AMENDED IN ASSEMBLY MARCH 9, 2023
california legislature—2023–24 regular session
ASSEMBLY BILL No. 1708
Introduced by Assembly Member Muratsuchi
February 17, 2023
An act relating to corrections. to amend Sections 459.5 and 490.2 of, to add Section 666.1 to, and to add Chapter 2.97 (commencing with Section 1001.98) to Title 6 of Part 2 of, the Penal Code, relating to theft.
legislative counsel’s digest
AB 1708, as amended, Muratsuchi. Corrections: rehabilitative programing. Theft.
(1) Existing law, the Safe Neighborhoods and Schools Act, enacted by Proposition 47, as approved by the voters at the November 4, 2014, statewide general election, defines and prohibits an act of shoplifting and prohibits prosecution for an act of shoplifting under any other law.
This bill would refine the definition of shoplifting and would specifically exclude certain offenses from prosecution as shoplifting, including, among others, the theft of a firearm or vehicle, identity theft, and credit card fraud.
(2) Existing law requires, except as excluded, the theft of any property valued below $950 to be charged as petty theft, a misdemeanor.
This bill would similarly exclude certain offenses from this provision, including, among others, the theft of a vehicle, identity theft, and credit card fraud.
(3) Existing law provides that a person with a prior conviction for specified sex offenses may be charged with a felony for shoplifting or for theft of property not exceeding $950 in value.
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This bill would require a person convicted of petty theft or shoplifting, if the person has 2 or more prior convictions for specified theft-related offenses, to be punished by imprisonment in the county jail for up to one year, or for 16 months, or 2 or 3 years.
(4) 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 pursuant to this section for persons who commit a theft offense or repeat theft offenses, as specified.
This bill would authorize a city or county prosecuting authority or county probation department to create a diversion program for persons who commit theft or repeat theft offenses, as specified. (5) This bill would provide that the provisions of the bill that amend Proposition 47 would become effective only upon approval of the voters, and would provide for the submission of those provisions to the voters for approval at the next statewide general election.
Existing law requires the Department of Corrections and Rehabilitation to conduct rehabilitative programming in a manner that meets specified requirements, including minimizing program wait times and offering a variety of program opportunities to inmates regardless of security level or sentence length.
This bill would express the intent of the Legislature to enact legislation that would increase accountability for repeat offenders through participation in rehabilitative services.
Vote: majority. Appropriation: no. Fiscal committee: no yes.
State-mandated local program: no.
The people of the State of California do enact as follows:
line 1 SECTION 1. Section 459.5 of the Penal Code is amended to line 2 read:
line 3 459.5. (a) Notwithstanding Section 459, shoplifting is defined line 4 as entering a commercial establishment with intent to commit line 5 larceny while that establishment is open during regular business line 6 hours, with the intent to steal retail property or merchandise, where line 7 the value of the property that is taken or intended to be taken does line 8 not exceed nine hundred fifty dollars ($950). Any other entry into line 9 a commercial establishment with intent to commit larceny is line 10 burglary. Shoplifting shall be punished as a misdemeanor, except line 11 that a person with one or more prior convictions for an offense 98 AB 1708 — 2 —
line 1 specified in clause (iv) of subparagraph (C) of paragraph (2) of line 2 subdivision (e) of Section 667 or for an offense requiring line 3 registration pursuant to subdivision (c) of Section 290 may be line 4 punished pursuant to subdivision (h) of Section 1170. line 5 (b) Any act of shoplifting as defined in subdivision (a) shall be line 6 charged as shoplifting. No person who is charged with shoplifting line 7 may also be charged with burglary or theft of the same property. line 8 (c) This section does not apply to theft of a firearm; forgery, as line 9 described in Chapter 4 (commencing with Section 470); the line 10 unlawful sale, transfer, or conveyance of an access card in line 11 violation of Section 484e; forgery of an access card in violation line 12 of Section 484f; the unlawful use of an access card in violation of line 13 Section 484g; theft from an elder or dependent adult in violation line 14 of subdivision (e) of Section 368; receiving stolen property in line 15 violation of Section 496; embezzlement, as described in Chapter line 16 6 (commencing with Section 503); identity theft in violation of line 17 Section 530.5; or the theft or unauthorized use of a vehicle in line 18 violation of Section 10851 of the Vehicle Code. line 19 (d) As used in this section, the following terms have the following line 20 meanings:
line 21 (1) “Retail property or merchandise” means any article, line 22 product, commodity, item, or component intended to be sold in line 23 retail commerce.
line 24 (2) “Value” means the retail value of an item as advertised by line 25 the affected retail establishment, including applicable taxes. line 26 SEC. 2. Section 490.2 of the Penal Code is amended to read:
line 27 490.2. (a) Notwithstanding Section 487 or any other provision line 28 of law defining grand theft, obtaining any property by theft where line 29 the value of the money, labor, real or personal property taken does line 30 not exceed nine hundred fifty dollars ($950) shall be considered line 31 petty theft and shall be punished as a misdemeanor, except that line 32 such person may instead be punished pursuant to subdivision (h) line 33 of Section 1170 if that person has one or more prior convictions line 34 for an offense specified in clause (iv) of subparagraph (C) of line 35 paragraph (2) of subdivision (e) of Section 667 or for an offense line 36 requiring registration pursuant to subdivision (c) of Section 290. line 37 (b) This section shall not be applicable to any theft that may be line 38 charged as an infraction pursuant to any other provision of law. line 39 (c) This section shall does not apply to theft of a firearm. line 40 firearm; forgery, as described in Chapter 4 (commencing with 98 — 3 — AB 1708
line 1 Section 470); the unlawful sale, transfer, or conveyance of an line 2 access card in violation of Section 484e; forgery of an access card line 3 in violation of Section 484f; the unlawful use of an access card in line 4 violation of Section 484g; theft from an elder or dependent adult line 5 in violation of subdivision (e) of Section 368; receiving stolen line 6 property in violation of Section 496; embezzlement, as described line 7 in Chapter 6 (commencing with Section 503); identity theft in line 8 violation of Section 530.5; or the theft or unauthorized use of a line 9 vehicle in violation of Section 10851 of the Vehicle Code. line 10 SEC. 3. Section 666.1 is added to the Penal Code, to read:
line 11 666.1. (a) (1) Notwithstanding any other law, a person who, line 12 having two or more convictions for any of the offenses listed in line 13 paragraph (2), and who is subsequently convicted of petty theft or line 14 shoplifting, is punishable by imprisonment in the county jail not line 15 exceeding one year, or pursuant to subdivision (h) of Section 1170. line 16 (2) This section applies to the following offenses:
line 17 (A) Petty theft, as described in Section 488.
line 18 (B) Grand theft, as described in Section 487.
line 19 (C) Theft from an elder or dependent adult in violation of line 20 subdivision (e) of Section 368.
line 21 (D) The theft or unauthorized use of a vehicle, as described in line 22 Section 10851 of the Vehicle Code.
line 23 (E) Burglary, as described in Section 459.
line 24 (F) Carjacking, as described in Section 215.
line 25 (G) Robbery, as described in Section 211.
line 26 (H) Receiving stolen property, as described in Section 496. line 27 (I) Shoplifting, as described in Section 459.5. line 28 (J) Mail theft, as described in subdivision (e) of Section 530.5. line 29 (b) This section shall not be construed to preclude prosecution line 30 or punishment pursuant to any other law.
line 31 SEC. 4. Chapter 2.97 (commencing with Section 1001.98) is line 32 added to Title 6 of Part 2 of the Penal Code, to read:
line 33
line 34 Chapter 2.97. Theft Crimes Diversion
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line 36 1001.98. (a) The city or county prosecuting attorney or county line 37 probation department may create a diversion program pursuant line 38 to this section for persons who commit a theft offense or repeat line 39 theft offenses. The program may be conducted by the prosecuting line 40 attorney’s office or the county probation department. 98 AB 1708 — 4 —
line 1 (b) Except as provided in subdivision (e), this chapter does not line 2 limit the power of the prosecuting attorney to prosecute theft or line 3 repeat theft.
line 4 (c) If a county creates a diversion or deferred entry of judgment line 5 program for individuals committing theft or repeat theft offenses, line 6 on receipt of a case or at arraignment, the prosecuting attorney line 7 shall either refer the case to the county probation department to line 8 conduct a prefiling investigation report to assess the line 9 appropriateness of program placement or, if the prosecuting line 10 attorney’s office operates the program, determine if the case is line 11 one that is appropriate to be referred to the program. In line 12 determining whether to refer a case to the program, the probation line 13 department or prosecuting attorney shall consider, but is not line 14 limited to, all of the following factors:
line 15 (1) Any prefiling investigation report conducted by the county line 16 probation department or nonprofit contract agency operating the line 17 program that evaluates the individual’s risk and needs and the line 18 appropriateness of program placement.
line 19 (2) If the person demonstrates a willingness to engage in line 20 community service, restitution, or other mechanisms to repair the line 21 harm caused by the criminal activity and address the underlying line 22 drivers of the criminal activity.
line 23 (3) If a risk and needs assessment identifies underlying line 24 substance abuse or mental health needs or other drivers of criminal line 25 activity that can be addressed through the diversion or deferred line 26 entry of judgment program.
line 27 (4) If the person has a violent or serious prior criminal record line 28 or has previously been referred to a diversion program and failed line 29 that program.
line 30 (5) Any relevant information concerning the efficacy of the line 31 program in reducing the likelihood of participants committing line 32 future offenses.
line 33 (d) On referral of a case to the program, a notice shall be line 34 provided to the person alleged to have committed the offense with line 35 both of the following information:
line 36 (1) The date by which the person must contact the diversion line 37 program or deferred entry of judgment program in the manner line 38 designated by the supervising agency.
line 39 (2) A statement of the penalty for the offense or offenses with line 40 which that person has been charged.
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line 1 (e) The prosecuting attorney may enter into a written agreement line 2 with the person to refrain from, or defer, prosecution on the offense line 3 or offenses on the following conditions:
line 4 (1) Completion of the program requirements such as community line 5 service or courses reasonably required by the prosecuting attorney. line 6 (2) Making adequate restitution or an appropriate substitute line 7 for restitution to the victim or victims.
line 8 SEC. 5. This act amends the Safe Neighborhoods and Schools line 9 Act, an initiative statute approved by the voters at the November line 10 4, 2014, statewide general election as Proposition 47, and shall line 11 become effective only when submitted to and approved by the line 12 voters. The Secretary of State shall submit Sections 1, 2, and 3 of line 13 this act for approval by the voters at a statewide election in line 14 accordance with Section 9040 of the Elections Code. line 15 SECTION 1. It is the intent of the Legislature to enact line 16 legislation that would increase accountability for repeat offenders line 17 through participation in rehabilitative services.
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