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AB-1065 Shoplifting: organized retail theft: arrests.(2017-2018)

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Date Published: 06/23/2017 04:00 AM
AB1065:v97#DOCUMENT

Amended  IN  Senate  June 22, 2017
Amended  IN  Assembly  May 26, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 1065


Introduced by Assembly Member Jones-Sawyer

February 16, 2017


An act to amend Section 2713.1 of amend Section 853.6 of, and to add Section 490.4 to, the Penal Code, relating to prisoners. shoplifting.


LEGISLATIVE COUNSEL'S DIGEST


AB 1065, as amended, Jones-Sawyer. Prisoners: payment upon release. Shoplifting: organized retail theft: arrests.
(1) Existing law, 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, makes the theft of money, labor, or property petty theft, punishable as a misdemeanor, whenever the value of the property taken does not exceed $950. Proposition 47 requires shoplifting, defined as entering a commercial establishment with the intent to commit larceny where the property taken does not exceed $950, to be punished as a misdemeanor. Proposition 47 requires that the act of shoplifting be charged as shoplifting and prohibits a person who is charged with shoplifting to be charged with burglary or theft of the same property. The California Constitution authorizes the Legislature to amend an initiative statute by another statute that becomes effective only when approved by the electors.
This bill would make it a misdemeanor or a felony to commit organized retail theft, defined as conspiring with 2 or more persons to commit theft of merchandise with the intent to sell the stolen property or to place the stolen property in the control of a retail property fence. The bill would make this provision effective only upon approval by the voters, and would require the submission of this measure to the voters for approval at the statewide general election.
(2) Existing law generally requires that a person arrested for a misdemeanor be released upon his or her signed promise to appear in court at a later specified date, unless one of specified reasons exists for nonrelease, including, among others, when the person arrested is so intoxicated that he or she could be a danger to himself or herself or others, the person arrested requires medical care, or the person arrested has outstanding arrest warrants.
This bill would add an arrest for shoplifting within 180 days of having previously been convicted of shoplifting as a reason for nonrelease.

Existing law requires that a prisoner be paid $200, in addition to any other payment to which the prisoner is entitled by law, upon release from a state prison. Existing law requires that the Department of Corrections and Rehabilitation prescribe rules and regulations to establish procedures for the payment of the $200 within the first 60 days of a prisoner’s release.

This bill would require the department to establish procedures for the payment of the sum within the first 45 days of the prisoner’s release.

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

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


SECTION 1.

 Section 490.4 is added to the Penal Code, to read:

490.4.
 (a) Notwithstanding Section 459.5, organized retail theft is conspiring with two or more persons to commit theft of merchandise with the intent to sell the stolen property or to place the stolen property in the control of a retail property fence. Organized retail theft is punishable by imprisonment in a county jail for not more than one year, or by imprisonment pursuant to subdivision (h) of Section 1170.
(b) As used in this section, the following terms have the following meanings:
(1) “Merchandise” has the same meaning as provided in subdivision (g) of Section 490.5.
(2) “Retail property fence” means a person or business that buys merchandise knowing or believing that it is stolen.

SEC. 2.

 Section 853.6 of the Penal Code is amended to read:

853.6.
 (a) (1) In any case in which a person is arrested for an offense declared to be a misdemeanor, including a violation of any city or county ordinance, and does not demand to be taken before a magistrate, that person shall, instead of being taken before a magistrate, be released according to the procedures set forth by this chapter, although nothing prevents an officer from first booking an arrestee pursuant to subdivision (g). If the person is released, the officer or his or her superior shall prepare in duplicate a written notice to appear in court, containing the name and address of the person, the offense charged, and the time when, and place where, the person shall appear in court. If, pursuant to subdivision (i), the person is not released prior to being booked and the officer in charge of the booking or his or her superior determines that the person should be released, the officer or his or her superior shall prepare a written notice to appear in a court.
(2) In any case in which a person is arrested for a misdemeanor violation of a protective court order involving domestic violence, as defined in subdivision (b) of Section 13700, or arrested pursuant to a policy, as described in Section 13701, the person shall be taken before a magistrate instead of being released according to the procedures set forth in this chapter, unless the arresting officer determines that there is not a reasonable likelihood that the offense will continue or resume or that the safety of persons or property would be imminently endangered by release of the person arrested. Prior to adopting these provisions, each city, county, or city and county shall develop a protocol to assist officers to determine when arrest and release is appropriate, rather than taking the arrested person before a magistrate. The county shall establish a committee to develop the protocol, consisting of, at a minimum, the police chief or county sheriff within the jurisdiction, the district attorney, county counsel, city attorney, representatives from domestic violence shelters, domestic violence councils, and other relevant community agencies.
(3) This subdivision shall not apply to the crimes specified in Section 1270.1, including crimes defined in each of the following:
(A) Paragraph (1) of subdivision (e) of Section 243.
(B) Section 273.5.
(C) Section 273.6, if the detained person made threats to kill or harm, has engaged in violence against, or has gone to the residence or workplace of, the protected party.
(D) Section 646.9.
(4) Nothing in this subdivision shall be construed to affect a defendant’s ability to be released on bail or on his or her own recognizance, except as specified in Section 1270.1.
(b) Unless waived by the person, the time specified in the notice to appear shall be at least 10 days after arrest if the duplicate notice is to be filed by the officer with the magistrate.
(c) The place specified in the notice shall be the court of the magistrate before whom the person would be taken if the requirement of taking an arrested person before a magistrate were complied with, or shall be an officer authorized by that court to receive a deposit of bail.
(d) The officer shall deliver one copy of the notice to appear to the arrested person, and the arrested person, in order to secure release, shall give his or her written promise to appear in court as specified in the notice by signing the duplicate notice which shall be retained by the officer, and the officer may require the arrested person, if he or she has no satisfactory identification, to place a right thumbprint, or a left thumbprint or fingerprint if the person has a missing or disfigured right thumb, on the notice to appear. Except for law enforcement purposes relating to the identity of the arrestee, no person or entity may sell, give away, allow the distribution of, include in a database, or create a database with, this print. Upon the signing of the duplicate notice, the arresting officer shall immediately release the person arrested from custody.
(e) The officer shall, as soon as practicable, file the duplicate notice, as follows:
(1) It shall be filed with the magistrate if the offense charged is an infraction.
(2) It shall be filed with the magistrate if the prosecuting attorney has previously directed the officer to do so.
(3) (A) The duplicate notice and underlying police reports in support of the charge or charges shall be filed with the prosecuting attorney in cases other than those specified in paragraphs (1) and (2).

If

(B) If the duplicate notice is filed with the prosecuting attorney, he or she, within his or her discretion, may initiate prosecution by filing the notice or a formal complaint with the magistrate specified in the duplicate notice within 25 days from the time of arrest. If the prosecution is not to be initiated, the prosecutor shall send notice to the person arrested at the address on the notice to appear. The failure by the prosecutor to file the notice or formal complaint within 25 days of the time of the arrest shall not bar further prosecution of the misdemeanor charged in the notice to appear. However, any further prosecution shall be preceded by a new and separate citation or an arrest warrant.

Upon

(C) Upon the filing of the notice with the magistrate by the officer, or the filing of the notice or formal complaint by the prosecutor, the magistrate may fix the amount of bail that in his or her judgment, in accordance with Section 1275, is reasonable and sufficient for the appearance of the defendant and shall endorse upon the notice a statement signed by him or her in the form set forth in Section 815a. The defendant may, prior to the date upon which he or she promised to appear in court, deposit with the magistrate the amount of bail set by the magistrate. At the time the case is called for arraignment before the magistrate, if the defendant does not appear, either in person or by counsel, the magistrate may declare the bail forfeited, and may, in his or her discretion, order that no further proceedings shall be had in the case, unless the defendant has been charged with a violation of Section 374.3 or 374.7 of this code or of Section 11357, 11360, or 13002 of the Health and Safety Code, or a violation punishable under Section 5008.7 of the Public Resources Code, and he or she has previously been convicted of a violation of that section or a violation that is punishable under that section, except in cases where the magistrate finds that undue hardship will be imposed upon the defendant by requiring him or her to appear, the magistrate may declare the bail forfeited and order that no further proceedings be had in the case.

Upon

(D) Upon the making of the order that no further proceedings be had, all sums deposited as bail shall immediately be paid into the county treasury for distribution pursuant to Section 1463.
(f) No A warrant shall not be issued for the arrest of a person who has given a written promise to appear in court, unless and until he or she has violated that promise or has failed to deposit bail, to appear for arraignment, trial, or judgment or to comply with the terms and provisions of the judgment, as required by law.
(g) The officer may book the arrested person at the scene or at the arresting agency prior to release or indicate on the citation that the arrested person shall appear at the arresting agency to be booked or indicate on the citation that the arrested person shall appear at the arresting agency to be fingerprinted prior to the date the arrested person appears in court. If it is indicated on the citation that the arrested person shall be booked or fingerprinted prior to the date of the person’s court appearance, the arresting agency at the time of booking or fingerprinting shall provide the arrested person with verification of the booking or fingerprinting by making an entry on the citation. If it is indicated on the citation that the arrested person is to be booked or fingerprinted, the magistrate, judge, or court shall, before the proceedings begin, order the defendant to provide verification that he or she was booked or fingerprinted by the arresting agency. If the defendant cannot produce the verification, the magistrate, judge, or court shall require that the defendant be booked or fingerprinted by the arresting agency before the next court appearance, and that the defendant provide the verification at the next court appearance unless both parties stipulate that booking or fingerprinting is not necessary.
(h) A peace officer shall use the written notice to appear procedure set forth in this section for any misdemeanor offense in which the officer has arrested a person without a warrant pursuant to Section 836 or in which he or she has taken custody of a person pursuant to Section 847.
(i) (1) Whenever any person is arrested by a peace officer for a misdemeanor, that person shall be released according to the procedures set forth by this chapter unless one of the following is a reason for nonrelease, in which case the arresting officer may release the person, except as provided in subdivision (a), or the arresting officer shall indicate, on a form to be established by his or her employing law enforcement agency, which of the following was a reason for the nonrelease:

(1)

(A) The person arrested was so intoxicated that he or she could have been a danger to himself or herself or to others.

(2)

(B) The person arrested required medical examination or medical care or was otherwise unable to care for his or her own safety.

(3)

(C) The person was arrested under one or more of the circumstances listed in Sections 40302 and 40303 of the Vehicle Code.

(4)

(D) There were one or more outstanding arrest warrants for the person.

(5)

(E) The person could not provide satisfactory evidence of personal identification.

(6)

(F) The prosecution of the offense or offenses for which the person was arrested, or the prosecution of any other offense or offenses, would be jeopardized by immediate release of the person arrested.

(7)

(G) There was a reasonable likelihood that the offense or offenses would continue or resume, or that the safety of persons or property would be imminently endangered by release of the person arrested.

(8)

(H) The person arrested demanded to be taken before a magistrate or refused to sign the notice to appear.

(9)

(I) There is reason to believe that the person would not appear at the time and place specified in the notice. The basis for this determination shall be specifically stated.

(10)

(J) The person was subject to Section 1270.1.
(K) The person was arrested for shoplifting within 180 days of having previously been convicted of shoplifting under Section 459.5.

The

(2) The form shall be filed with the arresting agency as soon as practicable and shall be made available to any party having custody of the arrested person, subsequent to the arresting officer, and to any person authorized by law to release him or her from custody before trial.
(j) (1) Once the arresting officer has prepared the written notice to appear and has delivered a copy to the person arrested, the officer shall deliver the remaining original and all copies as provided by subdivision (e).

Any

(2) Any person, including the arresting officer and any member of the officer’s department or agency, or any peace officer, who alters, conceals, modifies, nullifies, or destroys, or causes to be altered, concealed, modified, nullified, or destroyed, the face side of the remaining original or any copy of a citation that was retained by the officer, for any reason, before it is filed with the magistrate or with a person authorized by the magistrate to receive deposit of bail, is guilty of a misdemeanor.

If,

(3) If, after an arrested person has signed and received a copy of a notice to appear, the arresting officer determines that, in the interest of justice, the citation or notice should be dismissed, the arresting agency may recommend, in writing, to the magistrate that the charges be dismissed. The recommendation shall cite the reasons for the recommendation and shall be filed with the court.

If

(4) If the magistrate makes a finding that there are grounds for dismissal, the finding shall be entered in the record and the charges dismissed.

Under

(5) Under no circumstances shall a personal relationship with any officer, public official, or law enforcement agency be grounds for dismissal.
(k) (1) A person contesting a charge by claiming under penalty of perjury not to be the person issued the notice to appear may choose to submit a right thumbprint, or a left thumbprint if the person has a missing or disfigured right thumb, to the issuing court through his or her local law enforcement agency for comparison with the one placed on the notice to appear. A local law enforcement agency providing this service may charge the requester no more than the actual costs. The issuing court may refer the thumbprint submitted and the notice to appear to the prosecuting attorney for comparison of the thumbprints. When there is no thumbprint or fingerprint on the notice to appear, or when the comparison of thumbprints is inconclusive, the court shall refer the notice to appear or copy thereof back to the issuing agency for further investigation, unless the court finds that referral is not in the interest of justice.
(2) Upon initiation of the investigation or comparison process by referral of the court, the court shall continue the case and the speedy trial period shall be tolled for 45 days.
(3) Upon receipt of the issuing agency’s or prosecuting attorney’s response, the court may make a finding of factual innocence pursuant to Section 530.6 if the court determines that there is insufficient evidence that the person cited is the person charged and shall immediately notify the Department of Motor Vehicles of its determination. If the Department of Motor Vehicles determines the citation or citations in question formed the basis of a suspension or revocation of the person’s driving privilege, the department shall immediately set aside the action.
(4) If the prosecuting attorney or issuing agency fails to respond to a court referral within 45 days, the court shall make a finding of factual innocence pursuant to Section 530.6, unless the court finds that a finding of factual innocence is not in the interest of justice.
(5) The citation or notice to appear may be held by the prosecuting attorney or issuing agency for future adjudication should the arrestee who received the citation or notice to appear be found.
(l) For purposes of this section, the term “arresting agency” includes any other agency designated by the arresting agency to provide booking or fingerprinting services.

SEC. 3.

 Section 1 of this act amends the Safe Neighborhoods and Schools Act, Proposition 47, an initiative statute, and shall become effective only when submitted to and approved by the voters at a statewide election. The Secretary of State shall submit Section 1 of this act for approval by the voters at a statewide election in accordance with Section 9040 of the Elections Code.
SECTION 1.Section 2713.1 of the Penal Code is amended to read:
2713.1.

(a)In addition to any other payment to which the prisoner is entitled by law, each prisoner, upon release, shall be paid the sum of two hundred dollars ($200) from moneys made available by appropriation for the purposes of this section.

(b)The department may prescribe rules and regulations to do any of the following:

(1)Limit or eliminate payments made pursuant to this section to prisoners who have not served at least six consecutive months prior to their release when the department determines that the payment is not necessary for rehabilitation of the prisoner.

(2)Establish procedures for the payment of the sum of two hundred dollars ($200) within the first 45 days of a prisoner’s release.

(3)Eliminate any payment provided for in this section to a parolee who, upon release, has not been paid the entire amount prescribed by this section and who willfully absconds after release on parole, but before any remaining balance of the two hundred dollar ($200) release funds has been paid.

(c)The provisions of this section do not apply if a prisoner is released to the custody of another state or to the custody of the federal government.