit from large-scale organized retail theft."

Arguments in Support

According to the League of California Cities, Los Angeles County Division, "Specifically, SB 1416 (Newman) would allow the court to impose one-to-four-year terms of incarceration as additional consecutive terms, when a person sells, exchanges, or returns for value property that was obtained by theft from a retail business, or when they attempt to commit any of the aforementioned offenses. These enhancements, which are added to the sentence for the underlying crime, will be based on the monetary amount of the stolen property recovered.

"As you may know, retail theft continues to be a problem in all California communities. For example, commercial burglary is at the highest rate since 2008. In fact, according to the Public Policy Institute of California (PPIC), commercial burglary has increased statewide since 2020, especially in larger counties which had an increase of 13% among 14 of the 15 largest counties. Rising theft is impacting every corner of California, and city officials need additional tools to reduce crime and improve the safety of their neighborhoods.

"While SB 1416 (Newman) is an important tool in the effort to combat retail theft, this bill is only one part of a comprehensive solution that needs to include many other tools that will assist in the prevention and enforcement of retail theft and will provide for adequate supervision of those convicted of retail theft-related offenses. These additional changes are needed to make our communities safer."

Arguments in Opposition

According to the Ella Baker Center for Human Rights, "Sentencing enhancements do not prevent crime, and will not will not address violence in any demonstrable way. Enhancements are, however, one of the drivers of mass incarceration, a systematic means of economically and politically disenfranchising Black, Latinx and Indigenous families and communities. Mass incarceration is a human rights and economic disaster for California families, and was built one bad bill at a time.

"There is extensive research that proves that overly long sentences, and the threat of such sentences do not reduce or prevent crime. In 2014, the National Academy of Sciences published a 444-page review of studies of sentencing policies and their positive and negative effects on crime rates and community safety. Among their conclusions were:

"Given the small crime prevention effects of long prison sentences and the possibly high financial, social, and human costs of incarceration, federal and state policy makers should revise current criminal justice policies to significantly reduce the rate of incarceration in the United States. In particular, they should re-examine policies regarding mandatory prison sentences and long sentences."

"Additionally, a 2015 report by the Ella Baker Center for Human Rights, Forward Together, and Research Action Design Who Pays, The True Cost of Incarceration on Families details how incarceration destabilizes entire families and communities. Many people who return from incarceration face extreme barriers to finding jobs and housing and reintegrating into society.

"Family members of incarcerated people also struggle with overwhelming debt from court costs, visitation and telephone fees, and diminished family revenue. The longer the sentence, the more severe these problems.

"Subject only to prosecutorial fiat, enhancements serve during the plea bargain phase to bully low income defendants into admitting guilt even in weak cases, and/or accepting unjustly long sentences. If a defendant asserts their Constitutionally guaranteed right to a trial by jury, the prosecutor may threaten to stack charges and enhancements. The US Department of Justice published a research summary on plea bargain and charging practices in the US, and among their findings is that those who go to trial are more likely to receive harsher sentences, and that the majority of research found that Black Americans are punished more harshly than whites.

"Again – harsher sentences do not deter crime. People do not calculate the number of years in prison before acting. They are only deterred by fear of apprehension.5 California already spends too much money on mass incarceration, having built far more prisons than universities in the last 30 years. And the harms done to families and communities undermine the very intent of law to protect and enhance public safety."

FISCAL COMMENTS

According to the Assembly Appropriations Committee, "Costs (local funds, General Fund) of an unknown but significant amount to the counties and the California Department of Corrections and Rehabilitation to incarcerate people for longer periods of time due to the enhancement created by this bill. Actual incarceration costs will depend on the number of enhancements imposed, the length of each enhancement, and whether the defendants is incarcerated in county jail or state prison. The average annual cost to incarcerate one person in county jail is approximately $29,000. The Legislative Analyst's Office (LAO) estimates the average annual cost to incarcerate one person in state prison is $133,000. Although county incarceration costs are generally not considered reimbursable state mandates pursuant to Proposition 30 (2012), overcrowding in county jails creates cost pressure on the General Fund because the state has historically granted new funding to counties to offset overcrowding resulting from 2011 public safety realignment.

"According to the LAO, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years."

VOTES

SENATE FLOOR: 39-0-1

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

ABS, ABST OR NV: Allen

ASM PUBLIC SAFETY: 8-0-0

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

ASM APPROPRIATIONS: 8-5-2

YES: Wicks, Calderon, Berman, Mike Fong, Haney, Hart, Pellerin, Aguiar-Curry

NO: Sanchez, Bryan, Dixon, Jim Patterson, Ta

ABS, ABST OR NV: Arambula, Grayson

UPDATED

VERSION: July 1, 2024

CONSULTANT: Andrew Ironside / PUB. S. / (916) 319-3744 FN: 0003682

SENATE THIRD READING

STR Bill Id:SB 1416

Author:(Newman)

As Amended Ver:June 20, 2024

2/3 vote. Urgency

SUMMARY

Creates new sentencing enhancements of one, two, three, or four years respectively 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 $50,000, $200,000, $1,000,000, or $3,000,000.

Major Provisions

1. Provides that the court shall impose an additional term when a person sells, exchanges, or returns for value, or attempts to sell, exchange, or return for value, property acquired through one or more acts of shoplifting, theft, or burglary from a retail business, whether or not the person committed the act of shoplifting, theft, or burglary, as follows:
   1. If the property value exceeds fifty thousand dollars ($50,000), the court, in addition and consecutive to the punishment prescribed for the crime of which the defendant has been convicted, shall impose an additional term of one year.
   2. If the property value exceeds two hundred thousand dollars ($200,000), the court, in addition and consecutive to the punishment prescribed for the crime of which the defendant has been convicted, shall impose an additional term of two years.
   3. If the property value exceeds one million dollars ($1,000,000), the court, in addition and consecutive to the punishment prescribed for the crime of which the defendant has been convicted, shall impose an additional term of three years.
   4. If the property value exceeds three million dollars ($3,000,000), the court, in addition and consecutive to the punishment prescribed for the crime of which the defendant has been convicted, shall impose an additional term of four years.
   5. For each property value of three million dollars ($3,000,000), the court shall impose a term of one year in addition to the term specified in paragraph (4).
2. Provides that when a person acts in concert with another to sell, exchange, or return for value, or attempts to sell, exchange, or return for value, property acquired through one or more acts of shoplifting, theft, or burglary from a retail business, the court shall impose the additional term whether or not the person committed the act of shoplifting, theft, or burglary.
3. Provides that, in an accusatory pleading involving multiple charges of sales, exchanges, or returns for value, or attempts to do the same, the additional term may be imposed when the aggregate value of the property involved exceeds the specified amount and arises from a common scheme or plan.
4. Provides that the additional terms shall not be imposed unless the facts relating to the amounts are charged in the accusatory pleading and admitted by the defendant or found to be true by the trier of fact.
5. Provides that the court may impose additional term and another enhancement under a different statute on a single count.
6. Provides a sunset date of January 1, 2030.

COMMENTS

According to the Author

"SB 1416 is an important step in more effectively combating retail theft as part of the "Working Together for a Safer California" legislative package. When passed, it will impose progressively stronger penalties for crimes involving the sale, exchange, return, or attempted resale of items acquired through retail theft, depending on the aggregate value of those items. Organized retail theft is an expanding criminal trend in California, and law enforcement faces significant challenges in prosecuting the organizers of these crimes. SB 1416 will give law enforcement another important tool to effectively prosecute, as well as deter, those who would seek to coordinate and benefit from large-scale organized retail theft."

Arguments in Support

According to the League of California Cities, Los Angeles County Division, "Specifically, SB 1416 (Newman) would allow the court to impose one-to-four-year terms of incarceration as additional consecutive terms, when a person sells, exchanges, or returns for value property that was obtained by theft from a retail business, or when they attempt to commit any of the aforementioned offenses. These enhancements, which are added to the sentence for the underlying crime, will be based on the monetary amount of the stolen property recovered.

"As you may know, retail theft continues to be a problem in all California communities. For example, commercial burglary is at the highest rate since 2008. In fact, according to the Public Policy Institute of California (PPIC), commercial burglary has increased statewide since 2020, especially in larger counties which had an increase of 13% among 14 of the 15 largest counties. Rising theft is impacting every corner of California, and city officials need additional tools to reduce crime and improve the safety of their neighborhoods.

"While SB 1416 (Newman) is an important tool in the effort to combat retail theft, this bill is only one part of a comprehensive solution that needs to include many other tools that will assist in the prevention and enforcement of retail theft and will provide for adequate supervision of those convicted of retail theft-related offenses. These additional changes are needed to make our communities safer."

Arguments in Opposition

According to the Ella Baker Center for Human Rights, "Sentencing enhancements do not prevent crime, and will not will not address violence in any demonstrable way. Enhancements are, however, one of the drivers of mass incarceration, a systematic means of economically and politically disenfranchising Black, Latinx and Indigenous families and communities. Mass incarceration is a human rights and economic disaster for California families, and was built one bad bill at a time.

"There is extensive research that proves that overly long sentences, and the threat of such sentences do not reduce or prevent crime. In 2014, the National Academy of Sciences published a 444-page review of studies of sentencing policies and their positive and negative effects on crime rates and community safety. Among their conclusions were:

"Given the small crime prevention effects of long prison sentences and the possibly high financial, social, and human costs of incarceration, federal and state policy makers should revise current criminal justice policies to significantly reduce the rate of incarceration in the United States. In particular, they should re-examine policies regarding mandatory prison sentences and long sentences."

"Additionally, a 2015 report by the Ella Baker Center for Human Rights, Forward Together, and Research Action Design Who Pays, The True Cost of Incarceration on Families details how incarceration destabilizes entire families and communities. Many people who return from incarceration face extreme barriers to finding jobs and housing and reintegrating into society.

"Family members of incarcerated people also struggle with overwhelming debt from court costs, visitation and telephone fees, and diminished family revenue. The longer the sentence, the more severe these problems.

"Subject only to prosecutorial fiat, enhancements serve during the plea bargain phase to bully low income defendants into admitting guilt even in weak cases, and/or accepting unjustly long sentences. If a defendant asserts their Constitutionally guaranteed right to a trial by jury, the prosecutor may threaten to stack charges and enhancements. The US Department of Justice published a research summary on plea bargain and charging practices in the US, and among their findings is that those who go to trial are more likely to receive harsher sentences, and that the majority of research found that Black Americans are punished more harshly than whites.

"Again – harsher sentences do not deter crime. People do not calculate the number of years in prison before acting. They are only deterred by fear of apprehension.5 California already spends too much money on mass incarceration, having built far more prisons than universities in the last 30 years. And the harms done to families and communities undermine the very intent of law to protect and enhance public safety."

FISCAL COMMENTS

According to the Assembly Appropriations Committee, "Costs (local funds, General Fund) of an unknown but significant amount to the counties and the California Department of Corrections and Rehabilitation to incarcerate people for longer periods of time due to the enhancement created by this bill. Actual incarceration costs will depend on the number of enhancements imposed, the length of each enhancement, and whether the defendant is incarcerated in county jail or state prison. The average annual cost to incarcerate one person in county jail is approximately $29,000. The Legislative Analyst's Office (LAO) estimates the average annual cost to incarcerate one person in state prison is $133,000. Although county incarceration costs are generally not considered reimbursable state mandates pursuant to Proposition 30 (2012), overcrowding in county jails creates cost pressure on the General Fund because the state has historically granted new funding to counties to offset overcrowding resulting from 2011 public safety realignment.

"According to the LAO, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years."

VOTES

SENATE FLOOR: 39-0-1

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

ABS, ABST OR NV: Allen

ASM PUBLIC SAFETY: 8-0-0

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

ASM APPROPRIATIONS: 8-5-2

YES: Wicks, Calderon, Berman, Mike Fong, Haney, Hart, Pellerin, Aguiar-Curry

NO: Sanchez, Bryan, Dixon, Jim Patterson, Ta

ABS, ABST OR NV: Arambula, Grayson

UPDATED

VERSION: June 20, 2024

CONSULTANT: Andrew Ironside / PUB. S. / (916) 319-3744 FN: 0003548

Date of Hearing: June 19, 2024

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

SBPCA Bill Id:SB 1416

Author:(Newman) – As Amended Ver:June 4, 2024

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

SUMMARY:

This bill creates a new sentencing enhancement to be imposed when a person is convicted of 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.

The length of the enhancement depends on the value of the property involved, as follows:

1. If the property value exceeds $50,000, the court must impose an additional term of one year.
   
2. If the property value exceeds $200,000, the court must impose an additional term of two years.
   
3. If the property value exceeds $1 million, the court must impose an additional term of three years.
   
4. If the property value exceeds $3 million, the court must impose an additional term of four years.
5. For each additional property value of $3 million, the court shall impose a term of one year in addition to the term of four years imposed for the value of the first $3 million.

FISCAL EFFECT:

Costs (local funds, General Fund) of an unknown but significant amount to the counties and the California Department of Corrections and Rehabilitation to incarcerate people for longer periods of time due to the enhancement created by this bill. Actual incarceration costs will depend on the number of enhancements imposed, the length of each enhancement, and whether the defendants is incarcerated in county jail or state prison. The average annual cost to incarcerate one person in county jail is approximately $29,000. The Legislative Analyst’s Office (LAO) estimates the average annual cost to incarcerate one person in state prison is $133,000. Although county incarceration costs are generally not considered reimbursable state mandates pursuant to Proposition 30 (2012), overcrowding in county jails creates cost pressure on the General Fund because the state has historically granted new funding to counties to offset overcrowding resulting from 2011 public safety realignment.

According to the LAO, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years. 

COMMENTS:

1. Purpose. According to the author:

SB 1416 is an important step in more effectively combating retail theft as part of the “Working Together for a Safer California” legislative package. When passed, it will impose progressively stronger penalties for crimes involving the sale, exchange, return, or attempted resale of items acquired through retail theft, depending on the aggregate value of those items.

1. Background. The Penal Code contains a number of sentencing enhancements that may be imposed in addition to the base term a defendant must serve when they are convicted of a crime. Some enhancements relate to the circumstances of the offense itself, like how many victims were involved, whether anyone was physically injured, or whether the defendant used a firearm. Other enhancements pertain to a defendant’s prior criminal history. Multiple enhancements may be imposed in a single case, and can significantly increase the amount of time a defendant is incarcerated.

This bill creates a new sentencing enhancement that requires a court to impose an additional term of incarceration when a defendant is convicted of selling, exchanging, or returning for value any property acquired through one or more acts of shoplifting, theft, or burglary from a retail business, or for attempting to sell, exchange, or return for value such property. The length of the enhancement depends on the value of the property involved in the offense. If a defendant commits multiple instances of shoplifting, theft, or burglary, the value of the property involved may be aggregated to reach the property values that trigger imposition of this enhancement if the defendant’s actions arise out of a common scheme or plan.

Studies have shown that, in most circumstances, lengthy criminal sentences do not effectively deter crime. In light of the growing cost of incarceration and its limited utility in deterring crime, both the Little Hoover Commission and the Committee on Revision of the Penal Code have encouraged sentencing reform in California, including by limiting sentencing enhancements.

1. Proposed Amendments. This bill has been proposed to be amended to contain an urgency clause, allowing the bill’s provisions to take effect immediately upon approval of the Governor. Amendments have also been proposed to add an inoperability clause stating that its provisions will become inoperative if the proposed initiative measure titled “The Homelessness, Drug Addiction, and Theft Reduction Act” (Initiative 23-0017A1) is approved by the voters at the statewide general election on November 5, 2024.
2. Related Legislation. AB 1960 (Soria) enacts a sentencing enhancement of one to five years that must be imposed when a person takes, damages, or destroys property of a specified amount during the commission or attempted commission of a felony. AB 1960 is pending in the Senate Appropriations Committee.

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

Date of Hearing: June 11, 2024

Counsel: Andrew Ironside

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Kevin McCarty, Chair

SBPCA Bill Id:SB 1416

Author:(Newman) – As Amended Ver:June 4, 2024

As Proposed to be Amendment in Committee

SUMMARY: Creates new sentencing enhancements of 1, 2, 3, or 4 years respectively 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 $50,000, $200,000, $1,000,000, or $3,000,000. Specifically, this bill:

1. Provides that the court shall impose an additional term when a person sells, exchanges, or returns for value, or attempts to sell, exchange, or return for value, property acquired through one or more acts of shoplifting, theft, or burglary from a retail business, whether or not the person committed the act of shoplifting, theft, or burglary, as follows:
   
   1. If the property value exceeds fifty thousand dollars ($50,000), the court, in addition and consecutive to the punishment prescribed for the crime of which the defendant has been convicted, shall impose an additional term of one year.
      
   2. If the property value exceeds two hundred thousand dollars ($200,000), the court, in addition and consecutive to the punishment prescribed for the crime of which the defendant has been convicted, shall impose an additional term of two years.
      
   3. If the property value exceeds one million dollars ($1,000,000), the court, in addition and consecutive to the punishment prescribed for the crime of which the defendant has been convicted, shall impose an additional term of three years.
      
   4. If the property value exceeds three million dollars ($3,000,000), the court, in addition and consecutive to the punishment prescribed for the crime of which the defendant has been convicted, shall impose an additional term of four years.
      
   5. For each property value of three million dollars ($3,000,000), the court shall impose a term of one year in addition to the term specified in paragraph (4).
      
2. Provides that when a person acts in concert with another to sell, exchange, or return for value, or attempts to sell, exchange, or return for value, property acquired through one or more acts of shoplifting, theft, or burglary from a retail business, the court shall impose the additional term whether or not the person committed the act of shoplifting, theft, or burglary.
   
3. Provides that, in an accusatory pleading involving multiple charges of sales, exchanges, or returns for value, or attempts to do the same, the additional term may be imposed when the aggregate value of the property involved exceeds the specified amount and arises from a common scheme or plan.
   
4. Provides that the additional terms shall not be imposed unless the facts relating to the amounts are charged in the accusatory pleading and admitted by the defendant or found to be true by the trier of fact.
   
5. Provides that the court may impose additional term and another enhancement under a different statute on a single count.
   
6. Provides a sunset date of January 1, 2030.
   
7. Includes an urgency clause.

EXISTING LAW:

1. Divides theft into two degrees, petty theft and grand theft. (Pen. Code, § 486.)
   
2. Defines grand theft as any theft where the money, labor, or real or personal property taken is of a value exceeding $950. (Pen. Code, § 487, subd. (a).)
   
3. States that petty theft is punishable by a fine not exceeding $1,000, by imprisonment in the county jail not exceeding six months, or both. (Penal Code § 490.)
   
4. Defines shoplifting as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed $950. (Pen. Code, § 459.5, subd. (a).)
   
5. States that any act of shoplifting must be charged as such, and that a person charged with shoplifting cannot also be charged with burglary or theft of the same property. (Pen. Code, § 459.5, subd. (b).)
   
6. Punishes shoplifting as a misdemeanor, except where a person has a prior “super strike” or a registrable sex conviction, in which case the offense is punished as a felony by imprisonment in the county jail pursuant to realignment. (Pen. Code, § 459.5, subd. (a).)
   
7. Defines organized retail theft as committing any of the following acts:
   
   1. Acting in concert with one or more persons to steal merchandise from one or more merchant’s premises or online marketplace with the intent to sell, exchange, or return the merchandise for value;
      
   2. Acting in concert with two or more persons to receive, purchase, or possess merchandise, as specified, knowing or believing it to have been stolen;
      
   3. Acting as an agent of another individual or group of individuals to steal merchandise from one or more merchant’s premises or online marketplaces as part of an organized plan to commit theft; or,
      
   4. Recruiting, coordinating, organizing, supervising, directing, managing, or financing another to undertake any of the specified acts. (Pen. Code, § 490.4, subd. (a).)
      
8. Defines burglary as entering a specified structure or vehicle with intent to commit grand or petit larceny or any felony. (Pen. Code, § 459.)
   
9. States that burglary of an inhabited dwelling is first degree burglary, and that all other kinds of burglary are of the second degree. (Pen. Code, § 460.)
   
10. Provides that the punishment for first degree burglary is imprisonment in the state prison for two, four, or six years. (Pen. Code, § 461, subd. (a).)
    
11. Provides that the punishment for second degree burglary is either confinement of up to one year in the county jail, or confinement in the county jail for 16 months, two, or three years pursuant to criminal justice realignment. (Pen. Code, §§ 18, subd. (a), 461, subd. (b), 1170, subd. (h).)
    
12. Defines receiving stolen property as buying or receiving property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained. (Pen. Code, § 496, subd. (a).)
    
13. Provides that, notwithstanding the punishment for petty theft, if a person is required to register as a sex offender, has a prior “super strike 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 he or she was imprisoned, and is subsequently convicted of petty theft, then the person is to receive an enhanced punishment of imprisonment in the county jail not to exceed one year, or in the state prison. (Pen. Code, § 666.)

PRIOR LAW:

1. 
   
2. Provided that when any person takes, damages or destroys any property in the commission or attempted commission of a felony, with the intent to cause that taking, damage, or destruction, the court shall impose an additional term as follows:
   
   1. If the loss exceeds $65,000, the court, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which the defendant has been convicted, shall impose an additional term of one year;
      
   2. If the loss exceeds $200,000, the court, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which the defendant has been convicted, shall impose an additional term of two years;
      
   3. If the loss exceeds $1.3 million, the court, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which the defendant has been convicted, shall impose an additional term of three years; and,
      
   4. If the loss exceeds $3.2 million, the court, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which the defendant has been convicted, shall impose an additional term of four years. (Former Pen. Code, § 12022.6 [Repealed as of January 1, 2018].)

FISCAL EFFECT: Unknown.

COMMENTS:

1. Author's Statement: According to the author, “SB 1416 is an important step in more effectively combating retail theft as part of the “Working Together for a Safer California” legislative package. When passed, it will impose progressively stronger penalties for crimes involving the sale, exchange, return, or attempted resale of items acquired through retail theft, depending on the aggregate value of those items. Organized retail theft is an expanding criminal trend in California, and law enforcement faces significant challenges in prosecuting the organizers of these crimes. SB 1416 will give law enforcement another important tool to effectively prosecute, as well as deter, those who would seek to coordinate and benefit from large-scale organized retail theft.”
   
2. Background: Enhancements: Existing law contains a variety of enhancements that can be used to increase the term of imprisonment a defendant will serve. Enhancements add time to a person’s sentence for factors relevant to the defendant such as prior criminal history or for specific facts related to the crime. Multiple enhancements can be imposed in a single case and can range from adding a specified number of years to a person’s sentence, or doubling a person’s sentence or even converting a determinate sentence into a life sentence.
   
   A recent report on sentencing enhancements found that about 40% of individual prison admissions since 2015 have sentences lengthened by a sentence enhancement. Among the currently incarcerated, the prevalence of enhanced sentences is much higher, impacting the sentences of approximately 70% of people incarcerated as of 2022. Data shows that enhancements have been applied a total of 167,340 times to new prison admissions since 2015, and have been applied 197,274 times in the cases of those incarcerated as of July 2022. (Mia Bird et al., Sentence Enhancements in California, California Policy Lab (Mar. 2023) < https://www.capolicylab.org/wp-content/uploads/2023/03/Sentence-Enhancements-in-California.pdf> [as of Mar. 27, 2024].)
   
   According to the report, there are over 100 separate code sections in California law that can be used to enhance a person’s sentence and the most common enhancement is for a previous prison or jail sentence. (Ibid.) The report noted several recent legislative changes to enhancements that were enacted based on the recommendation of the Committee on the Revision of the Penal Code. (See Annual Report and Recommendations 2020, Committee on Revision of the Penal Code http://www.clrc.ca.gov/CRPC/Pub/Reports/CRPC_AR2020.pdf [as of Mar. 27, 2024].)

AB 333 made updates to the gang enhancements which narrowed the definition of gang involvement. SB 483 built on legislation repealing one- and three-year enhancements for prior convictions and applied the repeal to people who were incarcerated and had the enhancements as part of their sentences. Finally, SB 81 provided guidance to judges that allowed them discretion in whether to dismiss sentence enhancements, unless in the judge’s perspective, not enhancing a sentence could endanger public safety (PC § 1385)

The enhancement reforms enacted by the legislature since 2018 have curtailed the frequency with which enhancements have been applied to prison terms. We observe this both in overall trends, as well as in analysis of specific reforms on specific enhancement categories. Figure 3 shows the number of admissions with enhancements (the blue line) for each month from the beginning of 2015 through the end of 2022 as well as the total number of enhancements (the orange line) imposed on these terms (each admission may include more than one enhancement). There is a clear drop in admissions with enhancements coinciding with the onset of the COVID-19 pandemic and the corresponding drop in admissions to CDCR. Given the unpredictable nature of the pandemic, and the rates at which people were released from prison to help slow the spread, it is difficult to tease apart which declines after 2020 are due to enhancement reforms or are pandemic related.

1. Repealed “Excessive Takings” Enhancement: Until the law sunset in 2018, California had an “excessive takings” enhancement that would apply to taking or damaging of property that exceeded specified value thresholds. (Former Penal Code Section 12022.6.) The law was enacted in 1977 and subsequently a sunset provision was included in the statute for the purpose of allowing the Legislature to consider the effects of inflation on the property value thresholds in the law. The sunset was extended several times through legislation until the law was allowed to sunset in 2018. The law as it read in 2017 required the court to apply an enhancement of 1, 2, 3, or 4 years respectively whenever any person was convicted of a felony involving taking or damaging property that exceeded losses of $65,000, $200,000, $1,300,000 and $3,200,000.
   
   AB 1511 (Low), of the 2017-2018 legislative session, would have reauthorized the enhancement statute with higher value thresholds, starting at $75,000 and going up to $3.7 million in property loss, and would have made the statute permanent. The bill was vetoed. Then Governor Brown’s veto message stated:

AB 1511 now seeks to re-enact this repealed enhancement, but omits any sunset provision similar to those that have been included with this statute since 1990. I see no reason to now permanently re-enact a repealed sentencing enhancement without corresponding evidence that it was effective in deterring crime. As I have said before, California has over 5,000 criminal provisions covering almost every conceivable form of human misbehavior. We can effectively manage our criminal justice system without 5,001.

AB 1960 (Soria), scheduled for a hearing today in the Senate Public Safety Committee, would re-enact the excessive takings enhancement but lowers the amounts to below 2017 levels.

This bill creates new enhancements that would apply to some of the same conduct that would have been covered by former Penal Code section 12022.6. This bill requires the court to apply specified additional terms of imprisonment when the value of property acquired through one or more acts of exceeds the following amounts: $50,000, $200,000, $1 million, and $3 million. The threshold value amounts contained in this bill are lower than the values contained in Penal Code section 12022.6 when the law was allowed to sunset. Specifically, that statute, which was last adjusted for inflation in 2007 for the law to go into effect January 1, 2008, contained the following threshold amounts: $65,000, $200,000, $1.3 million, and $3.2 million.

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].)
   
2. Research on the Deterrent Effect and Impact on State Prisons: According the U.S. Department of Justice, “Laws and policies designed to deter crime by focusing mainly on increasing the severity of punishment are ineffective partly because criminals know little about the sanctions for specific crimes. More severe punishments do not ‘chasten’ individuals convicted of crimes, and prisons may exacerbate recidivism.” (National Institute of Justice, U.S. Department of Justice, Five Things About Deterrence (June 5, 2016) <https://nij.ojp.gov/topics/articles/five-things-about-deterrence>)
   
   In a 2014 report, the Little Hoover Commission also addressed the disconnect between science and sentencing – that is, putting away offenders for increasingly longer periods of time, with no evidence that lengthy incarceration, for many, brings any additional public safety benefit. (Little Hoover Commission, Sensible Sentencing for a Safer California (2014) at p. 4 https://lhc.ca.gov/sites/lhc.ca.gov/files/Reports/219/Report219.pdf.) Additionally, the Commission also explained how California’s sentencing structure and enhancements contributed to a 20-year state prison building boom: “California policymakers enacted hundreds of laws increasing sentence length, adding sentence enhancements and creating new sentencing laws. The end result was that every new prison the state built was quickly filled to capacity.” (Id. at p. 9.)
   
3. Committee Amendments: The committee amendments add an urgency clause, allowing the bill’s provisions to take effect immediately upon approval of the Governor. Additionally, the amendments contain an inoperability clause stating that its provisions will become inoperative if the proposed initiative measure titled, “The Homelessness, Drug Addition, and Theft Reduction Act” (Initiative 23-0017A1) is approved by the voters at the statewide general election on November 5, 2024.
   
4. Argument in Support: According to the League of California Cities, Los Angeles County Division, “Specifically, SB 1416 (Newman) would allow the court to impose one-to-four-year terms of incarceration as additional consecutive terms, when a person sells, exchanges, or returns for value property that was obtained by theft from a retail business, or when they attempt to commit any of the aforementioned offenses. These enhancements, which are added to the sentence for the underlying crime, will be based on the monetary amount of the stolen property recovered.
   
   “As you may know, retail theft continues to be a problem in all California communities. For example, commercial burglary is at the highest rate since 2008. In fact, according to the Public Policy Institute of California (PPIC), commercial burglary has increased statewide since 2020, especially in larger counties which had an increase of 13% among 14 of the 15 largest counties. Rising theft is impacting every corner of California, and city officials need additional tools to reduce crime and improve the safety of their neighborhoods.
   
   “While SB 1416 (Newman) is an important tool in the effort to combat retail theft, this bill is only one part of a comprehensive solution that needs to include many other tools that will assist in the prevention and enforcement of retail theft and will provide for adequate supervision of those convicted of retail theft-related offenses. These additional changes are needed to make our communities safer.”
   
5. Argument in Opposition: According to the Ella Baker Center for Human Rights, “Sentencing enhancements do not prevent crime, and will not will not address violence in any demonstrable way. Enhancements are, however, one of the drivers of mass incarceration, a systematic means of economically and politically disenfranchising Black, Latinx and Indigenous families and communities. Mass incarceration is a human rights and economic disaster for California families, and was built one bad bill at a time.
   
   “There is extensive research that proves that overly long sentences, and the threat of such sentences do not reduce or prevent crime. In 2014, the National Academy of Sciences published a 444-page review of studies of sentencing policies and their positive and negative effects on crime rates and community safety. Among their conclusions were:
   

“Given the small crime prevention effects of long prison sentences and the possibly high financial, social, and human costs of incarceration, federal and state policy makers should revise current criminal justice policies to significantly reduce the rate of incarceration in the United States. In particular, they should re-examine policies regarding mandatory prison sentences and long sentences.”

“Additionally, a 2015 report by the Ella Baker Center for Human Rights, Forward Together, and Research Action Design Who Pays, The True Cost of Incarceration on Families details how incarceration destabilizes entire families and communities. Many people who return from incarceration face extreme barriers to finding jobs and housing and reintegrating into society.

“Family members of incarcerated people also struggle with overwhelming debt from court costs, visitation and telephone fees, and diminished family revenue. The longer the sentence, the more severe these problems.

“Subject only to prosecutorial fiat, enhancements serve during the plea bargain phase to bully low income defendants into admitting guilt even in weak cases, and/or accepting unjustly long sentences. If a defendant asserts their Constitutionally guaranteed right to a trial by jury, the prosecutor may threaten to stack charges and enhancements. The US Department of Justice published a research summary on plea bargain and charging practices in the US, and among their findings is that those who go to trial are more likely to receive harsher sentences, and that the majority of research found that Black Americans are punished more harshly than whites.

“Again – harsher sentences do not deter crime. People do not calculate the number of years in prison before acting. They are only deterred by fear of apprehension.5 California already spends too much money on mass incarceration, having built far more prisons than universities in the last 30 years. And the harms done to families and communities undermine the very intent of law to protect and enhance public safety.”

1. Related Legislation: AB 1960 (Soria) would re-enact a sentence enhancement for felony offenses for a person who intentionally takes, damages, or destroys property, when the loss exceeds specified dollar amounts, but lowers the amounts to below 2017 levels when the enhancement sunset. AB 1960 will be heard today in the Senate Public Safety Committee.
   
2. Prior Legislation:
   
   1. AB 484 (Gabriel), of the 2023-2024 Legislative Session, would have re-enacted a sentence enhancement for specified property-related offenses for a person who intentionally takes, damages, or destroys property, when the loss exceeds specified dollar amounts, but would have authorized, rather than required, the court to impose the enhancement. AB 484 was held in the Assembly Appropriations Committee.
      
   2. SB 985 (Portantino), of the 2019-2020 Legislative Session, was substantially similar to AB 1960 (Soria) above. SB 985 did not receive a hearing in the Senate Public Safety Committee.
      
   3. AB 1511 (Low), of the 2017-2018 Legislative Session, would have re-enacted the enhancement for taking or destroying property during commission of a felony and raised the dollar amounts, based on inflation, required to trigger the enhancement. AB 1511 was vetoed by the Governor.
      
   4. AB 1705 (Niello), Chapter 420, Statutes of 2007, raised the dollar limits required to impose specified enhancements for taking, damaging, or destroying property and set a sunset date of January 1, 2018.
      
   5. AB 293 (Cunneen), Chapter 551, Statutes of 1997, extended the sunset date of the excessive takings enhancement for 10 years, from 1998 to 2008.
      

REGISTERED SUPPORT / OPPOSITION:

Support

Buena Park; City of
California Downtown Association
California Police Chiefs Association
California Retailers Association
Chief Probation Officers' of California (CPOC)
City of Agoura Hills
City of Artesia
City of Buena Park
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 Merced
City of Oakdale
City of Paramount
City of Port Hueneme
City of Rocklin
City of Rohnert Park
City of Rolling Hills Estates
City of Rosemead
City of San Luis Obispo
City of Santa Clarita
City of Stanton
Downtown Santa Monica
Fullerton; City of
League of California Cities
Los Angeles County Division, League of California Cities
Mission Viejo; City of
Oakley; City of
Town of Apple Valley

Opposition

ACLU California Action
Ella Baker Center for Human Rights
San Francisco Public Defender

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

 THIRD READING  

Bill No: SB 1416

Author: Newman (D), et al.

Amended: 4/16/24

Vote: 21

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

AYES: Wahab, Seyarto, Bradford, Skinner, Wiener

SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/16/24

AYES: Caballero, Jones, Ashby, Becker, Bradford, Seyarto, Wahab

SUBJECT: Sentencing enhancements: sale, exchange, or return of stolen property

SOURCE: Author

DIGEST:

This bill creates new sentencing enhancements of 1, 2, 3, or 4 years respectively 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 $50,000, $200,000, $1,000,000, or $3,000,000.

ANALYSIS:

Existing law:

1. Divides theft into two degrees, petty theft and grand theft. (Pen. Code, § 486.)
2. Defines grand theft as when the money, labor, or real or personal property taken is of a value exceeding $950 dollars, except as specified. (Pen. Code, § 487.)
3. States that petty theft is punishable by a fine not exceeding $1,000, by imprisonment in the county jail not exceeding six months, or both. (Penal Code § 490.)
4. Defines “shoplifting” as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed $950 dollars. (Pen. Code, § 459.5, subd. (a).)
5. States that any act of shoplifting must be charged as such, and that a person charged with shoplifting cannot also be charged with burglary or theft of the same property. (Pen. Code, § 459.5, subd. (b).)
6. Punishes shoplifting as a misdemeanor, except where a person has a prior “super strike” or a registrable sex conviction, in which case the offense is punished as a felony by imprisonment in the county jail pursuant to realignment. (Pen. Code, § 459.5, subd. (a).)
7. Provides that, notwithstanding the punishment for petty theft, if a person is required to register as a sex offender, has a prior “super strike 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 he or she was imprisoned, and is subsequently convicted of petty theft, then the person is to receive an enhanced punishment of imprisonment in the county jail not to exceed one year, or in the state prison. (Pen. Code, § 666.)
8. Prohibits the possession or receipt of stolen property knowing the property to be stolen and punishes a person guilty of this offense by imprisonment in county jail for not more than one year, or 16 months, or 2 or 3 years. If the value of the property does not exceed $950, the person shall be punished by imprisonment in county jail not exceeding one year, except as specified. (Pen. Code, § 496.)

This bill:

1. Provides that when any person sells, exchanges, or returns for value, or attempts to sell, exchange, or return for value, property acquired through one or more acts of shoplifting, theft, or burglary from a retail business, whether or not the person committed the act of shoplifting, theft, or burglary, the court shall impose an additional term as follows:
   1. If the value of the property exceeds $50,000 the court, in addition and consecutive to the punishment prescribed for the crime of which the defendant has been convicted, shall impose an additional term of one year;
   2. If the value of the property exceeds $200,000 the court, in addition and consecutive to the punishment prescribed for the crime of which the defendant has been convicted, shall impose an additional term of two years;
   3. If the value of the property exceeds $1,000,000, the court, in addition and consecutive to the punishment prescribed for the crime of which the defendant has been convicted, shall impose an additional term of three years;
   4. If the value of the property exceeds $3,000,000, the court, in addition and consecutive to the punishment prescribed for the crime of which the defendant has been convicted, shall impose an additional term of four years;
   5. For each property value of $3,000,000, the court shall impose a term of one year in addition to the term specified above.
2. States that when any person acts in concert with another to sell, exchange, or return for value, or attempts to sell, exchange, or return for value, property acquired through one or more acts of shoplifting, theft, or burglary from a retail business, whether or not the person committed the act of shoplifting, theft, or burglary, the court shall impose the additional terms specified above.
3. Authorizes aggregation of multiple charges of sales, exchanges, or returns for value, or attempts to do the same so that the additional terms provided by this bill may be imposed if the aggregate value of the property involved exceeds the amounts specified and arises from a common scheme or plan. All pleadings under this section are subject to the rules of joinder and severance stated in existing provisions of law.
4. States that the additional terms provided by this bill shall not be imposed unless the facts relating to the required amounts are charged in the accusatory pleading and admitted by the defendant or found to be true by the trier of fact.
5. States that notwithstanding any other law, the court may impose an enhancement pursuant to the provisions of this bill and another section on a single count.

Comments According to the author:

“SB 1416 is an important step in more effectively combating retail theft as part of the “Working Together for a Safer California” legislative package. When passed, it will impose progressively stronger penalties for crimes involving the sale, exchange, return, or attempted resale of items acquired through retail theft, depending on the aggregate value of those items. Organized retail theft is an expanding criminal trend in California, and law enforcement faces significant challenges in prosecuting the organizers of these crimes. SB 1416 will give law enforcement another important tool to effectively prosecute, as well as deter, those who would seek to coordinate and benefit from large-scale organized retail theft.”

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

According to the Senate Appropriations Committee:

Incarceration costs in the millions of dollars (General Fund) annually to the California Department of Corrections and Rehabilitation (CDCR).

SUPPORT: (Verified 5/16/2024)

California Police Chiefs Association
California Retailers Association
City of Buena Park
City of Cypress
City of El Cerrito
City of Fountain Valley

City of Fullerton
City of Grand Terrace
City of La Mirada
City of Lakewood CA
City of Los Alamitos
City of Manteca
City of Merced

City of Mission Viejo
City of Oakdale

City of Oakley
City of Port Hueneme
City of Rohnert Park
City of Rolling Hills Estates
City of Rosemead
City of San Luis Obispo
City of Stanton
League of California Cities
Town of Apple Valley

OPPOSITION: (Verified 5/16/2024)

ACLU California Action

San Francisco Public Defender

Prepared by: Stella Choe / PUB. S. /

5/17/24 10:18:33

**** END ****

SENATE COMMITTEE ON

Senator Anna Caballero, Chair

2023 - 2024 Regular Session

SB 1416 (Newman) - Sentencing enhancements: sale, exchange, or return of stolen property

Bill Summary:

SB 1416 creates new sentencing enhancements of 1, 2, 3, or 4 years for specified thefts from a retail business.

*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********

The following information is revised to reflect amendments

adopted by the committee on May 16, 2024

Fiscal Impact:

Incarceration costs in the millions of dollars (General Fund) annually to the California Department of Corrections and Rehabilitation (CDCR).

Committee Amendments:

Add a coauthor.

-- END --

SENATE COMMITTEE ON

Senator Anna Caballero, Chair

2023 - 2024 Regular Session

SB 1416 (Newman) - Sentencing enhancements: sale, exchange, or return of stolen property

Bill Summary: SB 1416 creates new sentencing enhancements of 1, 2, 3, or 4 years for specified thefts from a retail business.

Fiscal Impact:

Incarceration costs in the millions of dollars (General Fund) annually to the California Department of Corrections and Rehabilitation (CDCR). Total costs will depend on the number of enhancements imposed and the length of each enhancement. From 2015 to 2017, CDCR admitted an average of 48 offenders with an enhancement similar to the one in this bill, though some of those enhancements were stayed. The Legislative Analyst’s Office (LAO) estimates that the average annual cost to incarcerate one person in CDCR is $133,000. If CDCR admits 25 additional offenders who each must serve a two-year sentence enhancement under this bill, the total cost of their incarceration resulting from this bill will be approximately $6.65 million over two years. Actual costs will likely be higher because the enhancement enacted by this bill is broader than previous similar enhancements and will likely apply to more defendants. (See Staff Comment.)

Background:

This bill re-enacts a sentencing enhancement for property crimes that result in high-value property loss. The previous version of this enhancement was allowed to sunset, and was therefore repealed on January 1, 2018. AB 1511 (Low, 2018) would have re-enacted the enhancement. AB 1511 was vetoed by the Governor, who wrote, “I see no reason to now permanently re-enact a repealed sentencing enhancement without corresponding evidence that it was effective in deterring crime.”

The enhancement enacted by this bill is different from previous enacted and proposed property loss enhancements in two key ways. First, the property values included in the bill do not account for inflation and are lower than some of the values included in the previous statute. Second, this bill does not include a sunset date, which generally prompts the Legislature to consider adjusting the property damage values for inflation.

Proposed Law:

• Establishes sentence enhancements when a person sells, exchanges, or returns for value, or attempts to sell, exchange, or return for value, property acquired through one or more acts of shoplifting, theft, or burglary from a retail business, whether or not the person committed the act of shoplifting, theft, or burglary, or when a person acts in concert with another to sell, exchange, or return for value, or attempts to sell, exchange, or return for value, property acquired through one or more acts of shoplifting, theft, or burglary from a retail business, whether or not the person committed the act of shoplifting, theft, or burglary, as follows:
  
  • If the property value exceeds $50,000, the court, in addition and consecutive to the punishment prescribed for the crime of which the defendant has been convicted, shall impose an additional term of one year;
  • If the property value exceeds $200,000, the court, in addition and consecutive to the punishment prescribed for the crime of which the defendant has been convicted, shall impose an additional term of two years;
    
  • If the property value exceeds $1,000,000, the court, in addition and consecutive to the punishment prescribed for the crime of which the defendant has been convicted, shall impose an additional term of three years; and,
    
  • If the property value exceeds 3,000,000, the court, in addition and consecutive to the punishment prescribed for the crime of which the defendant has been convicted, shall impose an additional term of four years. In addition, for each property value of $3,000,000, the court shall impose a term of one year in addition to the additional term of four years.
    
• Allows, notwithstanding any other law, the court to impose the above-listed enhancement and any other enhancement on a single count.

Related Legislation:

• AB 1960 (Soria) is substantially similar to this bill. AB 1960 is pending in Assembly Appropriations Committee.
  
• AB 484 (Gabriel, 2023) would have re-enacted a sentence enhancement for a person who intentionally takes, damages, or destroys property during specified property-related offenses. AB 484 was held on the Assembly Appropriation Committee’s suspense file.
  
• AB 1511 (Low, 2018) was substantially similar to AB 484. AB 1511 was vetoed.
  
• AB 1705 (Niello, Chapter 420, Statutes of 2007) raised the dollar limits on the excessive takings enhancement and set a sunset date of January 1, 2018.

Staff Comments: The fiscal impact of this bill cannot be known with certainty, as the actual impact will be dependent on numerous factors, including, but not limited to, judicial and prosecutorial discretion, and the factors unique to each case. However, this bill could substantially impact the General Fund. This is significant given that increased sentences do not deter crime^[1], and according to the LAO, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years.

As discussed above, this bill would increase incarceration costs. According to the Legislative Analyst’s Office (LAO), the state saves roughly $15,000 per year each time one fewer person needs to be housed in a prison. When taking into account the total costs of incarceration, including fixed costs for staffing and infrastructure in addition to the marginal cost of each inmate, the average annual per capita cost to confine a person in state prison is over $133,000. That’s because there are many other types of costs—including most staffing costs—that are only saved when capacity is reduced. Specifically, when a whole prison is deactivated, the state can save several tens of thousands of dollars per capita annually in addition to the population driven savings. Since 2021, the administration has deactivated several prisons and yards. CDCR estimates that these deactivations resulted in ongoing General Fund savings totaling about $620 million annually. The administration currently plans to deactivate additional prisons. The Governor’s 2024-25 budget proposes a $493 million decrease in CDCR funding, largely as a result of previous capacity reductions and the planned deactivation of a prison in March 2025. The LAO believes the state could deactivate around five additional prisons that collectively cost nearly $1 billion should they continue operating. As such, the LAO has recommended that the Legislature direct CDCR to begin planning to reduce capacity by deactivating prisons. Longer state prison sentences, like those proposed by this bill, would delay prison closures and the cost savings associated with them.

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1. Studies have shown that, in most circumstances, lengthy criminal sentences do not effectively deter crime. In light of the growing cost of incarceration and its limited utility in deterring crime, both the Little Hoover Commission and the Committee on Revision of the Penal Code have encouraged sentencing reform in California, including by limiting sentencing enhancements. (See, Long-Term Sentences: Time to Reconsider the Scale of Punishment, 87 UMKC L. Rev., 1 (Nov. 5, 2018); National Institute of Justice, Five Things about Deterrence, Available at: https://www.ojp.gov/pdffiles1/nij/247350.pdf; National Research Council of the National Academies of Sciences, Engineering, and Medicine, The Growth of Incarceration in the United States: Exploring Causes and Consequences, (April 2014) at pp. 130 -15 Available at: https://academicworks.cuny.edu/cgi/viewcontent.cgi?article=1026&context=jj_pubs.) ↑

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Aisha Wahab, Chair

2023 - 2024 Regular

Bill No: SB 1416 Hearing Date: April 9, 2024

Subject: Sentencing enhancements: sale, exchange, or return of stolen property

HISTORY

Source: Author

Prior Legislation: AB 1511 (Low), vetoed, 2018

AB 1705 (Niello), Ch. 420, Stats 2007

AB 916 (Canciamilla), held in Sen. Approps. Committee, 2005

AB 293 (Cunneen), 1997 Ch. 551, Stats 1997

Support: California Retailers Association; League of California Cities

Opposition: San Francisco Public Defender

PURPOSE

The purpose of this bill is to create new sentencing enhancements of 1, 2, 3, or 4 years respectively 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 $50,000, $200,000, $1,000,000, or $3,000,000.

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

Existing law defines grand theft as when the money, labor, or real or personal property taken is of a value exceeding $950 dollars, except as specified. (Pen. Code, § 487.)

Existing law states that petty theft is punishable by a fine not exceeding $1,000, by imprisonment in the county jail not exceeding six months, or both. (Penal Code § 490.)

Existing law defines “shoplifting” as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed $950 dollars. (Pen. Code, § 459.5, subd. (a).)

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

Existing law punishes shoplifting as a misdemeanor, except where a person has a prior “super strike” or a registrable sex conviction, in which case the offense is punished as a felony by imprisonment in the county jail pursuant to realignment. (Pen. Code, § 459.5, subd. (a).)

Existing law provides that, notwithstanding the punishment for petty theft, if a person is required to register as a sex offender, has a prior “super strike 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 he or she was imprisoned, and is subsequently convicted of petty theft, then the person is to receive an enhanced punishment of imprisonment in the county jail not to exceed one year, or in the state prison. (Pen. Code, § 666.)

This bill provides that when any person sells, exchanges, or returns for value, or attempts to sell, exchange, or return for value, property acquired through one or more acts of shoplifting, theft, or burglary from a retail business, whether or not the person committed the act of shoplifting, theft, or burglary, the court shall impose an additional term as follows:

• If the value of the property exceeds $50,000 the court, in addition and consecutive to the punishment prescribed for the crime of which the defendant has been convicted, shall impose an additional term of one year;
• If the value of the property exceeds $200,000 the court, in addition and consecutive to the punishment prescribed for the crime of which the defendant has been convicted, shall impose an additional term of two years;
• If the value of the property exceeds $1,000,000, the court, in addition and consecutive to the punishment prescribed for the crime of which the defendant has been convicted, shall impose an additional term of three years;
• If the value of the property exceeds $3,000,000, the court, in addition and consecutive to the punishment prescribed for the crime of which the defendant has been convicted, shall impose an additional term of four years;
• For each property value of $3,000,000, the court shall impose a term of one year in addition to the term specified above.

This bill states that when any person acts in concert with another to sell, exchange, or return for value, or attempts to sell, exchange, or return for value, property acquired through one or more acts of shoplifting, theft, or burglary from a retail business, whether or not the person committed the act of shoplifting, theft, or burglary, the court shall impose the additional terms specified above.

This bill authorizes aggregation of multiple charges of sales, exchanges, or returns for value, or attempts to do the same so that the additional terms provided by this bill may be imposed if the aggregate value of the property involved exceeds the amounts specified and arises from a common scheme or plan. All pleadings under this section are subject to the rules of joinder and severance stated in existing provisions of law.

This bill states that the additional terms provided by this bill shall not be imposed unless the facts relating to the required amounts are charged in the accusatory pleading and admitted by the defendant or found to be true by the trier of fact.

This bill states that notwithstanding any other law, the court may impose an enhancement pursuant to the provisions of this bill and another section on a single count.

COMMENTS

1. Need for This Bill

According to the author of this bill:

SB 1416 is an important step in more effectively combating retail theft as part of the “Working Together for a Safer California” legislative package. When passed, it will impose progressively stronger penalties for crimes involving the sale, exchange, return, or attempted resale of items acquired through retail theft, depending on the aggregate value of those items. Organized retail theft is an expanding criminal trend in California, and law enforcement faces significant challenges in prosecuting the organizers of these crimes. SB 1416 will give law enforcement another important tool to effectively prosecute, as well as deter, those who would seek to coordinate and benefit from large-scale organized retail theft.

1. Background: Enhancements

Existing law contains a variety of enhancements that can be used to increase the term of imprisonment a defendant will serve. Enhancements add time to a person’s sentence for factors relevant to the defendant such as prior criminal history or for specific facts related to the crime. Multiple enhancements can be imposed in a single case and can range from adding a specified number of years to a person’s sentence, or doubling a person’s sentence or even converting a determinate sentence into a life sentence.

A recent report on sentencing enhancements found that about 40% of individual prison admissions since 2015 have sentences lengthened by a sentence enhancement. Among the currently incarcerated, the prevalence of enhanced sentences is much higher, impacting the sentences of approximately 70% of people incarcerated as of 2022. Data shows that enhancements have been applied a total of 167,340 times to new prison admissions since 2015, and have been applied 197,274 times in the cases of those incarcerated as of July 2022. (Mia Bird et al., Sentence Enhancements in California, California Policy Lab (Mar. 2023) < https://www.capolicylab.org/wp-content/uploads/2023/03/Sentence-Enhancements-in-California.pdf> [as of Mar. 27, 2024].)

According to the report, there are over 100 separate code sections in California law that can be used to enhance a person’s sentence and the most common enhancement is for a previous prison or jail sentence. (Ibid.) The report noted several recent legislative changes to enhancements that were enacted based on the recommendation of the Committee on the Revision of the Penal Code. (See Annual Report and Recommendations 2020, Committee on Revision of the Penal Code http://www.clrc.ca.gov/CRPC/Pub/Reports/CRPC_AR2020.pdf [as of Mar. 27, 2024].)

AB 333 made updates to the gang enhancements which narrowed the definition of gang involvement. SB 483 built on legislation repealing one- and three-year enhancements for prior convictions and applied the repeal to people who were incarcerated and had the enhancements as part of their sentences. Finally, SB 81 provided guidance to judges that allowed them discretion in whether to dismiss sentence enhancements, unless in the judge’s perspective, not enhancing a sentence could endanger public safety (PC § 1385)

The enhancement reforms enacted by the legislature since 2018 have curtailed the frequency with which enhancements have been applied to prison terms. We observe this both in overall trends, as well as in analysis of specific reforms on specific enhancement categories. Figure 3 shows the number of admissions with enhancements (the blue line) for each month from the beginning of 2015 through the end of 2022 as well as the total number of enhancements (the orange line) imposed on these terms (each admission may include more than one enhancement). There is a clear drop in admissions with enhancements coinciding with the onset of the COVID-19 pandemic and the corresponding drop in admissions to CDCR. Given the unpredictable nature of the pandemic, and the rates at which people were released from prison to help slow the spread, it is difficult to tease apart which declines after 2020 are due to enhancement reforms or are pandemic related.

1. Repealed “Excessive Takings” Enhancement

Until the law sunset in 2018, California had an “excessive takings” enhancement that would apply to taking or damaging of property that exceeded specified value thresholds. (Former Penal Code Section 12022.6.) The law was enacted in 1977 and subsequently a sunset provision was included in the statute for the purpose of allowing the Legislature to consider the effects of inflation on the property value thresholds in the law. The sunset was extended several times through legislation until the law was allowed to sunset in 2018. The law as it read in 2017 required the court to apply an enhancement of 1, 2, 3, or 4 years respectively whenever any person was convicted of a felony involving taking or damaging property that exceeded losses of $65,000, $200,000, $1,300,000 and $3,200,000.

AB 1511 (Low), of the 2017-2018 legislative session, would have reauthorized the enhancement statute with higher value thresholds, starting at $75,000 and going up to $3.7 million in property loss, and would have made the statute permanent. The bill was vetoed. Then Governor Brown’s veto message stated:

AB 1511 now seeks to re-enact this repealed enhancement, but omits any sunset provision similar to those that have been included with this statute since 1990. I see no reason to now permanently re-enact a repealed sentencing enhancement without corresponding evidence that it was effective in deterring crime. As I have said before, California has over 5,000 criminal provisions covering almost every conceivable form of human misbehavior. We can effectively manage our criminal justice system without 5,001.

This bill creates new enhancements that would apply to some of the same conduct that would have been covered by former Penal Code section 12022.6. This bill requires the court to apply specified additional terms of imprisonment when the value of property acquired through one or more acts of exceeds the following amounts: $50,000, $200,000, $1 million, and $3 million. The threshold value amounts contained in this bill are lower than the values contained in Penal Code section 12022.6 when the law was allowed to sunset. Specifically, that statute, which was last adjusted for inflation in 2007 for the law to go into effect January 1, 2008, contained the following threshold amounts: $65,000, $200,000, $1.3 million, and $3.2 million.

The committee may wish to amend the bill to adjust the threshold amounts to account for inflation and may wish to add a sunset date for the Legislature to readjust the threshold amounts in the future. Using the U.S Department of Labor’s Consumer Price Index calculator with a comparison date of January 1, 2008, the current threshold amounts in the bill would be adjusted as follows:

• $50,000 in 2008 would be $73,509.10 in 2024;
• $200,000 in 2008 would be $294,036.38 in 2024;
• $1,000,000 in 2008 would be $1,470,181.92 in 2024; and,
• $3,000,000 in 2008 would be $4,410,545.76 in 2024.

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].)

1. Argument in Support

According to California Retailers Association:

Organized retail theft has plagued the retail industry in recent years. It has forced retailers to spend millions annually on security measures, such as guards, cameras, and store redesigns. Retail employees and customers are increasingly feeling unsafe, and the simple act of shopping has become burdensome for many. The unlawful acquisition and resale of stolen goods perpetuates a cycle of profitable criminal activity that undermines the integrity of the retail environment and erodes consumer trust. To combat this unfortunate reality, we need to enhance penalties for prolific offenders profiteering off stolen goods.

The California Retailers Association is the only statewide trade association representing all segments of the retail industry including general merchandise, department stores, mass merchandisers, on-line marketplaces, restaurants, convenience stores, supermarkets and grocery stores, retail pharmacies, and specialty retail such as auto, vision, jewelry, hardware, and home stores.

By imposing stricter penalties for individuals attempting to profit from stolen merchandise, SB 1416 serves as a deterrent against retail crime. It sends a clear message that such illicit activities will not be tolerated, thereby helping to protect businesses, consumers, and communities from the adverse effects of criminal behavior.

1. Arguments in Opposition

According to the San Francisco Public Defender:

While the stated intent of this bill is to penalize individuals responsible for large-scale retail theft, the “acting in concert” provision will more likely be used to increase prison sentences for people who might be affiliated with individuals that engages in theft but who are not personally responsible for the thefts (or at least for the thefts that are aggregated to meet those monetary thresholds). Therefore, this legislation has broad implications beyond targeting people engaged in “large scale” retail theft.

Furthermore, retail theft panic was spread by highly-publicized false statements by retailers that have since been retracted. The National Retail Federation (NRF) received heavy media attention when it blamed “organized retail theft” for nearly half of all inventory losses in 2021, but later retracted the high-profile assertion, admitting to using incorrect data and a general lack of data on the issue. Despite claims about the impact of retail theft on businesses, the California Retailers Association has acknowledged there is no comprehensive, reliable data on theft. A shopping center executive recently told lawmakers he asked 15 retailers for data on retail theft, and none could provide it. Indeed, corporations like Walgreens and Target have claimed to be closing stores because of retail theft, only for it to be revealed that they kept nearby stores with higher incidents of crime open; struggled financially for other reasons; and, per the Walgreens finance chief, “cried too much” about merchandise loss.

Despite the false narratives around retail theft, Governor Newsom’s administration has already created an unprecedented $267 million retail theft slush fund for state grants to local law enforcement to fight now-debunked “organized retail crime.” This funneling of limited state resources at law enforcement is completely unnecessary and wasteful.

Legislators cause irreparable harm to Californians when they base policies on false statements rather than championing and implementing evidence-based solutions that bring long-term stability and safety to both criminalized communities and retail store employees. Study after study demonstrates that harsher penalties—including for people with prior thefts—will not be effective at combating retail theft. What is effective is funding comprehensive clean slate services to open doors for housing, employment, job training, and education opportunities for people who have been impacted by the criminal legal system.

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