BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator Bruce McPherson, Chair S
2003-2004 Regular Session B
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SB 703 (Florez)
As Amended August 18, 2004
Hearing date: August 27, 2004
Penal Code
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GRAND THEFT
THEFT OF DIESEL FUEL IN EXCESS OF $100 IN VALUE
HISTORY
Source: Author
Prior Legislation: No recent legislation directly on point
Support: Unknown
Opposition:American Civil Liberties Union; California Attorneys
for Criminal Justice
Assembly Floor Vote: Ayes 79 - Noes 0
(NOTE: THIS BILL IS BEING HEARD PURSUANT TO SENATE RULE 29.10.)
KEY ISSUE
SHOULD THE TAKING FROM "AGRICULTURAL PROPERTY" OF DIESEL FUEL THAT
EXCEEDS $100 IN VALUE BE DEFINED AS AN ALTERNATE FELONY MISDEMEANOR
THUS LOWERING THE THRESHOLD FOR A FELONY FROM $400 TO $100?
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PURPOSE
The purpose of this bill is to define the taking from
"agricultural property" of diesel fuel of a value exceeding $100
as an alternate felony misdemeanor.
Existing law states that every person who takes, steals, or
drives away the personal property of another is guilty of theft.
(Pen. Code 484, subd. (a).)
Existing law provides that when the value of the property taken
is over $400, the taking constitutes grand theft. (Pen. Code
487, subd. (a).)
Existing law (Pen. Code 487, subds. (a)-(d), except where
otherwise specified) states that notwithstanding the value of
the property taken, grand theft is committed in the following
cases:
? Domestic fowls, avocados, olives, citrus and other specified
farm crops of a value exceeding $100.
? Fish, shellfish, mollusks, crustaceans, kelp, algae or other
aquacultural products, taken from a commercial or research
operation, of a value exceeding $100.
? 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.
? The property is taken from the person of another.
? An automobile, horse, mare, gelding, any bovine animal, any
caprine animal, mule, jack, jenny, sheep, lamb, hog, sow,
boar, gilt, barrow, or pig.
? Firearm.
? The property taken is the carcass of specified animals, which
was misappropriated or killed without the consent of the
owner. (Pen. Code 487a.)
? Conversion of real estate of the value of $100 or more into
personal property by severance from the realty of another
person. (Pen. Code 487b.)
? Taking or stealing of a dog of another person of a value
exceeding $400. (Pen. Code 487e.)
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Existing law provides that all other theft is petty theft.
(Pen. Code 488.)
Existing law 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. (Pen. Code 489, subd. (a).)
Existing law 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. (Pen. Code 489, subd. (b).)
Existing law 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. (Pen. Code 490.)
Existing law 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. (Pen. Code 490.1.)
Existing law 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. (Pen.
Code 496, subd. (a).)
This bill adds the theft from "agricultural property" of diesel
fuel of a value exceeding $100 to the definition "grand theft,"
an alternate felony-misdemeanor.
This bill does not define "agricultural property. "
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COMMENTS
1. Need for This Bill
According to the author:
This bill increases the penalties for the theft of
diesel fuel from agricultural operations.
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 in 2004, 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.
2. History of SB 703 - The Bill Concerned Electricity Rates for
Agricultural Irrigation Pumps
As the bill was introduced, it concerned tariffs on electricity
for agricultural customers. The bill was thereafter amended a
number of times in the Senate. As SB 703 passed the Senate on
January 26, 2004, the bill concerned utility rates for
agricultural irrigation.
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The bill was gutted and amended in the Assembly. The provisions
concerning agricultural irrigation were stripped from the bill.
Instead, the bill was amended to authorize the suspension of the
driver's license of a person who stole diesel fuel from
agricultural property and the impoundment of a vehicle used in
such a crime. The bill was then amended in Assembly Public
Safety to define the theft of diesel fuel of a value exceeding
$100 as grand theft (a wobbler). The Assembly Public Safety
amendments also allowed forfeiture of a vehicle used in the
crime of taking of diesel fuel of a value exceeding $100. The
driver's license provisions were stripped from the bill in
Assembly Public Safety. However, the reference to agricultural
property (as the scene of a crime subject to enhanced penalties)
was eliminated.
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SB 703 was amended in Assembly Appropriations to strip the
forfeiture provisions. Finally, the element that the diesel
fuel (of a value exceeding $100) be taken from agricultural
property was put back into the bill.
3. Expansion of Three Strikes Law
Under the Three Strikes law, a defendant can receive a life
sentence, with a minimum term of 25 years, where he or she is
convicted of any felony after having been previously convicted
of at least two statutorily defined serious or violent felonies.
Where the defendant has a single prior qualifying conviction
and is convicted of any felony in the current case, the
defendant's sentence is doubled. There is no limit on the
remoteness in time of prior convictions subjecting the defendant
to a strike sentence. Because the Three Strikes law applies
where a defendant with "serious" or "violent" prior convictions
is convicted in the current case of any felony, it has been the
policy of the majority of the members of this Committee to not
approve new felonies for non-violent conduct.
This bill expands the alternate felony-misdemeanor of grand
theft to include theft of diesel fuel of a value exceeding $100.
Under existing law, theft of diesel fuel with a value greater
than $400 constitutes grand theft. California law does include
special versions of grand theft for the taking of specified
products, generally agricultural and aquaculture products such
as avocados, nuts mollusks, etc., with a value exceeding $100.
The bill thus expands the reach of the Three Strikes law so as
to cover additional non-violent acts.
DOES THIS BILL EXPAND THE THREE STRIKES LAW FOR NON-VIOLENT
CONDUCT?
4. Issue of the Definition of Agricultural Property - Vagueness
Concerns
This bill creates a new form of the alternate felony-misdemeanor
of grand theft that is committed where a person takes diesel
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fuel worth more than $100 from agricultural property. The bill
does not define agricultural property. Other special forms of
grand theft are defined in terms of specified fruits, vegetables
and domestic fowls of a value exceeding $100. Theft of
"aquacultural products" from a "commercial or research
operation" of a value exceeding $100 is also defined as grand
theft under existing law.
This bill does not define "agricultural property." It may be
argued that this term is vague. Existing law requires proof
that aquacultural products of a value exceeding $100 be taken
from a "commercial or research operation" to constitute grand
theft. Under existing law, it appears that the place from which
avocados, chickens, deciduous fruits are taken is not an element
of grand theft based on the taking of such property with a value
that exceeds $100. That is, it appears that a person took $101
worth of avocados from a neighbor's back yard could be charged
with grand theft. Similarly, it appears that the shoplifting of
over $100 worth of such products could be charged as grand
theft.
However, Committee staff was unable to find appellate cases
interpreting the special grand theft rules for specified fruits
and vegetables and domestic fowls. However, the fact that the
law specifically requires that the theft of aquacultural
products (exceeding $100 in value) be from a commercial or
research facility would likely be interpreted by a court as not
requiring that avocados and the like be taken from a commercial
operation. A contrary argument could be made that the intent of
the Legislature in enacting the special laws for grand theft of
specified fruits and vegetables was to protect the vast
California agricultural economy. Thus, thefts from stores and
the backyards of neighbors should not fall within the reach of
the special grand theft rules.
5. Pending Legislation - AB 2705 - Raising Grand Theft Threshold
From $100 to $200 for Specified Agricultural Products -
Suggested Amendment to Conform This Bill With AB 2705
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AB 2705 (Goldberg) passed the Senate on August 24, 2004, and has
been sent to the governor. AB 2705 generally raises the
threshold for grand theft from $400 to $800 and raises the
threshold for theft specified agricultural and aquacultural
products from $100 to $200. The purpose of this bill, as with
the sections setting a lower threshold to establish grand theft
of avocados and other agricultural products, is to protect the
agriculture industry. It is suggested that this bill should be
amended to include language raising the threshold for theft of
diesel fuel from agricultural property $200, contingent on the
enactment of AB 2705.
SHOULD THIS BILL INCLUDE AN AMENDMENT SETTING THE THRESHOLD FOR
GRAND THEFT OF DIESEL FUEL FROM AGRICULTURAL PROPERTY AT $200,
CONTINGENT UPON THE SIGNING OF AB 2705 (GOLDBERG)?
6. No Double-jointing Language in Either This Bill or AB 2705
AB 2705 and this bill both amend the same Penal Code section.
Whichever might be enacted last would therefore chapter out the
previous if both were to be signed. AB 2705 changes the
threshold for grand theft. This bill is more limited in effect.
However, AB 2705 has already gone to the Governor. Therefore
if the committee approves this bill without any further
amendments - which would require returning the bill to the
Assembly for amendment - then this bill if enacted after AB 2705
would prevent AB 2705 from becoming law (by "chaptering" the AB
2705 language out of the law).
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