AB 2485
ASSEMBLY THIRD READING
AB 2485 (Juan Carrillo)
As Amended March 19, 2024
Majority vote
SUMMARY
Requires the Department of Housing and Community Development (HCD) to take certain actions in determining the existing and projected housing need for each region through the regional housing needs determination (RHND) process.
Major Provisions
1) Requires HCD to publish on its website the data sources, analyses, and methodology to be used by the department to determine the RHND, including specified assumptions and factors used in and applied to the Department of Finance (DOF) projections and engagement process with the council of governments (COG), prior to finalization of the RHND.
2) Requires HCD, for the seventh and subsequent housing element cycles, to assemble and convene an advisory panel to advise HCD on its assumptions and the methodology it shall use for purposes of the RHND. Requires the panel to be composed of all of the following:
a) A United States Census Bureau-affiliated practitioner; b) An expert on specified data; and
c) A representative from the COG.
3) Requires HCD to consult with the advisory panel before making determinations in writing on specified data assumptions and the methodology it shall use for the RHND, and to provide the written determinations to the COG and publish them on HCD's website.
COMMENTS
California's Housing Crisis: California is in the midst of a severe housing crisis. Over two-thirds of low-income renters are paying more than 30% of their income toward housing, a "rent burden" that means they have to sacrifice other essentials such as food, transportation, and health care.1 In 2023, over 181,000 Californians experienced homelessness on a given night, with a sharp increase in the number of people who became homeless for the first time.2 The crisis is driven in large part by the lack of affordable rental housing for lower income people. According to the California Housing Partnership's (CHP) Housing Need Dashboard, in the current market, nearly 2 million extremely low-income and very low-income renter households are competing for roughly 687,000 available and affordable rental units in the state. Over three-quarters of the state's extremely low-income households and over half of the state's very low-income households are severely rent burdened, paying more than 50% of their income toward rent each month. CHP estimates that the state needs an additional 1.3 million housing units affordable to very low-
1 https://chpc.net/housingneeds/
2 https://www.huduser.gov/portal/datasets/ahar/2023-ahar-part-1-pit-estimates-of-homelessness-in-the-us.html AB 2485
income Californians to eliminate the shortfall.3 By contrast, production in the past decade has been under 100,000 housing units per year – including less than 10,000 units of affordable housing per year.4
Adoption and Implementation of Housing Elements: One important tool in addressing the state's housing crisis is to ensure that all of the state's 539 cities and counties appropriately plan for new housing. Such planning is required through the housing element of each community's General Plan, which outlines a long-term plan for meeting the community's existing and projected housing needs. Cities and counties are required to update their housing elements every eight years in most of the high population parts of the state, and five years in areas with smaller populations. Localities must adopt a legally valid housing element by their statutory deadline for adoption. Failure to do so can result in certain escalating penalties, including exposure to the "builder's remedy" as well as public or private lawsuits, financial penalties, potential loss of permitting authority, or even court receivership.
Among other things, the housing element must demonstrate how the community plans to accommodate its share of its region's housing needs allocation (RHNA), which is a figure determined by HCD through a demographic analysis of housing needs, existing housing stock, and population projections in consultation with DOF and the COG. HCD establishes its determination of each COG's regional housing targets across the state for the next five- or eight- year planning cycle. Each COG (or in some areas, HCD acting directly as COG) then sub- allocates the RHNA to each local government within the COG's jurisdiction, and in turn each jurisdiction uses its housing element to show how it will accommodate that number of new housing units, split out by income level and with a focus on certain special needs housing types and on affirmatively furthering fair housing.
It is critical that local jurisdictions adopt legally compliant housing elements on time in order to meet statewide housing goals and create the environment for the successful construction of desperately needed housing at all income levels. Unless communities plan for production and preservation of affordable housing, new housing will be slow or extremely difficult to build.
Adequate zoning, removal of regulatory barriers, protection of existing stock and targeting of resources are essential to obtaining a sufficient permanent supply of housing affordable to all economic segments of the community. Although not requiring the community to develop the housing, housing element law requires the community to plan for housing. Recognizing that local governments may lack adequate resources to house all those in need, the law nevertheless mandates that the community do all that it can and not engage in exclusionary zoning practices.
RHND/RHNA Methodology: The RHND/RHNA process is used to determine how many new homes, and the affordability level of those homes, each local government must plan for in its housing element to cover the duration of the next eight-year planning cycle. The RHND is assigned at the COG level, while RHNA is suballocated to subregions of the COG or directly to local governments. RHNA is assigned via four income categories: very low-income (0-50% of AMI), low-income (50-80% of AMI), moderate income (80-120% of AMI), and above moderate income (120% or more of AMI).
3 https://chpc.net/housingneeds/
4 https://www.hcd.ca.gov/policy-research/housing-challenges.shtml AB 2485
The cycle begins with HCD and the Department of Finance projecting new RHND numbers every five or eight years, depending on the region. DOF produces population projections and the COG also develops projections during its RTP forecast. Then, 26 months before the housing element due date for the region, HCD must meet and consult with the COG and share the data assumptions and methodology that they will use to produce the RHND. The COG provides HCD with its own regional data on several criteria, including:
1) Anticipated household growth associated with projected population increases; 2) Household size data and trends in household size;
3) The percentage of households that are overcrowded, as defined, and the overcrowding rate for a comparable housing market, as defined;
4) The rate of household formation, or headship rates, based on age, gender, ethnicity, or other established demographic measures;
5) The vacancy rates in existing housing stock, and the vacancy rates for healthy housing market functioning and regional mobility, as well as housing replacement needs, as specified;
6) Other characteristics of the composition of the projected population; 7) The relationship between jobs and housing, including any imbalance between jobs and housing;
8) The percentage of households that are cost burdened and the rate of housing cost burden for a healthy housing market, as defined; and
9) The loss of units during a declared state of emergency during the planning period immediately preceding the relevant housing element cycle that have yet to be rebuilt or replaced at the time of the data request.
HCD can take this information and use it to modify its own methodology, if it agrees with the data the COG produced, or can reject it if there are other factors or data that HCD feels is better or more accurate. Then, after a consultation with the COG, HCD makes written determinations on the data it is using for each of the factors bulleted above, and provides that information in writing to the COG. HCD uses that data to produce the final RHND. The COG must then take the RHND and create an allocation methodology that distributes the housing need equitably amongst all the local governments in its region.
In past housing element cycles, RHNA had been criticized as being a political rather than a methodologically sound, data-driven process. In the past, jurisdictions with a higher share of wealthier, whiter residents were more likely to have received lower allocations of moderate and lower income housing, while more diverse cities sometimes received higher allocations of those categories. The Legislature made a number of changes to the RHND, RHNA, and housing element process over the past several years to strengthen the law and restrict the ability of jurisdictions to evade their housing obligations.
AB 2485
2022 RHNA Audit: A March 2022 audit identified a handful of issues with HCD's RHND data and review processes. In response to the audit's findings, HCD committed to, and completed, the following actions:
10) Instituting a process for performing multiple reviews of data included in the RHND assumptions to improve quality control;
11) Creating additional process documents to provide evidence of adequate consideration of all factors required by state law in its needs assessment; 12) Completing a formal analysis of healthy vacancy rate trends to support their use of a 5% vacancy target rate for healthy housing markets; and
13) Formalizing a technical assistance document to use when reviewing COG data on comparable regions and healthy housing markets.
Policy Considerations: This bill would require HCD to publish more of its data sources and methodology factors before finalizing the RHND. It would also require HCD to assemble and convene advisory panels for each future COG's RHND process and consult with those panels during the formation of the RHND methodology and in reviewing all the data points listed above when formulating the existing and projected housing need for each region for each future housing element cycle. This consultation is in addition to the existing consultation requirements that currently exist with the COGs themselves. The panel would have to be comprised of a US Census Bureau-affiliated practitioner, a data expert, and a representative from the COG. This would build in another layer of consultation and review to the RHND process, which may be somewhat duplicative given the department's existing COG consultation obligations, and could cause delays in the development of the final RHND, which HCD must provide to the COG no later than two years prior to the scheduled revision of the housing element. Though the panel consultation would be folded into the existing RHND timeline, it is unclear what HCD's obligations would be to respond to the advisory panel's feedback.
According to the Author
"There are more than 181,000 Californians who are unhoused. I believe we have made good progress at both the state and local levels when it comes to planning for more housing, and with each RHNA cycle, we are refining the process. But we must do better. The California State Auditor's report published in March 2022 on HCD's RHNA determination process highlighted the need for accountability and transparency on HCD's methodology and assumptions. HCD's assumptions and methodology should be clear and accessible to stakeholders to ensure confidence in the process. That is why AB 2485 is focused on embedding inclusivity and transparency in HCD's engagement and outreach efforts which are critical to fostering the collaboration and trust that are essential to housing production in California." Arguments in Support
According to the California Association of COGs, "On behalf of the state's Councils of Governments that are a key partner to HCD in the Regional Housing Need Allocation (RHNA) process, we support AB 2485 for improvements it would make to the RHNA determination process. … One of the challenges of the RHNA process is that those that must implement it do not always understand the basis for the numbers. As a result, it is often panned as a mere state mandate even by those that understand the need to address the state's housing crises. A process AB 2485
that connects the housing determination to the state goal in an evidence-based way will lead to better policy implementation."
Arguments in Opposition
None on file.
FISCAL COMMENTS
According to the Assembly Appropriations Committee, HCD estimates ongoing General Fund costs of $200,000 annually for one staff position to accommodate the additional workload.
Specific duties include convening and moderating advisory panels for 20 COGs, documenting HCD's determinations, and coordinating updates to the department's website.
According to the Legislative Analyst's Office, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years.
VOTES
ASM HOUSING AND COMMUNITY DEVELOPMENT: 8-0-1
YES: Ward, Joe Patterson, Grayson, Kalra, Quirk-Silva, Reyes, Sanchez, Wilson ABS, ABST OR NV: Lee
ASM LOCAL GOVERNMENT: 8-0-1
YES: Juan Carrillo, Waldron, Valencia, Kalra, Pacheco, Ramos, Ward, Wilson ABS, ABST OR NV: Essayli
ASM APPROPRIATIONS: 15-0-0
YES: Wicks, Sanchez, Arambula, Bryan, Calderon, Wendy Carrillo, Dixon, Mike Fong, Grayson, Haney, Hart, Jim Patterson, Pellerin, Ta, Villapudua
UPDATED
VERSION: March 19, 2024
CONSULTANT: Nicole Restmeyer / H. & C.D. / (916) 319-2085 FN: 0003079
SENATE COMMITTEE ON LOCAL GOVERNMENT
Senator María Elena Durazo, Chair
2023 - 2024 Regular
Bill No: AB 2553 Hearing Date: 6/11/24
Author: Friedman Fiscal: No
Version: 4/15/24 Consultant: Peterson
HOUSING DEVELOPMENT: MAJOR TRANSIT STOPS: VEHICULAR TRAFFIC
IMPACT FEES
Requires cities and counties to set lower traffic impact mitigation fees for transit-oriented housing developments near major transit stops, instead of just at transit stations, and changes the definition of a major transit stop.
Background
Local government finance after Proposition 13. A series of propositions have drastically cut into local revenue sources, requiring local governments to look elsewhere to fund services that the public demands. First, Proposition 13 (1978) capped property tax rates at 1% of assessed value (which only changes upon new construction or when ownership changes) and required 2/3 voter approval for special taxes; as a result local governments turned to general taxes to avoid the higher voter threshold. When Proposition 62 (1986) required majority voter approval of general taxes, local agencies imposed assessments that were more closely tied to the benefit that an individual property owner receives. Subsequently, Proposition 218 (1996) required voter approval of parcel taxes, assessments, and property-related fees.
In response to the reduction in property tax revenues from Proposition 13 and the difficulty of raising taxes, local agencies have turned to other sources of funds for general operations, including sales taxes and transient occupancy taxes, also known as hotel taxes. Commercial enterprises generate sales tax and hotel tax revenue, and simultaneously pay property taxes and demand relatively few services (such as public safety or parks). Residential developments, by contrast, do not directly generate sales or hotel tax revenue, and the new residents demand a wider variety of more intensive services. As a result, cities and counties face a disincentive to approve housing because of the higher net fiscal cost of residential development, particularly if they have the option to instead permit commercial development that may produce net fiscal benefits, also known as the fiscalization of land use.
Since they cannot impose broad-based taxes without great difficulty, cities and counties follow a simple principle: new developments should pay for the impacts they have on the community and the burden they impose on public services.
Mitigation Fee Act. When approving development projects, counties and cities can require the applicants to mitigate the project's effects by paying fees—known as mitigation fees, impact fees, or developer fees. The California courts have upheld impact fees for sidewalks, parks, school construction, and many other public purposes.
AB 2553 (Friedman) 4/15/24 Page 2 of 7
When establishing, increasing, or imposing a fee as a condition of approving a development project, the Mitigation Fee Act requires local officials to:
Identify the fee’s purpose;
Identify the fee’s use, including the public facilities to be financed; Determine a reasonable relationship between the fee’s use and the development; and Determine a reasonable relationship between the public facility’s need and the development.
When imposing a fee as a condition of approving a development project, the Mitigation Fee Act also requires local officials to determine a reasonable relationship between the fee’s amount and the cost of the public facility. In its 1987 Nollan decision, the U.S. Supreme Court said there must be an “essential nexus” between a project's impacts and the conditions for approval. In the 1994 Dolan decision, the U.S. Supreme Court said that conditions on development must have a "rough proportionality" to a project's impacts.
In the 1996 Ehrlich decision, the California Supreme Court distinguished between “legislatively enacted” conditions that apply to all projects and “ad hoc” conditions imposed on a project-by- project basis. Ehrlich applied the “essential nexus” test from Nollan and the “rough proportionality” test from Dolan to “ad hoc’ conditions. The Court did not apply the Nollan and Dolan tests to the conditions that were “legislatively enacted.” In other words, local officials face greater scrutiny when they impose conditions on a project-by-project basis.
As a result of these decisions and the Mitigation Fee Act, local agencies must conduct a nexus study to ensure any proposed impact fees meet these legal tests for most impact fees. Other requirements in the Mitigation Fee Act ensure that impact fees are appropriately levied and spent, including that a local agency must:
Hold at least one open and public meeting prior to levying a new fee or increasing an existing one;
If it decides to adopt capital improvement plans, indicate the approximate location, size, time of availability, and estimates of cost for all facilities or improvements to be financed with the fees;
Deposit and spend the fees within five years of collecting them; and Refund fees or make specific findings on when and how the fees will be spent for construction, if the fees are not spent within five years of collection.
If a local agency levies an impact fee to fund a capital improvement associated with a development, it must deposit the fees with any other fees for that improvement in a separate account or fund.
Local officials must also produce an annual report within 180 days of the end of the fiscal year that includes information on the fee amounts, how they used the revenue, and any unspent funds, broken up by each separate fund. The local agency must review this information at the next regularly scheduled public meeting at least 15 days from when it makes the information available to public. It must also provide notice to the public at least 15 days prior to the meeting.
Impact fee audit requirements. Any person may request an independent audit of how the impact fees have been collected and spent, including an assessment of whether the fees exceed the amount reasonably necessary to cover the costs of the stated projects or services. If a person AB 2553 (Friedman) 4/15/24 Page 3 of 7
makes that request, the local agency retains an independent auditor to conduct the audit, provided that an audit has not been performed on the same fee within the previous 12 months and the requestor deposits funds necessary to cover the estimated cost for the audit with the local agency.
A local agency must adjust its fees if the audit finds that the fees are set too high.
Traffic mitigation impact fees. Cities and counties must set lower traffic impact mitigation fees for specified transit-oriented housing developments unless the city or county makes a finding that the development will not generate fewer automobile trips than a non-transit oriented housing development (AB 3005, Jones, 2008). Specifically, this lower fee applies to housing developments that meet all of the following criteria:
The development is located within one-half mile of a transit station, and have direct access to the transit station along a barrier-free walkable pathway; The development is located within one-half mile of convenience retail uses, including a store that sells food;
At least 50 percent of the floor space of the development is for residential use; and The development provides either the minimum number of parking spaces required by the local ordinances, or no more than one onsite parking space for zero to two bedroom units, and two onsite parking spaces for three or more bedroom units, whichever is less.
The lower fee must reflect the lower rate of automobile trip generation associated with such housing developments in comparison with housing developments without these characteristics.
Under AB 3005, transit stations include any rail or light-rail station, ferry terminal, bus hub, or bus transfer station, including and any of these stations that are scheduled to be completed prior to the scheduled completion and occupancy of the housing development.
Major transit stop. The California Environmental Quality Act (CEQA) requires lead agencies with the principal responsibility for carrying out or approving a proposed discretionary project to prepare a negative declaration, mitigated declaration, or environmental impact report (EIR) for this action, unless the project is exempt from CEQA. CEQA exemptions expedite construction of a particular type of project and reduce costs by bypassing the process that other projects must go through. CEQA provides various exemptions, including for residential or mixed-use residential “transit priority projects,” if the project is consistent with the use designation, density, building intensity, and applicable policies specified for the project area in either an approved sustainable communities strategy or alternative planning strategy. To be a transit priority project, the project must be within one-half mile of a “major transit stop” and meet other requirements. Under CEQA, a major transit stop refers to any of the following:
An existing rail or bus rapid transit station;
A ferry terminal served by either a bus or rail transit service; or The intersection of two or more major bus routes with a frequency of service interval of 15 minutes or less during the morning and afternoon peak commute periods.
The author wants to expand the projects that qualify for lower traffic impact mitigation fees.
Proposed Law
Assembly Bill 2553 changes the requirement for cities and counties to set lower traffic impact mitigation fees for transit-oriented housing developments to apply to any major transit stops AB 2553 (Friedman) 4/15/24 Page 4 of 7
scheduled to be completed before the housing development is completed, including major transit stops included in the applicable regional transportation plan.
The measure changes the definition of a major transit stop to refer to stops with frequency of service intervals of 20 minutes or less during the morning and afternoon peak commute periods, instead of 15 minutes.
Comments
1. Purpose of the bill. According to the author, “Many local agencies have very high traffic impact fees, posing an impediment to the production of housing and over-charging transit proximate housing developments that would have minimal traffic impacts. “Furthermore, the COVID-19 pandemic caused a significant reduction in transit ridership. Many transit agencies responded by cutting routes and reducing service frequency. As a result, there are fewer locations that meet the definition of ‘major transit stop.’ Notwithstanding service reductions, development projects proximate to existing and planned transit generate fewer vehicle trips and have more transit riders than projects located further from transit with benefits to air quality and greenhouse gas emissions.
“AB 2553 solves these problems by removing impediments to the production of transit proximate housing. AB 2553 clarifies when local jurisdictions must impose lower traffic impact fees on transit proximate housing developments and updates the definition of ‘major transit stop’ to reflect post-COVID service levels.”
2. Winners and losers. AB 2553 expands the projects that qualify for lower traffic impact mitigation fees to include those near major transit stops instead of just transit stations. This would add the intersection of two or more major bus routes with a frequency of service interval of 20 minutes or less during the morning and afternoon peak commute periods. Currently, only projects near bus hubs or bus transfer stations qualify as transit stations. Additionally, the change would remove ferry terminals without bus or rail transit service. Altogether, these changes expand the projects that qualify for reduced traffic impact mitigation fees. This means local agencies will collect less revenue to make public improvements to mitigate the traffic impacts of additional development. This could mean the local agency makes fewer public improvements, or takes longer to complete them. Allowing lower fees on these projects could make it more likely they pencil out, but it will come at the cost of local government revenue.
3. The best intentions. AB 2553 allows projects near planned major transit stops whose construction is projected to be completed before the housing development to benefit from lower fees. However, the measure does not appear to apply the same requirement for a project to be projected to be completed before the housing development to major transit stops identified in a regional transportation plan. This is problematic because a proposed housing development near a planned stop will not generate fewer automobile trips if the station does not get built or is delayed. The Committee may wish to consider amending the bill to clarify that major transit stops in the applicable regional transportation plan also need to be scheduled to be completed prior to the scheduled completion and occupancy of the housing development to benefit from reduced vehicle mitigation impact fees.
4. Unintended consequences. AB 2553 changes the definition of a “major transit stop” from including the intersection of two or more major bus routes with a frequency of service interval of AB 2553 (Friedman) 4/15/24 Page 5 of 7
15 minutes or less during the morning and afternoon peak commute periods to 20 minutes or less. However, the measure changes this definition not just for the purposes of determining which projects qualify for lower impact fees, but for any other state law that references this definition. For example, this would mean more projects would qualify for an exemption to CEQA because they would now fall under the definition of a transit priority project.
Additionally, it would further limit local agencies ability to impose parking requirements, since recent legislation (AB 2097, Friedman, 2022) prohibited public agencies from imposing or enforcing parking minimums on developments within ½ mile of a major transit stop. Finally, this change in definition would also affect recent housing laws including some that require streamlined approval of housing development project. To avoid unintended changes to other statutes, the Committee may wish to consider amending the bill to ensure that the change to the definition of a major transit stop only applies to vehicle mitigation impact fees.
5. Choppy waters ahead? The U.S. Supreme Court recently decided Sheetz vs. County of El Dorado. In this case, an El Dorado County resident challenged the county’s legislatively enacted traffic impact mitigation fee arguing the county should only charge him based on the impact associated with his specific parcel. In other words, legislatively enacted fees should be subject to the same standards as ad hoc fees. The decision concluded that the federal constitution does not distinguish between legislatively enacted and ad hoc fees, and remanded the case back to the California Court of Appeals’ Third District for a decision in line with its holding. Should the Committee consider Mitigation Fee Act legislation before the California Court of Appeals makes its final decision?
6. The song that never ends. The Legislature is considering several other pieces of legislation concerning the Mitigation Fee Act:
SB 937 (Wiener, 2024), which this Committee approved on a 6-0 vote at its April 3rd hearing, makes various changes to the process for local agencies to collect development impact fees, and extends development entitlements. The measure is awaiting referral in the Assembly.
SB 1210 (Skinner, 2024), which this Committee approved on a 5-2 vote at its April 17th hearing, requires electrical, gas, sewer, and water service utilities to post fee schedules and estimated timeframes for new service connections and capacity upgrades needed to connect new housing construction projects. The measure is awaiting referral in the Assembly.
AB 1820 (Schiavo, 2024) requires a city or county to provide an estimate of fees and exactions for the project within 30 days of receiving a preliminary application for a housing development project upon a request from the project applicant for an estimate.
The measure is also scheduled for this Committee’s June 11th hearing. AB 2663 (Grayson, 2024) requires local agencies to post certain information regarding affordable housing impact fees on their websites. The measure is also scheduled for this Committee’s June 11th hearing.
AB 2729 (Joe Patterson, 2024) removes the requirement on local agencies that fees must be paid prior to the date of final inspection or issuance of the certificate of occupancy, whichever occurs first. The measure is also scheduled for this Committee’s June 11th hearing.
AB 3012 (Grayson, 2024) requires cities and counties to create a fee estimate tool that the public can use to calculate an estimate of fees and exactions for a proposed housing development project available on its internet website. It also requires the Department of AB 2553 (Friedman) 4/15/24 Page 6 of 7
Housing and Community Development to create a fee schedule template, develop best practices for displaying fees, and gives the department the option to create a fee estimate tool. The measure is also scheduled for this Committee’s June 11th hearing. AB 3177 (W. Carrillo, 2024) prohibits land dedications for the purpose of mitigating vehicular traffic on housing developments. The measure is also scheduled for this Committee’s June 11th hearing.
AB 3276 (Ramos, 2024) requires local agencies to post certain impact fee information on their websites by the end of the 2029-30 fiscal year for the previous five years, which it must do every five years thereafter. The measure is also scheduled for this Committee’s June 11th hearing.
7. Coming and going. The Senate Rules Committee has ordered a double referral of AB 2553:
first to the Senate Local Government Committee to hear issues related to local government fee authority, and second to the Senate Housing Committee.
Assembly Actions
Assembly Local Government Committee: 9-0
Assembly Housing and Community Development Committee: 9-0 Assembly Floor: 73-0
Support and Opposition (6/7/24)
Support: Abundant Housing LA
Association of Environmental Professionals
California Community Builders
California Yimby
Circulate San Diego
Civicwell
East Bay Yimby
Grow the Richmond
Habitat for Humanity California
Leadingage California
Midpen Housing
Monterey Bay Economic Partnership
Mountain View Yimby
Napa-Solano for Everyone
Northern Neighbors
Peninsula for Everyone
Progress Noe Valley
San Francisco Yimby
San Luis Obispo Yimby
Sand Hill Property Company
Santa Cruz Yimby
Santa Rosa Yimby
South Bay Yimby
Southside Forward
Spur
Streets for People
AB 2553 (Friedman) 4/15/24 Page 7 of 7
Urban Environmentalists
Ventura County Yimby
Yimby Action
Opposition: None received.
-- END --
AB 2597
Date of Hearing: May 8, 2024
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Buffy Wicks, Chair
AB 2597 (Ward) – As Amended April 1, 2024
Policy Committee: Housing and Community Development Vote: 9 - 0 Local Government 9 - 0
Urgency: No State Mandated Local Program: No Reimbursable: No SUMMARY:
This bill revises the housing element statutory adoption deadlines, for the seventh and subsequent housing element cycles, for local governments within the regional jurisdiction of the Southern California Association of Governments (SCAG), except for the County of Los Angeles and all local governments within the County of Los Angeles.
Specifically, this bill:
Provides that each local government within the regional jurisdiction of SCAG and that has a compliant housing element as of the adoption of the second regional transportation plan (RTP) update, as specified, excluding the County of Los Angeles and all local governments within the County of Los Angeles, must adopt a housing element 30 months after the adoption of every second RTP update for the seventh revision and subsequent revisions of the housing element, or as otherwise provided in law.
FISCAL EFFECT:
The Housing and Community Development Department (HCD) indicates this bill has no fiscal impact to the department.
COMMENTS:
1) Purpose. According to the author:
[This bill] is a good government measure intended to help local governments, interested stakeholders, and HCD have more capacity and time to produce, edit, and review the close to 200 hou sing elements that are simultaneously due on each housing element cycle for jurisdictions within the Southern California Association of Governments. The bill does this by creating two ‘phases’ of housing element due dates for SCAG – so that the workload spike is much more manageable for all parties and good quality housing elements can be drafted, reviewed by HCD, and adopted with less strain in the future.
2) Background. Existing law requires each city and county’s legislative body to adopt a general plan for land use within its jurisdiction. Each general plan must include a housing element detailing existing housing conditions within the jurisdiction, the need for new housing and the strategy the jurisdiction will use to address that need. Local governments must adopt a AB 2597
new housing element every eight years, although some rural jurisdictions must do so every five years.
Among other things, the housing element must demonstrate how the community plans to accommodate its share of its region’s housing needs allocation (RHNA), a figure determined by HCD through a demographic analysis of housing needs and population projections. HCD establishes each council of government’s (COG’s) regional housing targets across the state for the next five- or eight-year planning cycle. Each COG then sub-allocates the RHNA to each local government within the COG’s jurisdiction, and in turn each jurisdiction uses its housing element to show how it will accommodate that number of new housing units.
Housing element adoption dates are staggered across the state depending on certain timelines for each COG. SCAG is by far the largest COG in the state, encompassing six counties – Imperial, Los Angeles, Orange, Riverside, San Bernardino, and Ventura – and 191 cities in an area covering more than 38,000 square miles.
According to the author, when 197 jurisdictions simultaneously submit a draft housing element roughly 90 days prior to the same due date, HCD faces a tremendous workload “spike” to timely review and deliver written feedback by its own 90-day deadlines.
This bill smooths this workload spike by creating two housing element adoption due dates for SCAG jurisdictions in future cycles: Los Angeles County and jurisdictions within Los Angeles County remain on the current 18-month adoption period (effectively one year after RHNA suballocations are assigned), while all other jurisdictions in SCAG have 30 months after the second RTP (effectively two years after RHNA suballocations are assigned) to adopt a compliant housing element. A jurisdiction outside of Los Angeles County that does not have a compliant housing element as of the adoption of the second RTP instead remains on the 18-month cycle.
Analysis Prepared by: Jennifer Swenson / APPR. / (916) 319-2081 AB 3093
ASSEMBLY THIRD READING
AB 3093 (Ward)
As Amended May 6, 2024
Majority vote
SUMMARY
Creates two new income categories, Acutely Low Income (ALI) and Extremely Low Income (ELI), in the Regional Housing Needs Determination (RHND), Regional Housing Needs Allocation (RHNA), and Housing Element Law.
Major Provisions
1) Defines the following household income categories for purposes of the RHND, RHNA, and other provisions of Housing Element Law:
a) Acutely Low Income (ALI), meaning those earning between 0% and 15% of the area median income (AMI);
b) Extremely Low Income (ELI), meaning those earning between 15% and 30% of the AMI; c) Very Low Income (VLI), meaning those earning between 30% and 50% of the AMI; d) Lower Income (LI), meaning those earning between 50% and 80% of the AMI; e) Moderate Income (MI), meaning those earning between 80% and 120% of the AMI; and, f) Above Moderate Income, meaning those earning more than 120% of the AMI. 2) Identifies ALI and ELI households as households with special housing needs for purposes of Housing Element Law.
3) Removes the existing calculation methodology for ELI households for purposes of Housing Element Law and replaces it with the calculation determined by the Department of Housing and Community Development (HCD) through the RHND process. 4) Requires local housing elements to include programs that will assist in the development of housing for ALI households in addition to the existing requirement for all other incomes. 5) Requires ALI and ELI housing needs to be accounted for in the sites inventories of local housing elements, and any required rezonings if there are insufficient sites to meet those housing needs.
6) Requires HCD to include ALI and ELI households in the RHND. 7) Requires regional Councils of Governments (COGs) to provide HCD with data on the housing needs of individuals and families experiencing homelessness for the purpose of determining the RHND.
8) Adds the ALI and ELI income categories to the proportionate reduction provisions permitted between county and cities within the county when one or more of those cities agree to AB 3093
increase their share of the RHNA during the period of time between the adoption of a final RHNA and the due date of the housing element update.
9) Subjects a local government to a streamlined, ministerial approvals process for certain housing projects if the jurisdiction does not meet the housing needs of ALI and ELI households, as reported in Annual Progress Reports (APRs) to HCD. 10) Finds that the changes proposed by this bill address a matter of statewide concern, and therefore apply to all cities, including charter cities.
COMMENTS
Adoption and Implementation of Housing Elements: One important tool in addressing the state's housing crisis is to ensure that all of the state's 539 cities and counties appropriately plan for new housing. Such planning is required through the housing element of each community's General Plan, which outlines a long-term plan for meeting the community's existing and projected housing needs. Cities and counties are required to update their housing elements every eight years in most of the high population parts of the state, and five years in areas with smaller populations. Localities must adopt a legally valid housing element by their statutory deadline for adoption. Failure to do so can result in certain escalating penalties.
Among other things, the housing element must demonstrate how the community plans to accommodate its share of RHNA. Local jurisdictions must adopt legally compliant housing elements on time to meet statewide housing goals and create the environment for the construction of housing at all income levels. Unless communities plan for production and preservation of housing, both in terms of land availability and implementing programs to facilitate housing production, new housing will be slow or extremely difficult to build. Adequate zoning, removal of regulatory barriers, protection of existing stock, and targeting of resources are essential to obtaining a sufficient permanent supply of housing affordable to all economic segments of the community. Although it does not require the community to actually develop the housing, Housing Element Law requires the community to plan for it and implement those plans.
RHND/RHNA: The RHND/RHNA process is used to determine how many new homes, and the affordability level of the homes, that each local government must plan for in its housing element to meet the housing needs of current and future residents. The RHND is assigned by HCD to each region in the state at the COG level, while RHNA is suballocated to subregions of the COG or directly to local governments. This process currently includes four income categories: very low-income (0-50% of AMI), low-income (50-80% of AMI), moderate income (80-120% of AMI), and above moderate income (120% or more of AMI). Local governments must include an analysis of the housing needs of extremely low-income households (0-30% of AMI) in their housing elements, but extremely low-income is not currently a category in the RHND/RHNA process.
The state is currently in the sixth RHNA cycle. Each new RHNA cycle begins with HCD and the Department of Finance (DOF) projecting new RHND numbers every five or eight years, depending on the region. DOF produces population projections and the COG also develops projections during its Regional Transportation Plan (RTP) forecast. Then, 26 months before the housing element due date for the region, HCD must meet and consult with the COG and share the data assumptions and methodology that they will use to produce the RHND. The COG provides HCD with its own regional data on several criteria, including:
AB 3093
1) Anticipated household growth associated with projected population increases; 2) Household size data and trends in household size;
3) The percentage of households that are overcrowded, as defined, and the overcrowding rate for a comparable housing market, as defined;
4) The rate of household formation, based on age, gender, ethnicity, or other established demographic measures;
5) The vacancy rates in existing housing stock, and the vacancy rates for healthy housing market functioning and regional mobility, as well as housing replacement needs, as specified; 6) Other characteristics of the composition of the projected population; 7) The relationship between jobs and housing, including any imbalance between jobs and housing;
8) The percentage of households that are cost-burdened and the rate of housing cost burden for a healthy housing market, as defined; and
9) The loss of units during a declared state of emergency during the planning period immediately preceding the relevant housing element cycle that have yet to be rebuilt or replaced at the time of the data request.
HCD can take this information and use it to modify its own methodology, if HCD agrees with the data the COG produced, or HCD can reject it if there are other factors or data that HCD believes to be better or more accurate. Then, after consultation with the COG, HCD makes written determinations on the data it is using for each of the factors bulleted above, and provides that information in writing to the COG. HCD uses that data to produce the final RHND. Each COG must then take the RHND and create an allocation methodology that distributes the housing need equitably amongst all the local governments in its region. The RHNA methodology is statutorily obligated to further all of the following objectives:
1) Increase the housing supply and mix of housing types, tenure, and affordability in all cities and counties within the region in an equitable manner, which must result in each jurisdiction receiving an allocation of units for low- and very low-income households; 2) Promote infill development, socioeconomic equity, the protection of environmental and agricultural resources, and achievement of regional climate change reduction targets; 3) Promote an improved intraregional relationship between jobs and housing, including an improved balance between the number of low-wage jobs and the number of housing units affordable to low-wage workers in each jurisdiction;
4) Allocate a lower proportion of housing need to an income category when a jurisdiction already has a disproportionately high share of households in that income category; and 5) Affirmatively further fair housing.
AB 3093
California's Housing Future 2040: The Next RHNA: Health and Safety Code (HSC) Section 50515.05 directed HCD, in collaboration with the Office of Planning and Research (OPR), and after engaging in stakeholder participation, to develop recommendations to improve the RHNA process and methodology. In April 2024, HCD released those recommendations in a new report, California's Housing Future 2040: The Next RHNA.1 This bill would implement Topic #1:
Account for the Housing Needs of People Experiencing Homelessness, of the Determination- Related Recommendations to the Legislature contained in that report.
This bill would require the state to identify the housing needs of Californians experiencing homelessness and require local governments to plan to meet those housing needs in their local housing elements. Adding ELI and ALI income categories to the RHND/RHNA process will help to determine and accommodate the needs of households earning up to 30% of AMI and up to 15% of AMI, respectively. As an example, an ALI household may consist of a single adult with a disability who relies on an SSI check as their sole source of income. An ELI household may include an adult couple with two young children, working hourly, minimum-wage jobs with inconsistent hours, resulting in a variable month-to-month income. These populations are currently lumped together in the VLI income category of RHNA, which serves households earning between 0% and 50% of AMI. Because 0% to 50% is such a large range, deed-restricted VLI homes typically serve the higher end of that range (around 50% of AMI) and may render permanent housing in this income category unaffordable for Californians with the lowest incomes, including those without any income.
Creating these ELI and ALI categories will require regions and local governments to develop targeted programs and strategies in their housing elements that cater to the needs of Californians at the lowest end of the income spectrum, including homeless individuals and those at risk of homelessness. This bill would set a baseline that cities and counties will be measured against to ensure that every locality is doing its part to meet the housing needs of Californians experiencing homelessness. It will also provide local governments with the opportunity to track and highlight compelling local programs and innovations that are successfully addressing homelessness.
Furthermore, this bill would ensure that HCD's RHND is augmented by the best available local homelessness data, provided by COGs, to ensure the accuracy of the figures in the newly created income categories. Combining the best data sources available will help create a more accurate understanding of homelessness housing needs throughout California. Potential data sources identified by HCD in California's Housing Future 2040: The Next RHNA includes:
1) Coordinated School Health and California Basic Educational Data; 2) HUD Point-In-Time (PIT) Count Data; and
3) Homeless Data Integration System (HDIS) Data
According to the Author
"AB 3093 will ensure that our housing planning processes are inclusive of the most vulnerable Californians - those experiencing homelessness and those who are on the brink of it. By introducing Extremely Low-Income and Acutely Low-Income categories into the Regional Housing Needs Allocation, we can recognize and plan for the housing needs of individuals
1 https://www.hcd.ca.gov/planning-and-community-development/regional-housing-needs-allocation AB 3093
earning the lowest incomes in the state. This recognition is crucial for crafting effective and targeted housing policies that will cater to individuals earning up to 30% and 15% of the Area Median Income, respectively. The state cannot fix what it does not track.
AB 3093 stems from the alarming increase in homelessness across our state, which has risen by 53% since 2013. On any given night, 181,000 Californians experience homelessness. Despite significant investments to combat this crisis, the persistent increase in Californians experiencing homelessness underscores the need for a more comprehensive approach to our housing policies.
This bill will require local governments to integrate these new income categories into their housing elements, ensuring that they effectively plan for, and implement, strategies to meet the needs of our most at-risk Californians. By doing so, AB 3093 will promote equity in local housing elements and foster innovative local solutions that address the root causes of homelessness, ultimately leading us toward a future where every Californian has access to safe, affordable housing."
Arguments in Support
According to Housing California, "Despite rising homelessness in California, state law does not require local jurisdictions to plan for the housing needs of those who are unhoused or who have the lowest incomes. Current law requires local governments to plan for four income categories:
very low-income households, low-income households, moderate-income households, and above moderate-income households. The very low-income category includes households with incomes up to 50% of area median income (AMI) despite significant variation within that category in terms of ability to afford housing. This makes it harder for local jurisdictions to adequately plan to meet the housing needs of California's most vulnerable residents and for the state to hold local jurisdictions accountable for failing to do so.
Explicitly requiring local jurisdictions to plan for the housing needs of Californians with the lowest incomes, including extremely low-income (ELI, 15-30% of AMI) and acutely low- income (ALI, 0-15% of AMI) is critical to ensure that the needs of Californians who are unhoused or at risk of experiencing homelessness are met. If the RHNA and housing element processes do not specifically require local governments to target these groups, their housing needs will go unmet because housing them requires the deepest public subsidies and they often face landlord discrimination. Additionally, high-quality local homelessness data is necessary in order for the state to ensure the accuracy of the newly created income categories and for local jurisdictions to design programs that meet the needs of those who are unhoused.
AB 3093 will play an important role in helping local governments prevent and address homelessness and in holding them accountable when they fail to do so. By adding ELI and ALI categories to the RHNA process and requiring each region to submit accurate data to the state on the needs of individuals and families experiencing homelessness, the bill will help communities comprehensively plan to address homelessness."
Arguments in Opposition
None on file.
FISCAL COMMENTS
According to the Assembly Committee on Appropriations:
1) HCD estimates minor and absorbable costs.
AB 3093
2) Local costs resulting from this bill are not reimbursable by the state because local agencies have general authority to charge and adjust planning and permitting fees to cover their administrative expenses associated with new planning mandates.
VOTES
ASM TRANSPORTATION: 15-0-0
YES: Wilson, Davies, Aguiar-Curry, Juan Carrillo, Hart, Hoover, Jackson, Ortega, Papan, Sanchez, Ting, Valencia, Wallis, Ward, Wicks
ASM HOUSING AND COMMUNITY DEVELOPMENT: 7-1-1
YES: Ward, Grayson, Kalra, Lee, Quirk-Silva, Reyes, Wilson NO: Sanchez
ABS, ABST OR NV: Joe Patterson
ASM APPROPRIATIONS: 12-2-1
YES: Wicks, Arambula, Bryan, Calderon, Wendy Carrillo, Mike Fong, Grayson, Haney, Hart, Jim Patterson, Pellerin, Villapudua
NO: Sanchez, Dixon
ABS, ABST OR NV: Ta
UPDATED
VERSION: May 6, 2024
CONSULTANT: Dori Ganetsos / H. & C.D. / (916) 319-2085 FN: 0002957 AMENDED IN ASSEMBLY JUNE 10, 2024
AMENDED IN SENATE JANUARY 22, 2024
AMENDED IN SENATE MAY 1, 2023
AMENDED IN SENATE APRIL 19, 2023
AMENDED IN SENATE APRIL 10, 2023
AMENDED IN SENATE FEBRUARY 13, 2023
SENATE BILL No. 7
Introduced by Senator Blakespear
December 5, 2022
An act to amend Section 65400 of the Government Code, relating to housing. An act to amend Sections 65584.01, 65584.04, 65584.05, 65584.06, and 65588 of , and to r epeal Section 65584.02 of , the Government Code, relating to land use.
legislative counsel’s digest
SB 7, as amended, Blakespear. Planning and zoning: annual report:
housing for extremely low income households. Regional housing need:
determination.
The Planning and Zoning Law requires each county and city to adopt a comprehensive, long-term general plan for the physical development of the county or city, which includes, among other mandatory elements, a housing element. That law r equires, for the 4th and subsequent revisions of the housing element, the Department of Housing and Community Development (department) to determine the e xisting and projected need for housing for eac h r egion, as specified. That law requires the department, in consultation with the council of governments,
93 to determine the existing and projected need of housing for each region in a specified manner. That law requires the department’s determination to be based upon population projections produced by the Department of Finance, as specified. That law also requires the department to meet and consult with the council of governments regarding the assumptions and methodologies to be used to determine each region’s housing need and requires the council of go vernments to provide data assumptions from the council of go vernments’ projections, as specified. That law authorizes the department to accept or reject the information provided by the council of governments and, after consultation with each council of governments, to make determinations on the council of governments’ data assumptions and the methodolo gy the department will use to determine each region’s housing need. That law requires the department to pr ovide its determinations to eac h council of go vernments, as specified. That law, upon making that determination, authorizes the council of governments to object to the determination.
This bill, for regions in which the department is required to distribute the regional housing need, would prohibit a city or county from filing an objection to the regional housing need determination. The bill would also make conforming changes.
The Planning and Zoning Law, for the 4th and subsequent revisions of the housing element, provides an alternative process for determining the existing and projected need for housing for each region, as specified.
This bill would repeal the alternative process described above.
The Planning and Zoning Law r equires public participation and access in the de velopment of the methodolo gy and in the pr ocess of drafting and adoption of the allocation of the regional housing needs.
That law r equires participation by or ganizations other than local jurisdictions and councils of governments to be solicited, as provided, including soliciting specified member s of protected classes. That law also authorizes the department to r eview the adopted allocation methodology and report its findings to the council of go vernments or delegate subregion within 90 days of receiving notice.
This bill would e xpand the solicitation r equirement to include specified households with special housing needs. The bill would also reduce the time allotted for the department to r eport its findings regarding the adopted allocation methodology to 45 days. By requiring councils of governments or delegate subregions, as applicable, to solicit participation fr om additional sour ces, this bill would impose a state-mandated local program.
93 — 2 — SB 7
The Planning and Zoning Law requires each council of governments and delegate subregion, as applicable, at least one and one-half years before their sc heduled housing element r evision, to distribute a dr aft allocation of regional housing needs to eac h local government in the region or subr egion, where applicable, and r equires the department, based on the methodology adopted, to publish the dr aft allocation on its internet website.
This bill would additionally authorize a council of go vernment to distribute the dr aft allocation plan upon adoption of the final methodology reviewed and adopted by the department under certain circumstances.
The Planning and Zoning Law authorizes, within 45 days following receipt of the draft allocation, a local government within the region or the delegate subregion, as applicable, or the department to appeal to the council of governments or the delegate subregion for a revision of the share of the regional housing need proposed to be allocated to one or more local governments. If no appeals ar e filed, that law r equires the draft allocation to be issued as the proposed final allocation plan.
This bill would, if no appeals ar e filed, instead authorize the dr aft allocation to be adopted pursuant to a specified procedure that includes, among other things, a public hearing.
The Planning and Zoning Law r equires each city, county, and city and county to r evise its housing element accor ding to a specified schedule. That law requires subsequent revisions to the housing element of a metropolitan planning organization or a r egional transportation planning agency to be due 18 months after adoption of e very second regional tr ansportation plan update , provided that the deadline for adoption is no more than eight years later than the deadline for adoption of the previous eight-year housing element. That law also requires the metropolitan planning or ganization or a r egional tr ansportation planning agency for a r egion that has an eight-year r evision interval to notify the department and the Department of Transportation in writing of the estimated adoption date for its next regional transportation plan update at least 12 months befor e the estimated adoption date . For purposes of determining the e xisting and projected need for housing within a region, that law requires the date of the next scheduled revision of the housing element be deemed to be the estimated adoption date of the regional transportation plan update described in the notice provided to the Department of Transportation plus 18 months.
93 SB 7 — 3 —
This bill would condition the abo ve-described deemed date of the next scheduled revision on that date being no mor e than eight year s later than the deadline for adoption of the previous eight-year housing element.
The bill would include findings that c hanges proposed by this bill address a matter of state wide concern rather than a municipal af fair and, therefore, apply to all cities, including charter cities.
The California Constitution r equires the state to r eimburse local agencies and school districts for certain costs mandated by the state .
Statutory pr ovisions establish pr ocedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing law, the Planning and Zoning Law, requires a city or county to adopt a general plan for land use development within its boundaries that includes, among other things, a housing element. That law requires the planning agency of a city or county to pro vide by April 1 of each year an annual report to, among other entities, the Department of Housing and Community Development. The law requires that the annual report include, among other specified information, the number of net new units of housing, including both rental housing and for-sale housing, that ha ve been issued a completed entitlement, b uilding permit, or certificate of occupanc y, and the income cate gory, by area median income, that each unit of housing satisfies, as specified.
This bill would revise and recast these provisions to specify that the income category includes extremely low income households, as defined.
By requiring cities and counties to include additional information in their annual reports, the bill w ould impose a state-mandated local program.
The California Constitution requires the state to reimb urse 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 no reimbursement is required by this act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.
93 — 4 — SB 7
The people of the State of California do enact as follows:
line 1 SECTION 1. Section 65584.01 of the Government Code is line 2 amended to read:
line 3 65584.01. For the fourth and subsequent revision of the housing line 4 element pursuant to Section 65588, the department, in consultation line 5 with each council of go vernments, where applicable, shall line 6 determine the e xisting and projected need for housing for each line 7 region in the following manner:
line 8 (a) The department’ s determination shall be based upon line 9 population projections produced by the Department of Finance line 10 and re gional population forecasts used in preparing re gional line 11 transportation plans, in consultation with each council of line 12 governments. If the total re gional population forecast for the line 13 projection year, developed by the council of governments and used line 14 for the preparation of the regional transportation plan, is within a line 15 range of 1.5 percent of the total re gional population forecast for line 16 the projection year by the Department of Finance, then the line 17 population forecast developed by the council of governments shall line 18 be the basis from which the department determines the e xisting line 19 and projected need for housing in the re gion. If the dif ference line 20 between the total population projected by the council of line 21 governments and the total population projected for the re gion by line 22 the Department of Finance is greater than 1.5 percent, then the line 23 department and the council of governments shall meet to discuss line 24 variances in methodology used for population projections and seek line 25 agreement on a population projection for the region to be used as line 26 a basis for determining the e xisting and projected housing need line 27 for the re gion. If agreement is not reached, then the population line 28 projection for the region shall be the population projection for the line 29 region prepared by the Department of Finance as may be modified line 30 by the department as a result of discussions with the council of line 31 governments.
line 32 (b) (1) At least 26 months prior to the scheduled re vision line 33 pursuant to Section 65588 and prior to developing the existing and line 34 projected housing need for a region, the department shall meet and line 35 consult with the council of governments regarding the assumptions line 36 and methodology to be used by the department to determine the line 37 region’s housing needs. The council of governments shall provide 93 SB 7 — 5 —
line 1 data assumptions from the council’ s projections, including, if line 2 available, the following data for the region:
line 3 (A) Anticipated household gro wth associated with projected line 4 population increases.
line 5 (B) Household size data and trends in household size. line 6 (C) The percentage of households that are overcrowded and the line 7 overcrowding rate for a comparable housing market. For purposes line 8 of this subparagraph:
line 9 (i) The term “overcrowded” means more than one resident per line 10 room in each room in a dwelling.
line 11 (ii) The term “o vercrowded rate for a comparable housing line 12 market” means that the o vercrowding rate is no more than the line 13 average overcrowding rate in comparable regions throughout the line 14 nation, as determined by the council of governments. line 15 (D) The rate of household formation, or headship rates, based line 16 on age, gender , ethnicity , or other established demographic line 17 measures.
line 18 (E) The vacancy rates in existing housing stock, and the vacancy line 19 rates for healthy housing market functioning and regional mobility, line 20 as well as housing replacement needs. F or purposes of this line 21 subparagraph, the vacancy rate for a healthy rental housing market line 22 shall be considered no less than 5 percent.
line 23 (F) Other characteristics of the composition of the projected line 24 population.
line 25 (G) The relationship between jobs and housing, including an y line 26 imbalance between jobs and housing.
line 27 (H) The percentage of households that are cost b urdened and line 28 the rate of housing cost burden for a healthy housing market. For line 29 the purposes of this subparagraph:
line 30 (i) The term “cost burdened” means the share of very low, low-, line 31 moderate-, and above moderate-income households that are paying line 32 more than 30 percent of household income on housing costs. line 33 (ii) The term “rate of housing cost burden for a healthy housing line 34 market” means that the rate of households that are cost b urdened line 35 is no more than the a verage rate of households that are cost line 36 burdened in comparable re gions throughout the nation, as line 37 determined by the council of governments.
line 38 (I) The loss of units during a state of emer gency that w as line 39 declared by the Go vernor pursuant to the California Emer gency line 40 Services Act (Chapter 7 (commencing with Section 8550) of 93 — 6 — SB 7
line 1 Division 1 of Title 2), during the planning period immediately line 2 preceding the rele vant re vision pursuant to Section 65588 that line 3 have yet to be rebuilt or replaced at the time of the data request. line 4 (2) The department may accept or reject the information line 5 provided by the council of go vernments or modify its o wn line 6 assumptions or methodology based on this information. After line 7 consultation with the council of governments, the department shall line 8 make determinations in writing on the assumptions for each of the line 9 factors listed in subparagraphs (A) to (I), inclusi ve, of paragraph line 10 (1) and the methodology it shall use and shall pro vide these line 11 determinations to the council of go vernments. The methodology line 12 submitted by the department may make adjustments based on the line 13 region’s total projected households, which includes e xisting line 14 households as well as projected households.
line 15 (c) (1) After consultation with the council of governments, the line 16 department shall mak e a determination of the re gion’s existing line 17 and projected housing need based upon the assumptions and line 18 methodology determined pursuant to subdivision (b). The region’s line 19 existing and projected housing need shall reflect the achievement line 20 of a feasible balance between jobs and housing within the region line 21 using the re gional emplo yment projections in the applicable line 22 regional transportation plan. Within 30 days follo wing notice of line 23 the determination from the department, the council of governments line 24 may file an objection to the department’ s determination of the line 25 region’s existing and projected housing need with the department. line 26 (2) The objection shall be based on and substantiate either of line 27 the following:
line 28 (A) The department f ailed to base its determination on the line 29 population projection for the re gion established pursuant to line 30 subdivision (a), and shall identify the population projection which line 31 the council of governments believes should instead be used for the line 32 determination and explain the basis for its rationale. line 33 (B) The regional housing need determined by the department line 34 is not a reasonable application of the methodology and assumptions line 35 determined pursuant to subdivision (b). The objection shall include line 36 a proposed alternative determination of its regional housing need line 37 based upon the determinations made in subdivision (b), including line 38 analysis of wh y the proposed alternati ve w ould be a more line 39 reasonable application of the methodology and assumptions line 40 determined pursuant to subdivision (b).
93 SB 7 — 7 —
line 1 (3) If a council of go vernments files an objection pursuant to line 2 this subdi vision and includes with the objection a proposed line 3 alternative determination of its regional housing need, it shall also line 4 include documentation of its basis for the alternative determination. line 5 Within 45 days of recei ving an objection filed pursuant to this line 6 section, the department shall consider the objection and mak e a line 7 final written determination of the region’s existing and projected line 8 housing need that includes an explanation of the information upon line 9 which the determination was made.
line 10 (4) In regions in which the department is required to distribute line 11 the regional housing need pur suant to Section 65584.06, no city line 12 or county may file an objection to the r egional housing need line 13 determination.
line 14 (d) Statutory changes enacted after the date the department line 15 issued a final determination pursuant to this section shall not be a line 16 basis for a revision of the final determination. line 17 SEC. 2. Section 65584.02 of the Government Code is repealed. line 18 65584.02. (a) For the fourth and subsequent re visions of the line 19 housing element pursuant to Section 65588, the e xisting and line 20 projected need for housing may be determined for each region by line 21 the department as follows, as an alternative to the process pursuant line 22 to Section 65584.01:
line 23 (1) In a re gion in which at least one subre gion has accepted line 24 delegated authority pursuant to Section 65584.03, the re gion’s line 25 housing need shall be determined at least 26 months prior to the line 26 housing element update deadline pursuant to Section 65588. In a line 27 region in which no subregion has accepted delegation pursuant to line 28 Section 65584.03, the region’s housing need shall be determined line 29 at least 24 months prior to the housing element deadline. line 30 (2) At least six months prior to the department’s determination line 31 of regional housing need pursuant to paragraph (1), a council of line 32 governments may request the use of population and household line 33 forecast assumptions used in the regional transportation plan. This line 34 request shall include all of the following:
line 35 (A) Proposed data and assumptions for f actors contributing to line 36 housing need beyond household growth identified in the forecast. line 37 These factors shall include allo wance for vacant or replacement line 38 units, and may include other adjustment factors. line 39 (B) A proposed planning period that is not longer than the period line 40 of time covered by the regional transportation improvement plan 93 — 8 — SB 7
line 1 or plans of the region pursuant to Section 14527, but a period not line 2 less than five years, and not longer than six years. line 3 (C) A comparison between the population and household line 4 assumptions used for the Re gional Transportation Plan with line 5 population and household estimates and projections of the line 6 Department of Finance.
line 7 (b) The department shall consult with the council of line 8 governments regarding requests submitted pursuant to paragraph line 9 (2) of subdivision (a). The department may seek advice and consult line 10 with the Demographic Research Unit of the Department of Finance, line 11 the State Department of Transportation, a representati ve of a line 12 contiguous council of governments, and any other party as deemed line 13 necessary. The department may request that the council of line 14 governments revise data, assumptions, or methodology to be used line 15 for the determination of regional housing need, or may reject the line 16 request submitted pursuant to paragraph (2) of subdi vision (a). line 17 Subsequent to consultation with the council of go vernments, the line 18 department will respond in writing to requests submitted pursuant line 19 to paragraph (1) of subdivision (a).
line 20 (c) If the council of go vernments does not submit a request line 21 pursuant to subdivision (a), or if the department rejects the request line 22 of the council of go vernments, the determination for the re gion line 23 shall be made pursuant to Sections 65584 and 65584.01. line 24 SEC. 3. Section 65584.04 of the Government Code, as added line 25 by Section 3 of Chapter 948 of the Statutes of 2022, is amended line 26 to read:
line 27 65584.04. (a) At least two years before a scheduled re vision line 28 required by Section 65588, each council of go vernments, or line 29 delegate subregion as applicable, shall de velop, in consultation line 30 with the department, a proposed methodology for distributing the line 31 existing and projected re gional housing need to cities, counties, line 32 and cities and counties within the region or within the subregion, line 33 where applicable pursuant to this section. The methodology shall line 34 further the objectives listed in subdivision (d) of Section 65584. line 35 (b) (1) No more than six months before the de velopment of a line 36 proposed methodology for distributing the existing and projected line 37 housing need, each council of go vernments shall survey each of line 38 its member jurisdictions to request, at a minimum, information line 39 regarding the factors listed in subdi vision (e) that will allo w the 93 SB 7 — 9 —
line 1 development of a methodology based upon the factors established line 2 in subdivision (e).
line 3 (2) With respect to the objective in paragraph (5) of subdivision line 4 (d) of Section 65584, the surv ey shall re view and compile line 5 information that will allo w the de velopment of a methodology line 6 based upon the issues, strategies, and actions that are included, as line 7 available, in an Analysis of Impediments to Fair Housing Choice line 8 or an Assessment of Fair Housing completed by any city or county line 9 or the department that covers communities within the area served line 10 by the council of governments, and in housing elements adopted line 11 pursuant to this article by cities and counties within the area served line 12 by the council of governments.
line 13 (3) The council of go vernments shall seek to obtain the line 14 information in a manner and format that is comparable throughout line 15 the region and utilize readily available data to the extent possible. line 16 (4) The information provided by a local go vernment pursuant line 17 to this section shall be used, to the extent possible, by the council line 18 of governments, or dele gate subregion as applicable, as source line 19 information for the methodology developed pursuant to this section. line 20 The survey shall state that none of the information recei ved may line 21 be used as a basis for reducing the total housing need established line 22 for the region pursuant to Section 65584.01.
line 23 (5) If the council of go vernments f ails to conduct a surv ey line 24 pursuant to this subdivision, a city, county, or city and county may line 25 submit information related to the items listed in subdi vision (e) line 26 before the public comment period provided for in subdivision (d). line 27 (c) The council of go vernments shall electronically report the line 28 results of the survey of fair housing issues, strategies, and actions line 29 compiled pursuant to paragraph (2) of subdivision (b). The report line 30 shall describe common themes and effective strategies employed line 31 by cities and counties within the area serv ed by the council of line 32 governments, including common themes and ef fective strategies line 33 around avoiding the displacement of lo wer income households. line 34 The council of governments shall also identify significant barriers line 35 to affirmatively furthering f air housing at the re gional level and line 36 may recommend strategies or actions to overcome those barriers. line 37 A council of governments or metropolitan planning organization, line 38 as appropriate, may use this information for an y other purpose, line 39 including publication within a regional transportation plan adopted line 40 pursuant to Section 65080 or to inform the land use assumptions 93 — 10 — SB 7
line 1 that are applied in the de velopment of a re gional transportation line 2 plan.
line 3 (d) Public participation and access shall be required in the line 4 development of the methodology and in the process of drafting line 5 and adoption of the allocation of the re gional housing needs. line 6 Participation by or ganizations other than local jurisdictions and line 7 councils of go vernments shall be solicited in a diligent ef fort to line 8 achieve public participation of all economic se gments of the line 9 community as well as members of protected classes under Section line 10 12955. 12955 and households with special housing needs under line 11 paragraph (7) of subdivision (a) of Section 65583. The proposed line 12 methodology, along with an y rele vant underlying data and line 13 assumptions, an e xplanation of ho w information about local line 14 government conditions g athered pursuant to subdi vision (b) has line 15 been used to develop the proposed methodology, how each of the line 16 factors listed in subdi vision (e) is incorporated into the line 17 methodology, and ho w the proposed methodology furthers the line 18 objectives listed in subdi vision (d) of Section 65584, shall be line 19 distributed to all cities, counties, any subregions, and members of line 20 the public who have made a written or electronic request for the line 21 proposed methodology and published on the council of line 22 governments’, or dele gate subre gion’s, internet website. The line 23 council of governments, or delegate subregion, as applicable, shall line 24 conduct at least one public hearing to recei ve oral and written line 25 comments on the proposed methodology.
line 26 (e) To the e xtent that sufficient data is a vailable from local line 27 governments pursuant to subdi vision (b) or other sources, each line 28 council of governments, or delegate subregion as applicable, shall line 29 consider including the follo wing f actors in de veloping the line 30 methodology that allocates regional housing needs:
line 31 (1) Each member jurisdiction’s existing and projected jobs and line 32 housing relationship. This shall include an estimate based on line 33 readily available data on the number of low-wage jobs within the line 34 jurisdiction and ho w many housing units within the jurisdiction line 35 are affordable to low-wage workers as well as an estimate based line 36 on readily a vailable data, of projected job gro wth and projected line 37 household growth by income level within each member jurisdiction line 38 during the planning period.
93 SB 7 — 11 —
line 1 (2) The opportunities and constraints to de velopment of line 2 additional housing in each member jurisdiction, including all of line 3 the following:
line 4 (A) Lack of capacity for sewer or water service due to federal line 5 or state la ws, re gulations or re gulatory actions, or supply and line 6 distribution decisions made by a se wer or water service provider line 7 other than the local jurisdiction that preclude the jurisdiction from line 8 providing necessary infrastructure for additional de velopment line 9 during the planning period.
line 10 (B) The availability of land suitable for urban de velopment or line 11 for conversion to residential use, the availability of underutilized line 12 land, and opportunities for infill de velopment and increased line 13 residential densities. The council of go vernments may not limit line 14 its consideration of suitable housing sites or land suitable for urban line 15 development to existing zoning ordinances and land use restrictions line 16 of a locality , b ut shall consider the potential for increased line 17 residential development under alternative zoning ordinances and line 18 land use restrictions. The determination of available land suitable line 19 for urban de velopment may e xclude lands where the Federal line 20 Emergency Management Agency (FEMA) or the Department of line 21 Water Resources has determined that the flood management line 22 infrastructure designed to protect that land is not adequate to avoid line 23 the risk of flooding.
line 24 (C) Lands preserved or protected from urban development under line 25 existing federal or state programs, or both, designed to protect line 26 open space, farmland, environmental habitats, and natural resources line 27 on a long-term basis, including land zoned or designated for line 28 agricultural protection or preserv ation that is subject to a local line 29 ballot measure that was approved by the voters of that jurisdiction line 30 that prohibits or restricts conversion to nonagricultural uses. line 31 (D) County policies to preserv e prime agricultural land, as line 32 defined pursuant to Section 56064, within an unincorporated area line 33 and land within an unincorporated area zoned or designated for line 34 agricultural protection or preserv ation that is subject to a local line 35 ballot measure that was approved by the voters of that jurisdiction line 36 that prohibits or restricts its conversion to nonagricultural uses. line 37 (E) Emergency e vacuation route capacity , wildfire risk, sea line 38 level rise, and other impacts caused by climate change. line 39 (3) The distribution of household growth assumed for purposes line 40 of a comparable period of re gional transportation plans and 93 — 12 — SB 7
line 1 opportunities to maximize the use of public transportation and line 2 existing transportation infrastructure.
line 3 (4) Agreements between a county and cities in a county to direct line 4 growth toward incorporated areas of the county and land within line 5 an unincorporated area zoned or designated for agricultural line 6 protection or preservation that is subject to a local ballot measure line 7 that was approved by the voters of the jurisdiction that prohibits line 8 or restricts conversion to nonagricultural uses. line 9 (5) The loss of units contained in assisted housing developments, line 10 as defined in paragraph (9) of subdi vision (a) of Section 65583, line 11 that changed to non-low-income use through mortgage prepayment, line 12 subsidy contract expirations, or termination of use restrictions. line 13 (6) The percentage of existing households at each of the income line 14 levels listed in subdi vision (f) of Section 65584 that are paying line 15 more than 30 percent and more than 50 percent of their income in line 16 rent.
line 17 (7) The rate of overcrowding.
line 18 (8) The housing needs of farmworkers.
line 19 (9) The housing needs generated by the presence of a pri vate line 20 university or a campus of the California State Uni versity or the line 21 University of California within any member jurisdiction. line 22 (10) The housing needs of individuals and families experiencing line 23 homelessness. If a council of go vernments has surveyed each of line 24 its member jurisdictions pursuant to subdivision (b) on or before line 25 January 1, 2020, this paragraph shall apply only to the development line 26 of methodologies for the seventh and subsequent revisions of the line 27 housing element.
line 28 (11) The loss of units during a state of emer gency that w as line 29 declared by the Go vernor pursuant to the California Emer gency line 30 Services Act (Chapter 7 (commencing with Section 8550) of line 31 Division 1 of Title 2), during the planning period immediately line 32 preceding the rele vant re vision pursuant to Section 65588 that line 33 have yet to be rebuilt or replaced at the time of the analysis. line 34 (12) The region’s greenhouse g as emissions tar gets provided line 35 by the State Air Resources Board pursuant to Section 65080. line 36 (13) Any other factors adopted by the council of governments, line 37 that further the objecti ves listed in subdi vision (d) of Section line 38 65584, provided that the council of governments specifies which line 39 of the objectives each additional factor is necessary to further. The line 40 council of governments may include additional f actors unrelated 93 SB 7 — 13 —
line 1 to furthering the objecti ves listed in subdi vision (d) of Section line 2 65584 so long as the additional f actors do not undermine the line 3 objectives listed in subdivision (d) of Section 65584 and are applied line 4 equally across all household income le vels as described in line 5 subdivision (f) of Section 65584 and the council of go vernments line 6 makes a finding that the factor is necessary to address significant line 7 health and safety conditions.
line 8 (f) The council of go vernments, or dele gate subre gion, as line 9 applicable, shall e xplain in writing ho w each of the f actors line 10 described in subdivision (e) was incorporated into the methodology line 11 and ho w the methodology furthers the objecti ves listed in line 12 subdivision (d) of Section 65584. The methodology may include line 13 numerical weighting. This information, and any other supporting line 14 materials used in determining the methodology , shall be posted line 15 on the council of governments’, or delegate subregion’s, internet line 16 website.
line 17 (g) The follo wing criteria shall not be a justification for a line 18 determination or a reduction in a jurisdiction’s share of the regional line 19 housing need:
line 20 (1) Any ordinance, policy, voter-approved measure, or standard line 21 of a city or county that directly or indirectly limits the number of line 22 residential building permits issued by a city or county. line 23 (2) Prior underproduction of housing in a city or county from line 24 the previous regional housing need allocation, as determined by line 25 each jurisdiction’s annual production report submitted pursuant line 26 to subparagraph (H) of paragraph (2) of subdivision (a) of Section line 27 65400.
line 28 (3) Stable population numbers in a city or county from the line 29 previous regional housing needs cycle.
line 30 (h) Following the conclusion of the public comment period line 31 described in subdi vision (d) on the proposed allocation line 32 methodology, and after making any revisions deemed appropriate line 33 by the council of governments, or delegate subregion, as applicable, line 34 as a result of comments received during the public comment period, line 35 and as a result of consultation with the department, each council line 36 of governments, or delegate subregion, as applicable, shall publish line 37 a draft allocation methodology on its internet website and submit line 38 the draft allocation methodology , along with the information line 39 required pursuant to subdivision (e), to the department. 93 — 14 — SB 7
line 1 (i) Within 60 days, the department shall re view the draft line 2 allocation methodology and report its written findings to the line 3 council of governments, or delegate subregion, as applicable. In line 4 its written findings the department shall determine whether the line 5 methodology furthers the objecti ves listed in subdi vision (d) of line 6 Section 65584. If the department determines that the methodology line 7 is not consistent with subdivision (d) of Section 65584, the council line 8 of governments, or dele gate subregion, as applicable, shall tak e line 9 one of the following actions:
line 10 (1) Revise the methodology to further the objecti ves listed in line 11 subdivision (d) of Section 65584 and adopt a final re gional, or line 12 subregional, housing need allocation methodology. line 13 (2) Adopt the regional, or subregional, housing need allocation line 14 methodology without revisions and include within its resolution line 15 of adoption findings, supported by substantial evidence, as to why line 16 the council of go vernments, or delegate subregion, believes that line 17 the methodology furthers the objecti ves listed in subdi vision (d) line 18 of Section 65584 despite the findings of the department. line 19 (j) If the department’s findings are not available within the time line 20 limits set by subdivision (i), the council of governments, or delegate line 21 subregion, may act without them.
line 22 (k) Upon either action pursuant to subdi vision (i), the council line 23 of governments, or delegate subregion, shall provide notice of the line 24 adoption of the methodology to the jurisdictions within the region, line 25 or delegate subregion, as applicable, and to the department, and line 26 shall publish the adopted allocation methodology , along with its line 27 resolution and any adopted written findings, on its internet website. line 28 (l) The department may, within 90 45 days, review the adopted line 29 methodology and report its findings to the council of governments, line 30 or delegate subregion.
line 31 (m) (1) It is the intent of the Legislature that housing planning line 32 be coordinated and integrated with the regional transportation plan. line 33 To achieve this goal, the allocation plan shall allocate housing line 34 units within the re gion consistent with the de velopment pattern line 35 included in the sustainable communities strategy. line 36 (2) The final allocation plan shall ensure that the total regional line 37 housing need, by income cate gory, as determined under Section line 38 65584, is maintained, and that each jurisdiction in the re gion line 39 receive an allocation of units for lo w- and v ery lo w income line 40 households.
93 SB 7 — 15 —
line 1 (3) The resolution approving the final housing need allocation line 2 plan shall demonstrate that the plan is consistent with the line 3 sustainable communities strate gy in the re gional transportation line 4 plan and furthers the objectives listed in subdivision (d) of Section line 5 65584.
line 6 (n) This section shall become operative on January 1, 2025. line 7 SEC. 4. Section 65584.05 of the Government Code is amended line 8 to read:
line 9 65584.05. (a) At least one and one-half years before the line 10 scheduled revision required by Section 65588, each council of line 11 governments and delegate subregion, as applicable, shall distribute line 12 a draft allocation of re gional housing needs to each local line 13 government in the region or subregion, where applicable, and the line 14 department, based on the methodology adopted pursuant to Section line 15 65584.04 and shall publish the draft allocation on its internet line 16 website. The council of go vernments may additionally distribute line 17 the draft allocation plan upon adoption of the final methodolo gy line 18 reviewed and adopted by the department pur suant to paragraph line 19 (2) of subdivision (i) of Section 65584.04. The draft allocation shall line 20 include the underlying data and methodology on which the line 21 allocation is based, and a statement as to ho w it furthers the line 22 objectives listed in subdivision (d) of Section 65584. It is the intent line 23 of the Le gislature that the draft allocation should be distrib uted line 24 before the completion of the update of the applicable re gional line 25 transportation plan. The draft allocation shall distribute to localities line 26 and subregions, if any, within the region the entire regional housing line 27 need determined pursuant to Section 65584.01 or within line 28 subregions, as applicable, the subre gion’s entire share of the line 29 regional housing need determined pursuant to Section 65584.03. line 30 (b) Within 45 days follo wing receipt of the draft allocation, a line 31 local government within the region or the delegate subregion, as line 32 applicable, or the department may appeal to the council of line 33 governments or the delegate subregion for a revision of the share line 34 of the re gional housing need proposed to be allocated to one or line 35 more local governments. Appeals shall be based upon comparable line 36 data available for all affected jurisdictions and accepted planning line 37 methodology, and supported by adequate documentation, and shall line 38 include a statement as to why the revision is necessary to further line 39 the intent of the objecti ves listed in subdi vision (d) of Section line 40 65584. An appeal pursuant to this subdivision shall be consistent 93 — 16 — SB 7
line 1 with, and not to the detriment of, the de velopment pattern in an line 2 applicable sustainable communities strate gy developed pursuant line 3 to paragraph (2) of subdivision (b) of Section 65080. Appeals shall line 4 be limited to any of the following circumstances:
line 5 (1) The council of go vernments or dele gate subre gion, as line 6 applicable, failed to adequately consider the information submitted line 7 pursuant to subdivision (b) of Section 65584.04. line 8 (2) The council of go vernments or dele gate subre gion, as line 9 applicable, failed to determine the share of the re gional housing line 10 need in accordance with the information described in, and the line 11 methodology established pursuant to, Section 65584.04, and in a line 12 manner that furthers, and does not undermine, the intent of the line 13 objectives listed in subdivision (d) of Section 65584. line 14 (3) A significant and unforeseen change in circumstances has line 15 occurred in the local jurisdiction or jurisdictions that merits a line 16 revision of the information submitted pursuant to subdivision (b) line 17 of Section 65584.04. Appeals on this basis shall only be made by line 18 the jurisdiction or jurisdictions where the change in circumstances line 19 has occurred.
line 20 (c) At the close of the period for filing appeals pursuant to line 21 subdivision (b), the council of governments or delegate subregion, line 22 as applicable, shall notify all other local go vernments within the line 23 region or delegate subregion and the department of all appeals and line 24 shall mak e all materials submitted in support of each appeal line 25 available on a publicly a vailable internet website. Local line 26 governments and the department may , within 45 days, comment line 27 on one or more appeals. If no appeals are filed, the draft allocation line 28 shall be issued as the proposed final allocation plan pursuant to line 29 paragraph (2) of subdi vision (e). may be adopted pur suant to line 30 subdivision (g).
line 31 (d) No later than 30 days after the close of the comment period, line 32 and after pro viding all local go vernments within the re gion or line 33 delegate subregion, as applicable, at least 21 days prior notice, the line 34 council of governments or delegate subregion shall conduct one line 35 public hearing to consider all appeals filed pursuant to subdivision line 36 (b) and all comments received pursuant to subdivision (c). line 37 (e) No later than 45 days after the public hearing pursuant to line 38 subdivision (d), the council of governments or delegate subregion, line 39 as applicable, shall do both of the following:
93 SB 7 — 17 —
line 1 (1) Make a final determination that either accepts, rejects, or line 2 modifies each appeal for a re vised share filed pursuant to line 3 subdivision (b). Final determinations shall be based upon the line 4 information and methodology described in Section 65584.04 and line 5 whether the revision is necessary to further the objecti ves listed line 6 in subdivision (d) of Section 65584. The final determination shall line 7 be in writing and shall include written findings as to ho w the line 8 determination is consistent with this article. The final determination line 9 on an appeal may require the council of governments or delegate line 10 subregion, as applicable, to adjust the share of the regional housing line 11 need allocated to one or more local go vernments that are not the line 12 subject of an appeal.
line 13 (2) Issue a proposed final allocation plan.
line 14 (f) In the proposed final allocation plan, the council of line 15 governments or dele gate subre gion, as applicable, shall adjust line 16 allocations to local go vernments based upon the results of the line 17 appeals process. If the adjustments total 7 percent or less of the line 18 regional housing need determined pursuant to Section 65584.01, line 19 or, as applicable, total 7 percent or less of the subre gion’s share line 20 of the re gional housing need as determined pursuant to Section line 21 65584.03, then the council of governments or delegate subregion, line 22 as applicable, shall distribute the adjustments proportionally to all line 23 local governments. If the adjustments total more than 7 percent of line 24 the re gional housing need, then the council of go vernments or line 25 delegate subregion, as applicable, shall develop a methodology to line 26 distribute the amount greater than the 7 percent to local line 27 governments. The total distribution of housing need shall not equal line 28 less than the re gional housing need, as determined pursuant to line 29 Section 65584.01, nor shall the subregional distribution of housing line 30 need equal less than its share of the re gional housing need as line 31 determined pursuant to Section 65584.03.
line 32 (g) Within 45 days after the issuance of the proposed final line 33 allocation plan by the council of go vernments and each delegate line 34 subregion, as applicable, the council of governments shall hold a line 35 public hearing to adopt a final allocation plan. To the extent that line 36 the final allocation plan fully allocates the re gional share of line 37 statewide housing need, as determined pursuant to Section line 38 65584.01 and has tak en into account all appeals, the council of line 39 governments shall have final authority to determine the distribution line 40 of the region’s existing and projected housing need as determined 93 — 18 — SB 7
line 1 pursuant to Section 65584.01. The council of go vernments shall line 2 submit its final allocation plan to the department within three days line 3 of adoption. Within 30 days after the department’ s receipt of the line 4 final allocation plan adopted by the council of go vernments, the line 5 department shall determine if the final allocation plan is consistent line 6 with the e xisting and projected housing need for the re gion, as line 7 determined pursuant to Section 65584.01. The department may line 8 revise the determination of the council of governments if necessary line 9 to obtain this consistency.
line 10 (h) Any authority of the council of governments to review and line 11 revise the share of a city or county of the re gional housing need line 12 under this section shall not constitute authority to revise, approve, line 13 or disapprove the manner in which the share of the city or county line 14 of the regional housing need is implemented through its housing line 15 program.
line 16 (i) Any time period in subdi vision (d) or (e) may be e xtended line 17 by a council of governments or delegate subregion, as applicable, line 18 for up to 30 days.
line 19 (j) The San Diego Association of Governments may follow the line 20 process in this section for the draft and final allocation plan for line 21 the sixth re vision of the housing element notwithstanding such line 22 actions being carried out before the adoption of an updated regional line 23 transportation plan and sustainable communities strategy. line 24 SEC. 5. Section 65584.06 of the Government Code, as added line 25 by Section 5 of Chapter 948 of the Statutes of 2022, is amended line 26 to read:
line 27 65584.06. (a) For cities and counties without a council of line 28 governments, the department shall determine and distrib ute the line 29 existing and projected housing need, in accordance with Section line 30 65584 65584, Section 65584.01, as applicable , and this section. line 31 If the department determines that a county or counties, supported line 32 by a resolution adopted by the board or boards of supervisors, and line 33 a majority of cities within the county or counties representing a line 34 majority of the population of the county or counties, possess the line 35 capability and resources and has agreed to accept the responsibility, line 36 with respect to its jurisdiction, for the distribution of the regional line 37 housing need, the department shall delegate this responsibility to line 38 the cities and county or counties.
line 39 (b) The distribution of regional housing need shall, based upon line 40 available data and in consultation with the cities and counties, take 93 SB 7 — 19 —
line 1 into consideration market demand for housing, the distribution of line 2 household gro wth within the county assumed in the re gional line 3 transportation plan where applicable, emplo yment opportunities line 4 and commuting patterns, the availability of suitable sites and public line 5 facilities, the needs of indi viduals and f amilies e xperiencing line 6 homelessness, agreements between a county and cities in a county line 7 to direct growth toward incorporated areas of the county, or other line 8 considerations as may be requested by the af fected cities or line 9 counties and agreed to by the department, including, but not limited line 10 to, emergency evacuation route capacity, wildfire risk, sea le vel line 11 rise, and other impacts caused by climate change. As part of the line 12 allocation of the re gional housing need, the department shall line 13 provide each city and county with data describing the assumptions line 14 and methodology used in calculating its share of the re gional line 15 housing need. Consideration of suitable housing sites or land line 16 suitable for urban de velopment is not limited to e xisting zoning line 17 ordinances and land use restrictions of a locality, but shall include line 18 consideration of the potential for increased residential development line 19 under alternative zoning ordinances and land use restrictions. The line 20 determination of a vailable land suitable for urban de velopment line 21 may exclude lands where the Federal Emer gency Management line 22 Agency (FEMA) or the Department of Water Resources has line 23 determined that the flood management infrastructure designed to line 24 protect that land is not adequate to avoid the risk of flooding. line 25 (c) Within 90 days follo wing the department’ s determination line 26 of a draft distribution of the regional housing need to the cities and line 27 the county, a city or county may propose to revise the determination line 28 of its share of the regional housing need in accordance with criteria line 29 set forth in the draft distribution. The proposed revised share shall line 30 be based upon comparable data a vailable for all af fected line 31 jurisdictions, and accepted planning methodology , and shall be line 32 supported by adequate documentation.
line 33 (d) (1) Within 60 days after the end of the 90-day time period line 34 for the revision by the cities or county, the department shall accept line 35 the proposed revision, modify its earlier determination, or indicate line 36 why the proposed revision is inconsistent with the regional housing line 37 need.
line 38 (2) If the department does not accept the proposed re vision, line 39 then, within 30 days, the city or county may request a public line 40 hearing to review the determination.
93 — 20 — SB 7
line 1 (3) The city or county shall be notified within 30 days by line 2 certified mail, return receipt requested, of at least one public line 3 hearing regarding the determination.
line 4 (4) The date of the hearing shall be at least 10 but not more than line 5 15 days from the date of the notification.
line 6 (5) Before making its final determination, the department shall line 7 consider all comments received and shall include a written response line 8 to each request for revision received from a city or county. line 9 (e) If the department accepts the proposed revision or modifies line 10 its earlier determination, the city or county shall use that share. If line 11 the department grants a revised allocation pursuant to subdivision line 12 (d), the department shall ensure that the total re gional housing line 13 need is maintained. The department’s final determination shall be line 14 in writing and shall include information explaining how its action line 15 is consistent with this section. If the department indicates that the line 16 proposed revision is inconsistent with the regional housing need, line 17 the city or county shall use the share that was originally determined line 18 by the department. The department, within its final determination, line 19 may adjust the allocation of a city or county that was not the subject line 20 of a request for revision of the draft distribution. line 21 (f) The department shall issue a final re gional housing need line 22 allocation for all cities and counties within 45 days of the line 23 completion of the local review period.
line 24 (g) Statutory changes enacted after the date the department line 25 issued a final determination pursuant to this section shall not be a line 26 basis for a revision of the final determination. line 27 (h) This section shall become operative on January 1, 2025. line 28 SEC. 6. Section 65588 of the Government Code is amended to line 29 read:
line 30 65588. (a) Each local go vernment shall re view its housing line 31 element as frequently as appropriate to e valuate all of the line 32 following:
line 33 (1) The appropriateness of the housing goals, objecti ves, and line 34 policies in contributing to the attainment of the state housing goal. line 35 (2) The effectiveness of the housing element in attainment of line 36 the community’s housing goals and objectives.
line 37 (3) The progress of the city , county , or city and county in line 38 implementation of the housing element.
93 SB 7 — 21 —
line 1 (4) The effectiveness of the housing element goals, policies, line 2 and related actions to meet the community’ s needs, pursuant to line 3 paragraph (7) of subdivision (a) of Section 65583. line 4 (b) The housing element shall be revised as appropriate, but no line 5 less often than required by subdivision (e), to reflect the results of line 6 this periodic review. Nothing in this section shall be construed to line 7 excuse the obligations of the local government to adopt a revised line 8 housing element in accordance with the schedule specified in this line 9 section.
line 10 (c) The review and re vision of housing elements required by line 11 this section shall take into account any low- or moderate-income line 12 housing provided or required pursuant to Section 65590. line 13 (d) The review pursuant to subdi vision (c) shall include, b ut line 14 need not be limited to, the following:
line 15 (1) The number of new housing units approved for construction line 16 within the coastal zone after January 1, 1982.
line 17 (2) The number of housing units for persons and f amilies of line 18 low or moderate income, as defined in Section 50093 of the Health line 19 and Safety Code, required to be pro vided in ne w housing line 20 developments either within the coastal zone or within three miles line 21 of the coastal zone pursuant to Section 65590.
line 22 (3) The number of existing residential dwelling units occupied line 23 by persons and families of low or moderate income, as defined in line 24 Section 50093 of the Health and Safety Code, that ha ve been line 25 authorized to be demolished or con verted since January 1, 1982, line 26 in the coastal zone.
line 27 (4) The number of residential dwelling units for persons and line 28 families of low or moderate income, as defined in Section 50093 line 29 of the Health and Safety Code, that ha ve been required for line 30 replacement or authorized to be con verted or demolished as line 31 identified in paragraph (3). The location of the replacement units, line 32 either onsite, else where within the locality’ s jurisdiction within line 33 the coastal zone, or within three miles of the coastal zone within line 34 the locality’s jurisdiction, shall be designated in the review. line 35 (e) Each city, county, and city and county shall revise its housing line 36 element according to the following schedule:
line 37 (1) (A) Local governments within the regional jurisdiction of line 38 the Southern California Association of Go vernments: June 30, line 39 2006, for the fourth revision.
93 — 22 — SB 7
line 1 (B) Local governments within the re gional jurisdiction of the line 2 Association of Bay Area Go vernments: June 30, 2007, for the line 3 fourth revision.
line 4 (C) Local governments within the re gional jurisdiction of the line 5 Council of Fresno County Governments, the Kern County Council line 6 of Go vernments, and the Sacramento Area Council of line 7 Governments: June 30, 2002, for the third re vision, and June 30, line 8 2008, for the fourth revision.
line 9 (D) Local governments within the re gional jurisdiction of the line 10 Association of Monterey Bay Area Governments: December 31, line 11 2002, for the third re vision, and June 30, 2009, for the fourth line 12 revision.
line 13 (E) Local governments within the re gional jurisdiction of the line 14 San Diego Association of Go vernments: June 30, 2005, for the line 15 fourth revision.
line 16 (F) All other local go vernments: December 31, 2003, for the line 17 third revision, and June 30, 2009, for the fourth revision. line 18 (2) (A) All local governments within a metropolitan planning line 19 organization in a re gion classified as nonattainment for one or line 20 more pollutants regulated by the federal Clean Air Act (42 U.S.C. line 21 Sec. 7506), except those within the regional jurisdiction of the San line 22 Diego Association of Governments, shall adopt the fifth revision line 23 of the housing element no later than 18 months after adoption of line 24 the first regional transportation plan to be adopted after September line 25 30, 2010.
line 26 (B) (i) All local go vernments within the re gional jurisdiction line 27 of the San Diego Association of Governments shall adopt the fifth line 28 revision of the housing element no later than 18 months after line 29 adoption of the first re gional transportation plan update to be line 30 adopted after September 30, 2010.
line 31 (ii) Before or concurrent with the adoption of the fifth revision line 32 of the housing element, each local government within the regional line 33 jurisdiction of the San Die go Association of Go vernments shall line 34 identify adequate sites in its inventory pursuant to Section 65583.2 line 35 or rezone adequate sites to accommodate a prorated portion of its line 36 share of the re gional housing need for the projection period line 37 representing the period from July 1, 2010, to the deadline for line 38 housing element adoption described in clause (i). line 39 (I) For the fifth re vision, a local go vernment within the line 40 jurisdiction of the San Diego Association of Governments that has 93 SB 7 — 23 —
line 1 not adopted a housing element for the fourth revision by January line 2 1, 2009, shall revise its housing element not less than e very four line 3 years, beginning on the date described in clause (i), in accordance line 4 with paragraph (4), unless the local government does both of the line 5 following:
line 6 (ia) Adopts a housing element for the fourth re vision no later line 7 than March 31, 2010, that is in substantial compliance with this line 8 article.
line 9 (ib) Completes any rezoning contained in the housing element line 10 program for the fourth revision by June 30, 2010. line 11 (II) A local government within the jurisdiction of the San Diego line 12 Association of Governments shall adopt the sixth re vision of the line 13 housing element on or before April 30, 2021, using the final line 14 housing allocation adopted by the San Die go Association of line 15 Governments on or before November 1, 2019, although such action line 16 will not be carried out concurrently with adoption of an updated line 17 regional transportation plan and sustainable communities strategy. line 18 (III) All local go vernments within the jurisdiction of the San line 19 Diego Association of Governments shall adopt the seventh revision line 20 of the housing element no later than 18 months after the San Diego line 21 Association of Governments adopts its first regional transportation line 22 plan update in 2029.
line 23 (IV) For the eighth and subsequent revisions, a local government line 24 within the jurisdiction of the San Die go Association of line 25 Governments shall be subject to the dates described in clause (i), line 26 in accordance with paragraph (4).
line 27 (C) All local governments within the regional jurisdiction of a line 28 metropolitan planning or ganization or a re gional transportation line 29 planning agenc y that has made an election pursuant to line 30 subparagraph (L) of paragraph (2) of subdi vision (b) of Section line 31 65080 by June 1, 2009, shall adopt the fifth revision of the housing line 32 element no later than 18 months after adoption of the first regional line 33 transportation plan update following the election. line 34 (D) All other local go vernments shall adopt the fifth re vision line 35 of the housing element fiv e years after the date specified in line 36 paragraph (1).
line 37 (3) Subsequent revisions of the housing element shall be due line 38 as follows:
line 39 (A) For local governments described in subparagraphs (A), (B), line 40 and (C) of paragraph (2), 18 months after adoption of every second 93 — 24 — SB 7
line 1 regional transportation plan update, provided that the deadline for line 2 adoption is no more than eight years later than the deadline for line 3 adoption of the pre vious eight-year housing element, or as line 4 otherwise provided in law.
line 5 (B) For all other local governments, at five-year intervals after line 6 the date specified in subparagraph (D) of paragraph (2). line 7 (C) If a metropolitan planning or ganization or a re gional line 8 transportation planning agenc y subject to the fiv e-year revision line 9 interval in subparagraph (B) mak es an election pursuant to line 10 subparagraph (M) of paragraph (2) of subdi vision (b) of Section line 11 65080 after June 1, 2009, all local governments within the regional line 12 jurisdiction of that entity shall adopt the ne xt housing element line 13 revision no later than 18 months after adoption of the first regional line 14 transportation plan update follo wing the election. Subsequent line 15 revisions shall be due 18 months after adoption of e very second line 16 regional transportation plan update, provided that the deadline for line 17 adoption is no more than eight years later than the deadline for line 18 adoption of the previous eight-year housing element. line 19 (4) (A) A local go vernment that does not adopt a housing line 20 element within 120 days of the applicable deadline described in line 21 subparagraph (A), (B), or (C) of paragraph (2) or subparagraph line 22 (A) or (C) of paragraph (3) shall re vise its housing element not line 23 less than every four years until the due date for the sixth revision. line 24 The adoption of a sixth re vision housing element that the line 25 department finds to be in substantial compliance with this article line 26 pursuant to Section 65585 shall be deemed to satisfy any obligation line 27 to adopt a four -year housing element, and a four -year housing line 28 element revision shall not be subsequently required. line 29 (B) The deadline for adoption of every four-year revision shall line 30 be the same as the deadline for adoption for other local line 31 governments within the region.
line 32 (C) (i) For the adoption of the sixth re vision and each line 33 subsequent re vision, a local go vernment that does not adopt a line 34 housing element that the department has found to be in substantial line 35 compliance with this article within 120 days of the applicable line 36 deadline described in subparagraph (A) or (C) of paragraph (3) line 37 shall comply with subparagraph (A) of paragraph (1) of subdivision line 38 (c) of Section 65583 and subdivision (c) of Section 65583.2 within line 39 one year of the statutory deadline to revise the housing element. 93 SB 7 — 25 —
line 1 (ii) If a jurisdiction subject to this subparagraph fails to complete line 2 the required rezoning within the time period required, the line 3 jurisdiction’s adopted housing element shall be subject to line 4 subdivision (i) of Section 65585.
line 5 (iii) A jurisdiction that adopts a housing element more than one line 6 year after the statutory deadline described in subparagraph (A) or line 7 (C) of paragraph (3) shall not be found in substantial compliance line 8 with this article until it has completed the rezoning required by line 9 subparagraph (A) of paragraph (1) of subdi vision (c) of Section line 10 65583 and subdivision (c) of Section 65583.2.
line 11 (5) The metropolitan planning or ganization or a re gional line 12 transportation planning agency for a region that has an eight-year line 13 revision interv al pursuant to paragraph (3) shall notify the line 14 department and the Department of Transportation in writing of the line 15 estimated adoption date for its ne xt regional transportation plan line 16 update at least 12 months before the estimated adoption date. The line 17 Department of Transportation shall maintain and publish on its line 18 internet website a current schedule of the estimated re gional line 19 transportation plan adoption dates. The department shall maintain line 20 and publish on its internet website a current schedule of the line 21 estimated and actual housing element due dates. Each council of line 22 governments shall publish on its internet website the estimated line 23 and actual housing element due dates, as published by the line 24 department, for the jurisdictions within its re gion and shall send line 25 notice of these dates to interested parties. F or purposes of line 26 determining the existing and projected need for housing within a line 27 region pursuant to Sections 65584 to 65584.07, inclusive, the date line 28 of the ne xt scheduled re vision of the housing element shall be line 29 deemed to be the estimated adoption date of the re gional line 30 transportation plan update described in the notice provided to the line 31 Department of Transportation plus 18 months. months, provided line 32 that date is no mor e than eight year s later than the deadline for line 33 adoption of the previous eight-year housing element. line 34 (6) The ne w projection period shall be gin on the date of line 35 December 31 or June 30 that most closely precedes the end of the line 36 previous projection period.
line 37 (f) For purposes of this article, the follo wing terms ha ve the line 38 following meanings:
line 39 (1) “Planning period” shall be the time period between the due line 40 date for one housing element and the due date for the next housing 93 — 26 — SB 7
line 1 element for each re vision according to the applicable schedule line 2 described in paragraphs (2) and (3) of subdivision (e). line 3 (2) “Projection period” shall be the time period for which the line 4 regional housing need is calculated.
line 5 (g) For purposes of this section, “re gional transportation plan line 6 update” shall mean a regional transportation plan adopted to satisfy line 7 the requirements of subdivision (d) of Section 65080. line 8 SEC. 7. The Legislature finds and declar es that r evising the line 9 housing needs assessment to combat the state’ s housing crisis is line 10 a matter is a matter of state wide concern and is not a municipal line 11 affair as that term is used in Section 5 of Article XI of the line 12 California Constitution. Therefore, Sections 1, 3, 4, 5, and 6 of line 13 this act amending Sections 65584.01, 65584.04, 65584.05, line 14 65584.06, and 65588 of the Go vernment Code shall apply to all line 15 cities, including charter cities.
line 16 SEC. 8. No reimbursement is required by this act pursuant to line 17 Section 6 of Article XIII B of the California Constitution because line 18 a local agency or school district has the authority to levy service line 19 charges, fees, or assessments sufficient to pay for the program or line 20 level of service mandated by this act, within the meaning of Section line 21 17556 of the Government Code.
line 22 SECTION 1. Section 65400 of the Government Code is line 23 amended to read:
line 24 65400. (a) After the le gislative body has adopted all or part line 25 of a general plan, the planning agenc y shall do both of the line 26 following:
line 27 (1) Investigate and mak e recommendations to the le gislative line 28 body regarding reasonable and practical means for implementing line 29 the general plan or element of the general plan so that it will serve line 30 as an ef fective guide for orderly gro wth and de velopment, line 31 preservation and conserv ation of open-space land and natural line 32 resources, and the efficient expenditure of public funds relating to line 33 the subjects addressed in the general plan.
line 34 (2) Provide by April 1 of each year an annual report to the line 35 legislative body, the Office of Planning and Research, and the line 36 Department of Housing and Community Development that includes line 37 all of the following:
line 38 (A) The status of the plan and progress in its implementation. line 39 (B) (i) The progress in meeting its share of re gional housing line 40 needs determined pursuant to Section 65584, including the need 93 SB 7 — 27 —
line 1 for extremely low income households, as determined pursuant to line 2 paragraph (1) of subdivision (a) of Section 65583, and local efforts line 3 to remo ve go vernmental constraints to the maintenance, line 4 improvement, and development of housing pursuant to paragraph line 5 (3) of subdivision (c) of Section 65583.
line 6 (ii) The housing element portion of the annual report, as required line 7 by this paragraph, shall be prepared through the use of standards, line 8 forms, and definitions adopted by the Department of Housing and line 9 Community De velopment. The department may re view, adopt, line 10 amend, and repeal the standards, forms, or definitions to implement line 11 this article. Any standards, forms, or definitions adopted to line 12 implement this article shall not be subject to Chapter 3.5 line 13 (commencing with Section 11340) of Part 1 of Division 3 of Title line 14 2. Before and after adoption of the forms, the housing element line 15 portion of the annual report shall include a section that describes line 16 the actions taken by the local government towards completion of line 17 the programs and status of the local government’s compliance with line 18 the deadlines in its housing element. The report shall be considered line 19 at an annual public meeting before the le gislative body where line 20 members of the public shall be allowed to provide oral testimony line 21 and written comments.
line 22 (iii) The report may include the number of units that have been line 23 completed pursuant to subdi vision (c) of Section 65583.1. F or line 24 purposes of this paragraph, committed assistance may be executed line 25 throughout the planning period, and the program under paragraph line 26 (1) of subdi vision (c) of Section 65583.1 shall not be required. line 27 The report shall document ho w the units meet the standards set line 28 forth in that subdivision.
line 29 (iv) The planning agency shall include the number of units in line 30 a student housing development for lower income students for which line 31 the developer of the student housing de velopment was granted a line 32 density bonus pursuant to subparagraph (F) of paragraph (1) of line 33 subdivision (b) of Section 65915.
line 34 (C) The number of housing development applications received line 35 in the prior year , including whether each housing de velopment line 36 application is subject to a ministerial or discretionary appro val line 37 process.
line 38 (D) The number of units included in all de velopment line 39 applications in the prior year.
93 — 28 — SB 7
line 1 (E) The number of units approved and disapproved in the prior line 2 year.
line 3 (F) The degree to which its appro ved general plan complies line 4 with the guidelines de veloped and adopted pursuant to Section line 5 65040.2 and the date of the last revision to the general plan. line 6 (G) A listing of sites rezoned to accommodate that portion of line 7 the city’s or county’s share of the regional housing need for each line 8 income level that could not be accommodated on sites identified line 9 in the in ventory required by paragraph (1) of subdi vision (c) of line 10 Section 65583 and Section 65584.09. The listing of sites shall also line 11 include any additional sites that may ha ve been required to be line 12 identified by Section 65863.
line 13 (H) (i) The number of units of housing demolished and ne w line 14 units of housing that have been issued a completed entitlement, a line 15 building permit, or a certificate of occupanc y, thus f ar in the line 16 housing element cycle. The number of units of housing demolished line 17 and new units of housing shall include rental housing, for -sale line 18 housing, and any units that the County of Napa or the City of Napa line 19 may report pursuant to an agreement entered into pursuant to line 20 Section 65584.08. That production report shall do all the following:
line 21 (I) For each unit of housing include the income cate gory, by line 22 area median income category, that each unit of housing satisfies, line 23 including extremely low income households as defined by Section line 24 50106 of the Health and Safety Code.
line 25 (II) For each income category described in this subparagraph, line 26 distinguish between the number of rental housing units and the line 27 number of for-sale units that satisfy each income category. line 28 (III) For each entitlement, b uilding permit, or certificate of line 29 occupancy, include a unique site identifier that must include the line 30 assessor’s parcel number, but may also include street address, or line 31 other identifiers.
line 32 (ii) For the County of Napa and the City of Napa, the production line 33 report may report units identified in the agreement entered into line 34 pursuant to Section 65584.08.
line 35 (I) The number of applications submitted pursuant to subdivision line 36 (a) of Section 65913.4, the location and the total number of line 37 developments appro ved pursuant to subdi vision (c) of Section line 38 65913.4, the total number of b uilding permits issued pursuant to line 39 subdivision (c) of Section 65913.4, the total number of units line 40 including both rental housing and for-sale housing by area median 93 SB 7 — 29 —
line 1 income cate gory constructed using the process pro vided for in line 2 subdivision (c) of Section 65913.4.
line 3 (J) If the city or county has recei ved funding pursuant to the line 4 Local Government Planning Support Grants Program (Chapter 3.1 line 5 (commencing with Section 50515) of Part 2 of Division 31 of the line 6 Health and Safety Code), the information required pursuant to line 7 subdivision (a) of Section 50515.04 of the Health and Safety Code. line 8 (K) The progress of the city or county in adopting or amending line 9 its general plan or local open-space element in compliance with line 10 its obligations to consult with California Native American tribes, line 11 and to identify and protect, preserv e, and mitig ate impacts to line 12 places, features, and objects described in Sections 5097.9 and line 13 5097.993 of the Public Resources Code, pursuant to Chapter 905 line 14 of the Statutes of 2004.
line 15 (L) The following information with respect to density bonuses line 16 granted in accordance with Section 65915:
line 17 (i) The number of density bonus applications recei ved by the line 18 city or county.
line 19 (ii) The number of density bonus applications approved by the line 20 city or county.
line 21 (iii) Data from all projects approved to receive a density bonus line 22 from the city or county, including, but not limited to, the percentage line 23 of density bonus recei ved, the percentage of af fordable units in line 24 the project, the number of other incentives or concessions granted line 25 to the project, and an y waiver or reduction of parking standards line 26 for the project.
line 27 (M) The following information with respect to each application line 28 submitted pursuant to Chapter 4.1 (commencing with Section line 29 65912.100):
line 30 (i) The location of the project.
line 31 (ii) The status of the project, including whether it has been line 32 entitled, whether a building permit has been issued, and whether line 33 or not it has been completed.
line 34 (iii) The number of units in the project.
line 35 (iv) The number of units in the project that are rental housing. line 36 (v) The number of units in the project that are for-sale housing. line 37 (vi) The household income category of the units, as determined line 38 pursuant to subdivision (f) of Section 65584.
line 39 (b) (1) (A) The department may request corrections to the line 40 housing element portion of an annual report submitted pursuant 93 — 30 — SB 7
line 1 to paragraph (2) of subdi vision (a) within 90 days of receipt. A line 2 planning agency shall mak e the requested corrections within 30 line 3 days after which the department may reject the report if the report line 4 is not in substantial compliance with the requirements of that line 5 paragraph.
line 6 (B) If the department rejects the housing element portion of an line 7 annual report as authorized by subparagraph (A), the department line 8 shall provide the reasons the report is inconsistent with paragraph line 9 (2) of subdivision (a) to the planning agency in writing. line 10 (2) If a court finds, upon a motion to that ef fect, that a city , line 11 county, or city and county failed to submit, within 60 days of the line 12 deadline established in this section, the housing element portion line 13 of the report required pursuant to subparagraph (B) of paragraph line 14 (2) of subdi vision (a) that substantially complies with the line 15 requirements of this section, the court shall issue an order or line 16 judgment compelling compliance with this section within 60 days. line 17 If the city , county, or city and county f ails to comply with the line 18 court’s order within 60 days, the plaintiff or petitioner may move line 19 for sanctions, and the court may , upon that motion, grant line 20 appropriate sanctions. The court shall retain jurisdiction to ensure line 21 that its order or judgment is carried out. If the court determines line 22 that its order or judgment is not carried out within 60 days, the line 23 court may issue further orders as pro vided by law to ensure that line 24 the purposes and policies of this section are fulfilled. This line 25 subdivision applies to proceedings initiated on or after the first line 26 day of October following the adoption of forms and definitions by line 27 the Department of Housing and Community Development pursuant line 28 to paragraph (2) of subdivision (a), but no sooner than six months line 29 following that adoption.
line 30 (c) The Department of Housing and Community Development line 31 shall post a report submitted pursuant to this section on its internet line 32 website within a reasonable time of receiving the report. line 33 SEC. 2. No reimbursement is required by this act pursuant to line 34 Section 6 of Article XIIIB of the California Constitution because line 35 a local agency or school district has the authority to le vy service line 36 charges, fees, or assessments sufficient to pay for the program or line 37 level of service mandated by this act, within the meaning of Section line 38 17556 of the Government Code.
O
93 SB 7 — 31 —
SENATE COMMITTEE ON HEALTH
Senator Richard Roth, Chair
BILL NO: AB 2574
AUTHOR: Valencia
VERSION: April 25, 2024
HEARING DATE: June 12, 2024
CONSULTANT: Reyes Diaz
SUBJECT: Alcoholism or drug abuse recovery or treatment programs and facilities:
disclosures
SUMMARY: Revises the requirement in existing law for certain entities to disclose that they own or control, or have a financial interest in, a recovery residence, and any contractual relationship with an entity that regularly provides services to addiction treatment or recovery clients to also include a general partner, director, or officer of the licensee.
Existing law:
1) Grants the Department of Health Care Services (DHCS) the sole authority in state government to administer, license, certify, and regulate all substance use disorder (SUD) functions and programs. [HSC §11750, et seq.]
2) Requires DHCS to license and regulate residential alcoholism or drug abuse (or substance use disorder [SUD]) recovery or treatment facilities (RTFs). [HSC §11834.02, et seq.]
3) Grants DHCS the authority to implement a program certification procedure for alcohol and other drug treatment recovery services and to develop standards and regulations for the alcohol and other drug treatment recovery services describing the minimal level of service quality required of the service providers to qualify for and obtain state certification. [HSC §11830.1]
4) Requires all programs certified, or RTFs licensed by DHCS, to disclose ownership or control of, or financial interest in, a recovery residence (RR) and any contractual relationship with an entity that regularly provides professional services or addiction treatment or recovery services to clients of programs certified or RTFs licensed by DHCS, if the entity is not part of the certified program or licensed RTF. [HSC §11833.05]
5) Prohibits a DHCS licensed RTF or certified program, and specified individuals associated with or employed by those facilities and programs, from giving or receiving remuneration or anything of value for the referral of a person who is seeking alcoholism or drug abuse recovery and treatment services, as specified. Permits DHCS to investigate allegations of violations and take action, such as revocation of licensure or certification, or assessment of penalties. [HSC §11831.6 and 11831.7]
This bill: Revises the disclosure requirement in 4) above of existing law to require a general partner, director, or officer of the licensee to make those disclosures when they operate, conduct, own, or maintain a certified program or licensed RTF.
FISCAL EFFECT: According to the Assembly Appropriations Committee, this bill results in minor and absorbable costs to DHCS.
AB 2574 (Valencia) Page 2 of 5
PRIOR VOTES:
Assembly Floor: 71 - 0
Assembly Appropriations Committee: 15 - 0
Assembly Health Committee: 16 - 0
COMMENTS:
1) Author’s statement. According to the author, this bill will enhance DHCS’s oversight abilities of licensed and certified entities that own or have control of RRs by expanding reporting requirements. While state law requires DHCS to license and/or certify and regulate residential and outpatient facilities that provide treatment services, DHCS does not have oversight of RRs that only provide housing, even though some illegally provide treatment and even medical services. This bill aims to address this gap and provide a greater understanding of the relationships between the treatment facilities under DHCS’s purview and RRs that operate within our communities by requiring the disclosure of specified financial relationships.
2) Licensed and certified programs. RTFs licensed by DHCS, based on what is commonly referred to as the “social model,” provide recovery, treatment, or detoxification services. (The Department of Public Health licenses medical model RTFs, known as chemical dependency recovery hospitals.) The services provided by social model RTFs include group and individual counseling, educational sessions, and alcoholism or drug abuse recovery and treatment planning. Social model RTFs are allowed to provide clients first aid and emergency care, and since the passage of AB 848 (Mark Stone, Chapter 744, Statutes of 2015), RTFs can apply to DHCS for an additional license to provide incidental medical services by a licensed physician or other health care practitioner. SB 823 (Hill, Chapter 781, Statutes of 2018) requires DHCS to adopt American Society of Addiction Medicine treatment criteria as the minimum standard of care for licensed RTFs. DHCS is also responsible for certification of a business entity with a physical location in the state, that provides one or more of the following services to clients: treatment, recovery, or detoxification services, or medications for addiction treatment. DHCS also provides program certification for facilities that are licensed by the Department of Social Services that serve adolescents. As part of their licensing and certification functions, DHCS conducts reviews of licensed and certified programs every two years, or as necessary; checks for compliance with statute, regulations, and certification standards to ensure the health and safety of clients; investigates all complaints; and has the authority to suspend or revoke a program’s license or certification for a violation of statutes, regulations, and certification standards. DHCS states that they have the sole authority to conduct site visits to their licensed and certified facilities. As compliance reviews require DHCS to review resident or client information and files, which is protected information to ensure confidentiality under Title 42, Code of Federal Regulations, Part 2, any onsite visits by any other entity to ensure licensure or certification compliance could violate these protections.
3) Recovery residences (RRs)/sober living homes (SLHs). A 2010 report on the National Institutes of Health (NIH) website, “Sober Living Houses for Alcohol and Drug Dependence:
18-month Outcomes,” states that SLHs are not formal treatment programs and are not obligated to comply with state or local regulations applicable to treatment. However, NIH does not provide a formal definition of a SLH. The report also mentions that it is difficult to determine how many SLHs there are in California because they are outside of the purview of state licensing authorities. The NIH report cites the protection that the federal FHA affords AB 2574 (Valencia) Page 3 of 5
SLHs to be located in residentially zoned areas, personal privacy under the Fourth Amendment, and the right of people with disabilities to live together for a shared purpose, such as mutually assisted recovery and maintenance of an abstinent lifestyle.
According to DHCS’s website, some types of residences do not provide alcohol and other drug services and therefore do not require licensure by DHCS, including cooperative living arrangements with a commitment or requirement to be free from alcohol and other drugs, sometimes referred to as RRs, SLHs, transitional housing, or alcohol- and drug-free housing.
DHCS states that while SLHs are not required to be licensed by DHCS, they may be subject to other types of permits, clearances, business taxes, or local fees, which may be required by the cities or counties in which they are located. If a SLH is providing licensable services to adults, then it must obtain a valid RTF license. Licensable services can include, but are not limited to, detoxification services, group sessions, individual sessions, one-on-one counseling, educational sessions, or recovery, treatment, or discharge planning. If a SLH is providing just one of the mentioned services, then it should be classified as a RTF and must obtain a license from DHCS.
DHCS’s Drug Medi-Cal Organized Delivery System waiver allows counties to use recovery SLHs in their continuum of services if they adhere to the following guidelines: do not provide SUD services that would require licensure by DHCS; all residents of an RR are actively engaged in medically necessary recovery support services to be provided off-site; and, each county develops guidelines for contracted RR providers and provide monitoring and oversight.
4) Informational hearing on patient brokering and subsequent legislation. On January 31, 2018, this Committee held an informational hearing to examine the SUD treatment system with a focus on treatment and services provided in licensed RTFs; insurance coverage; patient referrals; and the state’s regulation and oversight of the system, including the inability to impose restrictions on unregulated sober living homes. The hearing provided an overview of issues that had been affecting the state regarding unscrupulous facility operators, and gave an opportunity for state regulators to highlight efforts they have undertaken to combat the exploitation of the SUD system, including CDI’s enforcement of unscrupulous sober living home operators that had been unlawfully providing services. The goal of the hearing was to examine the issues and to seek strategies and policies that would prevent unscrupulous individuals from exploiting the various industries that are supposed to help treat those with SUDs; to recognize federal and state protections for those with disabilities, including their housing rights and options for supportive housing at sober living homes; and to ensure that policies are not enacted, either at the local or state level, that will limit the number of recovery or treatment options for those who need them.
The Legislature passed, and Governor Brown signed, a package of bills that aimed to address the emerging issues in the SUD treatment and recovery realm. SB 1228 (Lara, Chapter 792, Statutes of 2018) prohibits facilities that are licensed or certified by DHCS, and anyone associated with them, from gaining financially for referring a person to treatment, also known as “patient brokering.” SB 992 (Hernandez, Chapter 784, Statutes of 2018) and AB 3162 (Friedman, Chapter 775, Statutes of 2018) made several changes to licensing statute for RTFs, particularly requiring RTFs and other facilities under DHCS’s purview to disclose certain business relationships, including with sober living homes, and requiring all RTF licensed services to be provided within the structures notated on an RTF’s license.
AB 2574 (Valencia) Page 4 of 5
5) Troubling trends in the SUD field. Various media reports over the years have documented how unscrupulous individuals have found ways to exploit the SUD treatment system. Senate Health Committee staff, at the time around the 2018 informational hearing on patient brokering, had received reports of emerging trends and requested DHCS confirm that some of the issues expressed were in fact occurring in licensed RTFs, including:
a) Denying individuals admission to RTFs who had valid prescriptions from health care professionals for medications to aid in their recovery; b) RTF operators holding various licenses that were found to endanger the health and safety of residents at one RTF continued to operate the other RTFs while DHCS worked to suspend or revoke all of the licenses; and,
c) RTF licensees who had a license suspended or revoked often reapplied for and subsequently were issued licensure just after only two years.
While the package of SUD bills from 2018 were intended to address these troubling trends, some of the bad actors who claim to be part of the SUD industry, to this day, often operate multiple residences and claim they do not require licensure by DHCS because they do not provide any treatment services, even though often times this is found not to be the case.
Media reports, as well as anecdotes from advocates, claim that these are the operators who shuffle clients among their various businesses as a means to skirt licensing laws.
6) Related legislation. AB 2081 (Davies) requires entities licensed or certified by the DHCS to include on their websites and intake paperwork a disclosure stating an individual may check DHCS’s website to confirm any actions taken against the entity. AB 2081 is set for hearing on June 12, 2024, in this Committee.
7) Prior legislation. SB 823 (Hill, Chapter 781, Statutes of 2018) requires DHCS to adopt ASAM treatment criteria as the minimum standard of care for licensed RTFs.
SB 992 (Hernandez, Chapter 784, Statute of 2018), among other things, implemented the requirement that DHCS-licensed or certified programs disclose relationships with RRs.
SB 1228 (Lara, Chapter 792, Statutes of 2018) prohibits certain persons, programs, or entities, and persons employed by, or working for, that program, from giving or receiving remuneration or anything of value for the referral of a person who is seeking SUD recovery and treatment services.
AB 3162 (Friedman, Chapter 775, Statutes of 2018) made various changes regarding licensed RTFs including: making initial licenses provisional for one year; requiring services offered by the RTF to be specified on the license and provided within the licensed RTF; and, increasing civil penalties for the violation of licensing law.
AB 848 (Mark Stone, Chapter 744, Statutes of 2015), implemented law that permits RTFs to apply for an additional license to provide incidental medical services by a licensed physician or other health care practitioner to the residents of an RTF.
8) Support. The League of California Cities states residential recovery provides a wide range of benefits to some of California’s most vulnerable residents, and it is critical that their needs are prioritized over profits. Compliance with state licensing laws administered through DHCS is essential to safeguarding residents’ well-being and maintaining quality care. There AB 2574 (Valencia) Page 5 of 5
have been cases where a licensed RTF provides services to the residents of a sober living home but does not include the sober living home in the facility’s licensure. This bill would protect residents and hold providers accountable for maintaining high-quality treatment and care.
SUPPORT AND OPPOSITION:
Support: League of California Cities (sponsor)
Oppose: None received
-- END --
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Aisha Wahab, Chair
2023 - 2024 Regular
Bill No: AB 1960 Hearing Date: June 11, 2024
Author: Soria
Version: May 16, 2024
Urgency: No Fiscal: Yes
Consultant: SC
Subject: Sentencing enhancements: property loss
HISTORY
Source: Merced County District Attorney
Orange County District Attorney
California District Attorneys Association
Prior Legislation: AB 1511 (Low), vetoed, 2018
AB 1705 (Niello), Ch. 420, Stats 2007
AB 916 (Canciamilla), held in Sen. Approps. Committee, 2005 AB 293 (Cunneen), 1997 Ch. 551, Stats 1997
Support: Arcadia Police Officers' Association; Association for Los Angeles Deputy Sheriffs; Association of California Cities - Orange County (ACC-OC); Boma California; Buena Park, City of; Burbank Police Officers' Association; California Business Properties Association; California Chamber of Commerce; California District Attorneys Association; California Downtown Association; California Police Chiefs Association; California Reserve Peace Officers Association; California Retailers Association; California State District Attorneys Association; California State Sheriffs' Association; City of Artesia; City of Buena Park; City of Concord; City of Crescent City; City of Cypress; City of Fountain Valley; City of Fullerton; City of Lakeport; City of Merced; City of Mission Viejo; City of Oakdale; City of Rancho Palos Verdes; City of San Luis Obispo; City of Stanton; City of Thousand Oaks; City of Whittier; Corona Police Officers Association; County of Orange, Through its Office of The District Attorney/Public Administrator; Culver City Police Officers' Association; Darrell Steinberg, Mayor of Sacramento; Deputy Sheriffs' Association of Monterey County; Downtown Santa Monica; Fullerton Police Officers' Association; League of California Cities, Central Valley Division; Los Angeles County Business Federation (BIZ-FED); Los Angeles County Division, League of California Cities; Los Angeles County Sheriff's Department; Mayor Todd Gloria, City of San Diego; Merced District Attorney; Murrieta Police Officers' Association; NAIOP of California; Newport Beach Police Association; Novato Police Officers Association; Orange County Business Council; Orange County Taxpayers Association; Palos Verdes Police Officers Association; Placer County Deputy Sheriffs' Association; Pomona Police Officers' Association; Riverside Police Officers Association; Riverside Sheriffs' Association; Santa Ana Police Officers Association; Southern California Leadership Council; Target Corporation; United Chamber Advocacy Network; Upland Police Officers Association
AB 1960 (Soria ) Page 2 of 7
Opposition: ACLU California Action; California Public Defenders Association; Californians United for A Responsible Budget; Communities United for Restorative Youth Justice (CURYJ); Ella Baker Center for Human Rights; Initiate Justice; Initiate Justice Action; San Francisco Public Defender; Uncommon Law; Vera Institute of Justice; Young Women's Freedom Center
Assembly Floor Vote: 60 - 5
PURPOSE
The purpose of this bill is to create, until January 1, 2030, new sentencing enhancements of 1, 2, 3, or 4 years respectively for taking, damaging or destroying any property in the commission or attempted commission of a felony or commission of a felony violation of receiving stolen property, if the loss or property value exceeds $50,000, $200,000, $1,000,000, or $3,000,000.
Existing law divides theft into two degrees, petty theft and grand theft. (Pen. Code, § 486.) Existing law defines grand theft as when the money, labor, or real or personal property taken is of a value exceeding $950 dollars, except as specified. (Pen. Code, § 487.) Existing law states that petty theft is punishable by a fine not exceeding $1,000, by imprisonment in the county jail not exceeding six months, or both. (Penal Code § 490.) Existing law defines “shoplifting” as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed $950 dollars. (Pen. Code, § 459.5, subd. (a).)
Existing law states that any act of shoplifting must be charged as such, and that a person charged with shoplifting cannot also be charged with burglary or theft of the same property. (Pen. Code, § 459.5, subd. (b).)
Existing law punishes shoplifting as a misdemeanor, except where a person has a prior “super strike” or a registrable sex conviction, in which case the offense is punished as a felony by imprisonment in the county jail pursuant to realignment. (Pen. Code, § 459.5, subd. (a).) Existing law provides that, notwithstanding the punishment for petty theft, if a person is required to register as a sex offender, has a prior “super strike conviction,” or has a conviction for a specified theft-related offense against an elder or dependent adult, and also has been convicted of a specified theft-related offense for which he or she was imprisoned, and is subsequently convicted of petty theft, then the person is to receive an enhanced punishment of imprisonment in the county jail not to exceed one year, or in the state prison. (Pen. Code, § 666.) This bill provides that if a person takes, damages, or destroys property in the commission or attempted commission of a felony, or commits a felony violation of receiving stolen property, the court shall impose an additional and consecutive term of imprisonment as follows:
If the loss or property value exceeds $50,000 the shall impose an additional term of one year; AB 1960 (Soria ) Page 3 of 7
If the loss or property value exceeds $200,000 the court shall impose an additional term of two years;
If the loss or property value exceeds $1,000,000, the court shall impose an additional term of three years;
If the loss or property value exceeds $3,000,000, the court shall impose an additional term of four years;
For each additional loss or property value of $3,000,000, the court shall impose a term of one year in addition to the term specified above.
This bill provides that the additional terms provided in this section shall not be imposed unless the facts relating to the amounts provided in this section are charged in the accusatory pleading and admitted by the defendant or found to be true by the trier of fact.
This bill states that notwithstanding any other law, the court may impose an enhancement pursuant to this section and another section on a single count.
This bill sunsets its provisions on January 1, 2030 and states that it is the intent of the Legislature that the provisions of this section be reviewed within five years to consider the effects of inflation on the additional terms imposed.
COMMENTS
1. Need for This Bill
AB 1960 provides prosecutors the ability to hold criminals accountable by imposing a stiffer sentence for retail theft. The bill reinstates a tiered penalty enhancement system, if the value of the stolen or damaged property is exceptionally high. Specifically, it would provide a sentence enhancement when the property loss is more than $50,000. Our communities are hurting. Crime, especially retail theft, is not only a problem in my district. This is an issue affecting the entire state. We must address it with urgency and action. This bill will do that and our cities will be safer as a result.
2. Background: Enhancements
Existing law contains a variety of enhancements that can be used to increase the term of imprisonment a defendant will serve. Enhancements add time to a person’s sentence for factors relevant to the defendant such as prior criminal history or for specific facts related to the crime.
Multiple enhancements can be imposed in a single case and can range from adding a specified number of years to a person’s sentence, or doubling a person’s sentence or even converting a determinate sentence into a life sentence.
A recent report on sentencing enhancements found that about 40% of individual prison admissions since 2015 have sentences lengthened by a sentence enhancement. Among the currently incarcerated, the prevalence of enhanced sentences is much higher, impacting the sentences of approximately 70% of people incarcerated as of 2022. Data shows that AB 1960 (Soria ) Page 4 of 7
enhancements have been applied a total of 167,340 times to new prison admissions since 2015, and have been applied 197,274 times in the cases of those incarcerated as of July 2022. (Mia Bird et al., Sentence Enhancements in California, California Policy Lab (Mar. 2023) < https://www.capolicylab.org/wp-content/uploads/2023/03/Sentence-Enhancements-in- California.pdf> [as of June 3, 2024].)
According to the report, there are over 100 separate code sections in California law that can be used to enhance a person’s sentence and the most common enhancement is for a previous prison or jail sentence. (Ibid.) The report noted several recent legislative changes to enhancements that were enacted based on the recommendation of the Committee on the Revision of the Penal Code. (See Annual Report and Recommendations 2020, Committee on Revision of the Penal Code http://www.clrc.ca.gov/CRPC/Pub/Reports/CRPC_AR2020.pdf [as of June 3, 2024].) AB 333 made updates to the gang enhancements which narrowed the definition of gang involvement. SB 483 built on legislation repealing one- and three-year enhancements for prior convictions and applied the repeal to people who were incarcerated and had the enhancements as part of their sentences. Finally, SB 81 provided guidance to judges that allowed them discretion in whether to dismiss sentence enhancements, unless in the judge’s perspective, not enhancing a sentence could endanger public safety (PC § 1385)
The enhancement reforms enacted by the legislature since 2018 have curtailed the frequency with which enhancements have been applied to prison terms. We observe this both in overall trends, as well as in analysis of specific reforms on specific enhancement categories. Figure 3 shows the number of admissions with enhancements (the blue line) for each month from the beginning of 2015 through the end of 2022 as well as the total number of enhancements (the orange line) imposed on these terms (each admission may include more than one enhancement). There is a clear drop in admissions with enhancements coinciding with the onset of the COVID-19 pandemic and the corresponding drop in admissions to CDCR. Given the unpredictable nature of the pandemic, and the rates at which people were released from prison to help slow the spread, it is difficult to tease apart which declines after 2020 are due to enhancement reforms or are pandemic related.
3. Repealed “Excessive Takings” Enhancement
Until the law sunset in 2018, California had an “excessive takings” enhancement that would apply to taking or damaging of property that exceeded specified value thresholds. (Former Penal Code Section 12022.6.) The law was enacted in 1977 and subsequently a sunset provision was included in the statute for the purpose of allowing the Legislature to consider the effects of inflation on the property value thresholds in the law. The sunset was extended several times through legislation until the law was allowed to sunset in 2018. The law as it read in 2017 required the court to apply an enhancement of 1, 2, 3, or 4 years respectively whenever any person was convicted of a felony involving taking or damaging property that exceeded losses of $65,000, $200,000, $1,300,000 and $3,200,000.
AB 1511 (Low), of the 2017-2018 legislative session, would have reauthorized the enhancement statute with higher value thresholds, starting at $75,000 and going up to $3.7 million in property AB 1960 (Soria ) Page 5 of 7
loss, and would have made the statute permanent. The bill was vetoed. Then Governor Brown’s veto message stated:
AB 1511 now seeks to re-enact this repealed enhancement, but omits any sunset provision similar to those that have been included with this statute since 1990. I see no reason to now permanently re-enact a repealed sentencing enhancement without corresponding evidence that it was effective in deterring crime. As I have said before, California has over 5,000 criminal provisions covering almost every conceivable form of human misbehavior. We can effectively manage our criminal justice system without 5,001.
This bill creates new enhancements that would apply to the same conduct that would have been covered by former Penal Code section 12022.6. This bill requires the court to apply specified additional terms of imprisonment when the loss or property value resulting from a person’s taking, damaging or destroying of property in the commission of a felony or commission of a felony violation of receiving stolen property exceeds the following amounts: $50,000, $200,000, $1 million, and $3 million.
Notably, the threshold value amounts contained in this bill are lower than the values contained in Penal Code section 12022.6 when the law was allowed to sunset in 2018. Specifically, that repealed statute, which was last adjusted for inflation in 2007 for the law to go into effect January 1, 2008, contained the following threshold amounts for the sentence enhancements to apply: $65,000, $200,000, $1.3 million, and $3.2 million.
4. Renewed Efforts to Combat Property Crimes
“The Homelessness, Drug Addition, and Theft Reduction Act” is a new initiative that would make specific changes to laws enacted by Proposition 47, also known as the Safe Neighborhoods and Schools Act which was approved by the voters in November 2014. Proposition 47 reduced the penalties for certain drug and property crimes and directed that the resulting state savings be directed to mental health and substance abuse treatment, truancy and dropout prevention, and victims’ services. (See Legislative Analyst's Office analysis of Proposition 47 (See http://www.lao.ca.gov/ballot/2014/prop-47-110414.pdf [as of June 3, 2024].) Specifically, the new initiative would reenact felony sentencing for petty theft with two prior thefts, allow multiple petty thefts to be aggregated to meet the $950 threshold without a showing that the acts were connected, and create new enhancements depending on the amount of property stolen or damaged. The initiative would also increase penalties for certain drug crimes, mandate treatment for certain offenders, and require courts to warn people convicted of drug distribution that they may be charged with murder in the future if someone dies after taking an illegal drug provided by that person.
(https://ballotpedia.org/California_Drug_and_Theft_Crime_Penalties_and_Treatment- Mandated_Felonies_Initiative_(2024) [as of June 3, 2024].) The initiative is supported by various law enforcement, public officials, district attorneys, small businesses and retail corporations. (Id.) To qualify for the November 2024 ballot, the law requires 546,651 valid signatures by June 27, 2024; as of January 25, 2024, the campaign had notified the Secretary of State that 25% of the required signatures had been collected. (Id.) The initiative is currently pending signature verification. (https://www.sos.ca.gov/elections/ballot-measures/initiative-and- referendum-status/initiatives-and-referenda-pending-signature-verification [as of June 3, 2024].) AB 1960 (Soria ) Page 6 of 7
On January 9, 2024, Governor Newsom called for legislation to crack down on large scale property crimes committed by organized groups who profit from resale of stolen goods. (https://www.gov.ca.gov/2024/01/09/property-crime-framework/ [as of June 3, 2024).) The proposals include: 1) creating new penalties targeting those engaged in retail theft to resell, and those that resell the stolen property; 2) clarifying existing arrest authority so that police can arrest suspects of retail theft, even if they didn’t witness the crime in progress; 3) clarifying that theft amounts may be aggregated to reach the grand theft threshold; 4) creating new penalties for professional auto burglary, increasing penalties for the possession of items stolen from a vehicle with intent to resell, regardless of whether the vehicle was locked; 5) eliminating the sunset date for the organized retail crime statute; and 6) increasing penalties for large-scale resellers of stolen goods.
Both houses of the Legislature have announced legislative packages that include parts of the Governor’s proposals. (See https://www.latimes.com/california/story/2024-02-26/senate-leaders- respond-to-states-fentanyl-crisis-and-organized-retail-theft-problem-with-new-legislation [as of June 3, 2024) and https://www.latimes.com/california/story/2024-02-15/democratic-lawmakers- introduce-legislation-to-target-organized-retail-theft-online- resellers#:~:text=If%20passed%2C%20the%20bill%20would,if%20there%20were%20separate %20victims [as of June 3, 2024].)
5. Amendments to be Taken in Appropriations Committee
This bill will be amended to contain an urgency clause, allowing the bill’s provisions to take effect immediately upon approval of the Governor. Additionally, the bill will be amended to contain an inoperability clause stating that its provisions will become inoperative if the proposed initiative measure titled, “The Homelessness, Drug Addition, and Theft Reduction Act” (Initiative 23-0017A1) is approved by the voters at the statewide general election on November 5, 2024.
6. Argument in Support
According to California Retailers Association:
Over the past several years, we have seen a troubling rise in organized retail theft and other large-scale property crimes across California, undermining the sense of safety and security in our communities. This criminal activity has forced businesses to spend millions annually on security measures, such as guards, cameras, and store redesigns. As businesses have significantly invested in securing their properties, thieves have become increasingly brazen through “smash and grab” incidents. Retail employees and customers are increasingly feeling unsafe, and the simple act of shopping has become burdensome for many. Those who deliberately target and destroy property in the commission of felonies must be held accountable.
Our communities have seen instances of groups using hammers to break jewelry cases, throwing objects through windows, destroying displays and entire aisles, and driving vehicles into buildings. By imposing stricter penalties for individuals damaging property through these acts, AB 1960 serves as a deterrent against “smash and grabs” and retail crime. It sends a clear message that such illicit and dangerous activities will not be tolerated, thereby helping to protect businesses, consumers, and communities from the adverse effects of criminal behavior.
AB 1960 (Soria ) Page 7 of 7
7. Argument in Opposition
According to ACLU California Action:
Sentencing enhancements do not prevent crime, and will not will not address violence in any demonstrable way. Enhancements are, however, one of the drivers of mass incarceration, a systematic means of economically and politically disenfranchising Black, Latinx and Indigenous families and communities. Mass incarceration is a human rights and economic disaster for California families, and was built one bad bill at a time.
Extensive research has proven that overly long sentences, and the threat of such sentences do not reduce or prevent crime. In 2014, the National Academy of Sciences published a 444-page review of studies of sentencing policies1 and their positive and negative effects on crime rates and community safety. Among their conclusions were:
“Given the small crime prevention effects of long prison sentences and the possibly high financial, social, and human costs of incarceration, federal and state policy makers should revise current criminal justice policies to significantly reduce the rate of incarceration in the United States. In particular, they should re- examine policies regarding mandatory prison sentences and long sentences.” Additionally, a 2015 report by the Ella Baker Center for Human Rights, Forward Together, and Research Action Design titled “Who Pays, The True Cost of Incarceration on Families” details how incarceration destabilizes entire families and communities. Many people who return from incarceration face extreme barriers to finding jobs and housing and reintegrating into society. Family members of incarcerated people also struggle with overwhelming debt from court costs visitation and telephone fees, and diminished family revenue. The longer the sentence, the more severe these problems.
-- END –
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Aisha Wahab, Chair
2023 - 2024 Regular
Bill No: AB 1794 Hearing Date: June 11, 2024
Author: McCarty
Version: April 11, 2024
Urgency: No Fiscal: Yes
Consultant: SC
Subject: Crimes: larceny
HISTORY
Source: Author
Prior Legislation: AB 2356 (Rodriguez), Ch. 22, Stats. 2022
Support: Arcadia Police Officers' Association; Association of California Cities - Orange County (ACC-OC); Buena Park; City of; Burbank Police Officers' Association; California Coalition of School Safety Professionals; California Downtown Association; California Narcotic Officers' Association; California Police Chiefs Association; California Reserve Peace Officers Association; California Retailers Association; Chief Probation Officers' of California (CPOC); Chino Hills; City of; City of Artesia; City of Concord; City of Cypress; City of Fountain Valley; City of Grand Terrace; City of Lakeport; City of Norwalk; City of Oakdale; City of Rancho Palos Verdes; City of San Luis Obispo; City of Stanton; City of Whittier; Claremont Police Officers Association; Corona Police Officers Association; Culver City Police Officers' Association; Darrell Steinberg, Mayor of Sacramento; Deputy Sheriffs' Association of Monterey County; Fullerton Police Officers' Association; Fullerton; City of; Hesperia; City of; Lafayette; City of; League of California Cities; Los Angeles School Police Management Association; Los Angeles School Police Officers Association; Mayor Todd Gloria, City of San Diego; Mission Viejo; City of; Murrieta Police Officers' Association; Newport Beach Police Association; Novato Police Officers Association; Oakley; City of; Palos Verdes Police Officers Association; Placer County Deputy Sheriffs' Association; Pomona Police Officers' Association; Riverside Police Officers Association; Riverside Sheriffs' Association; Santa Ana Police Officers Association; Tri-valley Cities of Dublin, Livermore, Pleasanton, San Ramon, and Town of Danville; Upland Police Officers Association Opposition: California Public Defenders Association; Legal Services for Prisoners with Children; Pacific Juvenile Defender Center; San Francisco Public Defender; Uncommon Law; Vera Institute of Justice
Assembly Floor Vote: 69 - 0
PURPOSE
AB 1794 (McCarty ) Page 2 of 8
The purpose of this bill is to establish the CAL-Fast Pass Program, authorizing district attorney's offices to operate a program allowing retailers to submit details of alleged retail theft directly to the district attorney through an online portal and to clarify the standard for aggregating multiple thefts to charge grand theft.
Existing law divides theft into two degrees, petty theft and grand theft. (Pen. Code, § 486.) Existing law defines grand theft as when the money, labor, or real or personal property taken is of a value exceeding $950 dollars, except as specified. (Pen. Code, § 487.) Existing law states that petty theft is punishable by a fine not exceeding $1,000, by imprisonment in the county jail not exceeding six months, or both. (Penal Code § 490.) Existing law defines “shoplifting” as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed $950 dollars. (Pen. Code, § 459.5, subd. (a).)
Existing law states that any act of shoplifting must be charged as such, and that a person charged with shoplifting cannot also be charged with burglary or theft of the same property. (Pen. Code, § 459.5, subd. (b).)
Existing law punishes shoplifting as a misdemeanor, except where a person has a prior “super strike” or a registrable sex conviction, in which case the offense is punished as a felony by imprisonment in the county jail pursuant to realignment. (Pen. Code, § 459.5, subd. (a).) Existing law provides that if the value of the money, labor, real property, or personal property taken exceeds $950 over the course of distinct but related acts, the value of the money, labor, real property, or personal property taken may properly be aggregated to charge a count of grand theft, if the acts are motivated by one intention, one general impulse, and one plan. (Pen. Code, § 487, subd. (e).)
This bill includes takings from multiple places and victims to the aggregation provision above.
This bill provides that circumstantial evidence may be used to determine whether multiple takings are committed pursuant to one intention, general impulse and plan and specifies that the following types of evidence are relevant but not exclusive in making this determination:
Whether the defendant took particular items of property; Whether the defendant took the property within a short time span or similar location; or, Whether the defendant employed a single method to take the property.
This bill establishes the CAL-Fast Pass Program to allow retailers to submit details of alleged shoplifting, organized retail theft, or grand theft directly to the county district attorney through an online portal on the district attorney’s internet website.
This bill provides that these submissions may be used to determine whether further investigation is necessary and whether to file charges.
AB 1794 (McCarty ) Page 3 of 8
This bill specifies that counties that establish a CAL-Fast Pass program may apply for funding under the Organized Retail Theft Prevention Grant Program and the Organized Retail Theft Vertical Prosecution Grant Program, administered by the Board of State and Community Corrections (BSCC).
This bill requires each county that operates a Fast Pass program shall establish criteria on the types of cases they may investigate which shall include, but not be limited to, cases that meet any of the following criteria:
A $500 minimum value of stolen property;
The defendant was acting in concert with others or committing repeated thefts; The theft was a felony offense;
The case involves threats of violence;
There is video evidence of the theft; or,
There is a positive identification of the suspect.
This bill requires a county that establishes a Fast Pass program to conduct an annual evaluation of the program’s impact and effectiveness in their county. The evaluation shall include, but not be limited to, evaluating the program’s impact on overall retail theft countywide, if any, and its effectiveness with respect to theft reports investigated by the county district attorney’s office.
This bill authorizes counties to contract with an independent entity, including, but not limited to, the Regents of the University of California, for the purposes of conducting the evaluation and preparing the report.
This bill requires counties establishing a Fast Pass program to submit an annual report to the Assembly and Senate Public Safety Committees and BSCC on December 31 each year, starting on December 31, 2026. The report shall include, but not be limited to, all of the following:
The number of theft reports from retailers to the county district attorney’s office; The number of theft reports investigated by the county district attorney’s office; The number of criminal charges filed by the county district attorney’s office i n response to the theft reports;
The conviction rates and jail or prison time sentenced by the judge or jury i n response to the theft reports; and,
The report based on the annual evaluation.
COMMENTS
1. Need for This Bill
AB 1794 (McCarty ) Page 4 of 8
According to the author of this bill:
Retail theft poses a significant threat to California's economy and the vitality of its small businesses, resulting in a staggering loss of $1.319 billion for the state. AB 1794 is a crucial step towards protecting businesses, ensuring consumer safety, and bolstering the economy. By consolidating theft crimes across different locations and victims, as well as establishing the CAL Fast Pass program, this bill will streamline efforts to combat retail theft, fostering greater expediency and transparency to both business owners and shoppers.
This bill has robust bipartisan backing and it is an integral component of the broader Assembly retail theft package.
2. CAL-Fast Pass
In March, Yolo County District Attorney Jeff Reisig unveiled a new program called “Fast Pass” to target retail that that speeds up shoplifting investigations by allowing stores to communicate directly with prosecutors. The program eliminates a report of shoplifting to police, who would then submit investigative reports to the district attorney's office to determine whether to file charges. Instead, retailers submit the details of an alleged shoplifting directly to the district attorney's office online to determine if further investigation is necessary and what criminal charges to file.
According to the Yolo County District Attorney:
Because of factors outside of the control of police and sheriffs, including high priority call volume, limited staffing, some police responses can be delayed or simply impractical . . . . Fast Pass becomes a force multiplier for retailers and the police by directly expediting the facts of non-emergency incidents to the ultimate decision maker, the DA, for charging consideration and allocation of investigative assets.
(Yolo DA unveils ‘first of its kind in the nation’ program targeting retail theft offenders, Sac Bee (Mar. 5, 2024) https://www.sacbee.com/news/local/crime/article286286850.html [as of May 30, 2024].) Since the launch of FastPass last fall, the DA's office has filed criminal cases against 49 suspects, including dozens of felony cases, with total losses exceeding $100,000. These 49 individuals combined have over 134 previous theft convictions, and 93% of all the offenders have previous arrests including theft, burglary, robbery, violent assaults, and family violence.
First time offenders are not generally part of the FastPass program. (Id.) This bill would establish the CAL-Fast Pass program in state law, authorizing county district attorneys’ offices to replicate the program. The bill would incentivize participation by making the offices eligible for specified organized retail theft grants administered by the BSCC. In order to determine the efficacy of the program, the bill would mandate specified reporting requirements.
3. Aggregation of Multiple Thefts
Multiple acts of theft can be aggregated and prosecuted as one felony if they are conducted pursuant to one intention, one general impulse, and one plan. (See People v. Bailey (1961) 55 AB 1794 (McCarty ) Page 5 of 8
Cal.2d 514, 518-519.) In the context of petty theft versus grand theft, when charges of theft are aggregated, the value of the contents stolen can also be aggregated so instead of being charged with multiple misdemeanor offenses (where the value of each item stolen is less than $950) the defendant may be charged with a single felony when the value of the items stolen can be added together to breach the $950 threshold.
The defendant in Bailey made a single fraudulent misrepresentation about her household income that caused her to receive a stream of welfare payments. (Id. at pp. 515–516.) While each individual payment fell below the felony threshold, the aggregated total constituted grand theft. (Id. at p. 518.) The California Supreme Court concluded that the payments could be aggregated because “the evidence established that there was only one intention, one general impulse, and one plan.” (Id. at p. 519; see also CALCRIM No. 1802 [Theft: As Part of Overall Plan].)
The California Supreme Court addressed the Bailey rule in People v. Whitmer (2014) 59 Cal.4th 733. In Whitmer, the defendant arranged for the fraudulent sale of 20 motorcycles, motorized dirt bikes, all-terrain vehicles, and similar recreational vehicles. The defendant was convicted of multiple thefts. (Id. at pp. 735-736.) The defendant appealed, arguing that under Bailey he should have been convicted of a single theft. The Supreme Court distinguished the facts in Whitmer from what occurred in Bailey, and found that multiple theft convictions were appropriate because each count of theft was based on a separate and distinct fraudulent act. (Whitmer, supra. at p. 740.) The court in Whitmer pointed out that Bailey concerned a single fraudulent act followed by a series of payments. In a concurring opinion. Justice Liu distinguished acts committed with a common scheme from acts committed as part of a single impulse. (Whitmer, supra, at p. 748, concur. opn. J. Liu.) Justice Liu went on to state that “. . ., separate and distinct takings do not fall under Bailey's aggregation rule simply because, as here, they were all done the same way.
But neither does the mere fact that multiple takings are separate and distinct entail a finding of multiple thefts in every case. If the takings were committed pursuant to a single intention, impulse, and plan, then under Bailey they amount to only one theft.” In 2022, the Legislature codified the aggregation rule from Bailey in subdivision (e) of Penal Code section 487. (AB 2356 (Rodriguez), Ch. 22, Stats. 2022.) This bill clarifies the aggregation rule by including takings from multiple places and victims. The bill also provides that circumstantial evidence may be used to determine whether multiple takings are committed pursuant to one intention, general impulse and plan and specifies that the following types of evidence are relevant but not exclusive in making this determination: (1) whether the defendant took particular items of property; (2) whether the defendant took the property within a short time span or similar location; or, (3) whether the defendant employed a single method to take the property.
4. Renewed Efforts to Combat Property Crimes
“The Homelessness, Drug Addition, and Theft Reduction Act” is a new initiative that would make specific changes to laws enacted by Proposition 47, also known as the Safe Neighborhoods and Schools Act which was approved by the voters in November 2014. Proposition 47 reduced the penalties for certain drug and property crimes and directed that the resulting state savings be directed to mental health and substance abuse treatment, truancy and dropout prevention, and victims’ services. (See Legislative Analyst's Office analysis of Proposition 47 (See http://www.lao.ca.gov/ballot/2014/prop-47-110414.pdf [as of June 3, 2024].) AB 1794 (McCarty ) Page 6 of 8
Specifically, the new initiative would reenact felony sentencing for petty theft with two prior thefts, allow multiple petty thefts to be aggregated to meet the $950 threshold without a showing that the acts were connected, and create new enhancements depending on the amount of property stolen or damaged. The initiative would also increase penalties for certain drug crimes, mandate treatment for certain offenders, and require courts to warn people convicted of drug distribution that they may be charged with murder in the future if someone dies after taking an illegal drug provided by that person.
(https://ballotpedia.org/California_Drug_and_Theft_Crime_Penalties_and_Treatment- Mandated_Felonies_Initiative_(2024) [as of June 3, 2024].) The initiative is supported by various law enforcement, public officials, district attorneys, small businesses and retail corporations. (Id.) To qualify for the November 2024 ballot, the law requires 546,651 valid signatures by June 27, 2024; as of January 25, 2024, the campaign had notified the Secretary of State that 25% of the required signatures had been collected. (Id.) The initiative is currently pending signature verification. (https://www.sos.ca.gov/elections/ballot-measures/initiative-and- referendum-status/initiatives-and-referenda-pending-signature-verification [as of June 3, 2024].) On January 9, 2024, Governor Newsom called for legislation to crack down on large scale property crimes committed by organized groups who profit from resale of stolen goods. (https://www.gov.ca.gov/2024/01/09/property-crime-framework/ [as of June 3, 2024).) The proposals include: 1) creating new penalties targeting those engaged in retail theft to resell, and those that resell the stolen property; 2) clarifying existing arrest authority so that police can arrest suspects of retail theft, even if they didn’t witness the crime in progress; 3) clarifying that theft amounts may be aggregated to reach the grand theft threshold; 4) creating new penalties for professional auto burglary, increasing penalties for the possession of items stolen from a vehicle with intent to resell, regardless of whether the vehicle was locked; 5) eliminating the sunset date for the organized retail crime statute; and 6) increasing penalties for large-scale resellers of stolen goods.
Both houses of the Legislature have announced legislative packages that include parts of the Governor’s proposals. (See https://www.latimes.com/california/story/2024-02-26/senate-leaders- respond-to-states-fentanyl-crisis-and-organized-retail-theft-problem-with-new-legislation [as of June 3, 2024) and https://www.latimes.com/california/story/2024-02-15/democratic-lawmakers- introduce-legislation-to-target-organized-retail-theft-online- resellers#:~:text=If%20passed%2C%20the%20bill%20would,if%20there%20were%20separate %20victims [as of June 3, 2024].)
5. Amendments to be Taken in Appropriations Committee
This bill will be amended to contain an urgency clause, allowing the bill’s provisions to take effect immediately upon approval of the Governor. Additionally, the bill will be amended to contain an inoperability clause stating that its provisions will become inoperative if the proposed initiative measure titled, “The Homelessness, Drug Addition, and Theft Reduction Act” (Initiative 23-0017A1) is approved by the voters at the statewide general election on November 5, 2024.
6. Argument in Support
According to California Retailers Association:
AB 1794 (McCarty ) Page 7 of 8
There has been demonstrated remarkable effectiveness in curbing retail theft and protecting businesses, employees, and consumers through streamlining the process for reporting and prosecuting retail theft incidents. These types of programs empower retailers to take swift and decisive action against perpetrators while providing law enforcement with the necessary tools to apprehend and deter repeat offenders.
Expanding the reach of these types of programs statewide presents a unique opportunity to replicate its success and establish a unified framework for combating retail theft across California. By standardizing procedures and protocols, this legislation could facilitate collaboration between local jurisdictions, enhance information sharing, and enable more efficient enforcement of laws aimed at deterring theft and safeguarding our communities while also providing much needed data and evaluation on the effectiveness with respect to theft reports being investigated by the county district attorney’s offices.
This bill also provides much needed clarification for the ability to aggregated to the $950 felony threshold for retail theft by allowing circumstantial evidence to be utilized in determining whether multiple takings are committed pursuant to one intention, general impulse, and plan, particularly in cases involving theft. This approach acknowledges that direct evidence may be lacking or insufficient, and thus, circumstantial evidence becomes crucial in establishing the defendant's intent and pattern of behavior.
7. Argument in Opposition
According to Vera Institute of Justice:
California’s current theft laws are in fact already harsher than those in many other states. For example, in South Carolina and Texas, states not known for being “soft on crime,” theft cannot be charged as a felony unless the amount of loss is at least $2,000 or $2,500 respectively. AB 1794 would allow for DAs to press felony charges by aggregating separate instances of retail theft that occurred on different occasions and by broadly expanding the types of circumstantial evidence that can be considered in aggregating separate instances.
AB 1794 also takes the unusual approach of allowing retailers to seek criminal prosecutions by filing requests for retail theft prosecutions directly with DAs.
This would give special treatment to retailers that no one else in the criminal legal system—including victims of serious violence and sexual harm—receives. In bypassing law enforcement investigation and processing, DAs would receive retail theft allegations without the checks and balances that other allegations— even those involving physical harm—receive, and may result in DAs prioritizing retail theft claims before other issues because of the special attention these unvetted claims will require. A DA’s office has finite resources and must prioritize and triage prosecutorial resources in order to safeguard public safety, justice, and accountability. This bill will inevitably draw DA resources away from cases that have greater impact on public safety.
AB 1794 (McCarty ) Page 8 of 8
When we blame the wrong problems, we miss the right solutions. As sensational claims about organized retail theft have been debunked and data shows that retail theft is not rising statewide, responses must be tailored to the facts. The legislature should respond to concerns from the community and local businesses with evidence-backed solutions that do not risk deprioritizing other public safety matters.
Increasing penalties for non-violent offenses like retail theft will do little to make our communities safer. Study after study has shown that neither lengthening sentences nor increasing charges and punishments based on a second or third offense meaningfully deters crime.6 And unlike the community-based programs funded by Proposition 47, which have reduced recidivism, sending people to jail and prison makes them more likely to reoffend, while costing taxpayers dearly amid a budget deficit. Finally, evidence indicates that AB 1794 is likely to worsen racial disparities in California’s criminal system by sending more Black and Latinx people to prison.
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SENATE COMMITTEE ON PUBLIC SAFETY
Senator Aisha Wahab, Chair
2023 - 2024 Regular
Bill No: AB 1802 Hearing Date: June 11, 2024
Author: Jones-Sawyer
Version: April 1, 2024
Urgency: No Fiscal: Yes
Consultant: SC
Subject: Crimes: organized theft
HISTORY
Source: Los Angeles District Attorney
Prior Legislation: AB 331 (Jones-Sawyer), Ch. 113, Stats. 2021 AB 94 (Comm. on Budget and Fiscal Rev.), Ch. 25, Stats. 2019 AB 1065 (Jones-Sawyer), Ch. 803, Stats. 2018
Support: Arcadia Police Officers' Association; Association of California Cities - Orange County (ACC-OC); Boma California; Buena Park; City of; Burbank Police Officers' Association; California Association of Highway Patrolmen; California Business Properties Association; California Chamber of Commerce; California District Attorneys Association; California Downtown Association; California Narcotic Officers' Association; California Reserve Peace Officers Association; Chief Probation Officers' of California (CPOC); City of Agoura Hills; City of Artesia; City of Carlsbad; City of Crescent City; City of Cypress; City of Fontana; City of Fountain Valley; City of Grand Terrace; City of Lakeport; City of Merced; City of Norwalk; City of Paramount; City of Rancho Palos Verdes; City of Redwood; City of Rohnert Park; City of Rolling Hills Estates; City of San Luis Obispo; City of Santa Clarita; City of Stanton; City of Whittier; Corona Police Officers Association; Culver City Police Officers' Association; Darrell Steinberg, Mayor of Sacramento; Deputy Sheriffs' Association of Monterey County; Downtown Santa Monica; Fullerton Police Officers' Association; Fullerton; City of; League of California Cities; Los Angeles County Business Federation (BIZ- FED); Los Angeles County Democratic Party; Mayor Todd Gloria, City of San Diego; Mission Viejo; City of; Murrieta Police Officers' Association; Naiop of California; Newport Beach Police Association; Novato Police Officers Association; Orange County Business Council; Orange County Taxpayers Association; Palos Verdes Police Officers Association; Peace Officers Research Association of California (PORAC); Placer County Deputy Sheriffs' Association; Pomona Police Officers' Association; Riverside Police Officers Association; Riverside Sheriffs' Association; Santa Ana Police Officers Association; Santa Clarita; City of; Southern California Leadership Council; Target Corporation; Technet-technology Network; United Chamber Advocacy Network; Upland Police Officers Association; Valley Industry and Commerce Association (VICA) Opposition: California Attorneys for Criminal Justice; Vera Institute of Justice AB 1802 (Jones-Sawyer ) Page 2 of 8
Assembly Floor Vote: 72 - 0
PURPOSE
The purpose of this bill is to remove the sunset date on the provision of law that criminalizes organized retail theft, thereby making the operation of the law permanent, and extend the operation of the regional property crimes task force indefinitely.
Existing law, until January 1, 2026, creates the crime of organized retail theft which is defined as:
Acting in concert with one or more persons to steal merchandise from one or more merchant’s premises or online marketplace with the intent to sell, exchange, or return the merchandise for value;
Acting in concert with two or more persons to receive, purchase, or possess merchandise knowing or believing it to have been stolen;
Acting as the agent of another individual or group of individuals to steal merchandise from one or more merchant’s premises or online marketplaces as part of a plan to commit theft; or, Recruiting, coordinating, organizing, supervising, directing, managing, or financing another to undertake acts of theft. (Pen. Code, § 490.4, subd. (a).) Existing law, until January 1, 2026, punishes organized retail theft as follows:
If violations of the above provisions, except the recruiting, coordinating, organizing, supervising, directing, managing, or financing another provision, are committed on two or more separate occasions within a one-year period, and if the aggregated value of the merchandise stolen, received, purchased, or possessed within that period exceeds $950 the offense is punishable as either a misdemeanor by imprisonment in a county jail not exceeding one year or as a jail-eligible felony;
Any other violation of the above provisions, except the recruiting, coordinating, organizing, supervising, directing, managing, or financing another provision, is punishable as a misdemeanor by imprisonment in a county jail not exceeding one year; and, A violation of the recruiting, coordinating, organizing, supervising, directing, managing, or financing another provision is punishable as either a misdemeanor by imprisonment in a county jail not exceeding one year or as a jail-eligible felony. (Pen. Code, § 490.1, subd. (b).) Existing law, until January 1, 2026, provides that for the purpose of determining whether the defendant acted in concert with another person or persons in any proceeding, the trier of fact may consider any competent evidence, including, but not limited to, all of the following:
AB 1802 (Jones-Sawyer ) Page 3 of 8
The defendant has previously acted in concert with another person or persons in committing acts constituting theft, or any related offense, including any conduct that occurred in counties other than the county of the current offense, if relevant to demonstrate a fact other than the defendant’s disposition to commit the act;
That the defendant used or possessed an artifice, instrument, container, device, or other article capable of facilitating the removal of merchandise from a retail establishment without paying the purchase price and use of the artifice, instrument, container, or device or other article is part of an organized plan to commit theft; or, The property involved in the offense is of a type or quantity that would not normally be purchased for personal use or consumption and the property is intended for resale. (Pen.
Code, § 490.4, subd. (c).)
Existing law, until January 1, 2026, clarifies that in a prosecution for organized retail theft, the prosecutor shall not be required to charge any other coparticipant of the organized retail theft. (Pen. Code, § 490.4, subd. (d).)
Existing law, until January 1, 2026, states that upon a conviction for organized retail theft, the court shall consider ordering, as a condition of probation, that the defendant stay away from retail establishments with a reasonable nexus to the crime committed. (Pen. Code § 490.4, subd. (e).)
This bill removes the sunset date of January 1, 2026 making the organized retail theft crime law permanent.
Existing law until January 1, 2026, requires the Department of the California Highway Patrol (CHP) to, in coordination with the Department of Justice, convene a regional property crimes task force to assist local law enforcement in counties identified by the CHP as having elevated levels of property crime, including, but not limited to, organized retail theft and vehicle burglary.
The task force shall provide local law enforcement in the identified region with logistical support and other law enforcement resources, including, but not limited to, personnel and equipment, as determined to be appropriate by the Commissioner of the California Highway Patrol in consultation with task force members. (Pen. Code, § 13899.) This bill extends operation of the CHP task force indefinitely.
COMMENTS
1. Need for This Bill
According to the author of this bill:
Retail theft has been growing concern in California and is an increasingly frequent topic of discussion in the Legislature. Last year, the Public Policy Institute of California reported a 5.8% increase in commercial burglary and a
9.1% increase in commercial robbery compared to the year prior. AB 1802 will maintain the ability of law enforcement to adequately respond to retail crime by eliminating the sunset on the crime of organized retail theft and the operation of AB 1802 (Jones-Sawyer ) Page 4 of 8
the CHP property crimes taskforce. In doing so, it will ensure law enforcement and businesses have permanent access to a vital tool needed to address this ongoing issue.
2. Organized Retail Theft Law: Response to Proposition 47 (2014) Proposition 47, also known as the Safe Neighborhoods and Schools Act, was approved by the voters in November 2014. Proposition 47 reduced the penalties for certain drug and property crimes and directed that the resulting state savings be directed to mental health and substance abuse treatment, truancy and dropout prevention, and victims’ services. Specifically, the initiative reduced the penalties for possession for personal use of most illegal drugs to misdemeanors. The initiative also reduced the penalties for theft, shoplifting, receiving stolen property, writing bad checks, and check forgery valued at $950 or less from alternate felony- misdemeanors to straight misdemeanors. Among the crimes reduced to misdemeanors by Proposition 47 “are certain second degree burglaries where the defendant enters a commercial establishment with the intent to steal. Such offense is now characterized as shoplifting as defined in new [Penal Code] section 459.5.” (People v. Sherow (2015) 239 Cal.App.4th 875, 879.) The measure limited the reduced penalties to offenders who do not have designated prior convictions for serious or violent felonies and who are not required to register as sex offenders. (See Legislative Analyst's Office analysis of Proposition 47 <http://www.lao.ca.gov/ballot/2014/prop- 47-110414.pdf>.)
Prior to Proposition 47, most theft offenses had to meet the $950 threshold in order to be charged as a felony. However, this threshold did not apply to certain offenses such as receiving stolen property, fraud and forgery which were punishable as either a felony or misdemeanor, also known as “wobblers.” Also, in cases of retail theft, prosecutors had the option of charging a person with second degree burglary, which was punishable as a wobbler without having to reach the $950 threshold. However, the provisions of Proposition 47 specifically required that the crime of “shoplifting” be punished as a misdemeanor. “Shoplifting” was defined by the initiative as “entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed $950.” (Pen. Code, § 459.5; Proposition 47, approved by California voters on Nov. 4, 2014.)
Because Proposition 47 reduced the number of crimes that can be punished as felonies, it reduced the number of people that could be sentenced to state prison. Proposition 47 requires that the estimated annual savings to the state resulting from Proposition 47’s sentencing changes be spent on mental health and substance use services, truancy and dropout prevention, and victim services. According to the Legislative Analyst’s Office, last year, the estimated state savings was about $113 million. (https://lao.ca.gov/ballot/2023/230474.pdf [as of June 3, 2024].) After the passage of Proposition 47, opponents of the measure argued that because shoplifting had to be charged as a misdemeanor unless the amount stolen exceeds $950, repeat offenders and those who work in concert with others in an organized retail theft ring were not being appropriately punished. (Grocery stores are pushing California to be tougher on crime, LA Times < https://www.latimes.com/business/story/2020-09-16/california-grocery-industry- supports-tougher-crime-laws > [as of June 3, 2024].)
AB 1802 (Jones-Sawyer ) Page 5 of 8
In 2018, a coalition of law enforcement and victims’ advocate groups started gathering signatures to put a new initiative on the ballot that would undo some of the changes made by Proposition 47. That measure, Proposition 20, would have allowed thefts of property worth $250 or more to be punished as felonies and would have created the crime of serial theft and organized retail theft. Proposition 20 qualified to be placed on the ballot for the November 2020 general election and was ultimately rejected by California voters.
Also in 2018, the Legislature passed AB 1065 (Jones-Sawyer), Ch. 803, Stats. 2018, which created the crime of organized retail theft and allowed the crime to be punished as a wobbler, along with several other provisions related to the prosecution of the new crime and the creation of the CHP property crimes task force to assist local efforts to combat organized property crimes.
That law contained a sunset date of January 1, 2021. Since the passage of the organized retail theft law, the sunset has been extended several times. (See AB 94 (Committee on Budget and Fiscal Rev.), Ch. 25, Stats. 2019 and AB 331 (Jones-Sawyer), Ch. 113, Stats. 2021.) The current sunset date on the crime of organized retail theft and the operation of the CHP task force is January 1, 2026. This bill removes the sunset date making the operation of the crime of organized retail theft and the CHP task force permanent.
3. CHP Task Force
The Regional Property Crimes Task Force was enacted by AB 1065 (Jones-Sawyer), Chapter 803, Statutes of 2018. That bill required CHP, until July 1, 2021, to coordinate with Department of Justice (DOJ) to convene a regional property crimes task force to identify geographic areas experiencing increased levels of property crimes and assist local law enforcement with resources, such as personnel and equipment. AB 331 (Jones-Sawyer), Chapter 113, Statutes of 2021, extended the operation of the regional property crimes task force until January 1, 2026.
According to CHP’s website:
As reported by the National Retail Federation, organized retail theft accounts for nearly $30 billion in economic loss per year. This loss is carried by retailers on several levels but is ultimately passed on to consumers through price inflation to offset economic loss. While the problem is most commonly associated with shoplifting, it extends well beyond into associated organized criminal activity.
Commercial burglary, vehicle burglary, identity theft, credit card fraud, forgery, and fencing (selling or distribution of) stolen property are part of a bigger picture that finance ongoing criminal operations.
In response to AB 1065, the CHP, in consultation with the DOJ, developed a task force concept to work with allied agencies to combat organized retail theft. Three regional task forces, known as Organized Retail Crime Task Forces (ORCTF), were established by the CHP in three field Divisions with the greatest need for immediate action: Golden Gate Division (encompassing the greater Bay Area), Southern Division (encompassing the greater Los Angeles region), and Border Division (encompassing Orange and San Diego counties).
(See https://www.chp.ca.gov/notify-chp/organized-retail-theft-program [as of June 3, 2024].) AB 1802 (Jones-Sawyer ) Page 6 of 8
As of August 2023, since the inception of the ORCTF, there have been more than 1,850 investigations into retail crimes in California that have resulted in over 1,250 arrests. One key to the ORCTF’s success is the partnership with retailers, local law enforcement, and district attorneys, to effectively disrupt organized retail theft rings and prosecute organized retail crimes. (https://www.chp.ca.gov/PressReleases/Pages/CHP-RAMPS-UP-EFFORTS-TO-DISRUPT- RETAIL-THEFT-RINGS-STATEWIDE.aspx [as of June 3, 2024].) This bill extends the operation the CHP task force indefinitely.
4. Renewed Efforts to Combat Property Crimes
“The Homelessness, Drug Addition, and Theft Reduction Act” is a new initiative that would make specific changes to laws enacted by Proposition 47, also known as the Safe Neighborhoods and Schools Act which was approved by the voters in November 2014. Proposition 47 reduced the penalties for certain drug and property crimes and directed that the resulting state savings be directed to mental health and substance abuse treatment, truancy and dropout prevention, and victims’ services. (See Legislative Analyst's Office analysis of Proposition 47 (See http://www.lao.ca.gov/ballot/2014/prop-47-110414.pdf [as of June 3, 2024].) Specifically, the new initiative would reenact felony sentencing for petty theft with two prior thefts, allow multiple petty thefts to be aggregated to meet the $950 threshold without a showing that the acts were connected, and create new enhancements depending on the amount of property stolen or damaged. The initiative would also increase penalties for certain drug crimes, mandate treatment for certain offenders, and require courts to warn people convicted of drug distribution that they may be charged with murder in the future if someone dies after taking an illegal drug provided by that person.
(https://ballotpedia.org/California_Drug_and_Theft_Crime_Penalties_and_Treatment- Mandated_Felonies_Initiative_(2024) [as of June 3, 2024].) The initiative is supported by various law enforcement, public officials, district attorneys, small businesses and retail corporations. (Id.) To qualify for the November 2024 ballot, the law requires 546,651 valid signatures by June 27, 2024; as of January 25, 2024, the campaign had notified the Secretary of State that 25% of the required signatures had been collected. (Id.) The initiative is currently pending signature verification. (https://www.sos.ca.gov/elections/ballot-measures/initiative-and- referendum-status/initiatives-and-referenda-pending-signature-verification [as of June 3, 2024].) On January 9, 2024, Governor Newsom called for legislation to crack down on large scale property crimes committed by organized groups who profit from resale of stolen goods. (https://www.gov.ca.gov/2024/01/09/property-crime-framework/ [as of June 3, 2024).) The proposals include: 1) creating new penalties targeting those engaged in retail theft to resell, and those that resell the stolen property; 2) clarifying existing arrest authority so that police can arrest suspects of retail theft, even if they didn’t witness the crime in progress; 3) clarifying that theft amounts may be aggregated to reach the grand theft threshold; 4) creating new penalties for professional auto burglary, increasing penalties for the possession of items stolen from a vehicle with intent to resell, regardless of whether the vehicle was locked; 5) eliminating the sunset date for the organized retail crime statute; and 6) increasing penalties for large-scale resellers of stolen goods.
Both houses of the Legislature have announced legislative packages that include parts of the Governor’s proposals. (See https://www.latimes.com/california/story/2024-02-26/senate-leaders- respond-to-states-fentanyl-crisis-and-organized-retail-theft-problem-with-new-legislation [as of AB 1802 (Jones-Sawyer ) Page 7 of 8
June 3, 2024) and https://www.latimes.com/california/story/2024-02-15/democratic-lawmakers- introduce-legislation-to-target-organized-retail-theft-online- resellers#:~:text=If%20passed%2C%20the%20bill%20would,if%20there%20were%20separate %20victims [as of June 3, 2024].)
5. Amendments to be Taken in Appropriations Committee
This bill will be amended to contain an urgency clause, allowing the bill’s provisions to take effect immediately upon approval of the Governor. Additionally, the bill will be amended to contain an inoperability clause stating that its provisions will become inoperative if the proposed initiative measure titled, “The Homelessness, Drug Addition, and Theft Reduction Act” (Initiative 23-0017A1) is approved by the voters at the statewide general election on November 5, 2024.
6. Argument in Support
According to the Los Angeles County District Attorney, the sponsor of this bill:
One of the most important tools we have to combat the problem of retail theft is California’s Organized Retail Theft statute, Penal Code Section 490.4.
California’s Organized Retail Theft statute makes it a wobbler for an organized group of two or more persons to steal goods from a merchant with the intent to sell, exchange or return the goods for value.
Last year our Office filed over 500 cases using California’s Organized Retail Theft statue in both the criminal and juvenile courts. The majority of these cases involved multiple defendants. In addition to prosecuting these cases, our Office has also worked with the Los Angeles County regional organized task force to recover millions of dollars in stolen goods which have been returned to retailers by law enforcement. For example, $188,000 in merchandise has been returned to Saks Fifth Avenue in Beverly Hills, $250,000 in recovered goods has been given back to Kevin Jewelers, and hundreds of thousands of dollars has been returned to Target and CVS.
The number of criminal prosecutions for organized retail theft have increased significantly since 2020. In 2020, our Office filed 95 criminal cases charging a violation of Penal Code Section 490.4 (78 felony filings and 17 misdemeanor filings). Last year the number of Penal Code Section 490.4 filings increased to 541 (434 felony filings and 107 misdemeanor filings).
. . . .
It is imperative that law enforcement retains all of our existing tools in order to continue to combat the problem of organized retail theft in California.
7. Argument in Opposition
According to California Attorneys for Criminal Justice:
AB 1802 (Jones-Sawyer ) Page 8 of 8
The crime of organized retail theft is of recent vintage: it first became law effective July 21, 2021. Existing laws relating to conspiracy already apply to the criminal conduct covered by AB 331. So this new crime was, when enacted, entirely unneeded. Prosecutors seeking to bring more serious charges against organized groups engaged in retail thefts have always been able to do so, without the necessity of AB 331. This is precisely why a sunset provision was originally included—to wait and see whether AB 331 was anything other than a duplicative.
California law should not have both of these as options.
Nor is there any data suggesting that AB 331 has done anything to impact retail theft one way or another. As Assemblymember Bonta, who sits on the recently formed special committee to address retail theft recently told the Los Angeles Times, “inconsistent information” on the extent of retail thefts since the passage of AB 331 “makes it difficult to assess the issue.” (Anabel Sosa, California lawmakers want to curb retail theft, but says it’s not as easy as it sounds, L.A.
Times, (Dec. 30, 2023). As noted in this article, when proponents of this bill claiming that there is a rising problem with retail theft were asked to provide data at a legislative hearing, they “came up emptyhanded.” (Id.) The National Retail Federation was, in fact, forced to retract the statistics it had earlier provided in support of the claim that organized retail theft was the central force behind shoplifting losses among retail businesses. (Mark Faithfull, National Retail Federation Retracts Stats Amid Theft War of Words, Forbes (Dec. 8, 2023).) And, as other media organizations have reported, retailers may be using claims of organized theft to cover up internal flaws causing their profits to drop. (See Gabrielle Funrouge, Retailers say organized theft is biting into profits, but internal issues may really be to blame, CNBC, August 10, 2023)
-- END –
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Aisha Wahab, Chair
2023 - 2024 Regular
Bill No: AB 2943 Hearing Date: June 11, 2024
Author: Zbur
Version: June 5, 2024
Urgency: No Fiscal: Yes
Consultant: SC
Subject: Crimes: shoplifting
HISTORY
Source: Author
Prior Legislation: AB 2294 (Jones-Sawyer), Ch. 856, Stats. 2022 AB 331 (Jones-Sawyer), Ch. 113, Stats. 2021
AB 1950 (Kamlager), Ch. 328, Stats. 2020
AB 2356 (Rodriguez), Ch. 22, Stats. 2022
AB 1065 (Jones-Sawyer), Ch. 803, Stats. 2018
Support: Association of California Cities - Orange County (ACC-OC); Beverly Hills Chamber of Commerce; Boma California; Buena Park, City of; CalChamber; California Association of Highway Patrolmen; California Business Properties Association; California Business Roundtable; California Contract Cities Association; California Downtown Association; California Grocers Association; California Police Chiefs Association; California Restaurant Association; California Retailers Association; Chino Hills, City of; City of Alameda; City of Corona; City of Crescent City; City of Fullerton; City of Hesperia; City of Lafayette; City of Merced; City of Mission Viejo; City of Oakland Mayor Sheng Thao; City of Oakley; City of Palo Alto; City of Pico Rivera; City of Rancho Palos Verdes; City of Redwood City; City of Rolling Hills Estates; City of San Jose; City of Santa Clarita; City of Tracy; City of Tustin; City of Whittier; Darrell Steinberg, Mayor of Sacramento; Downtown Santa Monica; Los Angeles County Business Federation (BIZ-FED); Los Angeles County Democratic Party; Mayor Todd Gloria, City of San Diego; Naiop of California; Orange County Business Council; Orange County Taxpayers Association; Peace Officers Research Association of California (PORAC); South Bay Association of Chambers of Commerce; Southern California Leadership Council; Southwest California Legislative Council; United Chamber Advocacy Network; Valley Industry and Commerce Association (VICA)
Opposition: California Public Defenders Association (unless amended to address immigration penalties); Californians United for a Responsible Budget; Immigrant Legal Resource Center; San Francisco Public Defender; Vera Institute of Justice Assembly Floor Vote: 66 - 0
AB 2943 (Zbur ) Page 2 of 13
PURPOSE
The purpose of this bill is to create the new crime of unlawful deprivation of a retail business opportunity and make various changes to provisions of law on arrest authority, aggregation, and probation terms for theft-related offenses.
Existing law states that every person who steals, takes, carries, leads, or drives away the personal property of another, or who fraudulently appropriates property which has been entrusted to them, or who knowingly and designedly, by any false or fraudulent representation or pretense, defrauds any other person of money, labor or real or personal property, is guilty of theft. (Pen. Code, § 484, subd. (a).)
Existing law divides theft into two degrees, petty theft and grand theft. (Pen. Code, § 486.) Existing law states that petty theft is punishable by a fine not exceeding $1,000, by imprisonment in the county jail not exceeding six months, or both. (Penal Code § 490.) Existing law punishes grand theft as an alternate felony-misdemeanor (“wobbler”). (Pen. Code, § 487.)
Existing law defines grand theft as when the money, labor, or real or personal property taken is of a value exceeding $950 dollars, except as specified; other cases of theft are petty theft. (Pen.
Code, §§ 487-488.)
Existing law provides that if the value of the money, labor, real property, or personal property taken exceeds $950 over the course of distinct but related acts, the value of the money, labor, real property, or personal property taken may properly be aggregated to charge a count of grand theft, if the acts are motivated by one intention, one general impulse, and one plan. (Pen. Code, § 487, subd. (e).)
This bill clarifies that distinct but related acts for purposes of aggregation for grand theft includes acts committed against multiple victims or in counties other than the county of the current offense.
This bill provides that evidence that distinct acts are motivated by one intention, one general impulse, and one plan may include, but is not limited to, evidence that the acts involve the same defendant or defendants, are substantially similar in nature, or occur within a 90-day period.
Existing law defines “shoplifting” as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed $950 dollars. (Pen. Code, § 459.5, subd. (a).)
Existing law states that any act of shoplifting must be charged as such, and that a person charged with shoplifting cannot also be charged with burglary or theft of the same property. (Pen. Code, § 459.5, subd. (b).)
AB 2943 (Zbur ) Page 3 of 13
Existing law, until January 1, 2026, creates the crime of organized retail theft which is defined as:
Acting in concert with one or more persons to steal merchandise from one or more merchant’s premises or online marketplace with the intent to sell, exchange, or return the merchandise for value;
Acting in concert with two or more persons to receive, purchase, or possess merchandise knowing or believing it to have been stolen;
Acting as the agent of another individual or group of individuals to steal merchandise from one or more merchant’s premises or online marketplaces as part of a plan to commit theft; or,
Recruiting, coordinating, organizing, supervising, directing, managing, or financing another to undertake acts of theft. (Pen. Code, § 490.4, subd. (a).) Existing law, until January, 1 2026, punishes organized theft as follows:
If violations of the provisions directed at acting in concert or as an agent are committed on two or more separate occasions within a one-year period, and if the aggregated value of the merchandise stolen, received, purchased, or possessed within that period exceeds $950, the offense is punishable as a wobbler;
Any other violation of the provisions directed at acting in concert or as an agent is punishable as a misdemeanor by imprisonment in a county jail not exceeding one year; and,
A violation of the recruiting, coordinating, organizing, supervising, directing, managing, or financing provision is punishable as a wobbler. (Pen. Code, § 490.4, subd. (b).) Existing law states that every person who prohibits buying or receiving 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, and punishes the offense as an alternate felony- misdemeanor when the value of the property exceeds $950, or as a misdemeanor when the value of the property is $950 or less. (Pen. Code, § 496.)
This bill states that any person who possesses property unlawfully that was acquired through one or more acts of shoplifting, theft, or burglary from a retail business, whether or not the person committed the act of shoplifting, theft, or burglary, is guilty of the unlawful deprivation of a retail business opportunity when both of the following apply:
The property is not possessed for personal use and the person has the intent to sell, exchange, or return the merchandise for value, or the intent to act in concert with one or more persons to sell, exchange, or return the merchandise for value; and, The value of the possessed property exceeds $950.
AB 2943 (Zbur ) Page 4 of 13
This bill provides that the value of the property possessed may be considered in aggregate with either of the following:
Any other such property possessed by the person with such intent within the prior two years; or,
Any property possessed by another person acting in concert with the first person to sell, exchange, or return the merchandise for value, when such property was acquired through one or more acts of shoplifting, theft, or burglary from a retail business, regardless of the identity of the person committing the act of shoplifting, theft, or burglary.
This bill states that for the purpose of determining in any proceeding whether the defendant has the intent to sell, exchange, or return the merchandise for value, the trier of fact may consider any competent evidence, including but not limited to, the following:
Whether the defendant has in the prior two years sold, exchanged, or returned for value merchandise acquired through shoplifting, theft, or burglary from a retail business, or through any related offense, including any conduct that occurred in other jurisdictions, if relevant to demonstrate a fact other than the defendant’s disposition to commit the act, as provided by subdivision (b) of Section 1101 of the Evidence Code; and, The property involved in the offense is of a type or quantity that would not normally be purchased for personal use or consumption, including use or consumption by one’s immediate family.
This bill makes the criminal deprivation of a retail business opportunity punishable by imprisonment in the county jail for up to one year or as a county jail-eligible felony.
Existing law provides that an arrest is taking a person into custody in a case and manner authorized by law, and authorizes peace officers and private persons to make arrests. (Pen. Code, § 834.)
Existing law authorizes a peace officer to arrest a person without a warrant in the following circumstances:
The officer has probable cause to believe that the person to be arrested has committed a public offense in the officer’s presence;
The person arrested has committed a felony, although not in the officer’s presence; or,
The office has probable cause to believe that the person to be arrested has committed a felony, whether or not a felony, in fact, has been committed. (Pen. Code, § 836.) This bill provides that a peace officer may, without a warrant, arrest a person for misdemeanor shoplifting when the violation was not committed in the officer’s presence if all of the following conditions are met:
The officer has probable cause to believe the person committed the violation; AB 2943 (Zbur ) Page 5 of 13
The arrest is made without undue delay after the violation; and, Any of the following takes place:
o The officer obtains a sworn statement from a person who witnessed the person to be arrested committing the alleged violation;
o The officer observes video footage that shows the person to be arrested committed the alleged violation;
o The person to be arrested possesses a quantity of goods inconsistent with personal use and the goods bear security devices affixed by a retailer that would customarily be removed upon purchase; or,
o The person confesses to the alleged violation to the arresting officer.
Existing law, until January 1, 2026, authorizes a city or county prosecuting authority or county probation department to create a diversion or deferred entry of judgment program for persons who commit a theft offense or repeat theft offenses, as specified.
This bill extends the sunset date on the provision of law that authorizes cities and counties to establish diversion and deferred entry of judgment programs for theft and repeat theft crimes until January 1, 2031.
Existing law states that when a person is arrested for a misdemeanor and does not demand to be taken before a magistrate, that person shall be released with a written notice to appear in court unless specified reasons for nonrelease are present. (Pen. Code, § 853.6, subd. (a)(1) & (i).) Existing law, until January 1, 2026, provide when the person has been cited, arrested, or convicted for misdemeanor or felony theft from a store in the previous six months, or when there is probable cause to believe that the person arrested is guilty of committing organized retail theft as additional reasons for nonrelease. (Pen. Code, § 853.6, subd. (i)(11)-(12).) This bill extends the sunset date on the provision of law that authorizes non-release for arrests relating to repeat thefts and organized retail theft until January 1, 2031.
Existing law authorizes the court, on a misdemeanor offense, to suspend the imposition or execution of the sentence and make and enforce the terms of probation for a period not to exceed one year. However, the one-year probation limit shall not apply to any offense that includes specific probation lengths within its provisions. (Pen. Code, § 1203a.) Existing law sets limits period of probation for a felony to no longer than two years, except as specified. (Pen. Code, § 1203.1, subds. (a) & (l).)
Existing law authorizes the court to impose and require any or all reasonable conditions of probation as it may determine are fitting and proper to the end that justice may be done, that amends may be done to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer. (Pen. Code, § 1203.1, subd. (j).)
AB 2943 (Zbur ) Page 6 of 13
This bill states that notwithstanding the general one-year limit of prohibition for a misdemeanor, the court may suspend the imposition or execution of the sentence and make and enforce terms of probation not to exceed two years for a violation of shoplifting or petty theft.
This bill provides that if a court imposes a term of probation that exceeds the statutory maximum of one year, the court, as a condition of probation, shall consider referring the defendant to a collaborative court or rehabilitation program that is relevant to the underlying factor or factors that led to the commission of the offense.
This bill specifies that if the defendant who is referred to a rehabilitative program is under 25 years of age, the court shall, to the extent such a program is available, refer the defendant to a program modeled on healing-centered, restorative, trauma-informed, and positive youth development approaches and that is provided in collaboration with community-based organizations.
This bill states that if the court finds that referral to a collaborative court or rehabilitation program is not an appropriate condition of probation, the court must state the reasons for its findings on the record.
This bill states that upon successful completion of the rehabilitation program, as determined by the program provider, or successful participation in the collaborative court, as determined by the collaborative court, the court shall discharge the defendant from probation.
This bill states that participation in a collaborative court or rehabilitation program by the defendant shall not exceed two years except with the consent of the defendant.
Existing law makes every person who maintains or commits any public nuisance or who willfully omits to person any legal duty relating to the removal of a public nuisance guilty of a misdemeanor. (Pen. Code, § 372.)
This bill prohibits local law enforcement or a local jurisdiction from bringing or threatening a nuisance action against a business, or impose fines upon a business, solely for the act of reporting a retail crime, unless the report is knowingly false.
COMMENTS
1. Need for This Bill
According to the author of this bill:
The California Retail Theft Reduction Act demonstrates that the California Assembly has listened and that we are serious about addressing the problem of retail crime that is plaguing our communities. We have advanced a comprehensive set of proposals that we believe will have a meaningful impact on stopping the growing threat of retail crime. The proposals in the bill are intended to advance balanced, effective, and meaningful solutions that address the problem and preserve criminal justice reforms that have been effective at keeping our communities safe. Each element of the California Retail Theft Reduction Act can AB 2943 (Zbur ) Page 7 of 13
be enacted by the Legislature and signed into law by the Governor without voter approval.
2. Creation of New Crime of Unlawful Deprivation of Business Opportunity Existing law punishes theft in a variety of ways. Theft itself is generally classified into two categories: either grand theft, meaning the value of the property exceeds $950 unless a lower threshold is otherwise specified, or petty theft which refers to all other types of theft that do not meet the $950 threshold. (Pen. Code, § 487.) Petty theft is punishable as a misdemeanor; grand theft is generally punishable as either a felony or misdemeanor. (Pen. Code, § 489.) Burglary generally involves entry into a location to commit larceny or other felony. This crime is punishable as either a felony or misdemeanor depending on the circumstances. (Pen. Code, § 459.) Shoplifting is the crime of specifically entering a commercial establishment with intent to commit larceny during regular business hours where the value take does not exceed $950. This crime is generally a misdemeanor. (Pen. Code, § 459.5.) Buying or receiving stolen property knowing the property to be stolen is also a separate offense. The punishment can be either or misdemeanor or felony based on the value of the property. (Pen. Code, § 496.) Separately, the crime of “organized retail theft” includes shoplifting schemes undertaken by two or more persons who have organized themselves to commit shoplifting for financial gain. (Pen.
Code, § 490.4.) The punishment ranges from one year in the county jail (misdemeanor) to 16 months, or two, or three years in the county jail (felony), depending on the specific circumstances.
This bill creates a new crime, “criminal deprivation of a retail business opportunity,” punishable as either a misdemeanor, by imprisonment in the county jail for up to one year, or as a felony, punishable by imprisonment in the county jail for a term of 16 months, two years, or three years.
The conduct that this bill punishes is similar to receiving stolen property in that a person is guilty of the offense if they possess property that was stolen from a retail business, whether or not the person stole property. The bill specifies that the property possessed must exceed $950, cannot be for personal use and the person must have the intent to sell, exchange or return the merchandise for value or the intent to act in concert with one or more persons to sell, exchange or return the merchandise for value.
In determining whether the property is valued over $950, this bill provides that, the property can be considered in the aggregate with any other property possessed by the person with the intent to sell or return for value in the prior two years, or any property possessed by another person acting in concert with the defendant to sell, exchange or return the merchandise for value. It is unclear whether the prior conduct applies to arrests, charges or convictions for those prior acts to be aggregated. The aggregation allowed under the provisions of this bill is also notably different than the existing aggregation provisions for grant theft of property exceeding $950 which requires all of the separate acts to be acts are motivated by one intention, one general impulse, and one plan. (Pen. Code, § 487, subd. (e).)
For the purpose of determining whether the defendant has the intent to “sell, exchange, or return the merchandise for value,” this bill provides that the trier of fact may consider any competent evidence, including, but not limited to, evidence that the defendant committed similar acts in the prior two years, if relevant to demonstrate a fact other than the defendant’s disposition to commit AB 2943 (Zbur ) Page 8 of 13
the act, and whether the property is the type that would not normally be purchased for personal use or consumption, including use or consumption by one’s immediate family.
Because possession of stolen property may already be prosecuted under Penal Code section 496, it is unclear whether the new crime would result in more prosecutions, especially considering that the new offense requires a showing that the person had intent to sell, exchange or return the stolen merchandise for value. Additionally, courts have held that a defendant cannot be convicted of the separate crimes for theft of property and receiving the property. (People v.
Jaramillo (1976) 16 C.3d 752, 757.) It is unclear if a prosecutor would attempt to charge and convict and individual of the original theft and the new crime created by this bill.
3. Aggregation of Multiple Thefts
Multiple acts of theft can be aggregated and prosecuted as one felony if they are conducted pursuant to one intention, one general impulse, and one plan. (See People v. Bailey (1961) 55 Cal.2d 514, 518-519.) In the context of petty theft versus grand theft, when charges of theft are aggregated, the value of the contents stolen can also be aggregated so instead of being charged with multiple misdemeanor offenses (where the value of each item stolen is less than $950) the defendant may be charged with a single felony when the value of the items stolen can be added together to breach the $950 threshold.
The defendant in Bailey made a single fraudulent misrepresentation about her household income that caused her to receive a stream of welfare payments. (Id. at pp. 515–516.) While each individual payment fell below the felony threshold, the aggregated total constituted grand theft. (Id. at p. 518.) The California Supreme Court concluded that the payments could be aggregated because “the evidence established that there was only one intention, one general impulse, and one plan.” (Id. at p. 519; see also CALCRIM No. 1802 [Theft: As Part of Overall Plan].) In People v. Columbia Research Corp. (1980) 103 Cal.App.3d Supp. 33, the court approved aggregation where the defendant was charged with grand theft based on a series of petty thefts that occurred over a 10-month period, pursuant to a single plan and intent, and involved different victims.
The California Supreme Court addressed the Bailey rule in People v. Whitmer (2014) 59 Cal.4th 733. In Whitmer, the defendant arranged for the fraudulent sale of 20 motorcycles, motorized dirt bikes, all-terrain vehicles, and similar recreational vehicles. The defendant was convicted of multiple thefts. (Id. at pp. 735-736.) The defendant appealed, arguing that under Bailey he should have been convicted of a single theft. The Supreme Court distinguished the facts in Whitmer from what occurred in Bailey, and found that multiple theft convictions were appropriate because each count of theft was based on a separate and distinct fraudulent act. (Whitmer, supra. at p. 740.) The court in Whitmer pointed out that Bailey concerned a single fraudulent act followed by a series of payments. In a concurring opinion. Justice Liu distinguished acts committed with a common scheme from acts committed as part of a single impulse. (Whitmer, supra, at p. 748, concur. opn. J. Liu.) Justice Liu went on to state that “. . ., separate and distinct takings do not fall under Bailey's aggregation rule simply because, as here, they were all done the same way.
But neither does the mere fact that multiple takings are separate and distinct entail a finding of multiple thefts in every case. If the takings were committed pursuant to a single intention, impulse, and plan, then under Bailey they amount to only one theft.” AB 2943 (Zbur ) Page 9 of 13
In 2022, the Legislature codified the aggregation rule from Bailey in subdivision (e) of Penal Code section 487. (AB 2356 (Rodriguez), Ch. 22, Stats. 2022.) This bill clarifies the aggregation rule by stating that distinct but related acts includes acts committed against multiple victims or in counties other than the county of the current offense.
This bill additionally provides that evidence that distinct acts are motivated by one intention, one general impulse, and one plan may include evidence that the acts involve the same defendant or defendants, are substantially similar in nature, or occur within a 90-day period.
4. Misdemeanor Arrest Authority
The United States Constitution guarantees the right against arrests made without probable cause. (U.S. Const., 4th Amend.) Generally, existing law allows peace officers to make a warrantless arrest in limited circumstances: (1) the crime was committed in the officer’s presence; (2) the person arrested has committed a felony, although not in the officer’s presence; or (3) the officer has probable cause to believe a person has committed a felony, even if it turns out not to be true. (Pen. Code, § 836, subd. (a).) Exceptions under the statute also include violations of domestic violence protective or restraining order; an assault or battery of a significant other, as specified; or carry a concealed firearm within an airport. (Pen. Code, § 836, subds. (c)-(e).) This bill would create another exception to the arrest warrant requirement for crimes not committed in the officer’s presence. This bill provides that a peace officer can make a warrantless arrest if the officer has probable cause to believe that the person shoplifted. Probable cause to make an arrest shall be based on any of the following: a sworn statement obtained by the officer from a person who witnessed the person commit the violation; the officer observes video footage that shows the person to be arrested committing the violation; the person to be arrested possesses a quantity of goods inconsistent with personal use and the goods bear security devices affixed by a retailer that would customarily be removed upon purchase; or the person to be arrested confesses to the alleged violation to the arresting officer.
While a confession may be the basis for probable cause that the person making the confession committed the crime, the statement alone is not sufficient to convict an individual of a crime. (CALCRIM No. 359.) The nature of confessions also raises reliability issues because they can be coerced or turn to be false. Depending on the circumstances surrounding a confession, the statement may be found inadmissible in court and undermine prosecutions relying on the statement. In order to evaluate the circumstances surrounding the confession, an electronic recording of the encounter may help bolster reliability of the statement.
Generally, a person arrested by a peace office for a misdemeanor must be cited and released, except in limited circumstances. (Pen. Code, § 853.6, subd. (i).) For example, an officer is not required to release a person arrest for a misdemeanor if there is reason to believe that the person would not appear at the time and place specified on the notice to appear. (Pen. Code, § 853.6, subd. (i)(9).) There is also an exception to the release requirement when there is a reasonable likelihood that the person would resume committing offenses, or where there person has outstanding warrants. (Pen. Code, § 853.6, subd. (i)(4) & (6).) Relevant to this bill, a peace officer is not required to release the person if the person has been cited, arrested, or convicted for misdemeanor or felony theft from a store in the previous six months. (Pen. Code, § 853.6, subd. (i)(11).) Likewise, a peace officer is not required to release a AB 2943 (Zbur ) Page 10 of 13
person if they have probable cause to believe the person is guilty of organized retail theft. (Pen.
Code, § 853.6, subd. (i)(12).) The provisions allowing non-release of persons arrested for theft and organized retail theft are set to sunset of January 1, 2026. (Pen. Code, § 853.6.) This bill extends the sunset date to January 1, 2031.
5. Increased Term of Probation for Shoplifting and Petty Theft Probation is the suspension of a custodial sentence and a conditional release of a defendant into the community. Probation can be “formal” or “informal.” Formal probation is under the direction and supervision of a probation officer. Under informal probation, a defendant is not supervised by a probation officer but instead reports to the court. In general, the level of probation supervision will be linked to the level of risk the probationer presents to the community.
Probation can include a sentence in county jail before the conditional release to the community.
Defendants convicted of misdemeanors, and most felonies, are eligible for probation based on the discretion of the court. When considering the imposition of probation, the court must evaluate the safety of the public, the nature of the offense the interests of justice, the loss to the victim, and the needs of the defendant. (Pen. Code, § 1202.7.)
Under prior law, the court was authorized to impose a term of probation for up to five years, or no longer than the prison term that can be imposed if the maximum prison term exceeds five years, when a defendant is convicted of a felony. (Pen. Code, § 1203.1.) In misdemeanor cases, the court was authorized to impose a term of probation for up to three years, or no longer than the maximum term of imprisonment if more than three years. (Pen. Code, § 1203a.)
In 2020, AB 1950 (Kamlager, Chapter 328) was enacted. It reduced the maximum length of probation for both misdemeanor and felony cases (in most cases). For felonies, the term of probation was reduced from five years—where the punishment did not exceed five years—to two years. (Pen. Code, § 1203.1.) For misdemeanors the term of probation was reduced from three years to one year. (Pen. Code, § 1203a.) In both types of cases, there was an exception made if a specific probation length was already dictated in statute for a particular offense. (Ibid.)
This bill increases the maximum term of probation on misdemeanor offenses of shoplifting and petty theft from the presumptive one year to a maximum of two years.
6. Renewed Efforts to Combat Property Crimes
“The Homelessness, Drug Addition, and Theft Reduction Act” is a new initiative that would make specific changes to laws enacted by Proposition 47, also known as the Safe Neighborhoods and Schools Act which was approved by the voters in November 2014. Proposition 47 reduced the penalties for certain drug and property crimes and directed that the resulting state savings be directed to mental health and substance abuse treatment, truancy and dropout prevention, and victims’ services. (See Legislative Analyst's Office analysis of Proposition 47 (See http://www.lao.ca.gov/ballot/2014/prop-47-110414.pdf [as of June 3, 2024].) Specifically, the new initiative would reenact felony sentencing for petty theft with two prior thefts, allow multiple petty thefts to be aggregated to meet the $950 threshold without a showing that the acts were connected, and create new enhancements depending on the amount of property stolen or damaged. The initiative would also increase penalties for certain drug crimes, mandate AB 2943 (Zbur ) Page 11 of 13
treatment for certain offenders, and require courts to warn people convicted of drug distribution that they may be charged with murder in the future if someone dies after taking an illegal drug provided by that person.
(https://ballotpedia.org/California_Drug_and_Theft_Crime_Penalties_and_Treatment- Mandated_Felonies_Initiative_(2024) [as of June 3, 2024].) The initiative is supported by various law enforcement, public officials, district attorneys, small businesses and retail corporations. (Id.) To qualify for the November 2024 ballot, the law requires 546,651 valid signatures by June 27, 2024; as of January 25, 2024, the campaign had notified the Secretary of State that 25% of the required signatures had been collected. (Id.) The initiative is currently pending signature verification. (https://www.sos.ca.gov/elections/ballot-measures/initiative-and- referendum-status/initiatives-and-referenda-pending-signature-verification [as of June 3, 2024].) On January 9, 2024, Governor Newsom called for legislation to crack down on large scale property crimes committed by organized groups who profit from resale of stolen goods. (https://www.gov.ca.gov/2024/01/09/property-crime-framework/ [as of June 3, 2024).) The proposals include: 1) creating new penalties targeting those engaged in retail theft to resell, and those that resell the stolen property; 2) clarifying existing arrest authority so that police can arrest suspects of retail theft, even if they didn’t witness the crime in progress; 3) clarifying that theft amounts may be aggregated to reach the grand theft threshold; 4) creating new penalties for professional auto burglary, increasing penalties for the possession of items stolen from a vehicle with intent to resell, regardless of whether the vehicle was locked; 5) eliminating the sunset date for the organized retail crime statute; and 6) increasing penalties for large-scale resellers of stolen goods.
Both houses of the Legislature have announced legislative packages that include parts of the Governor’s proposals. (See https://www.latimes.com/california/story/2024-02-26/senate-leaders- respond-to-states-fentanyl-crisis-and-organized-retail-theft-problem-with-new-legislation [as of June 3, 2024) and https://www.latimes.com/california/story/2024-02-15/democratic-lawmakers- introduce-legislation-to-target-organized-retail-theft-online- resellers#:~:text=If%20passed%2C%20the%20bill%20would,if%20there%20were%20separate %20victims [as of June 3, 2024].)
7. Amendments to be Taken in Appropriations Committee
This bill will be amended to contain an urgency clause, allowing the bill’s provisions to take effect immediately upon approval of the Governor. Additionally, the bill will be amended to contain an inoperability clause stating that its provisions will become inoperative if the proposed initiative measure titled, “The Homelessness, Drug Addition, and Theft Reduction Act” (Initiative 23-0017A1) is approved by the voters at the statewide general election on November 5, 2024.
8. Arguments in Support
According to California Retailers Association:
This bill has many crucial elements to help law enforcement and protect our businesses, including: creating a new crime targeting “serial” retail thieves, specifying that the value of thefts from different victims can be aggregated to reach the threshold for grand theft, expanding the use of diversion and AB 2943 (Zbur ) Page 12 of 13
rehabilitative programs like drug court through increased supervision for shoplifting and petty theft, expanding tools for police to arrest for shoplifting based on a witness's sworn statement or video footage of the crime, and extending the ability of police to keep repeat offenders and those committing organized retail theft in custody.
The creation of the “serial” retail thief’s criminal statute is crucial to holding repeat offenders accountable. This crime would come with a penalty of up to three years for possession of stolen property with intent to resell. Acknowledging the difficulty of proving intent to sell in court, the author specifies that evidence of intent can include repeated conduct or possession of a quantity of goods inconsistent with personal use. Additionally, this bill does not require proof that a defendant acted with another person and applies to the secondary sellers (fences).
We believe these changes are adequate for charging repeat offenders and are a sufficient deterrent.
In an effort to give law enforcement the necessary and critical tools to combat retail, this bill allows for officers to arrest shoplifters, as defined in P.C. §459.5, based on the probable cause of video footage showing the offender committing the crime or based on a sworn statement of a witness. Additionally, retailers would be incentivized to observe/report retail theft activity and provide officers with sworn statements that can be used to apprehend repeat offenders.
9. Arguments in Opposition
According to Californians United for a Responsible Budget:
While retailers claim that retail theft is a massive and urgent crisis, experts and journalists have repeatedly noted that false and inflated claims are driving an exaggerated sense of panic, and retailers are struggling with other issues more responsible for financial challenges. In particular, many concerns around “organized retail crime” have been driven by the National Retail Federation’s now-redacted claim that it was responsible for half of all inventory losses in 2021, which was based on incorrect data.
California’s current theft laws are in fact already harsher than those in many other states. For example, in South Carolina and Texas, states not known for being “soft on crime,” theft cannot be charged as a felony unless the amount of loss is at least $2,000 or $2,500 respectively.
AB 2943 would make our current theft laws even harsher by redefining shoplifting to classify certain repeated instances of theft surpassing $950 as a felony, and by creating a new felony for possession of stolen goods. AB 2943 will not make our communities safer by allowing law enforcement officers to more easily arrest and detain people with past shoplifting charges or those suspected of organized retail theft. Years of research shows that pretrial detention decreases community safety in the long run—a landmark study of more than 1.5 million cases found that any amount of time in jail beyond 23 hours makes a person more likely to be arrested again in the future. This is because even a short period in jail AB 2943 (Zbur ) Page 13 of 13
can result in someone losing their job, their housing, or custody of their children.
When someone is not a threat to public safety or a flight risk, evidence tells us that the safest option is to allow them to await trial within the community, which is less costly and does not contribute to increased recidivism (also costly because incarceration is expensive).
-- END –
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Aisha Wahab, Chair
2023 - 2024 Regular
Bill No: AB 3209 Hearing Date: June 11, 2024
Author: Berman
Version: June 4, 2024
Urgency: No Fiscal: Yes
Consultant: SC
Subject: Crimes: theft: retail theft restraining orders
HISTORY
Source: Author
Prior Legislation: AB 331 (Jones-Sawyer), Chapter 113, Statutes of 2021 AB 2294 (Jones-Sawyer), Chapter 856, Statutes of 2022
AB 2356 (Rodriguez), Chapter 22, Statues of 2022
AB 1065 (Jones-Sawyer), Ch. 803, Stats. 2018
Support: Association of California Cities - Orange County (ACC-OC); California Builders Alliance; California Business Properties Assoc.; California Business Roundtable; CalChamber; California Downtown Association; California Retailers Association; California Restaurant Association; City of Agoura Hills; City of Artesia; City of Buena Park; City of Cypress; City of Fountain Valley; City of Fullerton; City of Grand Terrace; City of Lafayette; City of Lakeport; City of Oakdale; City of Paramount; City of Rancho Palos Verdes; City of Rohnert Park; City of Rolling Hills Estates; City of San Luis Obispo; City of Stanton; City of Mission Viejo; City of Whittier; Darrell Steinberg, Mayor of Sacramento; Downtown Santa Monica; El Dorado Chamber of Commerce; Elk Grove Chamber of Commerce; League of California Cities; Lincoln Area Chamber of Commerce; Los Angeles County Business Federation; Los Angeles County Democratic Party; Los Angeles County Sheriff's Department; Mayor Todd Gloria, City of San Diego; Orange County Business Council; Orange County Tax Payers Association; Ranch Cordova Chamber of Commerce; Rocklin Area Chamber of Commerce; Roseville Chamber of Commerce; Sacramento Regional Builders Exchange; Shingle Springs Cameron Park Chamber of Commerce; Southern California Leadership Council; United Chamber of Advocacy Network; Yuba-Sutter Chamber of Commerce
Opposition: ACLU California Action; San Francisco Public Defender; Vera Institute of Justice Assembly Floor Vote: 68 - 1
PURPOSE
The purpose of this bill is to authorize a court, when sentencing a person for an offense involving theft of, vandalism of, or battery of an employee of a retail establishment, to issue a criminal protective order prohibiting the person from entering the retail establishment, as AB 3209 (Berman ) Page 2 of 11
specified, and to allow specified parties to file a petition for a restraining order against an individual who has been arrested twice, but not charged or convicted, with any of the crimes listed above at the same retail establishment.
Existing law divides theft into two degrees, petty theft and grand theft. (Pen. Code, § 486.) Existing law defines grand theft as when the money, labor, or real or personal property taken is of a value exceeding $950 dollars, except as specified. (Pen. Code, § 487.) Existing law states that petty theft is punishable by a fine not exceeding $1,000, by imprisonment in the county jail not exceeding six months, or both. (Penal Code § 490.) Existing law defines “shoplifting” as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed $950. Shoplifting shall be punished as a misdemeanor, except as specified. (Pen. Code, § 459.5.) Existing law states that any act of shoplifting must be charged as such, and that a person charged with shoplifting cannot also be charged with burglary or theft of the same property. (Pen. Code, § 459.5, subd. (b).)
Existing law provides that every person who defaces, damages or destroys real or personal property that is not their own, is guilty of vandalism. If the amount of the damage is less than $400, the offense is a misdemeanor, punishable by imprisonment in a county jail not exceeding one year, by a fine of $1,000, or by both. If the amount of the damage is $400 or more, the offense is a felony, punishable by imprisonment in a county jail not exceeding one year, by a fine of not more than $10,000, or both. (Pen. Code, § 594 subd. (b).) Existing law defines “battery” as any unlawful use of force or violence upon the person of another. (Pen. Code, § 242.)
Existing law states that simple battery is punishable by a fine of up to $2,000, or by imprisonment in county jail not exceeding 6 months, or by both a fine and imprisonment. (Pen.
Code, § 243, subd. (a).)
Existing law, until January 1, 2026, creates the crime of organized retail theft which is defined as:
Acting in concert with one or more persons to steal merchandise from one or more merchant’s premises or online marketplace with the intent to sell, exchange, or return the merchandise for value;
Acting in concert with two or more persons to receive, purchase, or possess merchandise knowing or believing it to have been stolen;
Acting as the agent of another individual or group of individuals to steal merchandise from one or more merchant’s premises or online marketplaces as part of a plan to commit theft; or,
AB 3209 (Berman ) Page 3 of 11
Recruiting, coordinating, organizing, supervising, directing, managing, or financing another to undertake acts of theft. (Pen. Code, § 490.4, subd. (a).) Existing law, until January 1, 2026, punishes organized retail theft as follows:
If violations of the above provisions, except the recruiting, coordinating, organizing, supervising, directing, managing, or financing another provision, are committed on two or more separate occasions within a one-year period, and if the aggregated value of the merchandise stolen, received, purchased, or possessed within that period exceeds $950 the offense is punishable as either a misdemeanor by imprisonment in a county jail not exceeding one year or as a jail-eligible felony;
Any other violation of the above provisions, except the recruiting, coordinating, organizing, supervising, directing, managing, or financing another provision, is punishable as a misdemeanor by imprisonment in a county jail not exceeding one year; and, A violation of the recruiting, coordinating, organizing, supervising, directing, managing, or financing another provision is punishable as either a misdemeanor by imprisonment in a county jail not exceeding one year or as a jail-eligible felony. (Pen. Code, § 490.1, subd. (b).)
Existing law, until January 1, 2026, provides that for the purpose of determining whether the defendant acted in concert with another person or persons in any proceeding, the trier of fact may consider any competent evidence, including, but not limited to, all of the following:
The defendant has previously acted in concert with another person or persons in committing acts constituting theft, or any related offense, including any conduct that occurred in counties other than the county of the current offense, if relevant to demonstrate a fact other than the defendant’s disposition to commit the act; That the defendant used or possessed an artifice, instrument, container, device, or other article capable of facilitating the removal of merchandise from a retail establishment without paying the purchase price and use of the artifice, instrument, container, or device or other article is part of an organized plan to commit theft; or, The property involved in the offense is of a type or quantity that would not normally be purchased for personal use or consumption and the property is intended for resale. (Pen.
Code, § 490.4, subd. (c).)
Existing law, until January 1, 2026, states that upon a conviction for organized retail theft, the court shall consider ordering, as a condition of probation, that the defendant stay away from retail establishments with a reasonable nexus to the crime committed. (Pen. Code § 490.4, subd. (e).)
Existing law provides that any intentional and knowing violation of a protective order is a misdemeanor crime punishable by up to one year in county jail, by a fine of up to $1,000, or both. (Pen. Code, § 273.6.)
Existing law authorizes a court with jurisdiction over a criminal matter, upon good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably AB 3209 (Berman ) Page 4 of 11
likely to occur, to issue a criminal protective order during the pendency of criminal proceedings. (Pen. Code, § 136.2, subd. (a).)
Existing law states that a court shall consider issuing an order against a defendant who has been convicted of domestic violence, human trafficking, rape, statutory rape, pimping and pandering, gang activity, or any crime requiring sex offender registration. The order may be valid for up to ten years as determined by the court, restraining the defendant from any contact with a victim of the crime. (Pen. Code, § 136.2, subd. (i).)
This bill states that a court shall consider issuing an order restraining order against a defendant convicted of any of the following offenses from entering the premises of the retail establishment, that may be valid for up to two years, as determined by the court:
Shoplifting;
Any theft from a retail establishment;
Organized retail theft;
Vandalism of a retail establishment; or,
Any assault or battery of an employee of a retail establishment while working at the retail establishment.
This bill specifies that the order shall prohibit the restrained person from entering the retail establishment, or being present on the grounds of, or any parking lot adjacent to, the retail establishment.
This bill provides that if the retail establishment is part of a chain or franchise, the court may include other retail establishments in that chain or franchise within a specified geographic range in the order.
This bill states that in determining whether to impose a restraining order under the provisions of this bill, the court shall consider whether the retail establishment is the only place that sells food, pharmaceuticals, or other basic life necessities within one mile of where the individual resides, or otherwise creates undue hardship for the individual.
This bill authorizes a prosecuting attorney, city attorney, county counsel, or attorney representing a retail establishment may file a petition requesting a restraining order for an individual who has been arrested, including, but not limited to, the issuance of a citation in lieu of a custodial arrest, two or more times for any of the offenses listed in subdivision (b) within the same retail establishment.
This bill specifies that the court must hold a hearing to determine whether to issue the restraining order and that the respondent shall be personally served with notice of the hearing and shall be entitled to representation by court-appointed counsel.
This bill states that the petitioner shall bear the burden of proving, by a preponderance of the evidence, that the respondent, on two or more separate occasions, committed a qualifying offense within the retail establishment or on the grounds thereof.
AB 3209 (Berman ) Page 5 of 11
This bill authorizes the court to issue an order restraining the respondent from entering the premises of the retail establishment for a period not to exceed two years if the court finds by a preponderance of the evidence that both of the following are true:
The respondent, on two or more separate occasions, committed a qualifying theft, vandalism or assault or battery offense within the retail establishment or on the grounds thereof; and,
There is a substantial likelihood that the individual will return to the retail establishment.
This bill states that the order shall prohibit the restrained person from entering the retail establishment, or being present on the grounds of, or any parking lot adjacent to and used to service the retail establishment.
This bill provides that if the retail establishment is part of a chain or franchise, the court may include other retail establishments in that chain or franchise within a specified geographic range in the order.
This bill specifies that a violation of an order issued pursuant to the provisions of this bill is punishable as a misdemeanor.
Existing law states that when a person is arrested for a misdemeanor and does not demand to be taken before a magistrate, that person shall be released with a written notice to appear in court unless specified reasons for nonrelease are present. (Pen. Code, § 853.6, subd. (a)(1) & (i).) Existing law, until January 1, 2026, provide when the person has been cited, arrested, or convicted for misdemeanor or felony theft from a store in the previous six months, or when there is probable cause to believe that the person arrested is guilty of committing organized retail theft as additional reasons for nonrelease. (Pen. Code, § 853.6, subd. (i)(11)-(12).) This bill states that an officer arresting a person for a violation of an order pursuant to this bill’s provisions is not required to cite and release the person.
This bill states, declarative of existing law, that a court may offer an individual charged with a violation of an order issued pursuant to the bill’s provisions an opportunity to participate in a diversion program for which they are eligible.
COMMENTS
1. Need for This Bill
According to the author of this bill:
AB 3209 would authorize a court to impose a Retail Crime Restraining Order for a theft offense, vandalism within the store, or battery of an employee within the store. With the rise in retail theft and robbery in California, solutions needs to find the balance of strengthening enforcement while not perpetuating the underlying causes of retail theft, such as poverty. Addressing the issues of retail theft, vandalism, and assaults on employees are important to ensure safety in our AB 3209 (Berman ) Page 6 of 11
communities and businesses. This bill strikes a balance between providing a necessary enforcement tool to keep stores, customers, and workers safe and ensuring that the consequences fit the offense.
2. Background: Restraining Orders in Criminal Cases
As a general matter, a court can issue a restraining order in any criminal proceeding pursuant to Penal Code Section 136.2 where it finds good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur. Protective orders issued under this provision are valid only during the pendency of the criminal proceedings. (People v. Ponce (2009) 173 Cal.App.4th 378, 382.)
When criminal proceedings have concluded and the defendant has been convicted, the court has the authority to issue restraining orders as a condition of probation in cases where probation was granted. In some cases in which probation has not been granted, the court also has the authority to issue post-conviction protective orders. The court is authorized to issue no-contact orders for up to 10 years when a defendant has been convicted of willful infliction of corporal injury to a spouse, former spouse, cohabitant, former cohabitant, or the mother or father of the defendant's child. The court can also issue no-contact post-conviction orders lasting up to 10 years in cases involving a domestic violence-related offense, rape, statutory rape, pimping and pandering, stalking, gang activity, elder abuse, or any crime requiring sex offender registration. (Pen. Code, §§ 136.2, subd. (i)(1), 368, subd.(l) and 646.9, subd. (k).) Relevant to this bill, existing law already authorizes the court to order, as a condition of probation, that the defendant stay away from retail establishments with a reasonable nexus to the crime committed. (Pen. Code, § 490.4, subd. (e).)
Disobedience of a court order may be punished as criminal contempt. The crime of contempt is a general intent crime. It is proven by showing that the defendant intended to commit the prohibited act, without any additional showing that he or she intended “to do some further act or achieve some additional consequence.” (People v. Greenfield (1982) 134 Cal.App.3d Supp. 1,
4.) Nevertheless, a violation must also be willful, which in the case of a court order encompasses both intent to disobey the order, and disregard of the duty to obey the order.” (In re Karpf (1970) 10 Cal.App.3d 355, 372.)
Violations of a protective order issued by a civil court for domestic violence, civil harassment, workplace violence, school violence, or elder abuse, may be punished as a misdemeanor unless otherwise specified. (Pen. Code, § 273.6.)
This bill provides that a court sentencing a defendant for a violation of shoplifting, theft from a retail establishment, organized retail theft, vandalism of a retail establishment, or assault or battery of an employee of a retail establishment while that person is working at the retail establishment shall consider issuing an order restraining the defendant from entering the premises of the retail establishment. This bill states that the order shall prohibit the restrained person from entering the retail establishment, or being present on the grounds of, or any parking lot adjacent to and used to service, the retail establishment. This bill authorizes a court to include other retail establishments in a chain or franchise within a specified geographic range in the order. This order may be valid for up to two years.
AB 3209 (Berman ) Page 7 of 11
This bill specifies that in determining whether to impose a restraining order under the bill’s provisions, the court shall consider whether the retail establishment is the only place that sells food, pharmaceuticals, or other basic life necessities within one mile of where the individual resides, or otherwise creates undue hardship for the individual.
As discussed above, a court generally has discretion to issue a protective order or stay-away order when the defendant has been convicted of a crime as a reasonable condition of probation.
This bill adds a new statute authorizing courts to issue a restraining order to protect a business from an individual convicted of various theft offenses, vandalism of a retail establishment, or assault or battery against an employee of a retail establishment and specifies the areas the defendant must be ordered to stay away from.
While it is possible that a stay-away order based on a conviction of one of the specified underlying crimes would be reasonable depending on the circumstances, specifying that the court shall consider issuing such an order which shall broadly cover inside the establishment, the grounds of, or any parking lot that services the retail establishment may cause an increase of these types of orders to be issued when the circumstances do not warrant it. Specifying that other retail establishments that were not the target of the original crime may also be protected under the order could lead to overly punitive restrictions without the necessary connection to the crime as well as potential misidentification of persons who were not the actual perpetrator by store employees who have never interacted with the restrained individual.
Additionally, specifying that the order may be valid for up to two years based on a misdemeanor offense seems at odds with the overall probation scheme in California that establishes a general one-year limit on probation, especially without some showing that the defendant is likely to commit another crime or otherwise cause harm at that retail establishment.
3. Creation of a New Type of Restraining Order
In addition to the post-conviction restraining order discussed in note 2, this bill creates a new type of restraining order called a retail crime restraining order which appears to be a hybrid of a criminal procedures applied to civil restraining orders.
Specifically, this bill authorizes a prosecuting attorney, city attorney, county counsel, or attorney representing a retail establishment to file a petition requesting a retail crime restraining order for an individual who has been arrested, including, but not limited to, the issuance of a citation in lieu of a custodial arrest, two or more times for shoplifting, organized retail theft, vandalism, or assault or battery against an employee within the same retail establishment. This bill requires the respondent to be personally served with notice of the hearing and entitles the respondent to court-appointed counsel.
The bill does not specify how old the prior arrests may be nor whether the petition would be filed in criminal court or civil court. Criminal restraining orders are generally requested by the prosecuting attorney of a pending criminal case and the purpose is to protect the victim or witnesses from intimidation or dissuasion during the criminal proceedings.
Normally in criminal courts, the district attorney is charged with filing criminal actions and when a defendant cannot afford counsel, a public defender will be appointed to the case. Private attorneys not representing defendants, county counsel, and in most instances city attorneys do AB 3209 (Berman ) Page 8 of 11
not have power to file criminal actions or petitions in criminal court. However, if the bill were to allow the new restraining order to be filed in civil court, even though its provisions are in the Penal Code, it is unclear who would be appointed to represent the respondent since there are no criminal charges and the public defender is supposed to be appointed at arraignment of criminal charges. Public defenders are not present in civil court as a general matter to accept appointment.
Additionally, authorizing a district attorney to petition for a civil restraining order raises concerns over mixing criminal matters with civil matters which generally have different rules and purposes. Some victims prefer to handle personal matters through civil court because they have less control over what happens in a criminal case and having a district attorney present during civil matters may create a chilling effect for those victims.
Two or more arrests for allegedly committing one of qualifying crimes within the same retail establishment regardless of how long ago the prior arrest/s occurred triggers the ability of the petitioner to file for a restraining order. A private attorney representing a retail establishment, nor county counsel and in most cases the city attorney, do not have the ability to bring criminal charges against an individual after an arrest and may find the restraining order created by this bill a useful tool. The district attorney, however, is in an entirely different position. The district attorney has sole discretion to file whatever criminal charges they deem to be appropriate thus it is unclear why the district attorney would need to file a petition for a restraining order instead of filing criminal charges especially against a person with multiple arrests at the same location.
A violation of the restraining order would be a misdemeanor and the burden of proof required to obtain the restraining order is lower than what is required for a criminal conviction (preponderance of the evidence versus beyond a reasonable doubt) so this bill may unintentionally incentivize the use of the restraining order without ever charging or convicting the individual for the alleged offenses. The bill’s provisions state, albeit declarative of existing law, that an individual who violates a restraining order authorized by this bill may be given the opportunity to participate in a diversion program for which they are eligible. There are a variety of diversion programs currently available in existing law, including misdemeanor diversion and mental health diversion. If a person who has been arrested two times but the district attorney decides not to file criminal charges, perhaps due to the person’s mental illness or other reason that a conviction for the underlying alleged crime may not be desirable, the person may nevertheless end up booked and held in jail rather than cited and released based on violating the restraining order.
Unlike the post-conviction restraining order created by this bill discussed in note 3, this new type of restraining order does not require a showing that the person restrained actually committed the alleged underlying crimes, only that they were arrested twice, but they will have their liberty substantially restricted in the same way as someone who has been convicted of those offenses.
4. Renewed Efforts to Combat Property Crimes
“The Homelessness, Drug Addition, and Theft Reduction Act” is a new initiative that would make specific changes to laws enacted by Proposition 47, also known as the Safe Neighborhoods and Schools Act which was approved by the voters in November 2014. Proposition 47 reduced the penalties for certain drug and property crimes and directed that the resulting state savings be directed to mental health and substance abuse treatment, truancy and dropout prevention, and victims’ services. (See Legislative Analyst's Office analysis of Proposition 47 (See http://www.lao.ca.gov/ballot/2014/prop-47-110414.pdf [as of June 3, 2024].) AB 3209 (Berman ) Page 9 of 11
Specifically, the new initiative would reenact felony sentencing for petty theft with two prior thefts, allow multiple petty thefts to be aggregated to meet the $950 threshold without a showing that the acts were connected, and create new enhancements depending on the amount of property stolen or damaged. The initiative would also increase penalties for certain drug crimes, mandate treatment for certain offenders, and require courts to warn people convicted of drug distribution that they may be charged with murder in the future if someone dies after taking an illegal drug provided by that person.
(https://ballotpedia.org/California_Drug_and_Theft_Crime_Penalties_and_Treatment- Mandated_Felonies_Initiative_(2024) [as of June 3, 2024].) The initiative is supported by various law enforcement, public officials, district attorneys, small businesses and retail corporations. (Id.) To qualify for the November 2024 ballot, the law requires 546,651 valid signatures by June 27, 2024; as of January 25, 2024, the campaign had notified the Secretary of State that 25% of the required signatures had been collected. (Id.) The initiative is currently pending signature verification. (https://www.sos.ca.gov/elections/ballot-measures/initiative-and- referendum-status/initiatives-and-referenda-pending-signature-verification [as of June 3, 2024].) On January 9, 2024, Governor Newsom called for legislation to crack down on large scale property crimes committed by organized groups who profit from resale of stolen goods. (https://www.gov.ca.gov/2024/01/09/property-crime-framework/ [as of June 3, 2024).) The proposals include: 1) creating new penalties targeting those engaged in retail theft to resell, and those that resell the stolen property; 2) clarifying existing arrest authority so that police can arrest suspects of retail theft, even if they didn’t witness the crime in progress; 3) clarifying that theft amounts may be aggregated to reach the grand theft threshold; 4) creating new penalties for professional auto burglary, increasing penalties for the possession of items stolen from a vehicle with intent to resell, regardless of whether the vehicle was locked; 5) eliminating the sunset date for the organized retail crime statute; and 6) increasing penalties for large-scale resellers of stolen goods.
Both houses of the Legislature have announced legislative packages that include parts of the Governor’s proposals. (See https://www.latimes.com/california/story/2024-02-26/senate-leaders- respond-to-states-fentanyl-crisis-and-organized-retail-theft-problem-with-new-legislation [as of June 3, 2024) and https://www.latimes.com/california/story/2024-02-15/democratic-lawmakers- introduce-legislation-to-target-organized-retail-theft-online- resellers#:~:text=If%20passed%2C%20the%20bill%20would,if%20there%20were%20separate %20victims [as of June 3, 2024].)
5. Amendments to be Taken in Appropriations Committee
This bill will be amended to contain an urgency clause, allowing the bill’s provisions to take effect immediately upon approval of the Governor. Additionally, the bill will be amended to contain an inoperability clause stating that its provisions will become inoperative if the proposed initiative measure titled, “The Homelessness, Drug Addition, and Theft Reduction Act” (Initiative 23-0017A1) is approved by the voters at the statewide general election on November 5, 2024 and shall be repealed on January 1, 2025.
AB 3209 (Berman ) Page 10 of 11
6. Arguments in Support
According to CalChamber:
This legislation would provide a new enforcement tool that will keep stores and workers safe from crime as rates of retail theft and robbery have risen in California. According to the Public Policy Institute of California (PPIC), in 2022 California saw a 28.7% increase in commercial shoplifting and a 15.7% increase in burglaries of items totaling more than $950 between 2019 and 2022. Retail theft has become an increasingly prevalent problem across California, with detrimental effects on both local businesses and consumers. The significant losses incurred by retailers due to theft not only threaten their financial stability, but also jeopardize their ability to provide essential goods and services to the communities they serve. Moreover, the rise in organized retail crime has led to safety concerns for both employees and customers, further exacerbating the problem. The introduction of Retail Theft Restraining Orders (RTROs) presents a proactive and effective approach to combatting this growing issue. By enabling retailers to obtain civil restraining orders against habitual offenders, this legislation empowers businesses to protect themselves and deter potential thieves from engaging in criminal activities. Additionally, RTROs provide law enforcement with valuable tools to address repeat offenders, disrupt organized retail crime networks, and enhance public safety. Furthermore, the implementation of RTROs offers a balanced solution that upholds the rights of both retailers and individuals while holding accountable those who repeatedly engage in criminal behavior. By targeting habitual offenders and providing avenues for rehabilitation and support, this legislation not only and support, this legislation not only addresses the symptoms of retail theft, but also tackles the underlying issues contributing to criminal behavior.
7. Arguments in Opposition
According to Vera Institute of Justice:
AB 3209 would create a harmful new process whereby attorneys representing retailers— not district attorneys nor individual victims—could seek a two-year “retail theft restraining order” for petty theft or vandalism. Such an order could be sought either at sentencing (after conviction), or merely if someone has been arrested (but not convicted) of such an offense twice. This would expand criminal consequences based on a lower standard of proof (preponderance of the evidence, rather than beyond a reasonable doubt) and eliminate key procedural protections in the case of restraining orders sought by attorney representing retailers.
Weakening these key tenets of both state and federal law raises significant concerns.
. . . .
Prosecutors and retail stores have historically combatted theft using theft or trespass charges. Those tools are still available, and they are more than sufficient for non-violent theft and vandalism offenses. For offenses involving violence against retail workers, the harmed employee still has all rights available to them AB 3209 (Berman ) Page 11 of 11
as a crime victim—but should not have more rights than any other victim in the community. This legislation elevates well-resourced retail chains above other victims needing protection, including both victims of violent crime and smaller retail stores without the means to hire counsel.
The restraining order would also apply to any store within a franchise or chain, which suggests that retail workers may be tasked with enforcing the restraining order based on photos of someone who may have visited another chain store within the past two years. A large majority of wrongful convictions stem from eyewitness misidentifications—and the problem only worsens by over 50 percent for cross racial identifications—raising the specter of racial profiling and dangerous consequences.
Further, by permitting law enforcement officers to arrest, as opposed to cite and release, those suspected of violating a restraining order, AB 3209 will not make our communities safer. Years of research shows that pretrial detention decreases community safety in the long run—a landmark study of more than 1.5 million cases found that any amount of time in jail beyond 23 hours makes a person more likely to be arrested again in the future. This is because even a short period in jail can result in someone losing their job, their housing, or custody of their children.
Finally, AB 3209 may worsen racial disparities by expanding warrantless detentions by law enforcement officers. A long trail of evidence indicates that when law enforcement has expanded authority to detain individuals for low-level offenses, as for example in the case of low-level traffic stops, racial disparities may ensue. For sake of safety and justice, policing should follow procedures that ensure accountability, including requiring warrants for low-level offense. -- END –
ACR 182
ASSEMBLY THIRD READING
ACR 182 (Dixon)
As Introduced April 22, 2024
Majority vote
SUMMARY
Provides for the promotion and encouragement of solutions and resources for keeping the oceans and coastlines healthy and eliminating the Great Pacific Garbage Patch.
Major Provisions
1) The Great Pacific Garbage Patch (Patch) is a collection of marine debris in the North Pacific Ocean and it is the largest of the five offshore plastic accumulation zones in the world's oceans.
2) The Patch, also known as the Pacific trash vortex, consists of two distinct collections of spinning debris bounded by the North Pacific Subtropical Gyre: the Western Garbage Patch, located near Japan, and the Eastern Garbage Patch, located between Hawaii and California. 3) The presence of the Patch is causing extensive environmental, ecological, and economic impacts. Nonbiodegradable debris accumulates in the Patch, including, but not limited to, plastics that break down into pieces called microplastics, which are too small to see without magnification.
4) 84% of the Patch's plastics and microplastics contain at least one persistent bioaccumulative toxic (PBT) chemical, such as bisphenol A (BPA), which leaches out when certain plastics break down through photodegradation, negatively impacting seawater. 5) The Patch's microplastic mass concentration is increasing exponentially, with an estimated
1.15 to 2.41 million tons of plastic entering the world's oceans each year from rivers.
Intercepting plastic in rivers is more cost effective than removing plastics once they are in the ocean waters. Technology and innovation provide the best solutions to creatively capture plastic and trash that flow from rivers to the ocean.
6) The Department of Public Works for the County of Los Angeles has developed a pilot project to test in Marina del Rey, a fully automated, solar-powered trash collection device designed to capture floating plastic, trash, and litter before they reach the ocean. 7) In 2023, the State of California approved funding for the Newport Bay Pollution Control Project, which will remove human-made pollutants before they enter the Pacific Ocean. 8) Efforts to eliminate the Patch address the pressing need to safeguard our oceans and coastlines for future generations. It is imperative that concerted action be taken to mitigate the detrimental impacts of plastic pollution on marine ecosystems, emphasizing the urgent need for comprehensive strategies, better technologies, and resources to protect and preserve our oceans and coastlines for posterity.
COMMENTS
ACR 182
According to the Author
Ensuring our oceans are clean is incredibly important. It is our job to protect our coastline, and ACR 182 provides us an opportunity to make that commitment. We must reduce the amount of trash flowing into our oceans. There is much to do when it comes to protecting our beautiful coastline, and I am committed to working with all stakeholders to help prevent pollution.
Arguments in Support
None on file.
Arguments in Opposition
None on file.
FISCAL COMMENTS
No fiscal impact. This resolution is keyed non-fiscal by Legislative Counsel.
VOTES
ASM RULES: 6-0-5
YES: Pacheco, Flora, Holden, Jones-Sawyer, Maienschein, Dixon ABS, ABST OR NV: Cervantes, Friedman, Low, Ting, Waldron
UPDATED
VERSION: April 22, 2024
CONSULTANT: Michael Erke / RLS. / (916) 319-2800 FN: 0003487