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  








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               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,









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               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  








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            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  








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            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  








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            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.  








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          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