BILL ANALYSIS SB 703 Page 1 Date of Hearing: June 15, 2004 Counsel: Kathleen Ragan ASSEMBLY COMMITTEE ON PUBLIC SAFETY Mark Leno, Chair SB 703 (Florez) - As Amended: June 2, 2004 As Proposed to be Amended in Committee SUMMARY : Increases the penalties for theft of diesel fuel on agricultural property. Specifically, this bill : 1)Adds the theft of diesel fuel of a value exceeding $100 to the definition of "grand theft". 2)Adds the theft of diesel fuel to the crime of theft, and subjects a person convicted to the specified additional penalties in addition to the existing penalties for theft. 3)Adds diesel fuel to the crime of possession of stolen property. Subjects a person convicted of the possession of stolen diesel fuel to specified penalties in addition to the existing penalties for possession of stolen property. 4)States that upon a conviction of theft of diesel fuel or possession of stolen diesel fuel, a court may impose the following penalties if a vehicle was used to transport or store the stolen diesel fuel: a) Suspend, for not more than six months, the person's privilege to operate a motor vehicle; b) For each successive offense, suspend the person's privilege to operate a motor vehicle for one additional year; c) In lieu of suspension, allow the court to restrict the privilege to operate a motor vehicle to that necessary to travel to and from the person's place of employment or school for six months; d) In lieu of suspension, provide that the court may restrict the driving privilege to allow driving in the SB 703 Page 2 scope of the person's employment if driving a motor vehicle is necessary to perform the duties of the person's employment; and, e) In lieu of suspending the driver's license, the court may order the privilege to operate a motor vehicle restricted to necessary travel in situations of a medical emergency. f) Deem the vehicle a nuisance and subject the vehicle to forfeiture, subject to specified procedures of the Vehicle Code related to forfeiture and impoundment of vehicles. EXISTING LAW : 1)States that every person who takes steals or drives away the personal property of another is guilty of theft. [Penal Code Section 484(a).] 2)Provides that when the value of the property taken is over $400, the taking constitutes grand theft. [Penal Code Section 487(a).] 3)States that notwithstanding the value, grand theft is committed in the following cases: a) When domestic fowls, avocados, olives, citrus and other specified farm crops of a value exceeding $100 are taken; b) When fish, shellfish, mollusks, crustaceans, kelp, algae or other aquacultural products are taken from a commercial or research operation, of a value exceeding $100; c) When the money, labor real or personal property is taken by a servant, agent or employee from his or her principal and aggregates $400 or more in any 12 month period; d) When the property is taken from the person of another; e) When the property taken is any of the following: i) An automobile, horse, mare, gelding, any bovine animal, any caprine animal, mule, jack, jenny, sheep, lamb, hog, sow, boar, gilt, barrow, or pig; or, SB 703 Page 3 ii) A firearm. f) When the property taken is the carcass of specified animals, which was misappropriated or killed without the consent of the owner. [Penal Code Section 487a.] g) Conversion of real estate of the value of $100 or more into personal property by severance from the realty of another person. [Penal Code Section 487b.] h) Taking or stealing of a dog of another person of a value exceeding $400. [Penal Code Section 487e.] 4)Provides that all other theft is petty theft. [Penal Code Section 488.] 5)States that grand theft is punishable by imprisonment in the state prison for 16 months, 2 or 3 years when the theft is of a firearm. [Penal Code Section 489(a).] 6)Provides that in all other cases, grand theft is punishable by imprisonment in a county jail not exceeding one year or in the state prison. [Penal Code Section 489(b).] 7)States that petty theft is punishable by a fine not exceeding $1,000, or by imprisonment in a county jail not exceeding six months, or both. (Penal Code Section 490.) 8)Provides that petty theft of property the value of which does not exceed $50 may be charged as a misdemeanor or an infraction, at the discretion of the prosecutor, provided that the person has no other theft or theft-related conviction. States that a violation that is an infraction is punishable by a fine not exceeding $250. (Penal Code Section 490.1.) 9)Provides that a person convicted of receiving stolen property shall be punished by imprisonment in the state prison or in a county jail for not more than one year. States that the district attorney may specify that the offense is a misdemeanor if the value of the property does not exceed $400, and that this action would be in the interest of justice. [Penal Code Section 496(a).] 10)Provides that a motor vehicle is subject to forfeiture as a nuisance if it is driven on a highway by persons with SB 703 Page 4 specified violations relative to driver's license violations. [Vehicle Code Section 14607.6(a).] 11)Sets forth the manner in which the proceeds of the sale of a forfeited vehicle shall be disposed and a priority among competing interests for those proceeds. [Vehicle Code Section 14607.6(i).] FISCAL EFFECT : Unknown COMMENTS : 1)Author's Statement : According to the author, "This bill increases the penalties for the theft of diesel fuel from agricultural operations. Specifically, this bill authorizes judges to suspend the driver's license and confiscate the vehicle of a person convicted of stealing farm diesel fuel. "According to the California Farm Bureau Federation, fuel theft in the San Joaquin Valley has quadrupled over the past year. Statistics from the Agricultural Crime Technology Information and Operations Network show that in an eight-county radius including Madera, Merced, San Joaquin, Stanislaus, Fresno, Kern and Kings Counties, the amount of diesel fuel theft has gone up from 33,380 gallons in 2003 to 41,065 gallons between January and April 2004. The overall number of thefts reported has risen from 26 in the entire 2003 calendar year to 47 in just the first four months of this year. The network has already recorded over $82,000 worth of diesel fuel stolen in2004, a 100 percent increase over last year. "The Kern County Sheriff's Department has stated that the recent rise in diesel fuel prices is one of many factors causing the increase in farm diesel thefts. Stolen diesel from farms is resold to truckers on the black market for a cheaper price, costing farmers tens of thousands of dollars each year. "One of the tools that could be used by law enforcement agencies to prevent fuel theft on California farms is the suspension of a convicted thief's driver's license. The National Association of Convenience Stores reports that as of April 2004, at least 25 states have passed laws in which a judge has discretion to suspend the driver's license of a person convicted of gas theft. However, California law does not currently provide judges with similar authority to penalize SB 703 Page 5 individuals convicted of stealing fuel on the farm or otherwise. "By authorizing judges to suspend the license and confiscate the vehicle of an individual caught stealing diesel fuel from agricultural property, this bill will save growers money and improve the security of fuel on California farms." 2)Increase in the Theft of Diesel Fuel : According to background information from the Fresno Bee (June 2, 2004) the cost to the farmers of the theft of diesel fuel goes beyond the price of the fuel. A Fresno County Sheriff's Department spokesman states, "It can shut them down for a time and add to losses for farmers who are struggling to stay in business." According to the article, a Fresno County supervisor stated that the stolen fuel could also pose a risk to homeland security because it, along with fertilizer, could be used for explosive devices. 3)Is There a Nexus between Theft of Diesel Fuel and the Penalties Proposed by this Bill ? This bill proposes suspension of the driver's licenses of persons convicted of the theft of diesel fuel and impoundment of their vehicles used in furtherance of the theft. There is no evidence that a majority of the people who steal diesel fuel own the vehicles used to steal the diesel fuel, or even that they have driver's licenses. If a person does have a driver's license, is there a rational basis to suspend the driver's license of a person convicted of stealing diesel fuel but not a person convicted of stealing avocados, mussels, or dogs worth more than $400? What about a person convicted of siphoning regular gasoline from cars parked on the street? 4)Is This Bill Internally Inconsistent ? If a person is convicted of stealing diesel fuel, what is the rationale for allowing the court to restrict the person's driving privilege if he or she must drive in the course of his or her employment? It could be argued that a professional driver convicted of stealing diesel fuel may have stolen the diesel fuel to facilitate his or her employment by reducing the cost and thus increasing the profits of that driving employment. For example, why should the driver's license of a stay-at-home SB 703 Page 6 parent be completely suspended when the driver's license of a teamster merely be restricted if both have committed the same crime of stealing diesel fuel? What is the purpose of the increasing periods of suspension for successive violations, especially in view of the unfettered ability of the court to order only license restriction for certain classes of people convicted of the theft of diesel fuel? It could be argued that a person who drives in connection with his or her employment and is convicted of stealing diesel fuel on multiple occasions should not be allowed to continue to drive on a restricted license. Additionally, the successive periods of license suspension for a chronic diesel fuel thief ignores the likelihood that the person with several grand theft convictions will be imprisoned at some point and, therefore, not affected by a driver's license suspension that is concurrent with his or her sentence. 5)Forfeiture Issues : Although specifically allowed for by certain Vehicle Code provisions, the forfeiture of a vehicle raises a number of societal concerns where the vehicle is owned by a married person and is community, not separate, property. Additionally, even if the vehicle being forfeited is legally owned by only the diesel fuel thief, that vehicle may in fact be a household vehicle used by family members or partners completely innocent of the crime of theft of diesel fuel. Forfeiture and sale of a vehicle because it was used in the commission of a crime poses potential significant hardships on other innocent persons who depend on that vehicle for transportation, notwithstanding the fact that they may not be legal owners. The courts have held that a state's suspension of a driver's license for statutorily defined cause must comport with constitutional due process requirements, to protect against an erroneous deprivation of the driver's property interest in that license. [ Mackey v. Montrym , 443 U.S. 1 (1979); Peretto v. Department of Motor Vehicles , 235 Cal. App. 3d 449 (1991); rev. denied.] Although this bill proposes to utilize the forfeiture provisions of the Vehicle Code as to hearings and the priority order of disbursement of the proceeds of the vehicle's sale, those procedures apply to persons with prior convictions of specified driver's license provisions. SB 703 Page 7 The proceeds of the sale of a forfeited vehicle go first to satisfy towing charges; then to the legal owner to satisfy indebtedness; then to the holder of any subordinate liens; and, finally, to any other person who can establish an interest in the vehicle, including a community property interest. If there are remaining proceeds, they are divided between local agencies and the state. REGISTERED SUPPORT / OPPOSITION : Support None on file Opposition None on file Analysis Prepared by : Kathleen Ragan / PUB. S. / (916) 319-3744