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california legislation > AB 316

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SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B

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AB 316 (Carter)
As Amended May 27, 2011
Hearing date: June 21, 2011
Penal Code
SM:mc

COPPER THEFT

HISTORY

Source: California Farm Bureau

Prior Legislation: AB 2372 (Ammiano) - Chapter 693, Statutes of
2010
AB 237 (Carter) - 2009, failed passage in Senate
Public Safety
SB 447 (Maldonado) - Chapter 732, Statutes of 2008
SB 691 (Calderon) - Chapter 720, Statutes of 2008
AB 844 (Berryhill) - Chapter 731, Statutes of 2008
AB 1778 (Ma) - Chapter 733, Statutes of 2008
AB 1859 (Adams) - Chapter 659, Statutes of 2008
AB 2724 (Benoit) - 2008, failed passage in Senate
Public Safety

Support: California Chamber of Commerce; California Chapters of
the Institute of Scrap Recycling Industries;
California District Attorneys Association; League of
California Cities; California Police Chiefs
Association, Inc.; City of Riverside; Inland Action,
Inc.; Inland Empire Economic Partnership; Alameda
County Sherriff; Kern County Sheriff; San Bernardino
County Sherriff; Tuolumne County Sheriff; Yolo County
Sherriff; Los Angeles County District Attorney




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Opposition:None known

Assembly Floor Vote: Ayes 74 - Noes 2



KEY ISSUE

SHOULD THE MAXIMUM FINE FOR THEFT OF OVER $950 WORTH OF COPPER
MATERIALS BE INCREASED TO $2,500, IN ADDITION TO THE EXISTING JAIL
OR PRISON TERMS?



PURPOSE

The purpose of this bill is to create a separate section for
grand theft of copper materials and add a fine of up to $2,500
on to the existing penalties of up to one year in county jail,
or 16 months, two or three years in state prison.

Existing law provides that theft in any of the following cases
is grand theft:

When the money, labor, or real or personal property
taken is of a value exceeding nine hundred fifty dollars
($950);
When domestic fowls, avocados, olives, citrus or
deciduous fruits, other fruits, vegetables, nuts,
artichokes, or other farm crops are taken of a value
exceeding two hundred fifty dollars ($250);
When fish, shellfish, mollusks, crustaceans, kelp,
algae, or other aquacultural products are taken from a
commercial or research operation which is producing that
product, of a value exceeding two hundred fifty dollars
($250);
Where the money, labor, or real or personal property is
taken by a servant, agent, or employee from his or her




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principal or employer and aggregates nine hundred fifty
dollars ($950) or more in any 12 consecutive month period;
When the property is taken from the person of another;
When the property taken is an automobile, horse, mare,
gelding, any bovine animal, any caprine animal, mule, jack,
jenny, sheep, lamb, hog, sow, boar, gilt, barrow, or pig;
Theft of a firearm. (Penal Code 487.)

Existing law provides that grand theft is punishable as follows:

When the grand theft involves the theft of a firearm, by
imprisonment in the state prison for 16 months, 2, or 3
years.
In all other cases, by imprisonment in a county jail not
exceeding one year or in the state prison for 16 months, 2,
or 3 years. (Penal Code 489.)

Existing law provides that every junk dealer and every recycler,
as defined, in this state is hereby required to keep a written
record of all sales and purchases made in the course of his or
her business. (Bus. & Prof. Code 21605.) Those records must
include:

(1) The place and date of each sale or purchase
of junk made in the conduct of his or her business as
a junk dealer or recycler.

(2) The name, valid driver's license number and
state of issue or California-issued identification
card number, and vehicle license number including the
state of issue of any motor vehicle used in
transporting the junk to the junk dealer's or
recycler's place of business.

(3) The name and address of each person to whom
junk is sold or disposed of, and the license number of
any motor vehicle used in transporting the junk from
the junk dealer's or recycler's place of business.





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(4) A description of the item or items of junk
purchased or sold, including the item type and
quantity, and identification number, if visible.

(5) A statement indicating either that the seller
of the junk is the owner of it, or the name of the
person he or she obtained it from, as shown on a
signed transfer document.

(6) Any person who makes, or causes to be made, any
false or fictitious statement regarding any
information required by this section, is guilty of a
misdemeanor.

(7) Every junk dealer and every recycler shall report
the above information to the chief of police, if the
dealer's or recycler's business is located in a city,
or to the sheriff, if the dealer's or recycler's
business is located in an unincorporated part of a
county, upon request of the chief of police or sheriff
and on a monthly basis, except:

(8) The chief of police or sheriff may request the
report described in this section on a weekly basis if
there is an ongoing investigation of the junk dealer
or recycler concerning possible criminal activity.
The chief of police or sheriff may request weekly
reports for no more than a two-month period unless the
investigation of the junk dealer or recycler continues
and the chief of police or sheriff makes a subsequent
request for weekly reports for an additional two-month
period or part thereof. (Bus. & Prof. Code 21606.)

Existing law provides that any junk dealer or recycler who fails
to keep the required written records, or who refuses, upon
demand, as specified, to exhibit the required written record, or
who destroys that record within two years after making the final
entry of any purchase or sale of junk therein is guilty of a
misdemeanor. (Bus. & Prof. Code 21608 (a).) Violations are




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punishable as follows:

(1) For a first offense, by a fine of not less
than $500, or by imprisonment in the county jail for
not less than 30 days, or both.

(2) For a second offense, by a fine of not less
than $1000, or by imprisonment in the county jail
for not less than 30 days, or both. In addition to
any other sentence imposed pursuant to this
paragraph, the court may order the defendant to stop
engaging in business as a junk dealer or recycler
for a period not to exceed 30 days.

(3) For a third or any subsequent offense, by a
fine of not less than $2000, or by imprisonment in
the county jail for not less than six months, or
both. In addition to any other sentence imposed
pursuant to this paragraph, the court shall order
the defendant to stop engaging in business as a junk
dealer or recycler for a period of 30 days. (Bus. &
Prof. Code 21608 (b).)

Existing law defines a "secondhand dealer" as any person or
entity taking in pawn, accepting for sale of consignment,
trading, et cetera, any tangible personal property. (Bus. &
Prof. Code 21625.)

Existing law defines a pawnbroker as a "person engaged in the
business of receiving goods in pledge for security for a loan."
(Fin. Code 21000.)

Existing law provides that, except as specified, a junk dealer
or recycler in this state shall not provide payment for
nonferrous material unless, in addition to meeting the written
record requirements of Sections 21605 and 21606, all of the
following requirements are met:






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The payment for the material is made by cash or check.
The check may be mailed to the seller at a verified
address, as specified below, or the cash or check may be
collected by the seller from the junk dealer or recycler on
the third business day after the date of sale.


At the time of sale, the junk dealer or recycler obtains
a clear photograph or video of the seller.


Except as provided below, the junk dealer or recycler
obtains a copy of the valid driver's license of the seller
containing a photograph and an address of the seller or a
copy of a state or federal government-issued identification
card containing a photograph and an address of the seller.


If the seller prefers to have the check for the material
mailed to an alternative address, other than a post office
box, the junk dealer or recycler shall obtain a copy of a
driver's license or identification card, as specified, and
a gas or electric utility bill addressed to the seller at
that alternative address with a payment due date no more
than two months prior to the date of sale. For purposes of
this paragraph, "alternative address" means an address that
is different from the address appearing on the seller's
driver's license or identification card.


The junk dealer or recycler obtains a clear photograph
or video of the nonferrous material being purchased.


The junk dealer or recycler shall preserve the
information obtained pursuant to this paragraph for a
period of two years after the date of sale.






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The junk dealer or recycler obtains a thumbprint of the
seller, as prescribed by the Department of Justice. The
junk dealer or recycler shall keep this thumbprint with the
information obtained under this subdivision and shall
preserve the thumbprint in either hardcopy or electronic
format for a period of two years after the date of sale.


Inspection or seizure of the thumbprint shall only be
performed by a peace officer acting within the scope of his
or her authority in response to a criminal search warrant
signed by a magistrate and served on the junk dealer or
recycler by the peace officer. Probable cause for the
issuance of that warrant must be based upon a theft
specifically involving the transaction for which the
thumbprint was given. (Bus. & Prof. Code 21608.5.)

Existing law (subdivisions of Bus. & Prof. Code 21628)
provides that pawnbrokers and secondhand dealers shall report
daily on forms approved or provided by the Department of
Justice, all personal property purchased, taken in trade, taken
in pawn, et cetera, to local law enforcement. The report shall
include the following information:

The name and current address and identification
of the intended seller or pledgor of the property
(subds. (a)-(b));
A complete and reasonably accurate description of
serialized or nonserialized property (subds.
(c)-(d));
A certification by the intended seller or pledgor
that he or she is the owner of the property, or has
the authority of the owner to sell or pledge the
property and that any information provided is true
and complete (subds. (e)-(f)); and
A legible fingerprint taken from the intended
seller or pledgor (subd. (g)).

Existing law provides that the Department of Justice ("DOJ")




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shall, in consultation with local law enforcement, develop clear
and comprehensive categories of property subject to reporting
requirements in Business and Professions Code Section 21628.
The categories shall be incorporated by secondhand dealers and
coin dealers (Bus. & Prof. Code 21626) for reporting
requirements. DOJ and local law enforcement, in consultation
with secondhand dealer and coin dealer representatives, shall
develop a standard statewide format for electronic reporting.
Twelve months after the format and the categories have been
developed, each secondhand dealer and coin dealer shall make
reports electronically. Until that time, each secondhand dealer
and coin dealer may either continue to report this information
using existing forms and procedures or may begin electronically
reporting this information under the reporting categories and
using the new format when it has been developed. (Bus. & Prof.
Code 21628.)

Existing law requires a secondhand dealer to make acquired
property available for law enforcement inspection for specified
time periods. (Bus. & Prof. Code 21636.)

This bill would create a separate section for grand theft of
copper materials and add a fine of up to $2,500 on to the
existing penalties of up to one year in county jail or 16
months, two or three years in state prison, for theft of copper
materials worth over $950.


RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.

On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take




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control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.

On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances.

In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.

This bill does not appear to aggravate the prison overcrowding
crisis described above.

COMMENTS

1. Need for This Bill

According to the author:

Metal theft is one of the fastest growing crimes in
the state and country. The recent rise in scrap metal
values has made the theft and sale of these materials
increasingly profitable.

With the prevalence of metal thefts from large




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construction sites, public utility yards, farms,
ranches, and schools, AB 316 would classify stolen
copper materials exceeding $950 dollars as grand theft
in an effort to help decrease the rise of metal theft.
2. The Problem of Metal Theft

The problem of metal theft has been well documented throughout
the state. In 2007, the New York Times reported:

"This is the No. 1 crime affecting farmers and
ranchers right now," said Bill Yoshimoto, an assistant
district attorney in the agriculturally rich Tulare
County in the Central Valley.

"Virtually every farmer in the Central Valley has been
hit," Mr. Yoshimoto said. "But some have been hit far
beyond the value of the metal. For the farmer to
replace the pump is anywhere between $3,000 to
$10,000, and then there is downtime, and loss to
crops."

Some sheriff's departments in agricultural counties
have rural crime units that investigate metal crimes
almost exclusively these days, setting up sting
operations in recycling shops and tagging copper bait
with electronic tracking devices.

Metal theft from California farmers rose 400 percent
in 2006 over the previous year, according to the
Agricultural Crime Technology Information and
Operations Network, a regional law enforcement group
headed by Mr. Yoshimoto. The numbers this year are
equally high. Through the end of June, there were
nearly 1000 incidents of scrap metal theft on farms,
causing more than $2 billion in losses, the group's
figures show. (Unusual Culprits Cripple Farms in
California, New York Times , July 1, 2007,
http://www.nytimes.com/2007/07/31/us/31copper.html?_r=1
&oref=slogin&fta=y&pagewanted=print
)




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Metal theft has not been confined to farms and rural areas. The
Monterey County Herald reports:

Demand for copper, brass, platinum, stainless steel
and other valuable metals has turned the underside of
cars, abandoned buildings, farms, freeways and
industrial yards into gold mines for thieves.

"It's an easy way to make a quick buck," said
sheriff's detective Matt Davis. "Everybody is
stealing."

On Monday, deputies found three men stripping almost
900 feet of copper cable, which appeared to have been
stolen from an industrial yard. They could have sold
the copper for about $6500, Davis said.

"It's happening all over the state," he said.

* * * * * *

Robert Gomez, manager of a Salinas auto shop, said
recently he welded a catalytic converter back onto a
truck after thieves tried to remove it. Other shops
report making similar repairs for customers.

Gomez said catalytic converters are hot items for
thieves because they have valuable metals and are easy
to get to.

"They can just slide right under (a car) and get to
it," he said. "The value is the stuff inside."

A stolen converter can be sold for about $100 for the
metal it contains. But the owner of the vehicle may
have to spend up to $500 to replace it, Gomez said.

* * * * *




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In Southern California, thieves have made off with
guardrails and road signs on freeways, according to
the state Department of Transportation.

In Contra Costa County, suspected metal thieves are
believed to have caused a toxic spill after they took
brass fittings from tanks at a chemical plant in
Richmond.

Last week at a ballpark in Ventura, thieves stripped
wires from an electrical vault, damaging lights used
for Little League games.

Jeff Smith, a spokesman for Pacific Gas & Electric
Co., said theft of electrical wire is costly and
thieves risk electrocution, even when the power has
been shut off.

During the first six months of 2007, PG&E lost more
than $800,000 worth of copper cable to thievery at
service yards, power plants and utility connections in
Northern California, Smith said.

"Like anything else, when the market value goes up, it
becomes a target," Smith
said. "It's become increasingly more serious every
year." (Metal marauders on loose, Monterey County
Herald
, May 10, 2008,
http://www.montereyherald.com/local/ci_9217926 )

3. Previous Legislation to Curb Metal Theft

In 2009, the Legislature passed the following measures to
address the growing problem of metal theft:

SB 447 (Maldonado), Chapter 732, Statutes of 2009,
assists local law enforcement officials in quickly
investigating stolen metal and apprehending thieves by




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requiring scrap metal dealers and recyclers to report
what materials are being scraped at their facilities
and by whom on a daily basis. These rules already
apply to pawn shop dealers.
SB 691 (Calderon), Chapter 720, Statutes of 2009,
requires junk dealers and recyclers to take
thumbprints of individuals selling copper, copper
alloys, aluminum and stainless steel. Sellers must
also show a government identification (ID) and proof
of their current address. Recyclers who violate the
law face suspension or revocation of their business
license and increased fines and jail time.
AB 844 (Berryhill), Chapter 731, Statutes of 2009,
requires recyclers to hold payment for three days,
check a photo ID and take a thumbprint of anyone
selling scrap metals. AB 844 also requires any person
convicted of metal theft to pay restitution for the
materials stolen and for any collateral damage caused
during the theft.
























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The purpose of these previous bills was to deter metal thieves
by making it more difficult to resell the stolen metal items to
pawn shops, junk dealers or recyclers. The purpose of this bill
is to deter these same thieves with the threat of a $2,500 fine
in addition to the existing penalties of up to three years in
prison.

WILL THIS FINE DETER METAL THEFT MORE THAN EXISTING PENALTIES?

4. Suggested Amendment

Under current law, grand theft is a "wobbler," meaning it can be
charged as either a felony or a misdemeanor. The current
penalty for grand theft is up to one year in county jail (if
charged as a misdemeanor) or 16 months, 2, or 3 years in state
prison (if charged as a felony). (Penal Code 489.) Because
current law does not specify a fine amount, the applicable fines
are up to $1,000 for a misdemeanor conviction and up to $10,000
for a felony conviction. (Penal Code 672.)

The current language of AB 316 would impose, in addition to the
existing jail or prison terms, a fine of up to $2,500 for a
violation of the new section involving grand theft of copper.
Therefore, this bill would increase the fine if the case was
charged as a misdemeanor but would decrease the fine if the case
were charged as a felony.

Members may wish to consider amending the bill to preserve the
existing $10,000 fine if the conviction for grand theft of
copper is a felony and $2,500 for a misdemeanor.





The language would read as follows:

Every person who feloniously steals, takes, or carries
away copper materials of another, including, but not




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limited to, copper wire, copper cable, copper tubing,
and copper piping, which are of a value exceeding nine
hundred fifty dollars ($950) is guilty of grand theft.
Grand theft of copper shall be punishable by a fine
not exceeding two thousand five hundred dollars
($2,500), or imprisonment in a county jail not
exceeding one year, or both that fine and
imprisonment, or imprisonment in the state prison for
16 months, two years or three years and a fine not
to exceed ten thousand dollars ($10,000).

SHOULD THIS AMENDMENT BE TAKEN?


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