Bill Text: CA AB335 | 2023-2024 | Regular Session | Amended

California Assembly Bill 335

Bill Title: Retail theft.

Spectrum: Bipartisan Bill

Status: (Failed) 2024-02-01 - From committee: Filed with the Chief Clerk pursuant to Joint Rule 56. [AB335 Detail]

Download: California-2023-AB335-Amended.html

Amended IN Assembly March 09, 2023

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill

No. 335

Introduced by Assembly Member Alanis
(Coauthor: Senator Alvarado-Gil)

January 30, 2023

An act to repeal Chapter 33 (commencing with Section 7599) of Division 7 of Title 1 of the Government Code, to amend Sections 11350 and 11377 of the Health and Safety Code, and to amend Sections 473, 476a, 496, and 666 of, and to repeal Sections 459.5, 490.2, and 1170.18 of, the Penal Code, relating to crimes. add and repeal Section 490.8 of the Penal Code, relating to retail theft.

LEGISLATIVE COUNSEL'S DIGEST

AB 335, as amended, Alanis. ~~Proposition 47: repeal.~~ Retail theft.

Existing law, until January 1, 2026, makes it a misdemeanor to commit organized retail theft. Existing law defines organized retail theft to include, among other acts, 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. Under existing law, acts of organized retail theft that are committed on 2 or more separate occasions within a 12-month period and that have an aggregate value that exceeds $950 are punishable as a misdemeanor or a felony.
This bill would require the Milton Marks “Little Hoover” Commission on California State Government Organization and Economy to submit a report to the Legislature describing the reported retail thefts, as specified. This bill would also require state and local law enforcement to collect and provide data on retail theft to the commission, as specified. This bill would require the commission to issue its report to the Legislature no later than January 1, 2026. By imposing new duties on local entities, the 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, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
The Safe Neighborhoods and Schools Act, enacted as an initiative statute by Proposition 47, as approved by the electors at the November 4, 2014, statewide general election, made various changes relating to theft and the possession of controlled substances, including by, among other things, generally reducing the penalty for those crimes, including reducing the penalty for possession of concentrated cannabis, establishing a procedure by which individuals convicted of those crimes prior to the passage of the act may petition for resentencing under the act, and creating the crime of shoplifting. The act also requires the Director of Finance to calculate the savings accruing to the state as a result of the implementation of the act and requires the Controller to transfer that sum from the General Fund to the Safe Neighborhoods and Schools Fund, which was created by the act. The act specifies the manner of distribution of those funds and the purposes for which they may be used.
This bill would repeal the changes and additions made by Proposition 47, except those related to reducing the penalty for possession of concentrated cannabis. This bill would provide that it would become effective only upon approval of the voters, and would provide for the submission of this measure to the voters for approval at the next statewide general election.

Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: NOYES

The people of the State of California do enact as follows:

SECTION 1.

Section 490.8 is added to the Penal Code, to read:

490.8.
(a) The Milton Marks “Little Hoover” Commission on California State Government Organization and Economy, established pursuant to Section 8501 of the Government Code, shall submit a report to the Legislature on retail theft, shoplifting, and organized retail theft in California. The report shall include, at a minimum, all of the following:
(1) Information on retail thefts, shoplifting, and organized retail thefts reported to all state and local law enforcement agencies, including, but not limited to, the number of reported retail thefts, shoplifting, and organized retail thefts made to each law enforcement agency, the size of the business, if known, the type of property reported stolen, if known, and monetary value of the property reported stolen, if known.
(2) Information on every state and local law enforcement agency’s response to each report of retail theft, shoplifting, and organized retail theft, including, but not limited to, the average amount of time taken by the law enforcement agency to respond to the reported theft, whether the reported theft was investigated by law enforcement, whether an arrest was made in response to each report, whether a citation was made in response to each report, and, if so, which, and whether the investigating law enforcement referred the theft, retail theft, shoplifting, and organized retail theft to the district attorney for prosecution.
(3) Information on whether the district attorney who received reports of retail thefts, shoplifting, and organized retail thefts from law enforcement agencies filed criminal charges in each case, and, if charges were not filed, the extent to which this was due to the district attorney’s determination that there was insufficient evidence to prosecute the offense, due to policies relating to the prioritization of filing charges in these types of cases, or due to some other reason for declining to file criminal charges in these cases.
(4) Countywide statistical information, including, but not limited to, the amount of reports of theft, shoplifting, and organized retail theft made to law enforcement in each county and the corresponding response, the amount of arrests made for theft, shoplifting, and organized retail theft in each county, the amount of citations given for theft, shoplifting, and organized retail theft in each county, the number of cases referred to the district attorney for prosecution for theft, shoplifting, and organized retail theft in each county, and the disposition of each case referred to the district attorney for prosecution in each county.
(b) The commission shall include any findings and recommendations relating to laws, policies, and practices regarding retail theft, shoplifting, and organized retail theft in California in the report.
(c) State and local law enforcement agencies shall collect and share the required information with the commission for the purpose of the report.
(d) The commission shall provide the report to the Legislature no later than January 1, 2026. The report shall be submitted in compliance with Section 9795 of the Government Code.
(e) This section shall remain in effect only until January 1, 2027, and as of that date is repealed.

SEC. 2.
If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.

SECTION 1.Chapter 33 (commencing with Section 7599) of Division 7 of Title 1 of the Government Code is repealed.
SEC. 2.Section 11350 of the Health and Safety Code is amended to read:
11350.
(a) Except as otherwise provided in this division, every person who possesses (1) any controlled substance specified in subdivision (b) or (c), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code.
(b)Except as otherwise provided in this division, every person who possesses any controlled substance specified in subdivision (e) of Section 11054 shall be punished by imprisonment in a county jail for not more than one year, or pursuant to subdivision (h) of Section 1170 of the Penal Code.
(c)Except as otherwise provided in this division, whenever a person who possesses any of the controlled substances specified in subdivision (a) or (b), the judge may, in addition to any punishment provided for pursuant to subdivision (a), assess against that person a fine not to exceed seventy dollars ($70) with proceeds of this fine to be used in accordance with Section 1463.23 of the Penal Code. The court shall, however, take into consideration the defendant’s ability to pay, and no defendant shall be denied probation because of their inability to pay the fine permitted under this subdivision.
(d)Except in unusual cases in which it would not serve the interest of justice to do so, whenever a court grants probation pursuant to a felony conviction under this section, in addition to any other conditions of probation which may be imposed, the following conditions of probation shall be ordered:
~~(1) For a first offense under this section, a fine of at least one thousand dollars ($1,000) or community service.~~
~~(2) For a second or subsequent offense under this section, a fine of at least two thousand dollars ($2,000) or community service.~~
~~(3) If a defendant does not have the ability to pay the minimum fines specified in paragraphs (1) and (2), community service shall be ordered in lieu of the fine.~~
~~(e)It is not unlawful for a person other than the prescription holder to possess a controlled substance described in subdivision (a) if both of the following apply:~~
~~(1)The possession of the controlled substance is at the direction or with the express authorization of the prescription holder.~~
~~(2)The sole intent of the possessor is to deliver the prescription to the prescription holder for its prescribed use or to discard the substance in a lawful manner.~~
(f)This section does not permit the use of a controlled substance by a person other than the prescription holder or permit the distribution or sale of a controlled substance that is otherwise inconsistent with the prescription.
SEC. 3.Section 11377 of the Health and Safety Code is amended to read:
11377.
(a)Except as authorized by law and as otherwise provided in subdivision (b) or Section 11375, or in Article 7 (commencing with Section 4211) of Chapter 9 of Division 2 of the Business and Professions Code, every person who possesses any controlled substance which is (1) classified in Schedule III, IV, or V, and which is not a narcotic drug, (2) specified in subdivision (d) of Section 11054, except paragraphs (13), (14), (15), and (20) of subdivision (d), (3) specified in paragraph (11) of subdivision (c) of Section 11056, (4) specified in paragraph (2) or (3) of subdivision (f) of Section 11054, or (5) specified in subdivision (d), (e), or (f) of Section 11055, unless upon the prescription of a physician, dentist, podiatrist, or veterinarian, licensed to practice in this state, shall be punished by imprisonment in a county jail for a period of not more than one year, or pursuant to subdivision (h) of Section 1170 of the Penal Code.
(b)(1)Any person who violates subdivision (a) by unlawfully possessing a controlled substance specified in subdivision (f) of Section 11056, and who has not previously been convicted of a violation involving a controlled substance specified in subdivision (f) of Section 11056, is guilty of a misdemeanor.
~~(2)Any person who violates subdivision (a) by unlawfully possessing a controlled substance specified in subdivision (g) of Section 11056 is guilty of a misdemeanor.~~
~~(3)Any person who violates subdivision (a) by unlawfully possessing a controlled substance specified in paragraph (7) or (8) of subdivision (d) of Section 11055 is guilty of a misdemeanor.~~
~~(4)Any person who violates subdivision (a) by unlawfully possessing a controlled substance specified in paragraph (8) of subdivision (f) of Section 11057 is guilty of a misdemeanor.~~
(c)In addition to any fine assessed under subdivision (b), the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates subdivision (a), with the proceeds of this fine to be used in accordance with Section 1463.23 of the Penal Code. The court shall, however, take into consideration the defendant’s ability to pay, and no defendant shall be denied probation because of their inability to pay the fine permitted under this subdivision.
~~(d)It is not unlawful for a person other than the prescription holder to possess a controlled substance described in subdivision (a) if both of the following apply:~~
~~(1)The possession of the controlled substance is at the direction or with the express authorization of the prescription holder.~~
~~(2)The sole intent of the possessor is to deliver the prescription to the prescription holder for its prescribed use or to discard the substance in a lawful manner.~~
(e)This section does not permit the use of a controlled substance by a person other than the prescription holder or permit the distribution or sale of a controlled substance that is otherwise inconsistent with the prescription.
SEC. 4.Section 459.5 of the Penal Code is repealed.
SEC. 5.Section 473 of the Penal Code is amended to read:
473.
~~Forgery is punishable by imprisonment in a county jail for not more than one year, or by imprisonment pursuant to subdivision (h) of Section 1170.~~
SEC. 6.Section 476a of the Penal Code is amended to read:
476a.
(a)Any person who, for themselves, as the agent or representative of another, or as an officer of a corporation, willfully, with intent to defraud, makes or draws or utters or delivers a check, draft, or order upon a bank or depositary, a person, a firm, or a corporation, for the payment of money, knowing at the time of that making, drawing, uttering, or delivering that the maker or drawer or the corporation has not sufficient funds in, or credit with the bank or depositary, person, firm, or corporation, for the payment of that check, draft, or order and all other checks, drafts, or orders upon funds then outstanding, in full upon its presentation, although no express representation is made with reference thereto, is punishable by imprisonment in a county jail for not more than one year, or pursuant to subdivision (h) of Section 1170.
(b)However, if the total amount of all checks, drafts, or orders that the defendant is charged with and convicted of making, drawing, or uttering does not exceed four hundred fifty dollars ($450), the offense is punishable only by imprisonment in the county jail for not more than one year. This subdivision shall not be applicable if the defendant has previously been convicted of a violation of Section 470, 475, or 476, or of this section, or of the crime of petty theft in a case in which defendant’s offense was a violation also of Section 470, 475, or 476 or of this section or if the defendant has previously been convicted of any offense under the laws of any other state or of the United States which, if committed in this state, would have been punishable as a violation of Section 470, 475 or 476 or of this section or if the defendant has been so convicted of the crime of petty theft in a case in which, if defendant’s offense had been committed in this state, it would have been a violation also of Section 470, 475, or 476, or of this section.
(c)Where the check, draft, or order is protested on the ground of insufficiency of funds or credit, the notice of protest shall be admissible as proof of presentation, nonpayment, and protest and shall be presumptive evidence of knowledge of insufficiency of funds or credit with the bank or depositary, person, firm, or corporation.
(d)In any prosecution under this section involving two or more checks, drafts, or orders, it shall constitute prima facie evidence of the identity of the drawer of a check, draft, or order if both of the following occur:
(1)When the payee accepts the check, draft, or order from the drawer, the payee obtains from the drawer the following information: name and residence of the drawer, business or mailing address, either a valid driver’s license number or Department of Motor Vehicles identification card number, and the drawer’s home or work phone number or place of employment. That information may be recorded on the check, draft, or order itself or may be retained on file by the payee and referred to on the check, draft, or order by identifying number or other similar means.
~~(2)The person receiving the check, draft, or order witnesses the drawer’s signature or endorsement, and, as evidence of that, initials the check, draft, or order at the time of receipt.~~
(e)The word “credit” as used herein shall be construed to mean an arrangement or understanding with the bank or depositary, person, firm, or corporation for the payment of a check, draft, or order.
(f)If any of the preceding paragraphs, or parts thereof, shall be found unconstitutional or invalid, the remainder of this section shall not thereby be invalidated, but shall remain in full force and effect.
(g)A sheriff’s department, police department, or other law enforcement agency may collect a fee from the defendant for investigation, collection, and processing of checks referred to their agency for investigation of alleged violations of this section or Section 476.
(h)The amount of the fee shall not exceed twenty-five dollars ($25) for each bad check, in addition to the amount of any bank charges incurred by the victim as a result of the alleged offense. If the sheriff’s department, police department, or other law enforcement agency collects a fee for bank charges incurred by the victim pursuant to this section, that fee shall be paid to the victim for any bank fees the victim may have been assessed. In no event shall reimbursement of the bank charge to the victim pursuant to this section exceed ten dollars ($10) per check.
SEC. 7.Section 490.2 of the Penal Code is repealed.
SEC. 8.Section 496 of the Penal Code is amended to read:
496.
(a)Every person who buys or receives any 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, shall be punished by imprisonment in a county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section 1170. However, if the district attorney or the grand jury determines that this action would be in the interests of justice, the district attorney or the grand jury, as the case may be, may, if the value of the property does not exceed nine hundred fifty dollars ($950), specify in the accusatory pleading that the offense shall be a misdemeanor, punishable only by imprisonment in a county jail not exceeding one year.
~~A principal in the actual theft of the property may be convicted pursuant to this section. However, no person may be convicted both pursuant to this section and of the theft of the same property.~~
(b)Every swap meet vendor, as defined in Section 21661 of the Business and Professions Code, and every person whose principal business is dealing in, or collecting, merchandise or personal property, and every agent, employee, or representative of that person, who buys or receives any property of a value in excess of nine hundred fifty dollars ($950) that has been stolen or obtained in any manner constituting theft or extortion, under circumstances that should cause the person, agent, employee, or representative to make reasonable inquiry to ascertain that the person from whom the property was bought or received had the legal right to sell or deliver it, without making a reasonable inquiry, shall be punished by imprisonment in a county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section 1170.
Every swap meet vendor, as defined in Section 21661 of the Business and Professions Code, and every person whose principal business is dealing in, or collecting, merchandise or personal property, and every agent, employee, or representative of that person, who buys or receives any property of a value of nine hundred fifty dollars ($950) or less that has been stolen or obtained in any manner constituting theft or extortion, under circumstances that should cause the person, agent, employee, or representative to make reasonable inquiry to ascertain that the person from whom the property was bought or received had the legal right to sell or deliver it, without making a reasonable inquiry, shall be guilty of a misdemeanor.
(c)Any person who has been injured by a violation of subdivision (a) or (b) may bring an action for three times the amount of actual damages, if any, sustained by the plaintiff, costs of suit, and reasonable attorney’s fees.
(d)Notwithstanding Section 664, any attempt to commit any act prohibited by this section, except an offense specified in the accusatory pleading as a misdemeanor, is punishable by imprisonment in a county jail for not more than one year, or by imprisonment pursuant to subdivision (h) of Section 1170.
SEC. 9.Section 666 of the Penal Code is amended to read:
666.
(a)Notwithstanding Section 490, every person who, having been convicted three or more times of petty theft, grand theft, a conviction pursuant to subdivision (d) or (e) of Section 368, auto theft under Section 10851 of the Vehicle Code, burglary, carjacking, robbery, or a felony violation of Section 496 and having served a term therefor in any penal institution or having been imprisoned therein as a condition of probation for that offense, and who is subsequently convicted of petty theft, is punishable by imprisonment in a county jail not exceeding one year, or imprisonment pursuant to subdivision (h) of Section 1170.
(b)Notwithstanding Section 490, any person described in paragraph (1) who, having been convicted of petty theft, grand theft, a conviction pursuant to subdivision (d) or (e) of Section 368, auto theft under Section 10851 of the Vehicle Code, burglary, carjacking, robbery, or a felony violation of Section 496, and having served a term of imprisonment therefor in any penal institution or having been imprisoned therein as a condition of probation for that offense, and who is subsequently convicted of petty theft, is punishable by imprisonment in the county jail not exceeding one year, or in the state prison.
(1)This subdivision shall apply to any person who is required to register pursuant to the Sex Offender Registration Act, or who has a prior violent or serious felony conviction, as specified in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.
~~(2)This subdivision shall not be construed to preclude prosecution or punishment pursuant to subdivisions (b) to (i), inclusive, of Section 667, or Section 1170.12.~~
SEC. 10.Section 1170.18 of the Penal Code is repealed.
SEC. 11.
Sections 1 to 10, inclusive, of this act amend the Safe Neighborhoods and Schools Act, enacted as an initiative statute by Proposition 47, as approved by the electors at the November 4, 2014, statewide election, and shall become effective only when submitted to and approved by the voters. The Secretary of State shall submit Sections 1 to 10, inclusive, of this act for approval by the voters at a statewide election in accordance with Section 9040 of the Elections Code.