Penal Chapter 16: Expanding the Pilot Program that Assists

Penal
Chapter 16: Expanding the Pilot Program that Assists
Indigent Inmates After Release
Chol Daniel Kim
Code Section Affected
Penal Code § 4025.5 (amended).
AB 2574 (Emmerson); 2008 STAT. Ch. 16.
I. INTRODUCTION
For many inmates released from California’s adult correctional facilities,
reintegration into society can be a stressful and difficult experience.1 Oftentimes,
inmates cannot even afford the seven dollar fee for an identification card.2 In
more extreme situations, the period immediately following release can lead to
death.3 In fact, during the first fourteen days after release, the risk of death among
former inmates is nearly thirteen times that of a normal individual.4 With such a
dearth of resources and services, it is no surprise that released inmates sometimes
return to their life of crime.5 The rate of recidivism in this country, particularly in
California, is extraordinary.6 Naturally, with the prevalence of repeat offenders,
the prison population has risen to astronomic proportions, rising by 500% in the
last three decades.7 The national imprisonment rate in 2005 was 491 per 100,000
residents; when considering jail occupants, the number rises to 738 per 100,000.8
1. See Christy A. Visher, Returning Home: Emerging Findings and Policy Lessons About Prisoner
Reentry, 20 FED. SENT. REP. 93, 97 (2007) (“The sudden change in environment coupled with the challenges
individuals face to be successful can be overwhelming.”).
2. Scott Prison Reform Bills Pass First Assembly Test, CAL. CHRON., June 20, 2007, http://www.
californiachronicle.com/articles/30238 (on file with the McGeorge Law Review).
3. See Ingrid A. Binswanger et al., Release from Prison—A High Risk of Death for Former Inmates, 356
NEW ENG. J. MED. 157, 159 (2007) (stating that in one study, 253 of 30,237 released prisoners died within one
year of their release).
4. See id. at 160 (“The adjusted relative risk of death within the first 2 weeks after release was 12.7
times that among other state residents.”). The leading causes of death among former inmates were drug
overdose, cardiovascular disease, homicide, suicide, cancer, and vehicle accidents. Id. at 161.
5. See Visher, supra note 1, at 96.
6. See Joan Petersilia, California’s Correctional Paradox of Excess and Deprivation, 37 CRIME & JUST.
207, 211 (2008) (“Nearly 50 percent of all [California] prisoners released in 2006 sat idle—meaning they did
not participate in any work assignment or rehabilitation programs—for the entire time they were in prison. They
return to communities unprepared for reentry, and two-thirds are returned to prison within 3 years, nearly twice
the average national average.”).
7. Adam M. Gershowitz, An Informational Approach to the Mass Imprisonment Problem, 40 ARIZ. ST.
L.J. 47, 47 (2008).
8. Petersilia, supra note 6, at 207.
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2009 / Penal
In an effort to reduce recidivism and the overcrowded prison populations,
many states have implemented reentry and rehabilitation programs that change
behavioral habits and provide training for a more successful reintegration into
society.9 A pilot program funded by each county’s Inmate Welfare Fund (IWF)
went into effect last year, extending reentry programs and financial resources to
indigent inmates for fourteen days after release.10 Chapter 16 extends this pilot
program to Kern, San Bernardino, and Santa Clara Counties.11
II. BACKGROUND
A. The Problem of Recidivism
According to the U.S. Department of Justice, at least ninety-five percent of
state inmates will be released back into society at some point,12 many of whom
will reoffend and return to the prison system.13 Indeed, with the largest prison
population in the country, California also has the highest recidivism rate, at
around sixty-six percent.14 Unfortunately, despite various efforts, the recidivism
rate has been relatively stagnant for the past decade.15
An obvious consequence of recidivism is the tremendous fiscal impact on the
state, whose legislators must budget more and more funds each year to maintain
the prison system.16 California currently houses over 170,000 inmates,17 with an
9. See generally id.
10. CAL. PENAL CODE § 4025.5 (West Supp. 2009).
11. Id. (amended by Chapter 16).
12. Timothy Hughes & Doris James Wilson, Reentry Trends in the United States, U.S. DEP’T OF
JUSTICE, http://www.ojp.usdoj.gov/bjs/reentry/reentry.htm (last visited Feb. 10, 2009) (on file with the
McGeorge Law Review).
13. See Charles Lane, Justices to Rule on ‘Three Strikes’ Law, THREESTRIKES.ORG, Nov. 6, 2002,
http://www.threestrikes.org/washpost_0.html (on file with the McGeorge Law Review) (describing opposition
arguments to California’s three-strikes law, which sometimes imposes harsh penalties on repeat felony
offenders).
14. Petersilia, supra note 6, at 262. “[Sixty-six] percent are back behind bars within [thirty-six]
months . . . .” Id.
15. Visher, supra note 1, at 93; see also CAL. DEP’T OF CORRECTIONS AND REHAB., EXPERT PANEL ON
ADULT OFFENDER AND RECIDIVISM REDUCTION PROGRAMMING, REPORT TO THE CAL. STATE LEGISLATURE, A
ROADMAP FOR EFFECTIVE OFFENDER PROGRAMMING IN CAL., at vii (2007) [hereinafter CDCR] (on file with
the McGeorge Law Review) (listing overcrowding and too few quality rehabilitation programs as the reasons for
California’s ineffective reentry programs).
16. See CAL. STATE SHERIFF’S ASS’N, DO THE CRIME, DO THE TIME? MAYBE NOT, IN CALIFORNIA 28
(2006) [hereinafter CSSA] (on file with the McGeorge Law Review) (stating that local governments must bear
the costs of staffing and operating local detention facilities).
17. CAL. DEP’T OF CORRECTIONS AND REHAB., MONTHLY REPORT OF POPULATION AS OF MIDNIGHT
JANUARY 31, 2009, at 1 (2009), available at http://www.cdcr.ca.gov/Reports_Research/Offender_Information_
Services_Branch/Monthly/TPOP1A/TPOP1Ad0901.pdf (on file with the McGeorge Law Review).
460
McGeorge Law Review / Vol. 40
annual budget of more than nine billion dollars.18 The county jail system houses
over 80,00019 inmates at any given day and costs over $1.7 billion annually.20
B. Reentry and Rehabilitation Programs
Former inmates struggle with a number of social and economic
disadvantages that make it difficult to reintegrate into society and live as lawabiding citizens.21 Many inmates never finished high school and can only obtain
low wage jobs.22 With an average prison stay of 21.9 months,23 the typical inmate
will have a difficult time acclimating back into society because of a lack of job
skills and experience.24 “Two-thirds of [released inmates] reported frequent . . .
drug use (58 percent) or alcohol intoxication (27 percent) prior to prison”25 and
more than half suffer from chronic physical or mental health conditions.26
However, employment—an essential aspect of becoming a responsible member
of society—is the single most important concern for returned inmates.27 Over
seventy-five percent of inmates in one study said that finding employment would
help keep them out of prison.28 In the same study, eighty-eight percent reported a
need for more job training and education.29
Reentry and rehabilitation programs are therefore one way states have
attempted to reduce recidivism rates.30 The programs are designed to not only
assist released inmates with reintegration but also to strengthen urban
18. Petersilia, supra note 6, at 222.
19. See Office of the Attorney General, State of California, Statistics by City and County,
http://stats.doj.ca.gov/cjsc_stats/prof06/00/27.pdf (last visited Feb. 10, 2009) (on file with the McGeorge Law
Review) (stating that in 2006 there were 81,622 inmates in Type II, III, and IV facilities).
20. See CSSA, supra note 16, at 28 (stating that the operational costs for county jails in 2001-2002 were
$1.7 billion for about 73,000 inmates).
21. See Visher, supra note 1, at 95 (“Following release, prisoners may experience social stigma and
discrimination, lessened employment prospects, reduced access to housing, loss of negative mental health
effects, increased risk of suicide and early death, and difficulties in finding needed services and supports.”).
22. See WriteAPrisoner.com, Federal and State Prisons, http://www.writeaprisoner.com/prisonerstatistics.aspx (last visited Feb. 10, 2009) (on file with the McGeorge Law Review) (“One third of the prisoners
read at less than a 9th grade level. . . . They cannot compete in the work-place.”).
23. California Department of Corrections and Rehabilitation, Summary Fact Sheet, http://www.cdcr.ca.
gov/Reports_Research/summarys.html (last visited Feb. 10, 2009) [hereinafter Summary Fact Sheet] (on file
with the McGeorge Law Review).
24. Visher, supra note 1, at 96.
25. Id. at 95.
26. Id. at 96 (“[T]he most commonly reported conditions includ[e] depression, asthma, hepatitis, and
high blood pressure.”).
27. Id.
28. Id.
29. Id.
30. United States Department of Justice, Learn About Reentry, http://www.reentry.gov/learn.html (last
visited Feb. 10, 2009) [hereinafter Learn About Reentry] (on file with the McGeorge Law Review). Indeed, the
effectiveness and importance of the reentry process is further supported by the recent emergence of reentry
courts that conduct extensive case management of offenders. Id.
461
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communities that receive large numbers of these inmates.31 All across the
country, myriad programs assist criminals with the reentry process by providing
pre-release programs, drug rehabilitation, vocational training, and work
programs.32 The President’s Prisoner Reentry Initiative (PRI) and the Office of
Justice Programs’ Bureau of Justice Assistance, which partnered with the U.S.
Department of Labor, offer funding for state governments to implement reentry
programs.33 Furthermore, recent legislation under the Second Chance Act will
provide even greater federal resources for the reentry initiative.34
Rehabilitation programs are effective; well-designed and well-implemented
reentry programs in some instances have reduced recidivism at a rate of five to thirty
percent.35 Targeted educational and vocational programs, cognitive behavioral
therapies, substance abuse treatment, reentry partnerships, counseling, and other
transitional assistance programs (especially with systematic monitoring), can lead to
a reduction in recidivism.36 However, in California, nearly half of all prisoners
released do not participate in any work assignments or rehabilitation reentry
programs during their incarceration.37
C. The Inmate Welfare Fund
The IWF serves as one funding resource for the reentry and rehabilitation
programs in California.38 Existing California law authorizes the sheriff of each
county to maintain a store at the county jail, the profits of which are deposited
into the IWF to support programs that benefit, educate, and promote the general
welfare of inmates.39 The money is drawn from various sources, including stores
operated in connection with a county jail,40 a percentage from the gross sales of
inmate hobbycraft,41 and funds received from telephone companies for
telephones primarily used by inmates.42 Initially, the IWF only provided for
essential clothing and transportation costs within the county.43
31. Id.
32. Id.
33. Id.
34. The White House, President George W. Bush, Fact Sheet: President Bush Signs Second Chance Act
of 2007, Apr. 9, 2008, http://georgewbush-whitehouse.archives.gov/news/releases/2008/04/20080409-15.html
(on file with the McGeorge Law Review).
35. Petersilia, supra note 6, at 212.
36. See generally id.
37. Id. at 211. Even those inmates wishing to participate in reentry programs are discouraged from doing
so because of the strong influence of gang leaders. Id.
38. CAL. PENAL CODE § 4025 (West 2000 & Supp. 2009).
39. Id. § 4025(a), (b), (e).
40. Id. § 4025(a). Products sold include “confectionery, tobacco and tobacco users’ supplies, postage
and writing materials, and toilet articles and supplies.” Id. The products are sold for cash to inmates in the jail.
Id.
41. Id. § 4025(c).
42. Id. § 4025(d). This is an extremely controversial topic. See Kim Curtis, County Jails Profit Off
462
McGeorge Law Review / Vol. 40
D. The Original Pilot Program
To increase the resources and programs available to indigent inmates upon
release from jail, a pilot program was established in early 2008 in the Counties of
Alameda, Los Angeles, Orange, Sacramento, San Francisco, San Diego, Santa
Barbara, and Stanislaus.44 The pilot program allows the sheriffs in each county to
use funds from the IWF to assist inmates up to fourteen days after release.45 The
program allows IWF funds to be used for “work placement, counseling,
obtaining proper identification, education, and housing.”46 Given the social and
economic disadvantages that plague the inmate population and their additional
post-release needs,47 the ability to use these funds is crucial to successful reentry
into society.48
III. CHAPTER 16
Chapter 16 adds Kern, San Bernardino, and Santa Clara Counties to the list
of counties implementing the pilot program that assists indigent inmates with the
reentry process.49 The program makes those inmates released from county jails—
or any other adult detention facility under the jurisdiction of the sheriff—eligible
for assistance during the first fourteen days after release.50 The statute authorizes
the sheriffs in these counties to fund the pilot program with money from the
IWF.51 “The assistance provided [for indigent inmates by the pilot program] may
include, but is not limited to, work placement, counseling, obtaining proper
identification, education, and housing.”52
Inmates’ Calls, OAKLAND TRIB., Aug. 23, 2004, http://findarticles.com/p/articles/mi_qn4176/is_20040823/
ai_n14580782 (on file with the McGeorge Law Review) (“Telephone companies and California counties have
made hundreds of millions of dollars from some of the state’s poorest people through high, unregulated phone
rates for calls from local jails . . . .”).
43. CAL. PENAL CODE § 4025(i).
44. Id. § 4025.5(a) (West Supp. 2009).
45. Id.
46. Id.
47. Visher, supra note 1, at 96 (listing these needs as “employment[,] in-person reporting[,] payment of
restitution, fees, . . . fines[], and the need for state-approved identification”).
48. Id.
49. CAL. PENAL CODE § 4025.5(a) (amended by Chapter 16).
50. ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 2574, at 1 (Mar. 25,
2008).
51. Id.
52. CAL. PENAL CODE § 4025.5(a) (amended by Chapter 16).
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IV. ANALYSIS OF CHAPTER 16
A. Recidivism in the County Jail System
Although the rate of recidivism among misdemeanor offenders is lower than
the general prison population,53 the success of the IWF-funded reentry and
rehabilitation programs for prison inmates may very-well translate into reduced
recidivism among these misdemeanor offenders as well. However, the program
may not provide as much incentive for those convicted of misdemeanors. In
2005, 233,388 of these offenders were not incarcerated due to a lack of jail
space.54 Unsurprisingly, these individuals continue to commit misdemeanors and
cycle through the jail system, as there are fewer consequences for their repeat
criminal activity.55 In fact, the problem is so severe that criminals prefer to have
monetary fines transferred into jail time with the expectation that they will not
serve their sentence due to a lack of jail space.56 Fortunately, recent California
Legislation has attempted to remedy the overcrowding issue, but it will take
some time for these changes to take effect.57
Additionally, there is a subset of misdemeanor offenders who would have a
particularized benefit from the counseling and mental health services that are
provided by many of the IWF funded programs.58 These offenders suffer from
mental health issues and repeatedly commit misdemeanors and “quality of life”
crimes.59 The counseling and mental health services available through IWFfunded rehabilitation programs could potentially have a strong impact on
reducing recidivism in the jail system.60
53. Compare Iris Yen, Comment, Of Vice and Men: A 8ew Approach to Eradicating Sex Trafficking by
Reducing Male Demand Through Educational Programs and Abolitionist Legislation, 98 J. CRIM. L. &
CRIMINOLOGY 653, 677 (2008) (giving the rate of recidivism among misdemeanor offenders as 33 percent),
with Hughes & Wilson, supra note 12 (stating that the national percent of released prisoners rearrested within
three years was over sixty percent in 1994).
54. State of California, Office of the Governor, Comprehensive Prison Reform, http://gov.ca.gov/
index.php?/fact-sheet/4966 (last visited Feb. 10, 2009) (on file with the McGeorge Law Review).
55. See id. (creating the inference that there are less penalties for committing crimes because offenders
are not receiving jail time due to the lack of jail space). Since 2002, Los Angeles County was unable to
incarcerate over 150,000 criminals most of whom had only served 10 percent of their sentences. CSSA, supra
note 16, at 14.
56. CSSA, supra note 16, at 16.
57. David Muradyan, Recent Statute, California’s Response to Its Prison Overcrowding Crisis, 39
MCGEORGE L. REV. 482, 488-89 (2008) (stating that Chapter 7 authorized $7.4 billion for the construction of
facilities, which was projected to add 13,000 new county jail beds).
58. See generally Developments in the Law: The Law of Mental Illness, 121 HARV. L. REV. 1114 (2008).
59. Id. at 1170.
60. Id. With the rise of the mental health court system, this particular subset of criminals suffering from
mental illness have more resources available to them. See generally id.
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McGeorge Law Review / Vol. 40
A. IWF Funded Programming Combats Recidivism
The IWF supports countless programs and necessities for inmates in the
California jail system. For example, Orange County, included in the original pilot
program last year, offers numerous academic and vocational programs that assist
inmates in finding employment after release.61 The educational programs focus
on acquiring a GED degree, learning English as a second language, attaining
adult basic education, and participating in government classes.62 Additionally,
vocational education programs offer instruction in cabinetry and furnituremaking, construction technology, commercial painting, commercial sewing,
horticulture, welding, computer business skills, computer literacy, and food
services.63 These programs are now available to indigent inmates, even after their
release from jail.
Other counties in the state offer various programs in education and selfimprovement with the help of funding from the IWF.64 The programs range from
vocational programs that expand occupational skills and social responsibilities to
substance abuse programs that increase awareness of the correlation between
substance abuse and incarceration.65 Additionally, Santa Cruz County focuses on
literacy programs and assisting inmates in passing the GED exam.66
Reentry and rehabilitation programs have been effective in reducing
recidivism.67 In one Washington state study, general education programs (basic
or post-secondary education) led to a seven percent reduction in recidivism.68
Similarly, the study showed that vocational training while in prison reduced
recidivism by nine percent.69 Interestingly, the study showed that some programs
fair better in the community (such as drug treatment programs) and others do
better in prison (such as vocational education).70 Other studies have shown
reductions in recidivism of up to thirty percent.71 The extension of IWF funded
programming after the inmate’s release undoubtedly will help with reintegration.
61. INMATE WELFARE FUND, GRAND JURY REPORT, ORANGE COUNTY 3-4, available at http://www.
ocgrandjury.org/pdfs/GJInmate.pdf (last visited Feb. 10, 2009) (on file with the McGeorge Law Review).
62. Id.
63. Id.
64. Letter from Steve Robbins, Sheriff–Coroner, County of Santa Cruz, to Board of Supervisors, County
of Santa Cruz (Sept. 12, 2006), available at http://sccounty01.co.santa-cruz.ca.us/bds/govstream/BDSvData/
non_legacy/Minutes/2006/20060912/PDF/019.pdf (on file with the McGeorge Law Review).
65. Id.
66. Id.
67. CDCR, supra note 15, at 31.
68. Id.
69. Id.
70. Id.
71. Petersilia, supra note 6, at 212.
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B. Extending IWF-Funded Programs and Resources Beyond Release
The crux of the pilot program is the extension of IWF-funded resources,
programs, and financial funding to indigent inmates fourteen days after release.72
In Los Angeles County, members of the Community Transition Unit evaluate an
inmate’s needs prior to release; oftentimes the indigent inmates cannot even
afford the seven-dollar fee for an identification card.73 The socioeconomic
disadvantages and special needs of indigent inmates continue after release from
prison, thus making reintegration difficult. Even years after being released, a
large percentage of former inmates report needing assistance with housing, job
training, education, medical care, and general financial issues.74
V. CONCLUSION
Chapter 16 furthers the resources available to indigent inmates for reentry by
authorizing the sheriff of specified counties to use money from the IWF to assist
inmates with the reentry process.75 The IWF provides essential services for the
welfare and educational needs of inmates, and Chapter 16 assures that these
services are available even after release.76 Although there have been studies
evaluating the efficacy of reentry and rehabilitation programs, a more systematic
case management and mentoring program needs to be implemented to
specifically monitor the effect of these programs on recidivism.77
72.
73.
74.
75.
76.
77.
466
CAL. PENAL CODE § 4025.5 (amended by Chapter 16).
Scott Prison Reform Bills Pass First Assembly Test, supra note 2.
Visher, supra note 1, at 97.
CAL. PENAL CODE § 4025.5 (amended by Chapter 16).
Id.
Id.
Chapter 38: Gang Related uisance Proves Costly for Gang
Members
Julia Y. Capozzi
Code Section Affected
Penal Code § 186.22a (amended).
SB 1126 (Cedillo); 2008 STAT. Ch. 38 (Effective June 25, 2008).
I. INTRODUCTION
Criminal street gangs have dramatically increased in number and
membership throughout California.1 Their notoriety and lack of discretion leaves
communities struggling to find solutions.2 In Los Angeles County alone, there
are approximately 1,200 different street gangs consisting of over 70,000
members.3 Comparable numbers also exist in Northern California.4 Beyond the
numbers, gangs inflict economic injury by causing insurance rates to go up and
property value to go down.5 This, coupled with the rising rates of serious
felonies, has left state and local governments scratching their heads for ways to
curb gang activity and prevent growing membership.6
The California Legislature enacted Chapter 38 to provide an additional tool
to combat gang activity throughout the state.7 In his signing statement, Governor
Arnold Schwarzenegger stated that Chapter 38 “strengthens . . . statewide antigang efforts by giving prosecutors more tools to fight gang activity at the local
level.”8
1. See Governor Signs Anti-Gang Legislation: Law Aims to Hold Gangsters Personally Liable,
MY58.COM, June 25, 2008, http://www.my58.com/print/16707506/detail.html [hereinafter Governor Signs AntiGang Legislation] (on file with the McGeorge Law Review) (noting that Chapter 38 was enacted in response to
a “dramatic increase in gangs across the state and their proliferation in suburban and rural areas”).
2. California Senate, Senator Gilbert A. Cedillo, SB 1126 Street Gang Assets (Cedillo) [hereinafter SB
1126 Street Gang Assets] (on file with the McGeorge Law Review).
3. Id.
4. See Atty. Gen. Brown Announces 8orteno Gang Crackdown in Stockton, CAL. CHRON., May 30,
2008, http://www.californiachronicle.com/articles/printFriendly/63499 [hereinafter 8orteno Gang Crackdown]
(on file with the McGeorge Law Review) (noting that the Norteno street gang in Stockton has 1,180 members
and associates in Stockton alone).
5. See SB 1126 Street Gang Assets, supra note 2 (“Their illegal operations allow the gang to thrive
while neighborhoods suffer. Their actions cause housing prices in the area to decline, businesses to close and
insurance rates to go up, while the gang and gang leader’s [sic] profit.”).
6. See Maria L. La Ganga et al., Violent Crime Climbs in Bay Area, L.A. TIMES, Nov. 11, 2007, at B1
(noting that increasing gang violence in Oakland, California has “renewed calls for more police,” but Mayor
Ron Dellums “has favored social explanations and fixes for crime problems”).
7. See Governor Signs Anti-Gang Legislation, supra note 1 (“[Chapter 38] will make it easier to hold
gang members personally liable for harm to the community caused by their gangs.”).
8. Id.
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II. BACKGROUND
A. Criminal Street Gangs
A criminal street gang is an “ongoing organization, association, or group of
three or more persons, whether formal or informal, having as one of its primary
activities the commission of . . . criminal acts.”9 Additionally, there must be a
“common name or common identifying sign or symbol” that identifies the
“organization.”10 Finally, it must be shown that the “organization” membership
either collectively or individually “engage[s] in or [has] engaged in a pattern of
criminal gang activity.”11
Providing an exhaustive list of California street gangs is an increasingly
tiresome endeavor, as thousands exist throughout the state.12 Generally, criminal
street gang membership centers on race or nationality.13 Thus, Hispanics
typically join a predominantly or exclusively Hispanic gang such as the 18th
Street Gang,14 the Mexican Mafia, or the Latin Kings;15 African Americans join
predominantly African American gangs such as the Crips or Bloods; and
Caucasians often join gangs such as the Aryan Brotherhood, Hell’s Angels, or the
Nazi Lowriders.16
California communities are terrorized with gang related activities that
provide great profits to the gang and its members at great cost to the
community.17 Between 1996 and 2005, twenty-seven percent of homicides in
9. CAL. PENAL CODE § 186.22(f) (West 1999).
10. Id.
11. Id.
12. See SB 1126 Street Gang Assets, supra note 2 (noting the high numbers of gangs and gang members
in California).
13. See Street Gangs, http://www.streetgangs.com (last visited Oct. 11, 2008) (on file with the
McGeorge Law Review) (breaking down street gangs by race).
14. See Alex Alonso, 18th Street Gang in Los Angeles County, STREETGANGS.COM, June 25, 2008,
http://www.streetgangs.com/18thstreet.html (on file with the McGeorge Law Review) (noting that the 18th
Street Gang is a Hispanic gang).
15. See Mexican Mafia, Surenos, http://www.knowgangs.com/gang_resources/profiles/surenos/ (last
visited Jan. 30, 2009) (on file with the McGeorge Law Review) (“A small group of Mexican-American inmates
organized themselves into what would become to be known as the Mexican Mafia.”); The Almighty Latino
Kings Nation, http://www.knowgangs.com/gang_resources/profiles/kings/index.php (last visited Jan. 30, 2009)
(on file with the McGeorge Law Review) (“Although the original members were of Puerto Rican decent, most
members [of the Latino Kings] are now Mexican-American.”).
16. See Aryan Brotherhood, http://www.knowgangs.com/gang_resources/profiles/ab/ (last visited Jan.
30, 2009) (on file with the McGeorge Law Review) (“[The Aryan Brotherhood] was established to provide
protection for White individuals from Black and Hispanic groups, most specifically the Mexican Mafia.”).
17. See City Attorney Rocky Delgadillo Lauds Passage of Anti-Gang Bills by California State Senate,
CAL. CHRON., May 6, 2008, http://www.californiachronicle.com/articles/60816 (on file with the McGeorge Law
Review) (“‘Criminal street gangs are finding new and insidious ways to terrorize our communities, and to profit
from their criminal activities’” and they “maintain tight economic control over the neighborhoods they occupy.”
(quoting Rocky Delgadillo, L.A. City Attorney)).
468
McGeorge Law Review / Vol. 40
California were gang related.18 In 2006, thirty-eight percent of Oakland’s
homicides were gang related,19 and in 2007, 216 deaths resulted from gang
violence in Los Angeles.20 However, gang violence is not limited to homicides;
gangs engage in other criminal activity that is detrimental to communities such as
drug trafficking, residential robbery, assault, carjacking, and prostitution.21
In response to the prevalent gang activity in Los Angeles, City Attorney
Rockard J. Delgadillo in conjunction with the Los Angeles County District
Attorney’s Office filed a civil lawsuit against the San Fer Gang.22 The lawsuit
sought an injunction against the San Fer Gang to restrict the gang’s criminal
activity.23 On August 11, 2008, a Los Angeles judge granted the permanent
injunction against the San Fer Gang.24 Chapter 38 further allows prosecutors to
seek monetary compensation for communities damaged by gang activity.25
B. Prior Law
The Governor signed Senate Bill 271 (Chapter 34) into law on July 6, 2007
as a means of combating gang-related illegal activities and to diminish the
destructive presence of gangs in the communities they inhabit.26 Chapter 34 gives
“any district attorney or any prosecuting city attorney” the authority to bring an
action on the community’s behalf for damages resulting from gang related
nuisances.27 Additionally, Chapter 34 allowes state and local prosecutors to
18. 8orteno Gang Crackdown, supra note 4.
19. La Ganga et al., supra note 6.
20. See Joel Rubin et al., Gang-Related Killings in L.A. Plunge, L.A. TIMES, Jan. 11, 2008, at B3 (“The
LAPD recorded 216 gang-related deaths in 2007.”).
21. See Press Release, Edmund G. Brown Jr., Att’y Gen., Cal. State., Attorney General Brown
Announces Crackdown on Violent Richmond Gang, Nov. 13, 2008, available at http://ag.ca.gov/newsalerts/
print_ release.php?id=1631 (on file with the McGeorge Law Review) (“[The Deep Central Gang of Richmond]
is one of the largest and most violent criminal street gangs in Richmond, engaging in drug trafficking, robbery,
assault and prostitution.”); 8orteno Gang Crakdown, supra note 4 (“[The Norteno street gang] ha[s] committed
an increasing number of gang-related shootings, stabbings, carjackings and residential robberies . . . .”).
22. Press Release, Rockard J. Delgadillo, City Att’y, L.A., L.A. City Attorney Rocky Delgadillo Seeks
Injunction Against Notorious Valley Gang, Apr. 17, 2008, available at http://www.lacity.org/atty/attypress/
attyattypress6952223_04172008.pdf (on file with the McGeorge Law Review).
23. Id.
24. Press Release, Los Angeles County District Attorney’s Office, Judge Grants Permanent Injunction
Against San Fernando Valley Gang, Aug. 11, 2008, available at http://da.co.la.ca.us/mr/081108c.htm (on file
with the McGeorge Law Review).
25. CAL. PENAL CODE § 186.22a (amended by Chapter 38); Press Release, Los Angeles County District
Attorney’s Office, supra note 24.
26. Press Release, Office of the Governor, Cal. State, Gov. Schwarzenegger Signs Legislation to Protect
Californians from Gangs, available at http://gov.ca.gov/index.php?/print-version/press-release/6897/ (last
visited Oct. 11, 2008) (on file with the McGeorge Law Review); see also Philip Lee, Recent Statute, Chapter
34: Hitting Criminal Street Gangs Where It Hurts—Their Wallets, 39 MCGEORGE L. REV. 577, 577 (2008)
(explaining the necessity of Chapter 34 to combat gangs that “have placed a financial strain on the communities
[in which] they operate”).
27. CAL. PENAL CODE § 186.22a(c) (West Supp. 2008).
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2009 / Penal
collect damages from “the criminal street gang or its members” from assets
“derived from the criminal activity being abated or enjoined.”28 Due to the
specificity of the statute to collect damages “derived from the criminal activity,”
the collection of damages proved challenging for prosecutors.29 Accordingly, “no
case has ever been filed against an[] enjoined gang” or its members.30
The prosecuting attorney could seek damages from “persons who knew or
should have known of the unlawful acts.”31 Thus, under Chapter 34, a person
need not necessarily be a member of a gang for liability to attach.
Any damages recovered from gang related nuisances were reserved for the
damaged community or neighborhood where the nuisance occurred.32
Specifically, Chapter 34 required that recovered damages “be deposited into a
separate segregated fund for payment to the governing body of the city or county
in whose political subdivision the community or neighborhood is located.”33 The
funds were to be used “solely for the benefit of the community or neighborhood
that has been injured by the nuisance.”34
C. 8uisance
Penal Code section 186.22a(a) defines nuisance with specificity, and states
that the “nuisance . . . shall be enjoined, abated, and prevented.”35 Additionally,
the provision allows for collection of damages resulting from the enjoined or
abated nuisance irrespective of whether the nuisance is public or private.36
The statute states that “any offense involving dangerous or deadly weapons,
burglary, or rape” is a nuisance.37 Additionally, “[e]very building or place used
by members of a criminal street gang for the purpose of the commission” of
certain listed offenses is also a nuisance.38 Specifically, thirty-three enumerated
offenses currently exist under Penal Code Section 186.22(e).39 These offenses
range widely from non-physical injury offenses such as counterfeiting to physical
injury offenses such as homicide.40
28. Id.
29. See ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF SB 1126, at 3 (June 10,
2008) (“[Existing statutory] language would render any money judgment obtained against the gang and its
members almost certainly uncollectible.”).
30. Id.
31. CAL. PENAL CODE § 186.22a(c) (West 1999).
32. Id.
33. Id.
34. Id.
35. Id. § 186.22a(a).
36. Id.
37. Id.
38. Id.
39. See id. § 186.22(e) (West 1999 & Supp. 2008) (listing thirty-three offenses under this section,
including assault, robbery, and homicide).
40. See id. (including a wide range of offenses).
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Other non-physical injury offenses include robbery, burglary, grand theft,41
theft and unlawful taking or driving of a vehicle (joy-riding), looting, sale or
distribution of controlled substances, arson, money laundering, felony extortion,
felony vandalism, felony theft or fraudulent use of access cards or account
information, fraudulent use of personal information,42 and wrongfully obtaining
Department of Motor Vehicle documentation.43 Several firearm offenses also
constitute a nuisance such as the possession, sale, delivery or transfer of a
firearm, carrying a concealed weapon or loaded firearm, as well as discharging a
loaded firearm from a motor vehicle (drive-by shooting).44
Physical injury offenses constituting a nuisance include intimidating a
witness or victim, assault with a deadly weapon, rape, kidnapping, mayhem,
torture, threats to commit crimes resulting in great bodily injury or death, or
carjacking.45
Finally, in addition to the enumerated offenses listed above, Section 186.22a
makes clear that “every building or place wherein . . . criminal conduct by gang
members takes place, is a nuisance.”46 Thus, under Chapter 38, a prosecutor may
seek damages for a wide variety of offenses that ultimately constitutes a nuisance
on the suffering community.
III. CHAPTER 38
Chapter 38 became effective after the Governor signed SB 1126 into law on
June 25, 2008.47 Chapter 38 became immediately effective as “an urgency statute
necessary for the immediate preservation of the public peace, health, or safety”
due to the “recent increase in gang-related crimes.”48
Chapter 38 changes prior law in two major ways. First, Chapter 38 allows the
injured community or neighborhood to recover damages from “the criminal street
gang or its members.”49 This amendment provides that “[o]nly members of the
criminal street gang who created, maintained, or contributed to the creation or
maintenance of the nuisance shall be personally liable for the payment of the
damages awarded.”50 This differs from prior law, which allowed the collection of
41. See id. § 186.22(e)(9) (listing grand theft as a nuisance).
42. See id. § 186.22(e)(29) (“Unlawful use of personal identifying information to obtain credit, goods,
services, or medical information.”).
43. See id § 186.22(e)(30).
44. See id. § 186.22(e)(31)-(33).
45. See id. § 186.22(e).
46. Id. § 186.22a(a) (West 1999).
47. Email from Governor’s Office of External Affairs, to Yuliana Mendez, Polanco Fellow, Office of
Senator Gilbert Cedillo (June 25, 2008, 05:49:00 PST) (on file with the McGeorge Law Review).
48. 2008 Cal. Stat. ch. 1126, §2.
49. CAL. PENAL CODE § 186.22a(c) (amended by Chapter 38).
50. Id.
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2009 / Penal
damages from “persons who knew or should have known of the unlawful acts.”51
Thus, Chapter 38 applies only to criminal street gang members instead of anyone
who knew or should have known of the unlawful acts.
Second, damages awarded to the injured community or neighborhood may be
collected from any asset held by the member of the gang who “created,
maintained, or contributed to the creation or maintenance of the nuisance.”52 This
differs from prior law, which required that damages be paid or collected from
assets that “were derived from the criminal activity being abated or enjoined.”53
Thus, the prosecutor need not establish what assets were derived from the
criminal activity and instead may pursue any asset belonging to the responsible
gang member to satisfy the award for damages.54
IV. ANALYSIS OF CHAPTER 38
Chapter 38 was introduced twenty-eight days after Chapter 34 was enacted.55
It quickly became apparent that Chapter 34 was deficient in one major respect:
prosecutors effectively could not collect awarded damages from gang members.56
That is, proving what assets were derived from the enjoined nuisance activity
deterred prosecutors from filing any case against an enjoined gang member due
to the difficulty in establishing what assets were actually derived from the
criminal activity.57 Chapter 38 removes this inhibitor and allows a prosecutor to
collect any assets belonging to a gang member to satisfy the judgment.
A. Excessive Fines—Article I, Section 17 of the California Constitution
Chapter 38’s opponents argue that it is overbroad because it extends personal
liability for nuisance to any asset a gang member possesses.58 Article I, Section
17 of the Constitution of the State of California ensures that “[c]ruel or unusual
punishment may not be inflicted or excessive fines imposed.”59 Thus, it seems
51. Id. § 186.22a(c) (West 1999).
52. Id. § 186.22a(c) (amended by Chapter 38) (emphasis added).
53. Id. § 186.22a(c) (West 1999).
54. Compare id. § 186.22a(c) (amended by Chapter 38), with id. § 186.22a(c) (West 1999).
55. Letter from Ignacio Hernandez, Legislative Advocate, Cal. Att’ys for Criminal Justice, to Gil
Cedillo, Senator, Cal. State Senate (Mar. 17, 2008) [hereinafter Hernandez Letter] (on file with the McGeorge
Law Review).
56. See ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF SB 1126, at 3 (June 10,
2008) (stating that the existing statutory language “would render any money judgment obtained against the gang
and its members almost certainly uncollectible”).
57. See id. (“[T]he ‘derived from’ language restricts prosecutors in ways that plaintiffs, in a private
nuisance action, would not be restricted.”).
58. See Hernandez Letter, supra note 55 (expressing concern that Chapter 38 allows for the seizure
assets unrelated to the criminal activity) (emphasis added).
59. CAL. CONST. art. I, § 17 (emphasis added).
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that the reach of Chapter 38 in collecting any asset may infringe on the right not
to have excessive fines imposed.
In determining whether an excessive fine has been imposed, a court must
consider whether “[t]he amount of the forfeiture . . . bear[s] some relationship to
the gravity of the offense that it is designed to punish.”60 If the fine is “grossly
disproportional to the gravity of a defendant’s offense” then it violates the
Excessive Fines Clause of Article I, Section 17.61
While Chapter 38 is silent as to any standard for assessing damages for
nuisance violations, the legislation is still bound by the outer limits of Article I,
Section 17. Thus, a gang member found liable to a community or neighborhood
for nuisance damages would be fined an amount that is proportionate to “the
gravity of the offense.”62
B. Gang Membership—The “Defining” Dilemma
Chapter 38 “specifically targets the gang members and their associates
responsible for the damages to the community.”63 Accordingly, Chapter 38 states
that “[o]nly members of the criminal street gang” are personally liable for
damages inflicted on the community or neighborhood.64 However, opponents to
Chapter 38 point out that “membership” in a gang is uncertain, thereby
potentially applying to persons who dissent to the criminal activity or who are in
the process of leaving their respective gangs.65
In People v. Englebrecht, a California Appellate Court determined that “an
active gang member is a person who participates in or acts in concert with [a
criminal street gang].”66 Additionally, the participation must be “more than
nominal, passive, inactive or purely technical.”67 The court’s definition is
consistent with Penal Code Section 186.22(a), which states that “[a]ny person
who actively participates in any criminal street gang” is subject to the Section.68
However, formal membership need not be established; instead, only “[a]ctive
60. People v. Urbano, 128 Cal. App. 4th 396, 406, 26 Cal. Rptr. 3d 871, 878 (5th Dist. 2005). In
Urbano, the Defendant was a Fresno Bulldog (a criminal street gang member), convicted of causing great
bodily injury to a victim “solely to promote a criminal street gang” and was fined $3,800. The court denied his
argument that the fine was excessive under section 17 of the California Constitution due to the nature of the
offense. Id. at 873, 878.
61. Id. at 878.
62. Id.
63. ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF SB 1126, at 2 (June 10,
2008).
64. CAL. PENAL CODE § 186.22a (amended by Chapter 38).
65. Hernandez Letter, supra note 55; ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE
ANALYSIS OF SB 1126, at 6 (June 10, 2008).
66. 88 Cal. App. 4th 1236, 1261, 106 Cal. Rptr. 2d 738, 756 (4th Dist. 2001). The definition refers to
“criminal street gang” as defined in Penal Code section 186.22(f).
67. Englebrecht, 88 Cal. App. 4th at 1261, 106 Cal. Rptr. 2d at 756.
68. CAL. PENAL CODE § 186.22(a) (West 1999).
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2009 / Penal
participation in the criminal street gang . . . is required.”69 Opponents to Chapter
38 are concerned by the broad definition of an active gang member, especially
since Chapter 38 does not itself attempt to define who is a gang member for
purposes of the statute.70
However, Chapter 38 supporters argue that the lack of a concrete definition
of gang membership is not per se detrimental to the legislation because
safeguards exist.71 For instance, existing law relating to “nuisance, torts, and
judgments . . . limit recovery of damages to those who have created, maintained
or contributed to the creation or maintenance of the nuisance activity.”72
Accordingly, the State retains the burden of proving that an accused was at least
“substantially responsible for the damages.”73 Thus, supporters contend that this
burden limits the possibility of dissenting individuals becoming liable under
Chapter 38.74
C. The Deterrent Effect
Finally, opponents argue that Chapter 38 is premature because, although it
amends Chapter 34, it was introduced only twenty-eight days after Chapter 34
was enacted into law.75 Supporters counter that Chapter 38 was urgently needed
because, despite Chapter 34’s enactment the previous year, no case had been
filed due to the high burden of proof required to establish that the awarded assets
were “derived from” the criminal activity.76 It remains unclear whether Chapter
34, without amendment, would have been an effective remedy to combat some of
the economic harm caused by gangs.
Chapter 38’s proponents further argue that the power to seize any and all
assets of gang members who contribute to community nuisance is the only way
to loosen the tight grip street gangs have over their communities.77 Proponents
believe Chapter 38 provides the means to “fight back” and creates the tools
69.
70.
Id. § 186.22(i).
Id. § 186.22a(c) (amended by Chapter 38); see also ASSEMBLY COMMITTEE ON PUBLIC SAFETY,
COMMITTEE ANALYSIS OF SB 1126, at 6 (June 10, 2008) (“Membership in a gang is an uncertain
term . . . [with] no statutory definition.”).
71. See ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF SB 1126, at 5-6 (June
10, 2008) (“[Chapter 38,] as well as existing law, contains sufficient protections to safeguard those who do not
create, maintain, or contribute toward the creation or maintenance of a public nuisance.”).
72. Id.
73. Id. at 6.
74. Id. at 6-7.
75. Hernandez Letter, supra note 55.
76. ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF SB 1126, at 3 (June 10,
2008).
77. See Letter from Rockard J. Delgadillo, City Att’y, L.A., to Members of the California State Senate
(Apr. 21, 2008) (on file with the McGeorge Law Review) (noting how gangs have tight economic control over
neighborhoods, and Chapter 38 is a way to reduce that control).
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McGeorge Law Review / Vol. 40
communities need to thrive again.78 The general hope is that gang-dominated
communities will finally regain their independence from the effects of continued
and increased gang activity.79 Though far from a comprehensive fix to
California’s serious gang problems, proponents argue that Chapter 38 serves as a
deterrent to gang members as they will be reluctant to engage in gang activities
that they know may result in seizure of their assets.80 Accordingly, the deterrent
effects of Chapter 38 may decrease gang activity.81
V. CONCLUSION
Chapter 38’s supporters believe that California is one step closer to
eradicating criminal street gangs with the passage of this legislation.82 Criminal
street gang members are on notice: they will be liable for the damage they inflict
to their communities.83 Gang members will no longer be able to hide assets
merely because they were not derived from the criminal activity.84
78. See Letter from Harriet Salarno, Chair, Crime Victims United of Cal., to Gil Cedillo, Senator, Cal.
State Senate (Apr. 9, 2008) (on file with the McGeorge Law Review) (noting how prosecutors can now “step in
the shoes of the victimized communities and fight on [their] behalf”).
79. See id. (describing how Chapter 38 will allow prosecutors to seek monetary damages to be returned
to the community).
80. See ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF SB 1126, at 1-2 (June
10, 2008) (noting that civil gang injunctions are an “effective means of deterring and abating the violence and
public nuisance activity caused by criminal street gangs”). But see Corey Ordoñez, Recent Statute, Anti-Gang
Violence Parenting Classes: Early Parental Involvement Versus Career Criminals, 39 MCGEORGE L. REV. 671,
674 (2008) (“One approach to curbing delinquent and gang-related behavior . . . is deterrence; the severity and
likelihood of punishment provides a disincentive . . . . However, there is very little evidence supporting the
theory that severe penalties act as a deterrence of a crime.”).
81. See Letter from Gregory D. Totten, Dist. Att’y, County of Ventura, State of Cal., to Gilbert Cedillo,
Senator, Cal. State Senate (Mar. 12, 2008) (on file with the McGeorge Law Review) (“The proposed amendment
makes collections of damages possible and represents sound policy in the fight against criminal street gangs and
their devastating impact on our communities.”).
82. See, e.g., id. (explaining how Chapter 38 helps curb gang activity).
83. See CAL. PENAL CODE § 186.22a(c) (amended by Chapter 38) (stating that members of a criminal
street gang “shall be personally liable for the payment of the damages awarded”).
84. ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF SB 1126, at 3 (June 10,
2008).
475
Identity Thieves Get More than They Bargained for:
Victim’s Venue
8athaniel H. Clark
Code Section Affected
Penal Code § 786 (amended).
SB 612 (Simitian); 2008 STAT. Ch. 47.
As the power and self-confidence of a community increase, the penal law
always becomes more moderate; every weakening or imperiling of the
former brings with it a restoration of the harsher forms of the latter.1
I. INTRODUCTION
Forget flesh-eating zombies; a real horror flick would feature the deceased
opening credit lines six-feet under.2 But modern “grave robber” Tracy June
Kirkland is far from the walking-dead.3 When federal investigators apprehended
Tracy, she was perfecting the exploitation of on-line genealogy sites by
extracting social security numbers to pilfer the identities of the departed.4
Identity theft is a generally detached crime because eighty-four percent of
perpetrators have no personal relationship with their victims.5 Many incidents go
unprosecuted because they occur in large urban areas where there are a
magnitude of other crimes.6 This geographic disconnect between the impact and
commission of the crime leaves prosecutors in paralysis.7 Authorities in the
victim’s jurisdiction are often legally unable to prosecute in that venue.8
Furthermore, authorities in the jurisdiction of the commission of the crime may
have too many pending cases, or little incentive, to press charges because the
1. FRIEDRICH NIETZSCHE, GENEALOGY OF MORALS II § 10 (Walter Kaufmann ed., trans., Random
House 1989) (1887).
2. See Kevin Poulsen, Feds Charge California Woman with Stealing IDs from the Dead, WIRED, Apr.
17, 2008, http://blog.wired.com/27bstroke6/2008/04/feds-charge-cal.html (on file with the McGeorge Law
Review) (reporting the arrest and grand jury indictment of a woman charged with stealing identities of deceased
victims).
3. Id.
4. Indictment at 2, United States v. Kirkland, No. 08-cr-00448-UA (C.D. Cal. filed Apr. 15, 2008)
(alleging that defendant used www.rootsweb.com to identify the social security numbers of the deceased for the
purpose of activating credit lines under their names).
5. SYNOVATE, FEDERAL TRADE COMMISSION—2006 IDENTITY THEFT SURVEY REPORT 28 (2007),
available at http://www.ftc.gov/os/2007/11/SynovateFinalReportIDTheft2006.pdf (on file with the McGeorge
Law Review) (official report prepared for the Federal Trade Commission based on nation-wide survey).
6. ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF SB 612, at 4 (June 10, 2008).
7. Id.
8. Id.
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McGeorge Law Review / Vol. 40
citizens they represent have been relatively unaffected by the crime committed
on their own soil.9
With individuals like Tracy robbing the dead from the comfort of their
homes via the Internet, it is easy to see why identity theft is the fastest growing
crime in the country.10
California has been on the forefront of improving identity theft statutes, as
Chapter 47 illustrates.11 If Tracy’s victims were alive today, she could be tried at
the venue of their respective residences—a new precedent in prosecuting identity
thieves.12
II. LEGAL BACKGROUND
A. Definitions Under Prior Law
Section 530.55 of the Penal Code13 defines “personal information” as “any
name, address, telephone number, health insurance number, taxpayer
identification number, school identification number, state or federal driver’s
license, or identification number, social security number, place of employment,”
as well as a litany of other sensitive information.14 Section 530.5 prohibits the
willful unlawful use of personal information.15 Such uses include the
perpetrator’s efforts “to obtain, or attempt to obtain credits, goods, services, real
property, or medical information without the consent of that person.”16 Section
530.5 further prohibits unauthorized acquisition, retention, sale, transference, and
9. See id. (noting that the impact of the crime is often felt in the locality of the victim, where property
concerns must be addressed).
10. Identity Theft Is America’s Fastest Growing Crime, http://www.usps.com/postalinspectors/idthft
_ncpw.htm (on file with the McGeorge Law Review) (noting that last year alone, over 9.9 million Americans
were victimized at a cost of roughly $5 billion).
11. See Kathleen Hunter, California Law on ID Theft Seen as Model, STATELINE.ORG, Apr. 4, 2005,
http://www.stateline.org/live/ViewPage.action?siteNodeId=136&languageId=1&contentI d=22828 (on file with
the McGeorge Law Review); CAL. PENAL CODE § 786(b)(1) (amended by Chapter 47) (amending code to
include the county where the victim resided at the time of the commission of the offense).
12. CAL. PENAL CODE § 786(b)(1) (amended by Chapter 47).
13. Absent clarification, all statutory references are to the California Penal Code.
14. CAL. PENAL CODE § 530.55(b) (West Supp. 2008). The section goes on to define “information” as:
employee identification number, professional or occupational number, mother’s maiden name,
demand deposit account number, savings account number, checking account number, PIN (personal
identification number) or password, alien registration number, government passport number, date of
birth, unique biometric data including fingerprint, facial scan identifiers, voiceprint, retina or iris
image, or other unique physical representation, unique electronic data including information
identification number assigned to the person, address or routing code, telecommunication identifying
information or access device, information contained in a birth or death certificate, or credit card
number of an individual person, or an equivalent form of identification.
Id.
15. CAL. PENAL CODE § 530.5(a) (West Supp. 2008).
16. Id.
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2009 / Penal
conveyance of personal information with the intent to defraud.17 In the context of
identity theft, “person” is defined as “a natural person, firm, association,
organization, partnership, business trust, company, corporation, limited liability
company, or public entity.”18
B. Constitutional and Statutory History
1. Reasonable Relationship or 8exus
Penal Code Section 777’s general rule of territorial jurisdiction states that
“except as otherwise provided by law[,] the jurisdiction of every public offense is
in any competent court within the jurisdictional territory of which it is
committed.”19 However, when the Legislature makes an exception to section 777,
the statute is construed liberally to match the legislative purpose of expanding
criminal jurisdiction.20 In Price v. Superior Court, the California Supreme Court
held that the Legislature’s power to designate venue is limited by the requirement
of a reasonable relationship or nexus between the venue and the commission of
the offense.21
2. Venue and Vicinage
The Price court’s reasoning concurred with the appellate court’s assertion
that the “contemporary right to trial by jury no longer contemplates jurors who
are familiar with the parties and the locality and therefore are able to supply their
own personal knowledge.”22 That feature has been replaced with a right to jury
members who do not have independent knowledge of the incident or parties.23
The court weighed the value and legitimacy of “vicinage” rights, which pertain to
the area from which a jury is drawn and is distinct from, but closely related to,
venue—the location of the trial itself.24 Although venue is a statutory concept and
not a constitutional right,25 the defendant argued that vicinage rights derive from
17. Id. § 530.5(c)-(d).
18. Id. § 530.5(f).
19. Id. § 777.
20. Price v. Superior Court, 25 Cal. 4th 1046, 1055, 25 P.3d 618, 623 (2001) (interpreting section 781 of
the California Penal Code as “remedial” and construing the statute to expand criminal jurisdiction beyond
common law standards); People v. Bismillah, 208 Cal. App. 3d 80, 85, 256 Cal. Rptr. 25, 28 (1st Dist. 1989)
(same).
21. Price, 25 Cal. 4th at 1075, 25 P.3d at 636; see also ASSEMBLY COMMITTEE ON PUBLIC SAFETY,
COMMITTEE ANALYSIS OF SB 612, at 4 (June 10, 2008) (“Federal and state courts have ruled that pursuant to
the right of vicinage there must be a reasonable nexus between the crime and the county of trial.”).
22. Price, 25 Cal. 4th at 1052, 25 P.3d at 621.
23. Id.
24. Id. at 1054-55, 25 P.3d at 623; People v. Guzman, 45 Cal. 3d 915, 934, 755 P.2d 917, 927 (1988).
25. See People v. Sering, 232 Cal. App. 3d 677, 684-86, 283 Cal. Rptr. 507, 511-13 (4th Dist. 1991)
(“Locus delicti is the statutory (not constitutional) concept of a right to be tried in the county in which the crime
478
McGeorge Law Review / Vol. 40
the U.S. and California Constitutions.26 Consequently, any changes in the venue
statute are further limited to the extent they are circumscribed by vicinage and
due process provisions in the U.S. and California Constitutions.27
3. Constitutional Background
In 1774, the Declarations and Resolves of the First Continental Congress
asserted that the law, beyond the common law of England, entitled the American
colonists to “the great and inestimable privilege of being tried by their peers of
the vicinage.”28 Geographic concerns over vicinage rights originated in prior
centuries when American colonists were frequently hauled across seas to
England to be tried criminally.29 Article III, section 2 of the U.S. Constitution
eliminated this practice.30 The section states, in part, that “[t]he Trial of all
Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall
be held in the State where the said Crimes shall have been committed.”31 The
Constitution did not specify any other geographic requirements beyond state
boundaries until the adoption of the Sixth Amendment, which states that “[i]n all
criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial, by an impartial jury of the State and district wherein the crime shall have
been committed, which district shall have been previously ascertained by law.”32
The California Constitution states that “[t]rial by jury is an inviolate right and
shall be secured to all.”33 Although the California Supreme Court failed to
recognize this as an express vicinage right, the court has repeatedly interpreted
article I, section 16 of the California Constitution to include an implicit vicinage
right.34 Further decisions have found that the Sixth Amendment applies to
California and preserves vicinage rights by guaranteeing defendants of state
was committed.”).
26. Price, 25 Cal. 4th at 1056, 25 P.3d at 623-24.
27. Id. at 1056, 25 P.3d at 624.
28. Address to the Inhabitants of the British Colonies (Oct. 14, 1774), in 1 J. CONTINENTAL CONGRESS,
1774-1789, at 69 (1904).
29. Price, 25 Cal. 4th at 1054-55, 25 P.3d at 623.
30. Id. at 1055, 25 P.3d at 623.
31. U.S. CONST. art. III, § 2, cl. 3 (emphasis added).
32. Id. amend. VI (emphasis added).
33. CAL. CONST. art. I, § 16.
34. See Price, 25 Cal. 4th at 1071, 25 P.3d at 634 (acknowledging history of recognizing implicit
vicinage rights in article I, section 16 of the California Constitution); People v. Hill, 3 Cal. 4th 959, 984, 839
P.2d 984, 996 (1992) (holding that in California, the common law right to a jury selected from the vicinage or
county is implicit in the California Constitution and that county lines are coterminous with vicinage lines);
People v. Danielson, 3 Cal. 4th 691, 704, 838 P.2d 729, 734 (1992) (recognizing Sixth Amendment federal
vicinage rights to jury selection from county of commission of crime and implicit vicinage rights in California
Constitution); Hernandez v. Municipal Court, 49 Cal. 3d 713, 716, 720, 781 P.2d 547, 549, 551 (1989) (denying
defendant’s vicinage petition because jury selection was drawn from county of the commission of the crime,
leaving defendant’s Sixth Amendment rights un-violated and further distinguishing that county lines, not
judicial districts, constitute the vicinity).
479
2009 / Penal
criminal prosecution “the right to be tried by an impartial jury comprising a
representative cross-section of, and selected from residents of, the judicial district
where the crime was committed.”35 California has historically upheld vicinage
rights to ensure defendants avoid “systematic or intentional exclusion of
cognizable economic, social, religious, racial, political and geographical
groups.”36 Such precedent dates back to 1891.37
Departing from these previous assumptions, the Price court ruled that the
vicinage clause in the Sixth Amendment does not apply to California under the
Fourteenth Amendment, and there is no implicit vicinage right in the California
Constitution.38 Consequently, under Price, California is not necessarily bound to
allow jury selection from the county where the crime was committed.39
C. Price v. Superior Court
Before Price excluded the Sixth Amendment’s vicinage clause, it deemed
that clause unnecessary to uphold the fundamental right to a fair jury trial under
article III of the U.S. Constitution.40 However, even if the Sixth Amendment’s
vicinage clause applied to California, the Price court held it would not require
jury selection from the county where the crime was committed.41 To reach this
conclusion, the Price court delved the annals of history to discern the intended
definition of “district” in the Sixth Amendment’s vicinage clause.42 The analysis
sought to clarify the fact that the Sixth Amendment specifically calls for jury
selection from the “state and district” where the crime was committed.43 Initial
35. People v. Jones, 9 Cal. 3d 546, 556, 510 P.2d 705, 712 (1973); see also Danielson, 3 Cal. 4th at 704,
838 P.2d at 734 (“Included in this [Sixth Amendment] guarantee is the right to a trial by a jury residing in the
vicinage, applicable in state courts through the Fourteenth Amendment.”); People v. Bismillah, 208 Cal. App.
3d 80, 87, 256 Cal. Rptr. 25 (1st dist. 1989) (emphasizing that the district “‘must include the area where the
crime was committed’” (quoting Jones, 9 Cal. 3d at 554, 510 P.2d at 711) (emphasis added and omitted));
Jones, 9 Cal. 3d at 551, 510 P.2d at 709 (finding it “abundantly clear” that a trial by jury of the district wherein
the crime was committed is an “essential feature of jury trial preserved though changed by the Sixth
Amendment and made binding upon the states by the Fourteenth Amendment”).
36. Hernandez, 49 Cal. 3d at 716, 781 P.2d at 548.
37. See People v. Powell, 87 Cal. 348, 355-56, 25 P. 481, 483-84 (1891) (holding that article 7 of the
California Constitution contains an implicit vicinage right to jury selection from the county where the crime was
committed). The court found that there was “little doubt” that the common law right to a jury trial is as defined
in Blackstone’s commentaries:
“When, therefore, a prisoner on his arraignment has pleaded not guilty, and for his trial hath put
himself upon the country, which country the jury are, the sheriff of the county must return a panel of
jurors, liberos et legales homines, de vicineto; that is, freeholders, without just exception, and of the
visne or neighborhood; which is interpreted to be of the county where the fact is committed.”
Id. (quoting WILLIAM BLACKSTONE, 2 COMMENTARIES *350) (emphasis in original).
38. Price, 25 Cal. 4th at 1059, 25 P.3d at 626.
39. Id. at 1060, 25 P.3d at 626.
40. Id.
41. Id.
42. Id. at 1059-60, 25 P.3d at 626.
43. Id. at 1061, 25 P.3d at 627.
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readings of this language may accordingly lead some courts to conclude that
because both geographic indicators were listed, the intention was for jury
selection to be from a more specific proximity than the entire state.44
Congress enacted the Federal Judiciary Act of 1789 a day before the Bill of
Rights was submitted to Congress for ratification.45 The Price court concluded
that the concurrence of these doctrines was sufficient contextual evidence
indicating that Congress intended “district” to pertain to the federal judicial
districts then in existence and, accordingly, only in federal cases.46 The federal
judicial district lines drawn by Congress coincided with state borders with the
exceptions of Massachusetts and Virginia, which were split into two separate
judicial districts.47 The Act only mandates jury selection from the county of the
commission of the offense for capital crimes.48 Finding no persuasive holdings in
either federal or state trials addressing the incorporation of the Sixth
Amendment’s vicinage clause, the Price court concluded that there is no
constitutional vicinage right to a jury trial in the county of the commission of the
crime.49
D. Federal Court Treatment
The United States Supreme Court has never held that the Sixth Amendment’s
vicinage clause applies to the states through the Fourteenth Amendment and has
never defined the word “district” explicitly.50 However, some federal circuits
have held that the term “district,” as used in the Sixth Amendment, pertains only
to federal judicial districts.51 Although the Ninth Circuit has declined to address
whether the Sixth Amendment’s vicinage clause is incorporated in the Fourteenth
Amendment, other federal circuits have concluded that it is not.52 Ultimately,
only those aspects of the Sixth Amendment essential to preserving fair jury trials
44. Id. at 1062, 25 P.3d at 627-28.
45. Id. at 1061, 25 P.3d at 627.
46. Id. at 1061-62, 25 P.3d at 627; Federal Judiciary Act of 1789, 1 Stat. 73 (1789) (there were to be
thirteen judicial districts for the eleven colonial states; two in both Massachusetts and Virginia).
47. Price, 25 Cal. 4th at 1061, 25 P.3d at 627.
48. See Federal Judiciary Act of 1789, 1 Stat. 88 § 29; Price, 25 Cal. 4th at 1062, 25 P.3d at 628.
49. Price, 25 Cal. 4th at 1059, 1068, 1075, 25 P.3d at 626, 632, 636 (holding that the California
Legislature’s power to designate location of trial is limited only by the requirement that there be a reasonable
relationship or nexus between the place designated for trial and the commission of the offense).
50. Hall v. McKee, No. 1:05-cv-142, 2008 WL 1808810 (W.D. Mich. Apr. 21, 2008); see also
Stevenson v. Lewis, 384 F.3d 1069, 1072 (9th Cir. 2004) (“[T]he Supreme Court has not decided whether the
Sixth Amendment’s vicinage clause applies to the states.”). But see Williams v. Florida, 399 U.S. 78, 96 (1970)
(indicating that Congress has the power to define vicinage through the creation of judicial districts).
51. See, e.g., Caudill v. Scott, 857 F.2d 344, 346 (6th Cir. 1988) (finding that “district” pertains only to
federal judicial districts); Zicarelli v. Dietz, 633 F.2d 312, 325 (3rd Cir. 1980) (same).
52. Stevenson, 384 F.3d at 1072 (declining to answer incorporation issue); Cook v. Morrill, 783 F.2d
593, 595 (5th Cir. 1986) (holding that the Fourteenth Amendment does not extend the Sixth Amendment
vicinage clause to the states); Zicarelli, 633 F.2d at 325-26.
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under article III extend to the states through the Fourteenth Amendment.53
III. CHAPTER 47
Chapter 47 amends the jurisdictional provisions of section 786 to include the
crimes of unauthorized retention or transfer of personal information as defined in
section 530.55, and provides that a criminal action for these crimes may be
brought in the county of the victim’s residence at the time of the commission of
the offense.54
Upon filing such a criminal action in the county where the victim resided at
the time of the commission of the offense, the court or defendant shall file a
motion for a hearing to determine whether such venue is proper.55 In deciding the
issue, the court shall consider the rights of the parties, access to evidence,
convenience to witnesses, and the interests of justice.56
IV. ANALYSIS OF CHAPTER 47
A. Chapter 47: Within the Confines of Price?
Chapter 47 represents the limits of the Legislature’s power to designate
venue conferred by the Price holding.57 Defendants charged under Chapter 47
will now be tried in the victim’s venue; potentially far away from the locality of
the commission of the offense.58 This standard yields the possibility of criminal
proceedings in counties never before traversed, seen, or contemplated by
defendants.59 Unlike prior statutes, Chapter 47 does not require that defendants
53. See generally Williams, 399 U.S. 78 (holding that Florida’s notice-of-alibi rule did not deprive
defendant of a fair trial or due process). But see Adamson v. State of California, 332 U.S. 46, 89 (1947) (Black,
J., dissenting) (“I fear to see the consequences of the Court’s practice of substituting its own concepts of
decency and fundamental justice for the language of the Bill of Rights as its point of departure in interpreting
and enforcing that Bill of Rights. . . . I would follow what I believe was the original purpose of the Fourteenth
Amendment—to extend to all the people of the nation the complete protection of the Bill of Rights.”).
54. CAL. PENAL CODE § 786(b)(1) (amended by Chapter 47).
55. Id. § 786(b)(3) (amended by Chapter 47).
56. Id.
57. See Price v. Superior Court, 25 Cal. 4th 1046, 1075, 25 P.3d 618, 636 (2001) (“The Legislature’s
power to designate the place for trial of a criminal offense is limited by the requirement that there be a
reasonable relationship or nexus between the place and the commission of the offense.”); ASSEMBLY
COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF SB 612, at 5-6 (June 10, 2008) (discussing the
jurisdictional recommendations of the L.A. District Attorney’s Office and the California Public Defender’s
Association Office).
58. CAL. PENAL CODE § 786(b)(1) (amended by Chapter 47).
59. Id.; ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF SB 612, at 6 (June 10,
2008) (noting that the California Public Defender’s Association Office (CPDA) opposes the jurisdictional
provisions of Chapter 47 because potentially innocent defendants will be forced to travel long distances and
entered into custody). The CPDA further argues that trials should be at least limited to where the victim resided
at the time of the commission of the offense, a reasonable waiver of venue rights. ASSEMBLY COMMITTEE ON
PUBLIC SAFETY, COMMITTEE ANALYSIS OF SB 612, at 6 (June 10, 2008).
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commit actions requisite for accomplishing the offense in the county of such
proceedings.60
The entirety of the California case history cited in Price, and the fact pattern
of Price itself, demonstrate that in all of those decisions, the defendant had, at the
very minimum, partially committed at least one of the charged crimes in the
county in which the defendant was tried.61 The Price court cites many California
statutes as examples of the Legislature permitting proceedings outside of the
county where the crime was committed.62 But with the exception of the treason
statute,63 they all require either that the defendant be apprehended in, or at least
partially consummated the illegal act in, the jurisdictional territory where he or
she is tried.64 Yet even the treason statute is distinguishable because it only
pertains to acts committed outside of California.65
Chapter 47 goes farther than any of the venue statutes exemplified in Price.66
It is the only statute that does not, at a minimum, require that the defendant be
apprehended in, or commit at least part of the offense in, the county of the venue
of the trial.67 Chapter 47 stretches the boundaries of the reasonable relationship or
nexus standard of the Price holding because it challenges prior assumptions of
defendant rights.68 But under the Price holding, Chapter 47 is a valid use of the
Legislature’s power to designate venue.69
60. CAL. PENAL CODE § 786(b)(1) (amended by Chapter 47).
61. See Price, 25 Cal. 4th at 1055, 1075, 25 P.3d at 623 (citing numerous cases in which defendant at
least partially committed the crime in the county where he was tried); Hernandez v. Municipal Court, 49 Cal. 3d
713, 715-16, 781 P.2d 547, 548 (1989) (holding vicinage lines coterminous with county lines); People v. Jones,
9 Cal. 3d 546, 551, 510 P.2d 705, 709 (1973) (trying defendant in different police precinct, but same county, as
commission of crime); People v. Prather, 134 Cal. 386, 389-90, 66 P. 483 (1901) (where defendant transported
stolen goods from one county to another); People v. Powell, 87 Cal. 348, 25 P. 481 (1891) (holding that the jury
must be selected from county where crime was committed); People v. Bismillah, 208 Cal. App. 3d 80, 86-87,
256 Cal. Rptr. 25, 28-29 (1st Dist. 1989) (noting that although the assault was committed entirely in Alameda
County, the court found ample acts in San Francisco to justify prosecution for the assault).
62. Price, 25 Cal. 4th at 1075, 25 P.3d at 636.
63. See CAL. PENAL CODE § 788 (providing jurisdiction for criminal action of treason when the overt act
is committed out of state in any county within California). Cf. id. § 790 (providing jurisdiction for murder and
manslaughter in the county where the fatal injury was inflicted, the victim dies, or body is found).
64. Price, 25 Cal. 4th at 1075, 25 P.3d at 636; see also CAL. PENAL CODE § 784.7(a) (providing
jurisdiction in any territory where at least one enumerated offense committed); id. § 777(a) (providing
jurisdiction for failure to provide charges in jurisdictional territory where minor child is cared for or where
parent is apprehended); id. § 777(b) (providing jurisdiction for perjury committed outside of state in any
competent court within jurisdictional territory where acts necessary for commission occurred); id. § 778
(providing jurisdiction for public offenses committed through an agent by an out of state defendant in
jurisdictional territory where agent committed acts); id. § 778 (where defendant partially commits act in more
than one territory, jurisdiction is appropriate in any such territory); id. § 784.5 (child abduction cases triable in
county where victim or custodial agency resided at the time of abduction, or where child is taken or found).
65. CAL. PENAL CODE § 788.
66. See supra note 64.
67. See id.
68. See generally Price, 25 Cal. 4th at 1055, 1075, 25 P.3d at 623 (citing numerous cases in which
defendant at least partially committed the crime in the county where he was tried).
69. See id. at 1075, 25 P.3d at 636 (requiring a reasonable relationship or nexus).
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B. Victim’s Justice versus Innocent Defendant’s Jury Rights
The detached nature of identity theft makes the jurisdictional provisions of
Chapter 47 very appealing to prosecutors.70 Why should the perpetrator, who is
intentionally creating great hardship for the victim, benefit from antiquated venue
laws that fail to address the exploitation of modern technology?71 The Internet
permits much abuse by the malicious and savvy user—and allows such users to
touch the lives of individuals irrespective of location.72 It is unjust to allow
perpetrators to escape the presentation of the most effective evidence: the
victim’s testimony—which is easier for prosecutor’s to obtain in the victim’s
venue.73 What is a mere “click of the mouse” for the perpetrator severely burdens
the victim in efforts to restore his or her shattered credit or reputation.74
But by enacting Chapter 47, does the Legislature lack peripheral vision in
attempting to eliminate such a disparity? The presumption of innocence, a
fundamental aspect of criminal proceedings, is preempted by the law because the
burden of travel is automatically fixed upon the defendant before the prosecution
proves any culpability.75 Under Chapter 47, an innocent defendant incurs similar
hardships to those eliminated for victims of identity theft: an unreasonable
burden if required to attend trial hundreds of miles away.76
V. CONCLUSION
Identity theft is a crime that exploits the power of communication
technology,77 but Chapter 47 mitigates this advantage.78 The Penal Code must
70. CAL. PENAL CODE § 786(b)(1).
71. See ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF SB 612, at 4 (June 10,
2008) (“The impact of the crime is often felt at the victim’s residence, where credit card electronic theft,
pretexting, or other theft of intangible property must be addressed. This bill would allow local prosecutors to
help local victims.”).
72. Id. at 5 (noting that the crimes addressed by SB 612 are commonly committed over computer
transactions).
73. See id. at 6 (“SB 612 allows local prosecutors the opportunity to bring charges in a county with
better access to the victim and important evidence.”).
74. Id. at 4.
75. See CAL. PENAL. CODE § 786(b)(3) (amended by Chapter 47) (enabling judiciary discretion to
permit trial at the venue of the victim).
76. Id.
77. See Indictment at 2, United States v. Kirkland, No. 08-cr-00448-UA (C.D. Cal. filed Apr. 15, 2008)
(alleging that defendant used www.rootsweb.com to identify the social security numbers of the deceased for the
purpose of activating credit lines under their names).
78. See CAL. PENAL CODE § 786(b)(3) (amended by Chapter 47) (enabling judiciary discretion to permit
trial at the venue of the victim). On-line hacking and phishing clearly enables the savvy identity thief to exploit
victims far away from his or her own locality making prosecution unlikely. By allowing prosecutorial
flexibility, Chapter 47 mitigates this geographic advantage. See ASSEMBLY COMMITTEE ON PUBLIC SAFETY,
COMMITTEE ANALYSIS OF SB 612, at 6 (June 10, 2008) (discussing the need to expand prosecutorial reach).
484
McGeorge Law Review / Vol. 40
adapt to match the clever, ever-evolving mind of the modern criminal.79 Chapter
47 reduces identity thieves’ incentive to choose detached and distant victims, a
choice that is all too simple in the Internet age.80 Prior to Chapter 47’s enactment,
the larcenist’s wise decision was to select victims in far away counties, thereby
lowering the chances of prosecution.81 But now identity pilferers will get more
than they bargained for: the victim’s venue.82 The law empowers prosecutors
across California to defend their jurisdictions from previously illusive and remote
criminals.83 But Chapter 47 challenges defendant venue rights more aggressively
than any of the prior statutes cited in the Price decision—the primary legal basis
cited by the Legislature.84
Chapter 47 is a powerful yet blunt tool. When incorrectly accused, innocent
defendants may incur the burden of traveling hundreds of miles across one of the
largest states in the country—placing life on hold for trial.85 Identity theft
beckons a response from the Legislature, but a harsher Penal Code reflects a
weaker society—we must act carefully when editing ancient precedent to
accommodate modern crime.86
79. Indictment at 2, United States v. Kirkland, No. 08-cr-00448-UA (C.D. Cal. filed Apr. 15, 2008); see
also IDENTITY THEFT TECH. COUNCIL, ONLINE IDENTITY THEFT: PHISHING TECHNOLOGY, CHOKEPOINTS AND
COUNTERMEASURES 6 (Oct. 3, 2005), available at http://www.antiphishing.org/Phishing-dhs-report.pdf (on file
with the McGeorge Law Review) (defining phishing as “online identity theft in which confidential information
is obtained from an individual” with deceptive means. The report estimates phishing related losses to US banks
and credit cards in 2003 to be $1.2 billion, but much higher with in-direct losses in the form of “customer
service expenses, account replacement costs, and higher expenses due to decreased use of online services in the
face of widespread fear about the security of online financial transactions”).
80. See IDENTITY THEFT TECH. COUNCIL, supra note 79 (noting prevalence of on-line fraud); ASSEMBLY
COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF SB 612, at 4 (June 10, 2008) (discussing necessity
of enabling prosecutors to bring charges at venue of victim because of geographic disconnect between victim
and perpetrator).
81. ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF SB 612, at 4 (June 10, 2008).
82. See CAL. PENAL. CODE § 786(b)(3) (amended by Chapter 47) (enabling judiciary discretion to
permit trial at the venue of the victim).
83. Id.; ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF SB 612, at 4 (June 10,
2008).
84. ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF SB 612, at 5 (June 10, 2008).
85. See CAL. PENAL. CODE § 786(b)(3) (amended by Chapter 47) (enabling judiciary discretion to
permit trial at the venue of the victim).
86. NIETZSCHE, supra note 1, § 10.
485
Chapter 89: Rescuing 911?
Christina M. Eastman
Code Section Affected
Penal Code § 653y (amended).
AB 1976 (Benoit); 2008 STAT. Ch. 89.
I. INTRODUCTION
In February 2008, after more than a month of tracking, police in Hayward,
California finally arrested a man for allegedly making over one million frivolous
calls to 911 from his cell phone.1 The man called 911 for no other reason than to
make “various noises, including grunts and other bodily noises, minimal
conversation in a disguised voice, [and] beeps from the touchpad.”2 The
California Highway Patrol (CHP) received over 17,000 911 calls from his cell
phone between May 2007 and February 2008.3 Additionally, Hayward Police
stated that in one week they received 1,327 calls to 911 from this person,
increasing their call volume by thirty percent and overwhelming their 911
dispatch centers.4 When police finally tracked and arrested him, they asked him
why he made the calls.5 His response: “‘[B]ecause it’s free.’”6
The Hayward case is an extreme example of the daily problems plaguing 911
emergency call centers throughout California.7 Increased ownership and use of
cell phones makes it easier to call 911 from any place at any time, resulting in
hundreds of people calling to report a single incident.8 An even larger problem
for 911 call centers, however, is the large number of non-emergency calls fielded
1. Hayward Prank Caller Jams 911 Line a Million Times, NBC11, Feb. 14, 2008, http://www.
nbc11.com/news/15307879/detail.html (on file with the McGeorge Law Review).
2. Id.
3. Id. Hayward Police began receiving calls from the man’s cell phone on January 8, 2008 when they
started taking T-Mobile 911 cell calls, and by the time he was arrested on February 13, 2008, Hayward Police
received over 10,000 calls from his cell phone. Id.
4. Id.
5. Id.
6. Id.
7. See State’s 911 Call Centers Overtaxed by Cell Calls, KTVU, Aug. 26, 2007, http://www.ktvu.
com/print/13977839/detail.html (on file with the McGeorge Law Review) (stating that emergency dispatch
centers are overwhelmed by 911 cell calls because multiple callers can report a single incident and many callers
use 911 for non-emergencies).
8. See CAL. PERFORMANCE REVIEW COMM’N, 4 ISSUES AND RECOMMENDATIONS 1403 (2004),
available at http://cpr.ca.gov/CPR_Report/Issues_and_Recommendations/pdf/chapter7.pdf (on file with the
McGeorge Law Review) (“A recent tanker truck fire on a Sacramento freeway resulted in over 1,000 cell phone
calls to the Sacramento 911 call center and tied-up all five operators for over an hour.”); State’s 911 Call
Centers Overtaxed by Cell Calls, supra note 7 (“Cell phone emergency calls take longer to handle and
dispatchers can easily become swamped, such as when multiple callers report from the same accident scene.”).
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by 911 dispatchers.9 Due to the overwhelming number of 911 calls received by
the call centers, wait times have soared throughout California.10 In July 2007,
some of the longest wait times include forty-seven minutes in the Ventura area,
twenty-seven minutes in the Los Angeles area, and sixteen minutes in the Bay
area.11 These long wait times can mean the difference between life and death for
those truly in need of emergency services.12
Chapter 89 seeks to alleviate this problem by improving the availability of
emergency services through increased penalties for those who knowingly misuse
the 911 system in California.13
II. BACKGROUND
A. The Impact of 911 Misuse in California
Misuse of the 911 system exacerbates the severe problems that plague the
already overtaxed emergency call centers.14 Rapidly advancing cell phone
technology and the proliferation of cell phone use has overwhelmed 911 call
centers that lack funding to improve technology.15 In 2006, more than eight
million 911 calls were made from cell phones in California.16 This is roughly ten
times the number of wireless 911 calls made in 1990.17 The CHP call centers,
which receive around seventy-five percent of the wireless 911 calls in the state,
are struggling to answer all the calls, leading to drastic increases in wait times
throughout California.18 Misuse of the 911 system contributes significantly to the
9. See State’s 911 Call Centers Overtaxed by Cell Calls, supra note 7 (noting that cell phone users who
call 911 for non-emergency purposes are partly to blame for long wait times at California emergency call
centers).
10. See Large 8umber of Cell Phone Calls Tax State 911 System, CAL. HEALTHLINE, Sept. 4, 2007,
http://www.californiahealthline.org/articles/2007/9/4/Large-Number-of-Cell-Phone-Calls-Tax-State-911System.aspx?topicID=50 (on file with the McGeorge Law Review) (attributing the 47-minute wait time in the
Ventura Area to a proportional increase of non-emergency 911 calls).
11. Id.
12. See State’s 911 Call Centers Overtaxed by Cell Calls, supra note 7 (“Elementary school counselor
Brad Edwards waited eight minutes for a dispatcher to pick up an emergency call he made from his cell phone
when a student collapsed and began foaming at the mouth.”).
13. See ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 1976, at 4 (Apr. 15,
2008) (“This legislation will ensure that . . . those who continue to make illegal phone calls to 911 will be held
responsible for the costs that they inflict.”); CAL. PENAL CODE § 653y(a) (West Supp. 2008) (listing penalties
ranging from a written warning to a $200 fine).
14. State’s 911 Call Centers Overtaxed by Cell Calls, supra note 7.
15. See Robert J. Lopez & Rich Connell, Cell Phones Swamping 911 System, L.A. TIMES, Aug. 26,
2007, at A-1 (noting that problems are aggravated by call surges, staffing shortages, and technological hurdles).
16. Id.
17. Id.
18. Id.
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2009 / Penal
overwhelming number of calls that the emergency call centers receive and diverts
resources away from true emergencies.19
1. Unintentional Misuse
“Unintentional calls occur when a person or phone inadvertently dials 911.”20
Incidents of unintentional calls include phantom calls, misdials, and hang-ups.21
Phantom calls occur when a phone, usually a cell phone, automatically dials 911
when the number 9 or 1 is bumped while the phone is attached to a belt or inside
a purse.22 A phantom call can also occur when someone accidentally presses
resend after purposely calling 911.23 The CHP estimates that between 1.8 million
and 3.6 million of the wireless 911 calls it receives each year are phantom calls.24
Misdials and hang-ups also pose a serious problem for 911 call centers.
Many misdials may be the result of callers attempting to dial a phone number that
begins with an area code similar to 911.25 One such area code in California is
Sacramento’s 916 area code.26 Oftentimes, dispatchers call these numbers back to
verify that an emergency does not exist, which involves a significant amount of
time.27
2. Intentional Misuse
Intentional misuse of the 911 system includes purposeful non-emergency
inquiry calls and prank calls.28 These calls present an enormous problem for 911
call centers.29 For example, in 2001, the San Diego Sheriff’s Department
estimated that more than half of its 911 calls were frivolous.30 Many people do
not understand what constitutes a true emergency; thus, they call 911 about
matters that require police attention but are not emergencies, such as reporting
that a car was broken into overnight or reporting a non-injury vehicle accident.31
19. State’s 911 Call Centers Overtaxed by Cell Calls, supra note 7.
20. RANA SAMPSON, U.S. DEP’T OF JUSTICE, MISUSE AND ABUSE OF 911, at 2 (2004), available at
http://www.cops.usdoj.gov/pdf/pop/e06021603.pdf (on file with the McGeorge Law Review).
21. Id.
22. Id.
23. Id. at 3.
24. ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 1976, at 7 (Apr. 15,
2008).
25. SAMPSON, supra note 20, at 4.
26. Id.
27. Id. (“If a caller hangs up, many agencies conduct callbacks or dispatch officers to determine if a
police or medical emergency exists.”).
28. Id. at 5.
29. Id.
30. ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 1976, at 5 (Apr. 15,
2008).
31. SAMPSON, supra note 20, at 5.
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Others call 911 to inquire about matters entirely unrelated to police emergency
services, such as asking for directions or about traffic on the highway.32 One
caller even dialed 911 to ask a dispatcher to assist him in determining whether he
had a valid email address.33
Due to the outdated technology that most 911 call centers use, it is nearly
impossible to track the location and identity of callers who misuse the 911
system from a cell phone.34 Many cell phones do not send location information to
dispatchers when callers dial 911, and most 911 call centers do not have the
appropriate technology to receive location information from cell phone carriers.35
For example, the CHP has been unable to locate a Vallejo, California man who
placed approximately two thousand prank calls to 911, reporting fake
emergencies and summoning police officers and firefighters to locations where
no emergency existed.36 The lack of a comprehensive database that documents
calls made by a single user to different call centers throughout the state hinders
authorities’ ability to track misuse.37 The combined effects of outdated 911
technology, an inadequate misuse tracking system, and the proliferation of cell
phone use has created a situation in which emergency services are less readily
accessible, leading to potentially devastating consequences for those who need
help the most.38
B. Current California Law
Section 653x of the California Penal Code, one of the first California statutes
that addressed explicit penalties for misusing the 911 telephone system, provides
32. State’s 911 Call Centers Overtaxed by Cell Calls, supra note 7; see also SAMPSON, supra note 20, at
5 (“Others call 911 to ask about non-police-related matters (e.g., the time of a football game, the directions to a
local event, the exact time of day, or the time of garbage pickups).”). There have even been allegations of
misuse of the Washington D.C. 911 system by Joe McCain, the brother of John McCain:
Operator: 911 state your emergency
Caller: It’s not an emergency, but do you know why on one side at the damn drawbridge of 95 traffic
is stopped for 15 minutes and yet traffic’s coming the other way?
Operator: Sir, are you calling 911 to complain about traffic? (pause)
Caller: “(Expletive) you.” (caller hangs up)
Joe McCain Allegedly Calls 911 To Complain About Traffic, ABC7, Oct. 24, 2008, http://www.wjla.com/
news/stories/1008/563913.html (on file with the McGeorge Law Review).
33. Benoit Phony 911 Call Bill Heads to Senate, CAL. CHRON., May 1, 2008, http://www.
californiachronicle.com/articles/view/60428 (on file with the McGeorge Law Review).
34. CAL. PERFORMANCE REVIEW COMM’N, supra note 8, at 1403-04.
35. See Lopez & Connell, supra note 15 (“The difficulty in pinpointing the location of cellphone callers
has long been recognized.”).
36. Demian Bulwa, Crank Caller Tying Up 911 Dispatchers, Cops with Fake Emergencies, S.F.
CHRON., Sept. 3, 2007, at D-6. Authorities want to prosecute the man, but they have been unable to locate him
because he calls 911 from a cell phone that was donated by a charity group to the homeless. Id.
37. See CAL. PERFORMANCE REVIEW COMM’N, supra note 8, at 1405 (recommending standardized
databases so information and data can be shared).
38. Lopez & Connell, supra note 15; CAL. PERFORMANCE REVIEW COMM’N, supra note 8, at 1403-04.
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that “[a]ny person who telephones the 911 emergency line with the intent to
annoy or harass another person is guilty of a misdemeanor” punishable by up to a
one thousand dollar fine, six months in jail, or both.39 The statute also
specifically defines “the intent to annoy or harass” as “repeated calls over a
period of time, however short, that are unreasonable under the circumstances.”40
In 2004, the California Legislature enacted Chapter 295, adding section 653y
to the Penal Code.41 This statute was meant to address calls made to the 911
system, such as non-emergency inquiry calls, that fall below the “intent to annoy
or harass” standard required under section 653x, but which still constitute misuse
of the 911 system.42 Under this section, “[a]ny person who knowingly allows the
use or who uses the 911 telephone system for any reason other than because of an
emergency is guilty of an infraction.”43 The agency that receives the 911 call may
issue a warning for a first and second violation.44 For a third violation, a $50 fine
may be issued; for a fourth violation, a $100 fine; and for any subsequent
violation, a $200 fine per violation.45 Proponents of this law hoped to reduce the
number of frivolous 911 calls by issuing citations and providing educational
materials to those who misused the system, but did not intend to annoy or
harass.46
III. CHAPTER 89
Chapter 89 increases fines for knowingly using or allowing the use of the 911
telephone system for non-emergency purposes.47 The public safety entity that
receives the call shall issue a written warning for the first violation.48 Chapter 89
eliminates the second warning and authorizes the public safety entity to issue
citations with fines for all subsequent violations.49 The fine for a second violation
39. CAL. PENAL CODE § 653x(a) (West 1999).
40. Id. § 653x(b).
41. Id. § 653y.
42. See ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 911, at 3 (Jan. 13,
2004) (“This bill reduced the number of nuisance calls being made to the 911 system.”).
43. CAL. PENAL CODE § 653y(a). For the purposes of this section, an “emergency” is defined as “any
condition in which emergency services will result in the saving of a life, a reduction in the destruction of
property, quicker apprehension of criminals, or assistance with potentially life-threatening medical problems, a
fire, a need for rescue, an imminent potential crime, or a similar situation in which immediate assistance is
required.” Id. § 653y(c).
44. Id. § 653y(a)(1).
45. Id. § 653y(a)(2)(A)-(C).
46. See ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 911, at 3 (Jan. 13,
2004) (“By making these calls an infraction and providing educational materials upon the first offense,
individuals that have a problem using the 911 system for frivolous calls can be better educated on its proper
use.”).
47. CAL. PENAL CODE § 653y (amended by Chapter 89).
48. Id. § 653y(a)(1) (amended by Chapter 89).
49. Id. § 653y(a)(2) (amended by Chapter 89).
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is $50; a third violation is $100; and any subsequent violation is $250.50 Each
fine is also subject to a penalty assessment of 270%, increasing the fines to $185,
$370, and $925 respectively.51 Courts may reduce the fines for those who
demonstrate an inability to pay.52
IV. ANALYSIS
A. Proponent Arguments
Many California agencies strongly support Chapter 89.53 Proponents believe
that taking away a warning and increasing fines for misusing the 911 system will
act as a deterrent, discouraging callers from intentionally using 911 for frivolous
reasons and opening up the 911 phone lines for those who truly need emergency
services.54 Chapter 89 will have no impact on the number of unintentional
phantom calls received by 911, focusing instead on deterring intentional nonemergency inquiries and prank calls.55 According to Chapter 89’s author,
50. Id. § 653y(a)(2)(A)-(C) (amended by Chapter 89).
51. SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 1976, at K-M (June 10,
2008). Penalty assessments are required to fund certain projects and services run by the state. Different codes
allocate a percentage of fines into a certain funding stream. Applicable penalty assessments to Chapter 89
include:
Penal Code 1464 Assessment: ($10 for every $10 in fines)
Penal Code 1465.7 Assessment: (20% surcharge)
Penal Code 1465.8 Assessment: ($20 fee per fine)
Government Code 76000 Assessment: ($7 for every $10 in fines)
Government Code 70372 Assessment: ($5 for every $10 in fines)
Government Code 76104.6 Assessment: ($1 for every $10 in fines)
Government Code 7600.5 Assessment: ($2 for every $10 in fines).
E-mail from Scott Seekatz, Assembly Fellow, Office of Assembly Member John Benoit, Cal. State
Assembly, to author (June 14, 2008, 13:35:00 PST) (on file with the McGeorge Law Review).
52. CAL. PENAL CODE § 653y(a)(2) (amended by Chapter 89).
53. Agencies that support Chapter 89 include the San Bernardino County Sheriff’s Department, the Los
Angeles County Sheriff’s Department, the Los Angeles County District Attorney’s Office, the California State
Sheriff’s Association, and the California Chapter of the National Emergency Number Association. See Letter
from Gary S. Penrod, Sheriff, San Bernardino County Sheriff’s Dep’t, to John Benoit, Assembly Member, Cal.
State Assembly (Apr. 8, 2008) (on file with the McGeorge Law Review) (expressing support for Chapter 89);
Letter from Leroy D. Baca, Sheriff, L.A. County Sheriff’s Dep’t, to John Benoit, Assembly Member, Cal. State
Assembly (May 2, 2008) (on file with the McGeorge Law Review) (same); Letter from Steve Cooley, Dist.
Att’y, L.A. Dist. Att’ys Office, to John Benoit, Assembly Member, Cal. State Assembly (May 6, 2008) (on file
with the McGeorge Law Review) (same); Letter from Nick Warner, Legislative Dir., Warner & Pank, LLC, on
behalf of Cal. State Sheriff’s Ass’n, to John Benoit, Assembly Member, Cal. State Assembly (May 28, 2008)
(on file with the McGeorge Law Review) (same); Letter from Nick Warner, Legislative Dir., Warner & Pank,
LLC, on behalf of Cal. Chapter of the Nat’l Emergency No. Ass’n, to John Benoit, Assembly Member, Cal.
State Assembly (May 28, 2008) (on file with the McGeorge Law Review) (same).
54. SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 1976, at H (June 10, 2008).
55. Id. at K (citing Senate COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 911, at N
(June 1, 2004)). Because Chapter 89 does not change the effect of Section 653y and only raises fines, it
similarly will have no impact on unintentional phantom calls. See ASSEMBLY COMMITTEE ON PUBLIC SAFETY,
COMMITTEE ANALYSIS OF AB 1976, at 5 (Apr. 15, 2008) (“This bill focuses on 911 calls made for any reason
491
2009 / Penal
Assemblymember John Benoit, “[o]ur current two-warning system does not
effectively deter non-emergency 911 calls . . . . A one-warning approach will
better deter this dangerous behavior by more immediately imposing significant
sanctions upon illegal callers.”56 The CHP alone takes over 800,000 nonemergency inquiry calls each year, so Chapter 89, if effectively implemented,
could still significantly reduce the call volume at dispatch centers throughout
California even though it does not address the problem of phantom calls.57
B. Implementation and Enforcement Difficulties
1. Failure to Implement Current Law
Although no organization has officially opposed Chapter 89, the Senate
Committee on Public Safety raised concerns that simply increasing citation fines
would not prevent 911 misuse because it is unclear if the citation system under
current law has ever been implemented.58 The California Performance Review
(CPR) recently found that “[w]hile state law provides for fines for individuals
misusing 911 for non-emergency calls, it has never been implemented.”59
Furthermore, the Senate Public Safety Committee Analysis stated that “[a]t the
time of this writing, it is unclear what impact the current law that took effect in
January 2005 has had on non-emergency 911 calls. Agencies contacted were not
able to provide information on how many warnings or citations were given as
that information was not readily available.”60 Clearly, citations must be issued
and enforced if Chapter 89 is to have any impact on 911 call volumes.61
However, if the citation system under current law is not implemented at 911
dispatch centers, simply raising fines will be ineffective.62
other than an emergency and could include prank calls and non-emergency inquiry calls.”); SAMPSON, supra
note 20, at 5 (suggesting that the phantom call problem can only be effectively resolved by working with the
Federal Communications Commission and wireless carriers to eliminate automatic 911 dialing).
56. SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 1976, at H (June 10, 2008).
57. Id. at K.
58. Id. at M.
59. CAL. PERFORMANCE REVIEW COMM’N, supra note 8, at 1403. Governor Arnold Schwarzenegger
created the California Performance Review by Executive Order in 2004 to examine and assess the California
state government and recommend reforms. “CPR’s mandate was to formulate and recommend practical changes
to government agencies, programs and operations to reduce total costs of operations, increase productivity,
improve services and make government more responsible and accountable to the public.” California
Performance Review Questions and Answers, http://cpr.ca.gov/about_cpr/performance_review_q_and_a.html
(last visited Jan. 1, 2009) (on file with the McGeorge Law Review).
60. SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 1976, at K (June 10, 2008).
61. See id. at H (“A one-warning approach will better deter this dangerous behavior [of calling 911 for
non-emergencies] by more immediately imposing significant sanctions upon illegal callers.”).
62. See id. at M (“Should the penalties for using 911 for a non-emergency call be increased when the
impact of the existing law is unclear?”).
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According to the CHP, implementation of the citation system under current
law and Chapter 89 requires little effort or money.63 “Technology is available in
CHP Communication Centers that will allow dispatchers to be able to press a
single key that flags a recording of a call as a non-emergency or nuisance call.”64
At the end of a shift, dispatchers decide whether to forward the flagged nonemergency call information to their supervisors.65 The supervisors then decide
which cases of misuse to forward to CHP investigators, who determine if a
warning or citation is necessary given the circumstances of each case.66
2. Technical Issues
Enforcement of current law and Chapter 89, however, poses certain technical
difficulties for 911 dispatch centers.67 Different call centers maintained by
different agencies within the state do not have compatible 911 systems.68 For
instance, the CHP system is not integrated with other state and local agencies.69
There is no “interconnected network of 911 emergency answering systems” in
California.70 As a result, 911 dispatch centers are often unable to transfer call
data and similar information to other dispatch centers.71 Due to this
incompatibility, there is no centralized documentation system that can record
phone numbers of callers who misuse the 911 system throughout California.72
The CPR suggested that the Office of California Emergency Communications in
the Department of General Services standardize databases and develop data
logging standards so that call centers can share data and information.73
3. Arbitrary and Inconsistent Enforcement
Until a centralized documentation system is developed, it will be difficult, if
not impossible, to track callers on a statewide basis who misuse the 911 system
from different areas.74 A non-emergency call received in Los Angeles can be
documented at that particular dispatch center, but if the caller makes another non63. SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 911, at I-J (June 1, 2004).
64. Id. at I.
65. Id.
66. Id.
67. See CAL. PERFORMANCE REVIEW COMM’N, supra note 8, at 1403-04 (describing inadequacies in the
current CHP 911 dispatch system).
68. Id. at 1403.
69. Id.
70. Id. at 1404.
71. Id. at 1403.
72. Id.
73. Id. at 1405.
74. See SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 911, at E (June 1, 2004)
(stating that in order to implement this bill, each communication center will have to “devise and implement their
own internal systems for how to document non-emergency calls”).
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2009 / Penal
emergency call in Sacramento, the Sacramento dispatch center will most likely
be unaware of the first call in Los Angeles.75 This documentation problem leads
to concerns about arbitrary enforcement of Chapter 89.76 Under Chapter 89, each
individual agency has the discretion to issue a citation in each case of misuse.77
Therefore, the law could be applied differently depending on which dispatch
center receives the non-emergency call.78 Furthermore, because there is currently
no system in place to facilitate the sharing of data, one dispatch center could be
issuing a third or fourth citation to a chronic non-emergency caller, but a
different dispatch center could issue the same person a first warning because that
center is unaware of the other calls.79 This arbitrary and inconsistent enforcement
could minimize Chapter 89’s deterrent effect.80
4. Educating the Public
Although a centralized documentation system would provide the most
consistent enforcement of Chapter 89, individual dispatch centers can still issue
the citations so that more callers become cognizant of the law’s existence and the
resulting ramifications of making non-emergency calls to 911.81 Chapter 89’s text
even suggests that dispatch agencies send educational materials about the 911
system together with the first warning citation.82 Using Chapter 89 as a tool to
educate the public about what constitutes a true emergency and the consequences
75. CAL. PERFORMANCE REVIEW COMM’N, supra note 8, at 1403 (“Emergency 911 answering centers,
called Public Service Access Points (PSAP), are not able to transfer data between different PSAP due to
inadequate hardware and a lack of standard information format.”).
76. See SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 911, at G (June 1, 2004)
(“[D]iscretion will be used by local and CHP communication center dispatchers, dispatch supervisors, and
investigators regarding which non-emergency inquiry calls should be cited as violations. It is unclear whether
this discretion will allow for fair and uniform implementation of the law.”).
77. CAL. PENAL CODE § 653y(a)(1) (amended by Chapter 89).
78. See SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 1976, at J (June 10,
2008) (“[The Committee Analysis of AB 911] raised concerns about the potential arbitrariness as to which nonemergency calls would be cited because the standards would be set by the individual agencies as to what nonemergency call would result in a warning or ultimately a citation.”).
79. See CAL. PERFORMANCE REVIEW COMM’N, supra note 8, at 1403 (“Emergency 911 answering
centers, called Public Service Access Points (PSAP), are not able to transfer data between different PSAP due to
inadequate hardware and a lack of standard information format.”).
80. See SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 1976, at H (June 10,
2008) (stating the author’s opinion that the deterrent effect of Chapter 89 lies in the immediate imposition of
significant sanctions on illegal callers).
81. See SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 911, at E (June 1, 2004)
(“By making non-emergency calls to 911 an infraction and providing educational materials to first-time
offenders, individuals that have a problem using the 911 system for frivolous calls can be better educated on its
proper use.”).
82. See CAL. PENAL CODE § 653y(a)(1) (amended by Chapter 89) (“The law enforcement agency may
provide educational materials regarding the appropriate use of the 911 telephone system.”).
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of misusing 911 could effectively reduce the large number of non-emergency
calls made to 911.83
Educating the public is also necessary to avoid deterring those who use the
911 system in good faith. Some individuals may be dissuaded from calling 911
due to fear of incurring fines.84 This fear may delay emergency assistance when a
true emergency does exist.85 Chapter 89 addresses this problem by providing that
only those who “knowingly” abuse the 911 system are subject to fines.86 Thus,
those who call 911 under the mistaken but good faith belief that a true emergency
exists will not be fined.87 Informing the public that the law will not punish good
faith 911 callers is crucial to preventing a potentially life-endangering deterrent
effect.
C. A Statewide 311 System: A More Effective Alternative?
To bring about a successful reduction in non-emergency 911 calls, Chapter
89 could also be enforced concurrently with the development of a statewide 311
system.88 In February 1997, the Federal Communications Commission (FCC)
reserved 311 as a national voluntary number for non-emergency calls.89 311
systems can alleviate 911 call volumes by providing citizens with a memorable
and easily accessible phone number to access government agencies and police
departments in non-emergency situations.90 In cities nationwide, 311 systems
have significantly reduced the number of calls made to the 911 system.91 The
83. See SAMPSON, supra note 20, at 31 (suggesting that non-emergency calls to 911 could be reduced by
educating the public about how to use 911 appropriately); ASSEMBLY COMMITTEE ON PUBLIC SAFETY,
COMMITTEE ANALYSIS OF AB 1976, at 5 (Apr. 15, 2008) (stating that CHP receives approximately 800,000
non-emergency calls a year and that almost half of the 911 calls made to the San Diego Sheriff’s Department in
2001 were frivolous).
84. See ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 1976, at 9-10 (Apr.
15, 2008) (“If an individual is threatened by an actual emergency and he or she feels he or she might be
subjected to penalties if the individual misuses the system, the individual may not call 911.”).
85. Id.
86. CAL. PENAL CODE § 653y(a) (amended by Chapter 89).
87. Id. § 7 (West 1999) (“The word ‘knowingly’ imports only a knowledge that the facts exist which
bring the act or omission within the provisions of this code. It does not require any knowledge of the
unlawfulness of such act or omission.”).
88. See CAL. PERFORMANCE REVIEW COMM’N, supra note 8, at 1403 (“To take the burden off the
wireless 911 system, and to improve service to both residents and tourists, California should establish two call
centers so that wireless callers can dial ‘311’ for their nonemergency calls.”); ASSEMBLY COMMITTEE ON
PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 1976, at 6 (Apr. 15, 2008) (“‘311’ has been proposed as an
alternative for calls which might not fall into the ‘emergency’ category, but are nonetheless important.”).
89. U.S. DEP’T OF JUSTICE, 311 FOR NON-EMERGENCIES: HELPING COMMUNITIES ONE CALL AT A TIME,
Nov. 8, 2007, http://www.cops.usdoj.gov/html/cd_rom/tech_docs/pubs/311forNonEmergencies.pdf (on file
with the McGeorge Law Review).
90. Id.
91. Id. (stating that Baltimore, Maryland had a fifty percent reduction in 911 call volume after
implementing a 311 system; Houston, Texas, had a fourteen percent decrease in non-emergency 911 call
volume; and citizens in Florida were able to utilize 311 for information about services available after
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2009 / Penal
CPR suggested that California implement a statewide 311 system.92 Currently, in
California, only San Francisco, San Jose, Sacramento, Anaheim, Los Angeles,
and Riverside have successfully implemented 311 systems.93 The implementation
of a statewide system may be inexpensive because it can use the same
“communications backbone” as the 911 system.94 Furthermore, it can utilize
older 911 technology equipment that has been phased out, and dispatchers can be
cross-trained to answer both 911 and 311 calls.95 Establishing a statewide 311
system may be a cost-effective way to provide more citizen access to government
services and information while keeping 911 telephone lines open to those who
truly need emergency services.96
V. CONCLUSION
The 911 system provides an invaluable service to those involved in dire
situations by dispatching immediate emergency assistance.97 Those who call 911
for information regarding non-emergencies threaten the system’s availability and
efficiency.98 Chapter 89 seeks to ensure that 911 telephone lines remain open for
those in danger by increasing penalties for misuse or abuse of the 911 system.99
Whether these penalties will be implemented or enforced in California remains in
question.100 If implemented, the penalties can ease the burden on 911 dispatchers
by educating the public about what constitutes a real emergency and by raising
funds to maintain and acquire more advanced 911 systems that can handle the
hurricanes).
92. See CAL. PERFORMANCE REVIEW COMM’N, supra note 8, at 1407-08 (discussing the need to
implement at 311 system).
93. 311 Directory, State of California, http://www.ca.gov/311directory.html (last visited Jan. 1, 2009)
(on file with the McGeorge Law Review).
94. CAL. PERFORMANCE REVIEW COMM’N, supra note 8, at 1408-09.
95. Id.
96. U.S. DEP’T OF JUSTICE, supra note 89.
97. See Benoit Phony 911 Call Bill Heads to Senate, supra note 33 (“911 is a critical emergency service
that has provided life-saving support to Americans all over the country.” (quoting Assemblymember John
Benoit)); CAL. PERFORMANCE REVIEW COMM’N, supra note 8, at 1403 (“The United States 911 system handles
500,000 calls daily or about 183 million annually.”).
98. See Lopez & Connell, supra note 15 (stating that partly due to callers making non-emergency calls
to 911, nearly half the 911 calls to CHP in the Los Angeles area between January 2007 and July 2007 were
abandoned because the caller hung up after not being able to reach a dispatcher because the lines were busy);
CAL. PERFORMANCE REVIEW COMM’N, supra note 8, at 1403 (“CHP 911 operators are regularly overloaded
during peak commute hours and callers often get a busy signal or are put on hold for up to ten minutes.”).
99. ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 1976, at 4-5 (Apr. 15,
2008).
100. See CAL. PERFORMANCE REVIEW COMM’N, supra note 8, at 1403 (“While state law provides for
fines for individuals misusing 911 for non-emergency calls, it has never been implemented.”); SENATE
COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 1976, at K (June 10, 2008) (“At the time of this
writing, it is unclear what impact the current law that took effect in January 2005 has had on non-emergency
911 calls. Agencies contacted were not able to provide information on how many warnings or citations were
given as that information was not readily available.”).
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rapidly increasing volume of calls from wireless phones.101 With this
straightforward penalty system firmly in place, local law enforcement agencies
and the CHP possess a tool to help fix the problems plaguing overwhelmed 911
dispatch centers. First, however, they must choose to use it.
101. See CAL. PERFORMANCE REVIEW COMM’N, supra note 8, at 1406 (suggesting that improvements to
the 911 system in California may be partially funded by revenue generated by fines imposed on non-emergency
calls); SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 911, at E (June 1, 2004) (“By
making non-emergency calls to 911 an infraction and providing educational materials to first-time offenders,
individuals that have a problem using the 911 system for frivolous calls can be better educated on its proper
use.”).
497
Chapter 119: Bump Keys Break into the Penal Code
David Wiksell
Code Section Affected
Penal Code § 466 (amended).
SB 1554 (Dutton); 2008 STAT. Ch. 119.
I. INTRODUCTION
The popular Geico car insurance slogan, “[s]o easy a caveman can do it,”1
could also be used to describe how easy it is to use a bump key to circumvent a
lock.2 The bump key, which is essentially a standard key with all of the cuts
shaved down to the maximum depth,3 can be inserted almost all of the way into a
lock.4 The lock can then be opened by knocking the back of the bump key with
any tool that will apply enough force, such as a hammer.5
In addition to being very easy to use,6 a bump key leaves almost no evidence
of its use.7 For example, over a three-day stretch in September of 2007, more
than twenty apartments were burglarized in a northern Texas town; officials
believed that the perpetrators used bump keys to gain entry into the apartments.8
However, with little or no indication of lock tampering, it was difficult to
determine “whether a bump key was [indeed] used or whether the property owner
simply left the[] door unlocked.”9 Because most homeowner’s insurance policies
1. Laura Petrecca & Theresa Howard, Advertising/Marketing: From Caveman to Cult Hit, USA TODAY,
May 7, 2007, http://www.usatoday.com/money/advertising/2007-05-07-ad-track_N.htm?csp=34 (on file with
the McGeorge Law Review).
2. See Are Your Locks ‘Bump’ Proof? Key Sold Online May Give Thieves Quick Access to Your Home,
S. FLA. SUN-SENTINEL, May 24, 2008, at 1B [hereinafter Are Your Locks ‘Bump’ Proof?] (describing how lockbumping “can be accomplished by a novice”).
3. See Barry Wels & Rop Gonggrijp, Bumping Locks, Jan. 26, 2005, at 4, http://www.toool.nl/images/
7/75/Bumping.pdf (on file with the McGeorge Law Review) (“A bump key is a key in which all the cuts are at
maximum depth.”).
4. See id. at 5 (explaining that there must be a small gap between the lock and the shoulder of the bump key).
5. Id. (“[A]nything with not too much weight and preferably also some swing, such as a dull bread-knife
held by the blade or the handle of the hammer could . . . work.”).
6. See Are Your Locks ‘Bump’ Proof?, supra note 2 (explaining the few steps it takes to open a lock with
a bump key); Wels & Gonggrijp, supra note 3, at 1 (describing how a bump key can open a variety of locks
“without substantial damage, usually in under [thirty] seconds, with little training and using only inexpensive
tools”).
7. Emma Cullwick, Homes at Risk with Advice on Internet: CRIME: Warning as Videos Which Show
Lock Picking Techniques Go on Sale, BIRMINGHAM MAIL (U.K.), Apr. 10, 2008, at 32 (“[A] ‘bump’ key can
easily open a locked door without leaving a trace of damage.”).
8. Wendy Hundley, ‘Bump Key’ Tool All Burglars 8eed to Stroll In, DALLAS MORNING NEWS, Oct. 5,
2007, http://www.dallasnews.com/sharedcontent/dws/news/localnews/stories/100507dnmetbumpkey.3569b9d.
html (on file with the McGeorge Law Review) (“Lewisville police believe ‘bump keys’ were used in more than
[twenty] apartment burglaries that occurred during a three-day period in September.”).
9. Id.
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McGeorge Law Review / Vol. 40
do not cover burglaries that leave no evidence of forced entry, a burglary
resulting from use of a bump key may leave homeowners uncompensated for
their loss.10
Because bump keys can open more than ninety percent of locks,11 the
legislature decided to categorize the bump key as a burglary tool. Chapter 119
adds bump keys to the list of burglary tools, making it a crime to possess one
with criminal intent to break and enter.12
II. BACKGROUND
The technique of bumping a lock open has been around “for at least the past
fifty years,”13 but until recently, only locksmiths and other professionals knew of
the technique.14 Today, the bump key is attracting a lot of attention in the media
and on the Internet.15 For example, a quick YouTube search reveals more than
thirty different videos demonstrating how to use a bump key.16 In addition, many
websites sell bump keys, some for as little as one dollar.17 To obtain a bump key,
however, one does not need to purchase a specially-made key through the
internet; one can make a bump key by filing down all of the cuts on a regular key
to its deepest depth.18 This practice makes the bump key readily available to
nearly anyone.19
Additionally, bump keys work on nearly every tumbler pin lock.20 A tumbler
pin lock has springs that, when properly aligned by the correct key, allow the
10. Cullwick, supra note 7; Experts: Bump Key Burglaries a Growing Threat, KCRA.COM, Feb. 9,
2007, http://www.kcra.com/news/10966483/detail.html (on file with the McGeorge Law Review).
11. See Hundley, supra note 8.
12. See CAL. PENAL CODE § 466 (amended by Chapter 119) (“Every person having upon him or her in
his or her possession a picklock, crow, . . . bump key[,] . . . or other instrument or tool with intent feloniously to
break or enter into any building . . . is guilty of a misdemeanor.”).
13. Wels & Gonggrijp, supra note 3, at 4.
14. See Marc Weber Tobias, The Lockdown: Locked, But 8ot Secure (Part I), ENGADGET, Aug. 25,
2006, http://features.engadget.com/2006/08/24/the-lockdown-locked-but-not-secure-part-i/ (on file with the
McGeorge Law Review).
15. See Hundley, supra note 8 (noting that “‘how–to’ videos that illustrate how easily doors can be
opened through ‘lock-bumping’” have spread rapidly over the Internet and in the media).
16. See YouTube: Broadcast Yourself, http://www.youtube.com/results?search_query=bump+key&
search_type= (last visited Dec. 30, 2008) (on file with the McGeorge Law Review) (returning numerous videos
instructing people on the use of bump keys).
17. Ryan Block, Bump Keying: $1 Keys Open Any Lock, ENGADGET, Aug. 7, 2006, http://www.
engadget.com/2006/08/07/bump-keying-1-keys-open-any-lock/ (on file with the McGeorge Law Review).
18. Hundley, supra note 8 (explaining how a regular key can be turned into a bump key by filing each
cut to its maximum depth).
19. See id. (discussing the availability of bump keys through the modification of a regular key or by
purchasing them over the Internet).
20. See Block, supra note 17 (explaining how tumbler pin locks can be opened “quietly, quickly, and
easily” with a bump key); Tobias, supra note 14 (explaining how a tumbler pin lock works and how a bump key
can knock the pins to open the lock).
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2009 / Penal
cylinder to turn and the lock to be opened.21 A bump key works by knocking the
pins upward for a split second, allowing the cylinder to turn freely, and opening
the lock.22 This process can take as little as three seconds, and leaves hardly any
visible signs of tampering.23
Because bump keys are easily obtained and created, and because they are an
effective and discreet tool, the recognition of a bump key as a burglary tool is
helpful to law enforcement.24 The Legislature enacted Chapter 119 for this
precise reason.
III. CHAPTER 119
Existing law provides that every person in possession of specified tools,25
with the intent to feloniously break or enter into any building or other specified
place,26 is guilty of a misdemeanor.27 Chapter 119 adds bump keys to the list of
burglary tools and other items that comprise an element of the offense.28
IV. ANALYSIS OF CHAPTER 119
Chapter 119 eliminates ambiguity in the current provision of the Penal Code
by adding bump keys to the list of burglary tools. Although it is possible that
prior law already treated the bump key as a burglary tool, subjecting those who
use it to commit burglary to a penalty, it was not specifically enumerated as
such.29 Indeed, prior to Chapter 119’s enactment, the Penal Code listed fifteen
specific burglary tools, as well as “other instrument[s] or tool[s]” intended to be
used in a burglary.30 In two cases—People v. Kelly31 and Cook v. Superior
Court32 —the California appellate courts held that a device is a burglary tool if it
is similar in design and application to a burglary tool that is specifically listed in
21. Tobias, supra note 14.
22. Id.
23. Experts: Bump Key Burglaries a Growing Threat, supra note 10.
24. See SENATE PUBLIC SAFETY COMMITTEE, COMMITTEE ANALYSIS OF SB 1554, at G (Apr. 15, 2008)
(“Because of the increasing use around the state and nationally, and the additional attention given to bump keys
in the media, it would be helpful to law enforcement to add the bump keys to the code language.”).
25. See CAL. PENAL CODE § 466 (West 1999 & Supp. 2008) (Specified tools and items are “a picklock,
crow, keybit, crowbar, screwdriver, vise grip pliers, water-pump pliers, slidehammer, slim jim, tension bar, lock
pick gun, tubular lock pick, floor-safe door puller, master key, ceramic or porcelain spark plug chips or pieces,
or other instrument or tool”).
26. See id. (including as other specified places a “railroad car, aircraft, vessel, trailer coach, or vehicle as
defined in the Vehicle Code”).
27. Id.
28. Id. (amended by Chapter 119).
29. SENATE PUBLIC SAFETY COMMITTEE, COMMITTEE ANALYSIS OF SB 1554, at G (Apr. 1, 2008).
30. CAL. PENAL CODE § 466.
31. 154 Cal. App. 4th 961, 965-69, 66 Cal. Rptr. 3d 104, 107-10 (1st Dist. 2007).
32. 4 Cal. App. 3d 822, 828, 84 Cal. Rptr. 664, 668-69 (4th Dist. 1970).
500
McGeorge Law Review / Vol. 40
Penal Code section 466.33 Because the bump key is very similar in design and
application to a master key, key bit, or a lock pick device, all of which are
specifically listed in Penal Code section 466,34 “a bump key may well [have
been] included in the [prior] statutory definition of a burglary tool.”35
Penal Code section 466 continues to provide that any person who “make[s],
alter[s], or repair[s] any instrument or thing, knowing or having reason to believe
that it is intended to be used in committing a misdemeanor or felony, is guilty of
a misdemeanor.”36 Thus, if a person makes or alters a bump key with the
requisite criminal intent, he or she may have violated Penal Code section 466,
even prior to Chapter 119’s amendment of the Code section.37
However, even if it is possible to interpret the former version of Penal Code
section 466 to include the bump key in the list of burglary tools, Chapter 119
clarifies and codifies that presumptive interpretation by explicitly including the
bump key in the list of burglary tools. This clarification aids law enforcement
agencies, and is supported by many public and private groups, including the
California Peace Officers’ Association, the California Police Chiefs’ Association,
and the California State Sheriffs’ Association.38
Law enforcement agencies nationwide are concerned about the increase in
the use of bump keys in burglaries.39 Because “bumping” offers a rapid and
potentially covert method of entry, leaving little evidence behind,40 police say
that it is often difficult to determine who committed the crime unless the criminal
is caught in the act.41 Many law enforcement agencies support the clarification of
Penal Code section 466 because it will help police, prosecutors, and other
affected government agencies to take a more proactive stance against the
criminal possession and use of bump keys.42 Now, a burglar who possesses a
bump key with the criminal intent to break and enter will not be able to avoid
prosecution because Penal Code section 466’s list of burglary tools lacked
33. See SENATE PUBLIC SAFETY COMMITTEE, COMMITTEE ANALYSIS OF SB 1554, at G-H (Apr. 1, 2008)
(explaining the appellate decisions of Kelly, 154 Cal. App. 4th 961, 66 Cal. Rptr. 3d 104, and Cook, 4 Cal. App.
3d 822, 84 Cal. Rptr. 664).
34. Id. at H.
35. Id.
36. CAL. PENAL CODE § 466.
37. See SENATE PUBLIC SAFETY COMMITTEE, COMMITTEE ANALYSIS OF SB 1554, at H (Apr. 1, 2008)
(“Arguably, any person who, with the requisite criminal knowledge or intent, makes or alters a bump key has
violated Penal Code Section 466 under current law.”).
38. See ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF SB 1554, at 2-3 (June
10, 2008) (listing the groups in support of SB 1554: “California Alarm Association, California Apartment
Association, California Crime Prevention Officers Association, California District Attorneys Association,
California [P]robation, Parole and Correctional Association, California State Sheriffs’ Association, Crime
Victims United of California, Peace Officers Research Association of California, Sacramento County Sheriff’s
Department, Watsonville Police Department, 12 Private Citizens”).
39. Experts: Bump Key Burglaries a Growing Threat, supra note 10.
40. Hundley, supra note 8.
41. Id.
42. SENATE PUBLIC SAFETY COMMITTEE, COMMITTEE ANALYSIS OF SB 1554, at 2 (Apr. 15, 2008).
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2009 / Penal
sufficient specificity.
V. CONCLUSION
While the bump key is not a new tool, its use has increased nationwide.43
This increase could be attributed to the increased public awareness from the
media and the Internet regarding how to use a bump key, as well as the relative
ease of its purchase and creation.44 Due to its rise in popularity, the California
Legislature recognized that “[t]he bump key has the potential to become an
increasingly common burglary” tool.45 Chapter 119 addresses this concern by
ensuring that the bump key is officially recognized as a burglary tool in Penal
Code section 466.
43.
44.
45.
2008).
502
Id.
Id.
ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF SB 1554, at 2 (June 10,
Abusers Beware: Legislators Up Penalty for Violating a
Protective or Stay-Away Order Involving Elder or
Dependent Adults
Derrick Thomas
Code Section Affected
Penal Code § 166 (amended).
AB 1424 (Davis); 2008 STAT. Ch. 152.
I. INTRODUCTION
Elder and dependent adult abuse occurs in numerous forms, affects millions
nationwide, and is severely underreported.1 A common form of abuse occurs
when an adult child moves back in with an elderly parent to serve as a caretaker,2
but ends up financially exploiting the aging parent.3 Such was the case for one
seventy-three year old female resident of Merced, California, whose forty-nine
year-old daughter, along with her thirty-five year-old boyfriend, moved back
home from Washington in 2006 to care for her.4 The systematic theft went
unnoticed until the elderly woman’s landlord reported a series of bounced checks
to other members of the woman’s family, who immediately contacted the Merced
County Sheriff’s Department.5 During the ensuing investigation, the department
determined that the daughter and her boyfriend had stolen $30,000 in property,
$5,000 in cash, $9,600 in unauthorized credit-bank transactions, and had opened
$7,000 in new accounts without authorization.6 The Merced County District
Attorney wound up prosecuting the two culprits for embezzlement, forgery,
identity theft, and financial elder abuse.7
Unfortunately, criminal mistreatment of elders and dependent adults is on the
rise in California.8 In response to this growing problem, the California Legislature
1. See SafeState.org, Facts, http://safestate.org/index.cfm?navid=58 (last visited June 20, 2008) (on file
with the McGeorge Law Review) (stating that elder abuse manifests itself in many ways, affects approximately
two million elders each year, and that only one in fourteen cases of abuse are reported).
2. A “caretaker” is “any person who has the care, custody, or control of, or who stands in a position of
trust with, an elder or dependent adult.” CAL. PENAL CODE § 368(i) (West 1999).
3. See Doane Yawger, Two Charged with Elder Abuse, ELDER ABUSE, July 18, 2007, http://elder-abusecyberray.blogspot.com/2007/07/two-charged-with-elder-abuse.html (on file with the McGeorge Law Review)
(discussing an instance of elder abuse).
4. Id.
5. Id.
6. Id.
7. Id.
8. See Letter from Rockard Delgadillo, City Att’y, City of L.A., to Gloria Romero, Senator, Cal. State
Senate (June 11, 2007) [hereinafter Delgadillo letter] (on file with the McGeorge Law Review) (stating that
elder abuse in California is increasing).
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2009 / Penal
enacted Chapter 152 in an effort to distance abusers from elders and dependent adults
so that they may enjoy healthy lives.9
II. BACKGROUND
A. Defining “Elder” and “Dependent Adult”
Section 368 of the Penal Code (section 368) governs crimes against elders
and dependent adults.10 This section defines “elder” as “any person who is 65
years of age or older.”11 “Dependent adult” is defined as:
[A]ny person . . . between the ages of 18 and 64, who has physical or
mental limitations which restrict his or her ability to carry out normal
activities or to protect his or her rights, including, but not limited to,
persons who have physical or developmental disabilities or whose
physical or mental abilities have diminished because of age. “Dependent
adult” includes any person between the ages of 18 and 64 who is
admitted as an inpatient to a 24-hour health facility . . . .12
The key distinction between these two classes is age. To illustrate, a sixtythree year old woman with physical and mental limitations that restrict her ability
to carry out normal activities is legally classified as a dependent adult because
she is too young under the definition of “elder” as set forth in section 368.13
However, a sixty-five year-old woman with the same physical and mental
limitations is considered an “elder” under section 368 because she meets the age
threshold.14
B. What Is Elder or Dependent Adult Abuse?
According to the U.S. Department of Health and Human Services, elder or
dependent adult abuse occurs when the caregiver or any other person knowingly,
intentionally, or negligently commits an act that “causes harm or a serious risk of
harm to a vulnerable adult.”15 State laws defining abuse vary, but generally
encompass abuse that is physical, emotional, or sexual, or abuse that involves
9. Id.
10. See CAL. PENAL CODE § 368 (West 1999) (criminalizes specific conduct perpetrated against elders
or dependent adults and attaches corresponding prison sentences and fines).
11. Id. § 368(g).
12. Id. § 368(h).
13. See id. (classifying a dependent as a person between the ages of 18 and 64).
14. See id. § 368(g) (classifying an elder as a person 65 years or older).
15. U.S. Department of Health & Human Services, How Can I Recognize Elder Abuse?,
http://www.hhs.gov/faq/aging/911.html (last visited June 18, 2008) (on file with the McGeorge Law Review).
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McGeorge Law Review / Vol. 40
financial exploitation, neglect, or abandonment, or a combination of the above.16
Elder and dependent adult abuse affects men and women of all ethnic
backgrounds, and occurs in poor, middle-class, and upper-income households.17
C. Who Are the Abusers?
Elder abuse victims often live with their abusers, two-thirds of which are
family members who are usually either adult children or spouses.18 Because
family members comprise the bulk of offenders, the abuse is difficult to detect
and hard for victims to accept.19 “Other offenders may include other family and
old friends, newly developed ‘friends’ who intentionally prey on older adults,
and service providers in positions of trust.”20 Abuse also occurs at long-term care
facilities, such as nursing homes.21 At these sites “[e]mployees and temporary
staff who have direct contact with residents are the most frequent perpetrators.”22
Abusers often share similar characteristics.23 These include alcohol or drug
dependence, a history of domestic violence, mental illness, familial dysfunction,
economic pressure, and personal stress.24 Also, abusers often have longstanding
personality traits such as a volatile temper and a tendency to blame others.25 As
this expansive list demonstrates, there is no “one profile” of an abuser.26
D. A Statistical Perspective
“Statistics uncover a frightening picture of elder and dependent adult abuse
in California.”27 Estimates show that one out of every twenty elders is a victim of
16. Id. Physical abuse is defined as “inflicting, or threatening to inflict, physical pain or injury on a
vulnerable elder, or depriving the elder of a basic need”; emotional abuse is defined as “inflicting mental pain,
anguish, or distress on an elder through verbal or nonverbal acts”; sexual abuse is defined as “non-consensual
sexual contact of any kind; exploitation as the illegal taking, misuse, or concealment of funds, property, or
assets of a vulnerable elder”; neglect is defined as the “refusal or failure by those responsible to provide food,
shelter, health care or protection for a vulnerable elder”; and abandonment is defined as “the desertion of a
vulnerable elder by anyone who has assumed the responsibility for care or custody of that person.” Id.
17. Id.; Los Angeles County District Attorney’s Office, What Is Elder Abuse?, http://da.lacounty.gov/
seniors/abuse.htm (last visited Oct. 30, 2008) [hereinafter What Is Elder Abuse?] (on file with the McGeorge
Law Review).
18. SafeState.org, Facts, supra note 1; see also NAT’L CTR. ON ELDER ABUSE, 15 QUESTIONS &
ANSWERS ABOUT ELDER ABUSE 7 (2005), available at http://www.ncea.aoa.gov/NCEAroot/Main_Site/
pdf/publication/FINAL%206-06-05%203-18-0512-10-04qa.pdf (on file with the McGeorge Law Review).
19. NAT’L CTR. ON ELDER ABUSE, supra note 18, at 7.
20. Id.
21. Id.
22. Id.
23. Id.
24. Id.
25. Id.
26. Id.
27. SafeState.org, Elder & Dependent Adult Abuse, http://safestate.org/index.cfm?navid=11&show
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2009 / Penal
neglect or physical, psychological or financial abuse.”28 It is also estimated that
only one in five cases of abuse is reported statewide.29 This ratio sheds light on
the number of actual incidents of abuse. For instance, in 2000-2001, 75,843 cases
of elder abuse were reported in California.30 By 2005-2006, that figure grew to
93,517.31 Accordingly, approximately 380,000 and 468,000 actual incidents of
elder abuse occurred in 2000-2001 and 2005-2006, respectively.32
California’s booming senior population raises additional concerns.33
Presently, California has more than 3.7 million people age sixty-five or older—
the largest senior population in the nation, and a figure that is expected to double
by 2020.34 As this state’s elder population soars, incidents of abuse will likely
grow as well.35
In the nursing home context, “it is estimated that 43 percent of all 65-yearold people will use a nursing home at some time in their lives.”36 Each year in
California, approximately 132,000 elders are abused in nursing facilities;
however, this figure is likely to be significantly higher as only one in fourteen
cases is reported to authorities.37 In sum, these statistics indicate that elder abuse
is a serious problem in California, and that it is likely to persist considering the
rapidly expanding senior population and the overwhelming degree of
underreporting.
E. Existing California Law
Under Penal Code section 166, the willful disobedience of a court order
constitutes a misdemeanor punishable by up to six months in county jail and a
fine not more than $1,000.38 However, in domestic violence cases, the violation
of a court order may carry an elevated one year sentence in a county jail given
the gravity of the protected interest.39
Printable=1 (last visited Nov. 9, 2008) [hereinafter Elder & Dependent Adult Abuse] (on file with the
McGeorge Law Review).
28. SafeState.org, Facts, supra note 1.
29. Elder & Dependent Adult Abuse, supra note 27.
30. Id.
31. Id.
32. These figures were obtained by multiplying the 75,843 reported cases of abuse in 2000-2001 and the
93,517 reported cases of abuse in 2005-2006, respectively, by five. See id.
33. See Delgadillo letter, supra note 8 (expressing concern that as the senior population grows in
California, that incidence of elder abuse will also increase).
34. Id.
35. See id. (noting that dependent adult abuse will likely grow if no action is taken).
36. Elder & Dependent Adult Abuse, supra note 27.
37. SafeState.org, Facts, supra note 1.
38. CAL. PENAL CODE § 166(a)(4) (West 1999); see also id. § 19 (proscribing the punishment for a
misdemeanor not otherwise prescribed).
39. See id. § 166(c)(1) (“[A]ny willful and knowing violation of a protective order or stay-away court
order . . . in a pending criminal proceeding involving domestic violence . . . shall constitute contempt of a court,
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McGeorge Law Review / Vol. 40
III. CHAPTER 152
Chapter 152 adds the crime of elder and dependent adult abuse to a list of specified
crimes under section 166(c)(1) of the Penal Code.40 This provision now states that the
knowing and willful violation of any protective or stay-away court order in a criminal
proceeding involving domestic violence, or elder or domestic dependent adult abuse
constitutes contempt of court, a misdemeanor punishable by imprisonment in a county
jail up to one year, by a fine not exceeding $1,000, or both.41
IV. ANALYSIS
A. Syncing the Law
The Legislature has determined that elder and dependent adult abuse and domestic
violence are similarly situated crimes in that they disproportionately impact vulnerable,
female victims.42 By enacting Chapter 152, the Legislature has brought the law
governing crimes against elders and dependent adults in line with existing law covering
domestic violence.43 Now, the violation of a protective or stay-away order in cases
involving elders and dependent adults carries the elevated one year jail term just like in
domestic violence cases.44
B. Better Think Twice
In misdemeanor abuse cases, courts may issue protective or stay-away orders to
establish legally enforceable distance between offenders and victims for the latter’s
safety and wellbeing.45 The possibility of jail time for violating these orders is what
makes them effective barriers between abusers and victims.46 A harsher penalty, of
a misdemeanor, punishable by imprisonment in a county jail for not more than one year . . . .”); see generally id.
§ 136.2 (authorizing courts to issue protective or stay-away orders “upon a good cause belief that harm to, or
intimidation or dissuasion of, a victim . . . has occurred or is reasonably likely to occur”).
40. See id. § 166(c)(1) (amended by Chapter 152) (“[A]ny willful and knowing violation of any
protective order or stay-away court order . . . in a pending criminal proceeding involving domestic violence . . .
or elder or dependent adult abuse . . . shall constitute contempt of court, a misdemeanor, punishable by
imprisonment in a county jail for not more than one year, by a fine of not more than one thousand dollars
($1,000), or by both that imprisonment and fine.” (emphasis added)).
41. Id.
42. SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 1424, at G (Apr. 29, 2008).
43. Id.
44. CAL. PENAL CODE § 166 (amended by Chapter 152).
45. SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 1424, at G (Apr. 29, 2008);
see also Letter from Harriet Salarno, Chair, Crime Victims United of Cal., to Gloria Romero, Senator, Cal. State
Senate (Apr. 18, 2008) (on file with the McGeorge Law Review) (noting that creating distance between the
abuser and the victim is the primary purpose of protective or stay-away orders).
46. See SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 1424, at G (Apr. 29,
2008) (“[T]he court can use the threat of jail (up to one year) to monitor and hopefully control the defendant’s
conduct.”).
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2009 / Penal
course, provides a greater disincentive to violate such orders, and therein lies the force
of Chapter 152.47 By adding six months of jail time for violating court orders involving
elders and dependent adults, the intended and likely result will be a decline in the
number of violations. The idea is that most defendants will appreciate the difference
between six months and a year behind bars, and therefore think twice before
disobeying the stay-away orders.
C. Potential Impact on California’s Overcrowded Jails and Prisons
One of the Legislature’s concerns in passing Chapter 152 was its potential impact
on the overcrowding crisis currently afflicting California’s prisons and jails.48 Over the
past two decades, county jail inmate populations have increased by about sixty-six
percent, despite court-ordered caps.49 California’s prison population has tripled during
this period.50
It is “extremely unlikely” that Chapter 152 will have any impact on the
overcrowding crisis.51 In cases where protective or stay-away orders are violated,
courts will likely impose probation in lieu of jail time due to the misdemeanor status of
the crime.52 If other charges accompany this misdemeanor, Chapter 152 will have
minimal impact, if any, on the prison system because sentencing will likely be based
on those other offenses.53 In rare cases where abusers repeatedly violate stay-away
orders, jail time will be warranted.54 These few cases, however, will have a negligible
impact on California’s overcrowded jails and prisons.55
V. CONCLUSION
Elder and dependent adult abuse is a serious problem in California due to the
booming senior population, underreporting, and the fact that it is difficult to detect.56
Chapter 152 helps address the problem by increasing the penalty from six months to
one year in county jail for violating a protective or stay-away order involving elders or
dependent adults.57 The hope is that this stiffer sentence will deter abusers from
47. Id.
48. See id. at C-G (discussing California’s overcrowded prisons and jails and this legislation’s potential
impact).
49. Id. at D.
50. Id.
51. Id. at G.
52. Id.; see also CAL. PENAL CODE § 166 (amended by Chapter 152) (stating that a violation of section
166 is a misdemeanor punishable by fine, imprisonment, or both).
53. SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 1424, at G (Apr. 29, 2008).
54. Id.
55. Id.
56. See SafeState.org, Facts, supra note 1.
57. See supra notes 46-48 and accompanying text.
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violating such orders.58 Chapter 152 will likely be effective in this goal.
58. See SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 1424, at G (Apr. 29,
2008) (stating that the court can use the threat of jail as a way to control defendants’ conduct).
509
Chapter 184 and Salvia Divinorum: Electric Kool-Aid
Salvia Tests?1
Corin Saxton
Code Section Affected
Penal Code § 379 (new).
AB 259 (Adams); 2008 STAT. Ch. 184.
I was seeing what Adam had seen on the morning of his creation—the
miracle, moment by moment, of naked existence.
—Aldous Huxley2
“Order some golf shoes,” I whispered. “Otherwise we’ll never get out of
this place alive.”
—Hunter S. Thompson3
I. INTRODUCTION
When Daniel Siebert peered from his friend’s deck toward the hills before
him, he pictured, ensconced in the hillside, what appeared to be a group of hobbit
houses, occupied by “fairylike beings, childlike, with enormous eyelashes.”4
Siebert was not dreaming; he was experiencing the effects of salvia divinorum, a
hallucinogenic drug indigenous to Oaxaca, Mexico, which the Mazatec Indians
traditionally used for divinatory rituals and healing ceremonies.5 While this was
Siebert’s first experience with salvia divinorum,6 as an ethnobotanist he would
eventually become an expert on the subject.7 Like Siebert, other salvia divinorum
users have reported similarly surreal visions,8 a testament to the plant’s potency.9
1. See generally TOM WOLFE, THE ELECTRIC KOOL-AID ACID TEST (1968). Wolfe’s seminal work of
New Journalism chronicled the exploits and LSD use of Ken Kesey, Neal Cassady, and the Merry Pranksters.
At the time, LSD, like salvia divinorum, was legal, and used by some to facilitate personal and spiritual
exploration. Id.
2. ALDOUS HUXLEY, THE DOORS OF PERCEPTION 17 (Harper & Row 1990) (1954).
3. HUNTER S. THOMPSON, FEAR AND LOATHING IN LAS VEGAS 24 (1971).
4. Christopher Ketcham, Under the Spell of the Magic Mint, GENTLEMEN’S Q., June 2007, at 208, 211.
5. Phil Dalgarno, Subjective Effects of Salvia Divinorum, 39 J. PSYCHOACTIVE DRUGS 143, 144 (2007).
6. Ketcham, supra note 4, at 211.
7. See id. at 210 (noting that Siebert is now an ethnobotanist and has been called the Timothy Leary of
salvia divinorum).
8. See Daniel Ucko, Students See Logic in Lawmakers’ Attempts to Ban ‘8ext Marijuana,’ POLY POST,
Apr. 8, 2008, available at http://media.www.thepolypost.com/media/storage/paper1127/news/2008/04/08/
News/Students.See.Logic.In.Lawmakers.Attempts.To.Ban.next.Marijuana-3308276.shtml (on file with the
McGeorge Law Review) (quoting a student who imagined himself “riding on the leg of a giant Muppet”); Jim
Sanders, Lawmakers, Police Take Aim at Legal Drug, SAN LUIS OBISPO TRIB., Mar. 2, 2008 (on file with the
McGeorge Law Review) (referring to one woman’s claims that her burrito grew legs and attacked her when she
used salvia divinorum).
510
McGeorge Law Review / Vol. 40
Today, smoke shops across California sell salvia divinorum, and it is also
widely available on the internet.10 In response to the uncertainty of the drug’s
long-term effects and the potential for users to injure themselves while under the
drug’s influence,11 the Legislature enacted Chapter 184, which prohibits the sale
or distribution of salvia divinorum to minors,12 thus making it harder for those
with less mature judgment13 to obtain and use the plant.14
II. HISTORICAL AND LEGAL BACKGROUND
A. Salvia Divinorum’s Historical Background and Current Use
1. Oaxaca, Mexico, and the United States
A member of the mint family, salvia divinorum is related to a number of
species of salvia that can be grown as common garden plants.15 Native to Oaxaca,
Mexico,16 it is the only type of salvia that possesses hallucinogenic properties.17
Consequently, it has developed a number of common names: “Sally D,” “the
magic mint,”18 “the lady,” “legal acid,”19 “la pasotora,”20 “diviner’s sage,”21 or
just “salvia.”22 Though salvia divinorum’s discovery date is unknown,23 it has
9. Ketcham, supra note 4, at 209 (“The active ingredient of S. divinorum is salvinorin A, perhaps the
most powerful naturally occurring hallucinogen known to man . . . .”).
10. SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 259, at F (Apr. 29, 2008).
11. See Erin Allday, Legal, Intense Hallucinogen Raises Alarms: Salvia Divinorum Produces Short,
Dreamlike Experience, S.F. CHRON., June 27, 2007, at A-1, available at http://sfgate.com/cgi-bin/article.cgi?f
=/c/a/2007/06/27/MNGDPQMLU31.DTL (on file with the McGeorge Law Review) (“Nearly all medical
researchers say there isn’t enough evidence to determine whether salvia is safe or not.”); Shari Roan, Salvia
Divinorum, An Old Psychedelic Drug with 8ew Appeal, L.A. TIMES, Apr. 28, 2008, http://www.latimes.
com/features/health/la-he-salvia28-2008apr28,0,190936.story (on file with the McGeorge Law Review) (noting
the fear that salvia divinorum causes a loss of bodily control that may lead to injuries).
12. See CAL. PENAL CODE § 379 (enacted by Chapter 184) (prohibiting sale to anyone under eighteen as
well as prohibiting offers to sell, dispense, distribute, furnish, administer or give salvia divinorum or substances
containing salvinorin A to anyone under eighteen).
13. See Drug Law Blog, http://druglaw.typepad.com/drug_law_blog/2008/03/ab-259-the-dail.html (Mar.
11, 2008) [hereinafter Drug Law Blog, Mar. 11) (on file with the McGeorge Law Review) (noting that, despite
his opposition to Chapter 184, steps should be taken to protect kids with immature judgment regarding drugs
and safety).
14. Will Bigham, Under Fire: Bill Would Limit Sales of Salvia Plant, SAN BERNARDINO COUNTY SUN,
May 4, 2008 (on file with the McGeorge Law Review) (noting that AB 259 would make it harder for minors to
come by salvia divinorum).
15. E.g., Roan, supra note 11.
16. SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 259, at G (Apr. 29, 2008).
17. Allday, supra note 11.
18. Id.
19. Ketcham, supra note 4, at 211.
20. Erowid, Salvia Divinorum Vault: Basics, http://www.erowid.org/plants/salvia/salvia_basics.shtml
(last visited June 6, 2008) [hereinafter Salvia Basics] (on file with the McGeorge Law Review).
21. Id.
22. Aaron Bruner, Potential State and Federal Regulation of Drug Salvia, CAL. AGGIE, Feb. 27, 2008.
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been in use for centuries.24 It was first documented in Western literature in
1939,25 and its hallucinogenic effects were confirmed in 1961.26
The Mazatec shamans of Oaxaca have used salvia divinorum for decades in
religious ceremonies.27 However, its use is governed by a number of rules and
conventions.28 Mazatec shamans caution that the plant is powerful as well as
delicate.29 Thus, the shamans demand that the plant be treated respectfully, and
they warn that disobeying the traditional rules governing its use could lead to
madness.30 In fact, some Mazatec shamans will not use the plant for fear of its
potency.31
While also grown in the United States, salvia divinorum is primarily
imported from Mexico and Central and South America.32 It became widely
available in the United States in the mid 1990s,33 and has grown in popularity
over recent years.34 In fact, a 2008 national survey found that 1.8 million people
ages twelve or older have tried it.35
Salvia divinorum varies in strength36 and sells for approximately twenty-five
dollars a gram,37 which is enough for about ten to fifteen uses.38 Sellers advertise
the plant as a tool for self-exploration,39 yet it has become increasingly popular as
a recreational drug among high school and college students.40 A search for
23. See Dalgarno, supra note 5, at 144 (“Historically the date of the first human[] interaction is
unknown.”).
24. See Salvia Basics, supra note 20 (“The use of Salvia Divinorum likely dates back far into early
Central American History, but documentation is so far very slim.”).
25. Id.
26. Id.
27. Allday, supra note 11.
28. Dalgarno, supra note 5, at 144; see also Ketcham supra note 4, at 241 (noting that salvia should be
taken at night, in silence, and after 53 days of abstinence).
29. See Ketcham, supra note 4, at 241 (interviewing a Mazatec shaman who notes that salvia is delicate
and suggests that salvia may induce a madness that chases those who do not follow its customs).
30. Id.
31. See id. (interviewing a shaman who is fearful of salvia and suggests that without a certain
understanding of the plant, it cannot be administered without the risk of inducing madness).
32. Allday, supra note 11.
33. Erowid, Salvia Divinorum, http://www.erowid.org/plants/salvia/ (last visited June 6, 2008) (on file
with the McGeorge Law Review).
34. See Bruner, supra note 22 (“[T]he plant Salvia divinorum . . . appears to have grown in popularity
over the past decade.”).
35. U.S. Drug Enforcement Agency, Drugs and Chemicals of Concern, Nov. 2008, http://www.
deadiversion.usdoj.gov/drugs_concern/salvia_d/salvia_d.htm (on file with the McGeorge Law Review).
36. Jessica Gresko, Officials Ponder Regulation of Salvia, Say Plant Could Be the ‘8ew Marijuana’,
Mar. 11, 2008, http://health.mytelus.com/channel_health_news_details.asp?news_id=14692&news_channel
_id=1053&channel_id=1053&relation_id=0 (on file with the McGeorge Law Review) (“[S]alvinorin A[] is also
sold in various strengths labeled ‘5x’ through ‘60x.’”).
37. E.g., Roan, supra note 11.
38. See Ketcham, supra note 4, at 211 (noting that a gram is “sufficient for ten or fifteen serious trips”).
39. See Sanders, supra note 8 (quoting Daniel Siebert, an herbalist who sells salvia online and whose
user’s guide indicates that salvia can be used for philosophical insights and spiritual experiences).
40. See Ucko, supra note 8 (“[S]alvia is an inexpensive and easily obtained herb that is becoming more
512
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“salvia” on YouTube41 reveals over 7,000 results.42 Many of the clips depict
teens smoking salvia divinorum and laughing uncontrollably or looking
confused.43
2. Effects of Salvia Divinorum
Although researchers have yet to discover any short-term detrimental effects
on a user’s mental or physical health, the long-term effects remain unknown.44
Salvia divinorum’s short-term effects vary based on the dosage and the means
used to ingest the plant.45 “Depending on the dosage, the Salvia experience can
vary from a subtle, just-off-baseline state to a full-blown psychedelic
experience.”46
Salvia divinorum “can be smoked, chewed, or brewed into tea.”47 While
Mazatec shamans typically chew the plant, most users prefer to smoke it.48 When
salvia divinorum is smoked, the effects last for approximately ten minutes;49
when the plant is chewed, its effects last for approximately an hour.50 The range
of effects include uncontrollable laughter,51 distorted senses,52 an out-of-body
feeling,53 and intense hallucinations.54 In addition, salvia divinorum users
prevalent among college students who are smoking it to get high.”); SENATE COMMITTEE ON PUBLIC SAFETY,
COMMITTEE ANALYSIS OF AB 259, at G (Apr. 29, 2008) (“This substance is being used by individuals of all
ages, but becoming more popular among high school students.”); Allday, supra note 11 (“[S]alvia seems to be
appealing to a growing group of young people . . . .”).
41. YouTube is a website that allows users to upload and share video clips across the internet. YouTube
Company Profile, http://www.crunchbase.com/company/youtube (last visited Jan. 15, 2009) (on file with the
McGeorge Law Review).
42. See Johanna Cornblatt, More States Ban Salvia, U.S. NEWS & WORLD REP., July 18, 2008, http://www.
usnews.com/articles/news/national/2008/07/18/more-states-ban-salvia.html (on file with the McGeorge Law Review).
43. See Roan, supra note 11 (“Numerous users have placed clips on YouTube of themselves or others
laughing hysterically or staggering around while high on salvia, such as one YouTube clip that has logged more
than 240,000 views.”).
44. See Allday, supra note 11 (“Not a lot is known about salvia and its long-term effects, but most
medical researchers agree that there don’t seem to be any immediate negative side effects of the drug, and they
say it is highly unlikely that it is addictive.”); Roan, supra note 11, (“[L]ittle is known about the effect of the
drug on health and safety . . . .”); SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 259,
at G (Apr. 29, 2008) (“Salvia divinorum is not generally understood to be toxic or addictive . . . medical experts
and accident and emergency rooms have not reported any particular health concerns . . . .”).
45. Sanders, supra note 8.
46. Salvia Basics, supra note 20.
47. Mike Burkholder, State to Outlaw Herb Plant, WAPAKONETA DAILY NEWS, May 17, 2008.
48. See Ketcham, supra note 4, at 211 (noting that the Mazatecs traditionally prescribe chewing the leaf,
but that a study of salvia users conducted by Erowid.com revealed that 93% of the participants stated that they
smoked the leaf).
49. See, e.g., id. (relaying one salvia expert’s story of chewing salvia during which the effects lasted for
about an hour, and noting that this period is telescoped to about ten minutes when the plant is smoked).
50. Id.
51. SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 259, at G (Apr. 29, 2008).
52. Roan, supra note 11.
53. Sanders, supra note 8.
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generally become immobile, though some will try to move around.55 After the
hallucinogenic effects wear off, some users note a stupor that persists for
approximately one to two hours.56
3. Salvinorin A’s Medicinal Potential
Salvinorin A is the naturally occurring hallucinogenic chemical in salvia
divinorum.57 The way Salvinorin A affects the brain distinguishes salvia
divinorum from all other hallucinogens58 and opens up a realm of medicinal
possibilities.59 Most hallucinogens affect serotonin receptors,60 which is
significant because serotonin is a neurotransmitter that affects a wide range of
bodily functions.61 But Salvinorin A does not trigger serotonin receptors.62
Instead, Salvinorin A only stimulates kappa-opioid receptors,63 which are signalsending proteins64 that control mood and regulate appetite, pain, and even
addictive behaviors.65 It is thus possible for medical professionals to use
Salvinorin A to treat drug dependence and depression,66 and, possibly, to
54. See, e.g., Salvia Basics, supra note 20 (“At higher doses users report dramatic time distortion, vivid
imagery, encounters with beings, travel to other places, planets or times, living years as the paint on a wall or
experiencing the full life of another individual.”).
55. See, e.g., id. (“While most people remain unmoving during the experience, some individuals will
attempt to get up and walk around while in a completely dissociated state.”).
56. See Ucko, supra note 8 (“[Y]ou still have this weird high; it’s like this haze for a couple of hours.”);
Ketcham, supra note 4, at 241 (“[The author felt] dumb, fogged up, like [he] was wearing a layer of old gray
chopped meat over my eyes.”). But see ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF
AB 259, at 3 (Jan. 15, 2008) (“The most commonly reported after-effects include an increased feeling of
insight, improved mood, a sense of calmness, and increased sense of connection with nature.”).
57. See Ketcham, supra note 4, at 209 (“The active ingredient of S. divinorum is salvinorin A, perhaps
the most powerful naturally occurring hallucinogen known to man . . . .”).
58. See Roan, supra note 11 (“The drug is unique in that it acts on kappa-opioid receptors, cell proteins
that bind to specific molecules, which are widely distributed throughout the body . . . .” (quoting a senior
scientist on addiction pharmacology)).
59. See Letter from Marion D. Miller, Bd. of Governors, Cal. Att’ys for Criminal Justice, to Anthony
Adams, Assembly Member, Cal. State Assembly (Apr. 25, 2008) [hereinafter Miller Letter] (on file with the
McGeorge Law Review) (“In this case, we are dealing with a plant which is currently being widely studied and
evaluated for it’s [sic] medicinal and potential health benefits by medical scientists here in California and
elsewhere.”); Ketcham, supra note 4, at 240 (“Thus, salvinorin A suggested a universe of medicinal
opportunity.”).
60. See Allday, supra note 11 (“[U]nlike most psychotropic drugs, salvinorin A does not react to
serotonin receptors.”).
61. Health Encyclopedia-Diseases and Conditions, Serotonin, http://www.healthscout.com/ency/
68/409/main.html (last visited June 13, 2008) (on file with the McGeorge Law Review).
62. See Ketcham, supra note 4, at 240 (noting that salvinorin A would bind only against the kappaopioid receptor).
63. Id.
64. Aaron Rowe, How Hallucinogenic Sage Works, WIRED, Aug. 27, 2007, http://blog.wired.com/
wiredscience/2007/08/how-hallucinoge.html (on file with the McGeorge Law Review).
65. Id.
66. See Roan, supra note 11 (noting that substances which activate the kappa-opioid receptor may be
used to treat certain types of drug dependence and “appear to have some antidepressant effects”).
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modulate pain response, tissue healing, and appetite.67 Doctors might even be
able to use the drug to treat Alzheimer’s disease and schizophrenia.68
B. Legal Background
1. Federal Law Concerning Salvia Divinorum
Federal law does not prohibit the use or distribution of salvia divinorum.69 In
October 2002, Congressman Joe Baca introduced federal legislation to outlaw
salvia divinorum’s use and sale.70 Baca sought to add Salvinorin A to Schedule I
of the Controlled Substances Act (CSA),71 which, among other things, regulates
the manufacture, importation, possession, and distribution of certain drugs.72
Schedule I controlled substances are subject to the greatest restrictions and
penalties of any other drug scheduled under the CSA.73 For the substance to be
classified as a Schedule I drug, it must have a high potential for abuse, there must
be no accepted medical use of the drug in the United States, and there must be “a
lack of accepted safety for use of the drug or other substance under medical
supervision.”74
Baca’s Hallucinogen Control Act would have criminalized salvia
divinorum’s use and sale, but it ultimately died in committee.75 However, in
2002, the Drug Enforcement Agency (DEA) placed salvia divinorum on its list of
“Drugs and Chemicals of Concern,”76 and the DEA is currently determining
whether to classify salvia divinorum as a Schedule I drug.77
2. Other States’ Regulatory Mechanisms
In 2005, Louisiana “became the first state to criminalize the possession and
sale of salvia.”78 Florida, Kansas, Virginia, Missouri, Delaware, North Dakota,
and Illinois have since passed laws prohibiting the sale and possession of salvia
67. Ketcham, supra note 4, at 240.
68. SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 259, at J (Apr. 29, 2008).
69. See, e.g., Ketcham, supra note 4, at 240 (“S. divinorum fails to come under the purview of either the
Controlled Substances Act of 1970 or the Federal Analogue Act of 1986 . . . .”).
70. See id. at 211 (noting that Baca’s Hallucinogen Control Act “sought to outlaw salvia and criminalize
its use”).
71. H.R. 5607, 107th Cong. (2002).
72. See DEA History, http://www.usdoj.gov/dea/pubs/history/1970-1975.pdf (last visited Jan. 16, 2009)
(on file with the McGeorge Law Review).
73. ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 259, at 4 (Mar. 27,
2008).
74. Id. at 5.
75. Ketcham, supra note 4, at 211.
76. Id.
77. See, e.g., id. (“[The list of concern is] the common precursor to prohibition.”).
78. Id. at 242.
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divinorum.79 In addition, a number of other states have pending legislation that
would ban or control salvia divinorum.80
The suicide of a Delaware teen in 2006 propelled much of this legislation.81
Brett Chidester was a well-rounded, seventeen-year-old student at a private allboys school in Wilmington, Delaware.82 When Brett’s mom discovered his salvia
use, she asked him to stop.83 However, Brett—who may have been suffering
from depression84—continued using salvia divinorum.85 Sadly, Brett later died
after “asphyxiating himself with stove fumes in a tent in his father’s garage.”86
Brett left a suicide note, which a noted psychologist determined was written
while under the influence of a drug.87 Specifically, the state medical examiner
named salvia divinorum as a contributing factor in Brett’s death.88 In response,
“Delaware passed ‘Brett’s Law,’ which labeled Salvia [as] a controlled
substance.”89
III. CHAPTER 184
Chapter 184 prohibits selling, distributing, dispensing, furnishing,
administering, or supplying salvia divinorum or any substance containing
Salvinorin A to minors.90 Violation of Chapter 184 will result in a misdemeanor
79. Cornblatt, supra note 42.
80. Id.; see also Jack Shafer, Salvia Divinorum Hysteria: The Press Help Fuel the 8ext “Drug Menace,”
SLATE, May 6, 2008, http://www.slate.com/toolbar.aspx?action=print&id=2190781 (on file with the McGeorge
Law Review) (“According to the AP, 16 states are considering bans on Salvia.”).
81. See Ketcham, supra note 4, at 242 (noting that many lawmakers in other states have been “[i]nspired
by the efforts in Delaware”); Drug Law Blog, Mar. 11, supra note 13 (noting that Chidester’s suicide provided
the political catalyst for some states’ legislation regarding salvia divinorum).
82. Letter from Kathleen Chidester, to Gloria Romero, Senator, Cal. State Senate (Apr. 14, 2008)
[hereinafter Chidester Letter] (on file with the McGeorge Law Review) (stating that Brett was a straight A
student, very popular and athletic, volunteered in a nursing home after school, and passed the drug tests required
by his work).
83. See Sanders, supra note 8 (“Chidester said her son . . . balked at her appeals to stop smoking
salvia.”).
84. See, e.g., Jon Tevlin, Plant Packing a Psychedelic Kick Would Be Banned by Bill, STAR TRIB.
(Minn.), Mar. 11, 2008, available at http://www.startribune.com/templates/Print_This_Story?sid=16583991 (on
file with the McGeorge Law Review) (“Chidester already suffered from depression, according to reports . . . .”).
85. See Sanders, supra note 8 (noting that Brett reasoned that because it was legal it could not be overly
harmful).
86. Ketcham, supra note 4, at 242.
87. Chidester Letter, supra note 82.
88. Id. (noting that no drugs were detected in Brett’s posthumous drug test but that there is no current
drug test for salvia divinorum); see also Roan, supra note 11 (“No standardized lab test exists to assess the
presence of salvia in the bloodstream or measure the degree of intoxication.”).
89. Bruner, supra note 22.
90. See CAL. PENAL CODE § 379 (enacted by Chapter 184) (prohibiting sale to anyone under eighteen as
well as prohibiting offers to sell, dispense, distribute, furnish, administer or give salvia divinorum or substances
containing salvinorin A to anyone under eighteen).
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“punishable by imprisonment in a county jail” for up to six months, by a fine of
up to $1,000, or both.91
IV. ANALYSIS
A. Support for Chapter 184
Chapter 184’s supporters note that there are costs associated with the new
law,92 but argue that these costs are necessary to protect California’s minors.93
Supporters worry that underage salvia divinorum users might harm themselves
while hallucinating;94 even salvia divinorum purveyors recognize that the loss of
coordination salvia divinorum causes could lead to accidents.95 Some supporters
are also concerned that teens might use salvia divinorum when driving.96 For this
reason, most salvia divinorum sellers advise purchasers to take the drug while in
the presence of someone sober.97
Additionally, Chapter 184’s supporters are concerned that the plant might
have unknown effects that could damage a user’s mental health.98 Supporters
suggest that these unknown and potentially damaging effects provide further
91. Id.
92. See Interview with Elizabeth Watson, Legislative Dir. for Anthony Adams, in Sacramento, Cal.
(May 30, 2008) (notes on file with the McGeorge Law Review) (“This is such a minor bill, like any other law on
the books there will be some costs . . . the same expenses with prohibiting alcohol or cigarettes to minors.”);
ASSEMBLY COMMITTEE ON APPROPRIATIONS, COMMITTEE ANALYSIS OF AB 259, at 1 (Jan. 23, 2008) (noting
that there is no direct state cost and that local incarceration costs are likely minor and will be offset by fines).
93. See Interview with Elizabeth Watson, supra note 92 (noting that the costs are “worth it to protect the
minors”).
94. See ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 259, at 2 (Mar. 27,
2007) (“The effects can range from subtle to extremely strong, causing an individual to have out-of-body
experiences and create a real potential for physical danger to oneself and others.”).
95. See Roan, supra note 11 (“Some websites promoting salvia warn users to take the drug in the
presence of a sober person who can help if a user loses body control or behaves erratically.”); Allday, supra
note 11 (noting that Daniel Siebert will not sell salvia divinorum to minors, fearing that they could endanger
themselves by using it without taking basic precautions).
96. Sanders, supra note 8 (noting that Assembly Member Adams is concerned teens might use salvia
divinorum when behind the wheel).
97. See, e.g., Roan, supra note 11 (“Some websites promoting salvia warn users to take the drug in the
presence of a sober person who can help if a user loses body control or behaves erratically.”).
98. See id. (noting that DEA spokesperson Rogene Waite emphasizes that a substance could still be
dangerous even if it is not a controlled substance); “Homemade” Chocolates Containing Psilocybin Mushrooms
Appearing Across the United States, DEA MICROGRAM BULL., June, 2003, http://www.usdoj.gov/dea/
programs/forensicsci/microgram/mg0603/mg0603.html (on file with the McGeorge Law Review) (noting that
while long-term effects of salvia divinorum use are unknown, there is the possibility that its long-term effects
may be similar to those of other hallucinogens—perhaps leading to depression, schizophrenia, or flashbacks);
Roan, supra note 11 (noting that one addiction counselor believes salvia diviniorum can “contribute to
preexisting emotional problems”); Salvia Basics, supra note 20 (noting that, like other psychoactives, salvia
could augment a user’s emotional or psychological problems or could “trigger latent psychological and mental
problems”).
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justification for the boundaries Chapter 184 places on underage use of salvia
divinorum.99
Chapter 184’s supporters acknowledge that the legislation, through the
attention it creates, will likely increase salvia divinorum’s popularity.100
However, they contend that any harm created by the drug’s increased popularity
is offset by the fact that Chapter 184 alerts parents to the existence and
availability of salvia divinorum.101 Furthermore, supporters believe that salvia
divinorum’s popularity will likely increase regardless of legislation concerning
its sale and distribution.102
Supporters concede that Chapter 184 will not have a substantial impact on
underage salvia divinorum use, but they assert that any impact on such use is
preferable to no impact at all.103 Some supporters, well aware of Chapter 184’s
limitations,104 hope it will be a stepping-stone for further salvia divinorum
regulation.105
B. Opposition to Chapter 184
Chapter 184’s opponents are concerned that its ultimate goal is to ban all
salvia divinorum use.106 After all, AB 259, the bill that was eventually enacted as
Chapter 184, would have classified salvia divinorum and Salvinorin A as
Schedule I controlled substances, “criminalizing the unlawful possession,
possession for sale, and sale of the substances.”107 Furthermore, Assembly
Member Adams has stated his intent to pursue additional prohibitions on salvia
divinorum.108
99. See Drug Law Blog, Mar. 11, supra note 13 (“Some might answer that it’s a law based on common
sense—that it can’t possibly be a mistake to criminalize the sale of a hallucinogen to minors because there can’t
possibly be any doubt that using such a drug has the potential to harm a young mind.”).
100. See Interview with Elizabeth Watson, supra note 92 (stating that it was known that Chapter 184
would “open Pandora’s box” and that some head shops have even indicated that salvia sales increased after AB
259 was introduced, but that Chapter 184 “is a tool to help parents who have no idea it’s out there”).
101. Id.
102. See Allday, supra note 11 (quoting Assembly Member Adams who notes that use will only get
worse and that “[t]here is no way this drug is going to get less popular”).
103. See Interview with Elizabeth Watson, supra note 92 (“[While Chapter 184 may] only have a minor
impact on accessibility, any impact is better than what we have now.”).
104. See Bigham, supra note 14 (quoting Lt. Barbara Ferguson, the San Bernardino County Sheriff’s
legislative liaison, who indicates her unhappiness with the amended version of AB 259).
105. See id. (noting that Lt. Barbara Ferguson hopes salvia divinorum will be completely outlawed in
California).
106. See Drug Law Blog, http://druglaw.typepad.com/drug_law_blog/salvia_index.html (May 5, 2008)
(on file with the McGeorge Law Review) (“To be clear, then, no matter how much AB 259 might seem like a
‘moderate’ step that is intended just to ‘protect the kids,’ the ultimate goal of its proponents is to impose
criminal sanctions on all salvia users, no matter their age.”).
107. ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 259, at 1 (Mar. 27,
2007).
108. Bigham, supra note 14.
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Yet further regulation completely banning the use of the drug in California is
unlikely for several reasons:109 first, California’s prison system is suffering from
an overcrowding crisis;110 second, there are fears that a ban on salvia divinorum
could hinder medical research efforts;111 and, lastly, there is no precedent in
California for scheduling a drug that the DEA has not yet scheduled.112
Opponents also note that salvia divinorum does not appear to be addictive or
physically harmful.113 Hospitals and police departments have not reported any
salvia divinorum-related injuries or disturbances,114 and it seems unlikely that
these types of injuries will become commonplace.115 Opponents further contend
that it is unlikely that minors would use salvia divinorum while driving.116
“Salvia users tend to recline or go catatonic immediately after inhaling, so unless
they’ve decided to commit suicide with their car, the rest of the motoring public
is probably safe.”117
Though opponents do not deny the possibility that salvia divinorum could
have unknown, harmful effects, one opponent has argued that there are a number
of legal activities and substances that could also be harmful.118 Therefore,
criminalizing a substance about which so little is known would be an excessive
measure.119
109. See Interview with Elizabeth Watson, supra note 92 (“Unless the Feds schedule it, there probably
won’t be any further regulation in California.”).
110. SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 259, at C-F (Apr. 29,
2008).
111. See, e.g., Roan, supra note 11 (“Some researchers worry that attempts to make salvia illegal or
designate it as a controlled substance may thwart studies into the drug’s healing properties.”).
112. ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 259, at 5 (Mar. 26,
2007).
113. Miller Letter, supra note 59.
114. See ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 259, at 3 (Jan. 15,
2008) (“Even as Savlia [divinorum] has become [available] in modern culture, medical experts and accident and
emergency rooms have not reported any particular health concerns, and the police have not reported a
significant issue with public order offenses.”).
115. See Allday, supra note 11 (quoting an addiction specialist who notes that salvia divinorum use will
never be “more than low-level use” which is not going to “bombard emergency rooms”); Drug Law Blog,
http://druglaw.typepad.com/drug_law_blog/salvia_index.html (Oct. 6, 2007) [hereinafter Drug Law Blog, Oct.
6] (on file with the McGeorge Law Review) (noting that the drug is not very harmful for most people, that all
that really happens when people use salvia is they sit around their living rooms acting strange for a few minutes
before the drug wears off).
116. See Drug Law Blog, Oct. 6, supra note 115 (“We also don’t hear stories about people driving on
salvia.”).
117. Shafer, supra note 80; see also YouTube.com, Driving on Salvia, http:www.youtube.com/
watch?v=Sp2V6NXCkEO (last visited Aug. 13, 2008) (on file with the McGeorge Law Review) (satirizing the
notion of driving while on salvia divinorum).
118. See Drug Law Blog, Mar. 11, supra note 13 (“[T]aking a couple aspirin or riding a skateboard all
could conceivably harm a young person . . . a number of ordinary household substances—from cough syrup to
Benadryl to plants like Acacia and Morning Glory—can also be used as legal recreational drugs by any young
person who is curious and reckless enough to try them.”).
119. See id. (“AB 259, then, is an attempt to legislate in an empirical vacuum.”).
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Chapter 184 opponents stress that criminal law is a costly120 and damaging121
form of regulation that should only be used to confront the most pressing
dangers.122 Indeed, aside from the possibility that Brett Chidester committed
suicide while using salvia divinorum, there are no documented deaths associated
with its use.123 Furthermore, the limited research of the plant124 gives no
indication that it is harmful in any way other than causing fleeting
hallucinations.125 Without empirical evidence that salvia divinorum is addictive
or physically harmful, critics contend that legislation creating civil regulation or
educational programs would be a more appropriate response to any actual or
potential threat salvia divinorum poses.126
Some also argue that Chapter 184 will only have a minimal impact on
underage salvia divinorum use: minors can still buy it off the internet, and it is
still legal for minors to possess and use the drug.127 In addition, the possibility
remains that Chapter 184 will only draw more attention to salvia divinorum,128
perhaps further stimulating teens’ interest in a drug that might have otherwise
only been a passing fad.129
C. California’s Prison Overcrowding Crisis
Chapter 184 inevitably generates a discussion of California’s prison
overcrowding crisis,130 a topic often debated in the context of marijuana laws.131
120. See Letter from Cal. Pub. Defenders Ass’n, to Members of the Senate Public Safety Committee,
Cal. Senate (Apr. 24, 2008) (on file with the McGeorge Law Review) (“Finally, as long maintained by CPDA,
county public defender offices are already hard-pressed to do their work given current fiscal constraints; yet
each new criminal statute that illegalizes conduct not previously regulated requires an increased response by
county public defender offices at a time when counties are hard pressed to maintain existing service levels.”).
121. See Drug Law Blog, Mar. 11, supra note 13 (“Individuals who are prosecuted will be saddled with
hundreds of dollars in fines and fees, the risk of jail time, and the prospect of a criminal record.”).
122. See id. (“[Criminal law] ought to be used only as a last resort, when we are convinced we are
confronting a serious problem that can’t be solved by other means.”).
123. See Shafer, supra note 80 (“[According to the AP], no known deaths on Salvia have been
recorded.”).
124. See Roan, supra note 11 (noting that research attempts to better understand salvia have been few).
125. See SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 259, at G (Apr. 29,
2008) (noting that salvia divinorum is not toxic).
126. See Drug Law Blog, Mar. 11, supra note 13 (“[E]ducational programs for kids or civil regulation of
merchants might work equally well to address our concerns.”); Miller Letter, supra note 59 (“[I]t may be more
appropriate to engage in public education about the dangers of the drug if abused . . . .”).
127. Bigham, supra note 14.
128. See David Hasemyer, Legal Hallucinogenic Drug Moves Onto Officials’ Radar, San Diego UNIONTRIB., Mar. 12, 2008, at A-1 (on file with the McGeorge Law Review) (“If it is emerging, we don’t want to
bring attention to it so kids see it and say, ‘Let me jump on board.’” (quoting a San Diego DEA spokesperson)).
129. See, e.g., id. (noting that some law enforcement officers and school administrators are not certain
whether salvia will become a problem or whether “the drug’s intensity and harsh effects will limit its
popularity”).
130. See SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 259, at C-F (Apr. 29,
2008) (discussing the implications of Chapter 184 and California’s prison crisis).
520
McGeorge Law Review / Vol. 40
Though marijuana is a Schedule I controlled substance,132 in California it “is
considered less dangerous than the other controlled substances and is treated
separately.”133 While California has decriminalized marijuana to some degree,134
marijuana offenses “are the same as those applicable to other controlled
substances and the elements of the crimes are the same.”135 Despite the drug’s
relative harmlessness,136 over 1,000 California prisoners and over 2,000
California parolees are currently serving time for marijuana crimes.137 Yet
California suffers from a prison-overcrowding crisis that is staggering.138 The
State has 16,600 more prisoners than it does prison beds,139 requiring thousands
of inmates to stay in facilities designed for lower security levels.140 Fortunately,
Chapter 184 will not further aggravate California’s prison overcrowding crisis.141
D. Constitutional Challenges
Just as constitutional challenges to statutes penalizing marijuana use have
failed,142 any similar challenges to Chapter 184 would also likely fail. The First
Amendment’s Religion Clauses143 have led to some judicial inconsistencies,144
but “the basic purpose of these provisions . . . is to insure that no religion [is]
131. See Dennis M. Yates, The Legalization of Marijuana: Part III, http://www.druglibrary.org/
schaffer/hemp/mjleg1.htm (last visited July 30, 2008) (on file with the McGeorge Law Review) (“Another
problem with the current marijuana laws is prison overcrowding.”).
132. U.S. Drug Enforcement Administration, Drug Scheduling, usdoj.gov/dea/pubs/scheduling.html
(last visited Aug. 13, 2008) (on file with the McGeorge Law Review).
133. 2 B.E. WITKIN & NORMAN L. EPSTEIN, CALIFORNIA CRIMINAL LAW, Crimes—Public § 68 (3rd ed.
2000).
134. National Organization to Reform Marijuana Laws (NORML), California, http://www.norml.org/
index.cfm?wtm_view=&Group_ID=4525 (last visited July 30, 2008) (on file with the McGeorge Law Review).
135. WITKIN & EPSTEIN, supra note 133.
136. See Deglamorising Cannabis, 346 LANCET 1241, 1241 (1995), available at http://norml.org/index.
cfm?Group_ID=3476 (on file with the McGeorge Law Review) (“The smoking of cannabis, even long term, is
not harmful to health.”); Yates, supra note 131 (“Currently, it is considered by many health officials to be one
of the safest therapeutic substances known to man.”).
137. JAMES AUSTIN, NAT’L ORG. TO REFORM MARIJUANA LAWS (NORML), RETHINKING THE
CONSEQUENCES OF DECRIMINALIZING MARIJUANA, norml.org/pdf_files/NORML_Rethinking_Decriminalizing
_Marijuana.pdf (last visited July 30, 2008) (on file with the McGeorge Law Review).
138. SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 259, at C (Apr. 29, 2008).
139. Id.
140. Id. at D.
141. Id. at F. The Committee Analysis does not explain why Chapter 184 would not aggravate the
current prison crisis, but perhaps the absence of any impact on the State’s prisons is linked to the fact—
acknowledged by both supporters and opponents of Chapter 184—that the legislation will only have a minimal
impact on teen use. See supra text accompanying notes 103 and 127, which possibly indicates that criminal
prosecutions will be minimal, as well.
142. WITKIN & EPSTEIN, supra note 133.
143. U.S. CONST. amend. I (“Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof.”).
144. Walz v. Tax Comm’n of N.Y., 397 U.S. 664, 668 (1970).
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2009 / Penal
sponsored or favored, none commanded, and none inhibited.”145 The
Establishment Clause prevents government action that would promote or favor
religion,146 while the Free Exercise Clause is intended to protect religious belief
and practice from persecution.147 Any constitutional challenge against Chapter
184, like those raised against marijuana laws,148 would likely be raised in the
context of the Free Exercise Clause.
In Employment Division, Department of Human Resources of Oregon v.
Smith, the United States Supreme Court held that “generally applicable, religionneutral laws that have the effect of burdening a particular religious practice need
not be justified by a compelling governmental interest.”149 In light of this
precedent, it is “clear that a state may prohibit ‘religiously inspired’ drug use
without running afoul of the Free Exercise clause of the First Amendment.”150
V. CONCLUSION
Media coverage of salvia divinorum has arguably been poor,151 and the
plant’s dangers have often been exaggerated.152 Salvia divinorum has been
labeled the “the next marijuana”153 and many consider it to be interchangeable
with LSD and psilocybin mushrooms.154 Despite these claims, salvia divinorum
is not comparable to any of these drugs.155 In fact, most users find its effects so
145. Id. at 669.
146. Roman Catholic Diocese of Jackson v. Morrison, 905 So. 2d 1213, 1224 (Miss. 2005) (citing
Zelman v. Simmons-Harris, 536 U.S. 639 (2002)).
147. Id. at 1229, 1237.
148. See generally People v. Trippet, 56 Cal. App. 4th 1532, 1541, 66 Cal. Rptr. 2d 559, 564-65 (1st
Dist. 1997) (holding that the defendant’s free exercise of religious rights was not infringed by religion-neutral
general criminal drug laws); State v. Sunderland, 168 P.3d 526 (Haw. 2007) (holding that marijuana laws did
not violate the defendant’s free exercise right).
149. 494 U.S. 872, 886 (1990).
150. Trippet, 56 Cal. App. 4th at 1541, 56 Cal. Rptr. 2d at 565 (quoting Smith, 494 U.S. at 874).
151. Drug Law Blog, http://druglaw.typepad.com/drug_law_blog/salvia_index.html (May 9, 2008)
[hereinafter Drug Law Blog, May 9] (on file with the McGeorge Law Review).
152. See Shafer, supra note 80 (comparing the “current alarm over Salvia” to the panic over gluesniffing seen in the 1970s); Hasemyer, supra note 128 (quoting Assembly Member Adams who refers to salvia
as a “potentially explosive problem” that might reach “quasi-epidemic proportions”); Adams Link, Protecting
Children From a Dangerous Drug, May 2008, http://republican.assembly.ca.gov/enews/eLetter.aspx?Id=628 (on
file with the McGeorge Law Review) (“[I]t is a dangerous thing to have in the hands of anybody . . . .”); Letter
from Howard C. Samuels, Executive Dir. of Wonderland Treatment Ctr., to Anthony Adams, Assembly
Member, Cal. State Assembly (Jan. 10, 2008) (on file with the McGeorge Law Review) (“Young people are
dying from this drug . . . .”).
153. See, e.g., Burkholder, supra note 47 (noting that salvia is “[o]ften touted as the ‘next marijuana’ in
media reports”).
154. See Roan, supra note 11 (‘“The use of salvia is akin to the use of LSD.”’ (quoting Assembly
Member Anthony Adams)).
155. See Shafer, supra note 80 (scoffing at the idea that salvia could be compared to marijuana);
ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 259, at 2 (Mar. 27, 2007) (“The
effects produced by Salvia divinorum are not comparable to any other effects produced by the other
psychoactive substances.”).
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McGeorge Law Review / Vol. 40
unnerving that they are unwilling to try it a second time.156 There is, however,
overwhelming support for at least some moderate regulation.157 Even Chapter
184’s opponents concede that it is possible that repeated use could be detrimental
to teens.158 In fact, Daniel Siebert—one of salvia divinorum’s leading
proponents—refuses to sell the plant to minors.159 Though it is not yet possible to
fully gauge the effects of salvia divinorum,160 underage use of such a powerful
hallucinogen poses dangers clear enough to justify the restrictions Chapter 184
places on the distribution of salvia divinorum.161
156. SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 259, at J (Apr. 29, 2008)
(“Those who try salvia often don’t like it and won’t try it again.”).
157. See id. (“[F]ew people believe the drug should not be regulated at all.”).
158. See Drug Law Blog, May 9, supra note 151 (“It doesn’t seem crazy to me to suggest that doing a
lot of salvia, or any hallucinogen, could eventually take a toll on a young kid’s mental health. Maybe that’s
what happened to Bret Chidester.”).
159. Allday, supra note 11.
160. See Shafer, supra note 80 (noting that its dangers are “conjecture”).
161. See Interview with Elizabeth Watson, supra note 92 (“Why allow a thirteen-year-old to buy this
when we know what could happen under it?”).
523
From Downer Cattle to Mystery Meat: Chapter 194 Is
California’s Response to the Largest Beef Recall in History
Andrenna L. Taylor
Code Section Affected
Penal Code § 599f (amended).
AB 2098 (Krekorian); 2008 STAT. Ch. 194.
I. INTRODUCTION
On January 30, 2008, after a six-week investigation, the Humane Society of
the United States (HSUS) released a video documenting horrific acts of violence
on “downed” animals in a Chino, California meatpacking plant owned by
Westland/Hallmark.1 While admitting to the indiscretions of the meat-packing
plant, the plant’s executive stated, “‘I was shocked. I was horrified. I was
sickened,’ by video that showed employees kicking or using electric prods on
‘downer’ cattle that were too sick to walk, jabbing one in the eye with a baton
and using forklifts to push animals around.”2
The U.S. Department of Agriculture (USDA) stepped in immediately,
closing down the Westland/Hallmark plant.3 HSUS turned over the video to the
District Attorney’s office in San Bernardino County, California,4 which promptly
charged two workers with both felony and misdemeanor counts for activities at
the plant.5
Subsequently, the USDA recalled 143 million pounds of beef—the largest
beef recall in history.6 The recall included all beef sold from the
Westland/Hallmark plant in the past two years.7 However, 8.4 million pounds of
the meat was recovered, or about 17.5%.8 A whopping “37 million pounds [had
1. See, e.g., Undercover Investigation Reveals Rampant Animal Cruelty at California Slaughter Plant–A
Major Beef Supplier to America’s School Lunch Program, HUMANE SOC’Y, Jan. 30, 2008, http://www.
hsus.org/farm/news/ournews/undercover_investigation.html [hereinafter Undercover Investigation] (on file with
the McGeorge Law Review) (defining “downed” cattle as “those who are too sick or injured to walk”).
2. Matthew L. Wald, Meat Executive Admits Sick Cattle Were Used, N.Y. TIMES, Mar. 13, 2008, at C3.
3. Joe Nocera, A Case of Abuse, Heightened, N.Y. TIMES, Mar. 8, 2008, at C1.
4. Undercover Investigation, supra note 1.
5. See Jacob Adelman, Chino Meatpacking Worker Arrested in Recall Case; Daniel Ugarte 8avarro
Charged with Five Felony Counts, ABC NEWS, Feb. 19, 2008, http://abcnews.go.com/US/Story?id=
4312250&page=1 (on file with the McGeorge Law Review) (describing the circumstances leading to the arrest
of the two workers charged with animal cruelty).
6. See Recall Release, U.S. Dep’t of Agric., California Firm Recalls Beef Products Derived From NonAmbulatory Cattle Without the Benefit of Proper Inspection, Feb. 17, 2008, http://www.fsis.usda.
gov/PDF/Recall_005-2008_Release.pdf [hereinafter Recall Release] (on file with the McGeorge Law Review)
(outlining the specific products to be recalled).
7. David Brown, USDA Orders Largest Meat Recall in U.S. History, WASH. POST, Feb. 18, 2008, at A1.
8. Victoria Kim & Mitchell Landsberg, Huge Beef Recall Issued; About 143 Million Pounds Are
524
McGeorge Law Review / Vol. 40
already gone] to make hamburgers, chili[,] and tacos”9 for the National School
Lunch Program.10 Jack in the Box and In-N-Out Burger were also customers of
Westland/Hallmark at the time of the beef recall.11 Chapter 194 specifically bans
the sale of the meat from downed animals for human consumption.12 Chapter 194
supporters hope that this measure will protect citizens and animals from mad cow
disease and other illnesses originating from downer cow meat.13
II. LEGAL BACKGROUND
In 1906, Upton Sinclair’s The Jungle exposed the unsavory and unsanitary
details of Chicago’s meatpacking industry.14 Sinclair’s book led to the passage of
the Federal Meat Inspection Act of June 1906 (FMIA), which is the foundation of
our meat inspection laws today.15 Chapter 194’s author, Assembly Member
Krekorian, analogized The Jungle, which was the catalyst for the FMIA, to the
HSUS videotape, arguing that the latter should serve as the catalyst for Chapter
194.16
A. Laws Governing Slaughterhouse Inspection
At its inception, FMIA established three major sanitary standards for the
slaughterhouse inspections.17 “[FMIA] required mandatory inspection of
livestock before slaughter, mandatory postmortem inspection of every carcass[,]
and set explicit sanitary standards for slaughterhouses.”18 The USDA is the
Targeted, but the Amount may be Much Greater Due to Processing Methods, L.A. TIMES, Feb. 18, 2008,
http://www.latimes.com/news/local/la-me-beef18feb18,0,4428760.story (on file with the McGeorge Law
Review).
9. See Andrew Martin, Slaughterhouse Orders Largest Recall Ever of Ground Beef, N.Y. TIMES, Feb.
18, 2008, at A10.
10. Greg Toppo, Beef Recall Spotlights Real Cost of Cheap School Lunches, USA TODAY, Apr. 30,
2008, http://www.usatoday.com/news/education/2008-04-30-school-lunch-cost_n.htm (on file with the
McGeorge Law Review).
11. Kim & Landsberg, supra note 8.
12. See ASSEMBLY FLOOR, COMMITTEE ANALYSIS of AB 2098, at 3 (Apr. 23, 2008) (“Current law does
not prohibit the purchasing, slaughter, and sale of non-ambulatory animals for consumption. This bill will
amend the Penal Code to include this vitally important safeguard.”).
13. Id.
14. See generally UPTON SINCLAIR, THE JUNGLE (Simon & Schuster 2004) (1906).
15. United States Department of Agriculture, About FSIS: Celebrating 100 Years of FMIA,
http://www.fsis.usda.gov/About _FSIS/100_Years_FMIA/index.asp (last visited Feb. 1, 2009) [hereinafter 100
Years of FMIA] (on file with the McGeorge Law Review).
16. Paul Krekorian, Upton Sinclair’s “The Jungle” Revisited: California Legislation to Promote Food
Safety and Outlaw Sale of Meat from Seriously Ill Cattle, CAL. PROGRESS REP., Apr. 6, 2008, http://www.
californiaprogressreport.com/2008/04/upton_sinclairs.html (on file with the McGeorge Law Review).
17. United States Department of Agriculture, Fact Sheets, Production & Inspection: Slaughter Inspection
101, http://www. fsis.usda.gov/fact_sheets/Slaughter_Inspection_101/index.asp (last visited Feb. 1, 2009) (on
file with the McGeorge Law Review).
18. 100 Years of FMIA, supra note 15.
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2009 / Penal
parent agency of the Food Safety and Inspection Service (FSIS), which enforces
FMIA.19
There are specific laws that govern the slaughter of downer cattle.20
Consuming meat from downer cattle greatly increases the risk of food-borne
illnesses such as E. Coli, salmonella, and bovine spongiform encephalitis21
(commonly known as “mad cow disease”).22 Mad cow disease is dangerous but
rare—only three cases of mad-cow disease have been reported in the United
States.23
Both federal and state laws govern the inspection of slaughterhouses,
including handling of downed cattle.24 However, exceptions existed at both the
state and federal level permitting the slaughter of downed cattle.25
An exception in the federal law allows downer cattle to be slaughtered if
done so separately and if reexamined postmortem by a veterinarian.26 On May
20, 2008, the Secretary of Agriculture announced plans to terminate this
exception.27
California law allows meat procured from downed cattle to enter the food
supply.28 Prior California law made it a crime for slaughterhouses to buy or sell
downed animals,29 but did not ban the sale of downed cattle for human
consumption.30 “California ha[d] limited ability in preventing meat that [was]
classified as unfit for human consumption from passing to the general public.”31
Some view the events at the Chino plant as proof of the inadequate oversight of
slaughterhouses in the United States.32 As stated by a former Agriculture Department
food-safety official, “[t]he failure of the inspection program to stop the
19. Id.
20. See generally 21 U.S.C. § 601 (2000).
21. Krekorian, supra note 16.
22. See Brown, supra note 7 (describing the effects of “mad cow” disease).
23. Centers for Disease Control and Prevention, BSE (Bovine Spongiform Encephalopathy, or Mad Cow
Disease), Sept. 18, 2008, http://www.cdc.gov/ncidod/dvrd/bse/ (on file with the McGeorge Law Review).
24. 21 U.S.C. § 661; CAL. PENAL CODE § 599f (amended by Chapter 194).
25. 21 U.S.C. § 603; CAL. PENAL CODE § 599f (amended by Chapter 194).
26. 21 U.S.C. § 603.
27. See Press Release, Ed Schafer, USDA Sec’y, Agriculture Secretary Ed Schafer Announces Plan to
End Exceptions to Animal Handling Rule, May 20, 2008, http://www.usda.gov/wps/portal/!ut/p/_s.7_
0_A/7_0_1OB?contentidonly=true&contentid=2008/05/0131.xml (on file with the McGeorge Law Review).
28. CAL. PENAL CODE § 599f (amended by Ch. 194).
29. Id.
30. ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS of AB 2098, at 3 (Apr. 1,
2008).
31. Id.
32. See David Kesmodel, Lauren Etter & Jane Zhang, Beef Recall Raises Worry on Industrial Oversight,
WALL ST. J., Feb. 19, 2008, http://online.wsj.com/article/SB120328489778174403.html (on file with the
McGeorge Law Review) (‘“The failure of the inspection program to stop the company’s egregious behavior is
just another sign of how USDA’s thousands of meat inspectors are locked into a rigid, antiquated form of
inspection that is not filling the bill on either food safety or animal welfare . . . .’”(quoting former Agriculture
Department safety official, Mike Taylor)).
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McGeorge Law Review / Vol. 40
[Westland/Hallmark] company’s egregious behavior is just another sign of how
USDA’s thousands of meat inspectors are locked into a rigid, antiquated form of
inspection that is not filling the bill on either food safety or animal welfare.”33
B. Beef Recalls and the Westland/Hallmark Recall
Beef recalls in the United States are quite common.34 In 2007, there were twenty
beef recalls, but most were due to fear of E. coli contamination rather than mad cow
disease.35 Until the Westland/Hallmark recall, the largest meat recall in history
occurred in 1999, when the USDA recalled 35 million pounds of frozen meat
products potentially contaminated with listeria bacteria.36 The USDA reported no
illnesses.37
The Westland/Hallmark plant consistently received complaints about abusive
treatment of animals.38 In 1996, the Inland Empire Humane Society wrote a letter to
the Westland/Hallmark plant, stating, “there is not another slaughterhouse in this area
that has created more problems for the police department and our agency, than
yours.”39 In response to these complaints, the plant made a pledge to treat downer
animals humanely.40 Despite their pledge, in May 1998, a HSUS worker saw a cow
with a “hoof hanging by a tether of skin wandering around a parking lot for 15
minutes before the USDA inspector signed off to have it euthanized.”41 Also, in
2005, the USDA reprimanded the plant for overusing electric cattle prods.42
The January 2008 recall was in response to the release of a videotape by the
HSUS worker43 depicting plant workers using cruel measures to make downer
animals stand so they could legally be slaughtered.44 On June 20, 2008, one of the
workers pled guilty to two felony counts and two misdemeanor counts for animal
33. Id.
34. See Donald G. McNeil, Jr., Questions on U.S. Beef Remain, INT’L HERALD TRIB., June 11, 2008,
http://www.iht.com/articles/2008/06/11/asia/11beef.php (on file with the McGeorge Law Review) (noting that in
2007 “[t]he USDA issued 20 meat recalls”).
35. Brown, supra note 7.
36. Top Six Meat Recalls in U.S. History, U.S. NEWS & WORLD REP., Feb. 20, 2008, http://www.
usnews.com/articles/news/national/2008/02/20/top-six-meat-recalls-in-us-history.html (on file with the
McGeorge Law Review).
37. Id.
38. Julie Schmit, Meat Plant Concerns Raised for Years, USA TODAY, Mar. 5, 2008, http://www.
usatoday.com/money/industries/food/2008-02-27-westland-meat-recall_N.htm (on file with the McGeorge Law
Review).
39. Id.
40. Id.
41. Id.
42. Id.
43. Undercover Investigation, supra note 1.
44. See Kim & Landsberg, supra note 8 (“[T]he Humane Society of the United States released a video
showing workers at the plant using forklifts and water hoses, among other methods, to rouse cattle too weak to
walk.”).
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2009 / Penal
cruelty.45
Fortunately, no illnesses from the recalled meat have been reported.46 The
USDA recalled the meat from Westland/Hallmark because the cattle “did not
receive complete and proper inspection.”47 While the cattle did receive proper
ante-mortem inspections, once they became non-ambulatory, they were not given
proper second inspections.48 Therefore, although the plant did not meet the
proper inspection standards, the risk of illness was relatively low because the
cattle did pass an inspection before being slaughtered.49
III. CHAPTER 194
Chapter 194 explicitly prohibits the butchering of downed animals for human
consumption and ensures the humane treatment of downed animals.50 To protect
meat consumers, Chapter 194 makes three changes to existing law. First,
federally-inspected facilities are no longer exempt “from buying, selling[,] or
receiving a nonambulatory animal.”51 Second, Chapter 194 renders the
transportation and sale of meat of downed cattle for human consumption criminal
conduct.52 Lastly, Chapter 194 increases existing penalties for violations of these
provisions.53 Violations may be charged as a misdemeanor or felony with
$20,000 fines and up to a year in state prison.54
Chapter 194 also includes provisions to ensure the humane treatment of farm
animals.55 Chapter 194 requires slaughterhouses to humanely euthanize downed
animals.56 Additionally, facilities such as stockyards or dealers must either
provide veterinary treatment to downed animals or humanely euthanize them.57
45. Hallmark Slaughter Plant Manager Convicted of Felony Animal Cruelty, HUMANE SOC’Y, June 20,
2008, http://www.hsus.org/acf/news/pressrel/hallmark_slaughter_plant_manager_felony_cruelty_conviction_
062008.html (on file with the McGeorge Law Review).
46. Kim & Landsberg, supra note 8.
47. Recall Release, supra note 6.
48. Id.
49. Id.
50. ASSEMBLY FLOOR, COMMITTEE ANALYSIS of AB 2098, at 3 (Apr. 23, 2008).
51. Id. at 1.
52. CAL. PENAL CODE § 599f(b)-(c) (amended by Chapter 194).
53. See id. § 599f(h) (amended by Chapter 194) (“A violation of this section is subject to imprisionment
in the county jail for a period not to exceed one year, or by a fine of not more than twenty thousand dollars
($20,000), or by both that fine and imprisonment.”). Prior law stated that a violation of the statute constituted a
misdemeanor. Id. § 599f(d) (West 1999).
54. Id. § 599f(f) (amended by Chapter 194).
55. Id. § 599f(c)-(d) (amended by Chapter 194).
56. Id. § 599f(c) (amended by Chapter 194).
57. Id. § 599f(d) (amended by Chapter 194).
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McGeorge Law Review / Vol. 40
IV. ANALYSIS OF CHAPTER 194
Chapter 194’s supporters hope that the new regulations on slaughterhouses
will safeguard public health and enforce the humane treatment of animals.58 San
Bernardino’s District Attorney said that if Chapter 194 was in place at the time of
the incident, Westland/Hallmark itself could be charged, rather than just the
employees.59 Supporters hope the severe felony consequences of Chapter 194
will deter the slaughter of downed cattle at plants across California and eliminate
the risk of illness from those animals.60
Chapter 194 enacts severe repercussions to ensure that downed cattle are not
slaughtered for human consumption.61 Now, those who violate Chapter 194 will
face felony—rather than misdemeanor—prosecution.62 Even if the Agriculture
Secretary is successful in lobbying for legislation banning the slaughter of
downed cattle altogether,63 Chapter 194 provides a necessary route of
enforcement.64
There is no recorded opposition to Chapter 194.65 This is likely because of
the serious reprecussions in the meat industry; fifty nations dropped the U.S. as a
meat supplier after the first reported case of mad-cow disease.66 To gain a
foothold in the world beef market, the cattle industry benefits if foreign suppliers
know that the U.S. cattle industry will not ship tainted meat.67 The cattle industry
realizes that unless new laws are put in place, American consumers and foreign
markets will not have confidence in American beef.68
Overall, Chapter 194 reduces the risk of illness due to consumption of meat
from downed cattle and aids the cattle industry by promoting a clean image of
slaughterhouses in America.69
V. CONCLUSION
Prior to Chapter 194, the law protected humans from consuming potentially
dangerous meat of downed animals and protected animals from inhumane
58. Krekorian, supra note 16.
59. Id.
60. Id.
61. CAL. PENAL CODE § 599f(f) (amended by Chapter 194).
62. Id.
63. Press Release, Ed Schafer, supra note 27.
64. CAL. PENAL CODE § 599f(f) (amended by Chapter 194).
65. ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS of AB 2098, at 5 (Apr. 1,
2008).
66. McNeil, Jr., supra note 34.
67. Id.
68. Erica Werner, In Change, Industry Groups Back Downer Cow Ban, USA TODAY, Apr. 22, 2008,
http://www.usatoday.com/news/washington/2008-04-22-4234314486_x.htm (on file with the McGeorge Law
Review).
69. CAL. PENAL CODE § 599f(f) (amended by Chapter 194).
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treatment.70 However, the protections were inadequate.71 Chapter 194 strengthens
existing law by explicitly stating that downed animals cannot be butchered for
human consumption and imposes felony charges as a deterrent to any violation.72
While the impetus for Chapter 194 was the largest beef recall in history,73 the
most significant changes involve the humane treatment of downed animals.74
Chapter 194’s supporters hope that it will protect citizens from consuming
potentially dangerous meat,75 ensure the humane treatment of animals,76 and save
the meat industry from more videos of animal brutality.77
70.
71.
72.
73.
74.
75.
76.
77.
530
ASSEMBLY FLOOR, COMMITTEE ANALYSIS of AB 2098, at 1-2 (Apr. 23, 2008).
Id. at 3.
CAL. PENAL CODE § 599f(a) (amended by Chapter 194).
ASSEMBLY FLOOR, COMMITTEE ANALYSIS of AB 2098, at 3 (Apr. 23, 2008).
Nocera, supra note 3.
ASSEMBLY FLOOR, COMMITTEE ANALYSIS of AB 2098, at 3 (Apr. 23, 2008).
Undercover Investigation, supra note 1.
Nocera, supra note 3.
Chapter 346: Increasing Protection from Knuckle Weapons
Daniel Shelton
Code Section Affected
Penal Code § 12020.1 (amended).
SB 1162 (Maldonado); 2008 STAT. Ch. 346.
I. INTRODUCTION
“My slogan is don’t let them know what hit you. They’re not meant to be
seen” says Jason Shepherd, an online retailer of hard plastic knuckles.1 While
metal knuckles, commonly known as “brass knuckles,” are deadly weapons that
are illegal to possess or sell in California,2 possession of similar “knuckles” made
out of hard plastic or wood remain perfectly legal.3 These non-metallic knuckles
are as dangerous as their metal counterparts, but also pose an additional threat
because they can be easily smuggled through metal detectors at security
checkpoints in airports and courthouses.4
In 2003, the California Legislature addressed the danger of hard plastic
knuckles by making their manufacture, importation, and sale a misdemeanor.5
Chapter 346 adds composite and hard wooden knuckles to the list of prohibited
items.6 Chapter 346’s supporters hope it will close this potentially dangerous
loophole in the current law.7
II. BACKGROUND
Use of devices worn on the knuckles to inflict deadly force upon an opponent
can be traced back to antiquity. In the Aeneid, Virgil8 described the use of a
1. Ben Wei, 8ew Undetectable Weapon Could Slip by Security at Airports This Summer, ABC NEWS,
July 3, 2007, http://blogs.abcnews.com/theblotter/2007/07/new-undetectabl.html (on file with the McGeorge
Law Review).
2. CAL. PENAL CODE § 12020 (West 2000 & Supp. 2009).
3. SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF SB 1162, at G (Mar. 25, 2008).
4. Id.; Wei, supra note 1.
5. CAL. PENAL CODE § 12020.1 (West Supp. 2009).
6. Id. § 12020.1 (amended by Chapter 346) (“As used in this section . . . ‘hard wooden knuckles’ means
any device or instrument made wholly or partially of . . . wood, composite, or paper materials that is not a metal
knuckle.”).
7. SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF SB 1162, at G (Mar. 25, 2008).
8. Encyclopædia Britannica Online, Virgil, http://search.eb.com/eb/article-9108776 (last visited Oct. 14,
2008) (on file with the McGeorge Law Review).
Virgil was regarded by the Romans as their greatest poet, an estimation that subsequent generations
have upheld. His fame rests chiefly upon the Aeneid [from c. 30 BC; unfinished at his death], which
tells the story of Rome’s legendary founder and proclaims the Roman mission to civilize the world
under divine guidance.
Id.
531
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device fashioned from iron and leather, worn on the fists of gladiators to ensure a
deadly fight.9 Similarly, ancient Japanese peasants created the tekko, a metal
device worn over the fist, for use in the martial art of kobudo.10 Modern metal
knuckles have been around for at least two centuries and have found their way
into popular culture.11 Legislative enactments banning the possession of metal
knuckles date back to the nineteenth century, with some states having long
recognized the dangers associated with these weapons.12
In 1923, the California Legislature explicitly outlawed the possession of
brass knuckles.13 In 1953, the Legislature first enacted the current section of the
Penal Code banning the manufacture, import, sale, supply, or possession of metal
knuckles.14 Over the years, numerous items have been added to the list of
prohibited weapons, but the ban against knuckle weapons remained limited to
those composed only of metal.15 Although brass knuckles were not involved in
the tragedies of September 11, 2001, those events prompted federal and state
governments to reevaluate numerous safety measures.16
In the wake of September 11, the United States Congress responded by
passing thirty-six new airline safety mandates.17 Similar reassessment of
California’s safety laws led Governor Davis to enact a ban on the manufacture,
importation, and sale of plastic knuckles.18 The Governor noted his concern that
persons with criminal intentions could easily purchase and smuggle these
weapons through security checkpoints.19
While the sale and manufacture of plastic knuckles became illegal in 2003,
the possession of these items did not.20 The Legislature intended to protect those
citizens who may have been in legal possession of the item at the time the law
9. A DICTIONARY OF GREEK AND ROMAN ANTIQUITIES 269 (William Smith, ed., 1875), available at
http://penelope.uchicago.edu/Thayer/E/Roman/Texts/secondary/SMIGRA*/Cestus.html (on file with the
McGeorge Law Review).
10. Okinawa Karate, Okinawa Kobudo, http://www.karate.org.yu/articles/okinawa_kobudo.htm (last
visited Oct. 16, 2008) (on file with the McGeorge Law Review).
11. Gordon D. Beresford, Brass Knuckles, ANTIQUE TRADER WKLY., Sept. 30, 1981, at 72, available at
http://www.knuckledusterbook.com/index_files/articles/article.pdf (on file with the McGeorge Law Review).
12. See 13B WASH. PRAC., CRIM. LAW § 2804 (2007-08) (noting that Washington’s 1891 Territorial
Code explicitly prohibits possession of metal knuckles).
13. See People v. Quinones, 140 Cal. App. 609, 609, 35 P.2d 638, 638 (1st Dist. 1934) (noting that
section 1 of chapter 339 of the Statutes of 1923 outlawed the possession of metal knuckles in California).
14. CAL. PENAL CODE § 12020 (1953) (current version at CAL. PENAL CODE § 12020 (West 2000 &
Supp. 2009)).
15. See CAL. PENAL CODE § 12020 (Historical and Statutory Note) (noting 1961 amendment adding
sawed-off shotguns and 1983 amendment adding subdivision for knives carried in sheaths).
16. John Ellis & Cyndee Fontanta, 8ew Baggage Check Delays Fliers; Passengers Advised to Arrive
Two Hours Early or Risk Being Rebooked on Later Flights, FRESNO BEE, Dec. 31, 2002, at A1.
17. Id.
18. CAL. PENAL CODE § 12020.1 (West Supp. 2009).
19. 8otebook, SEATTLE TIMES, Aug. 25, 2002, at A5.
20. CAL. PENAL CODE § 12020.1.
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McGeorge Law Review / Vol. 40
was created, while restricting future widespread legal distribution.21 Until the
enactment of Chapter 346, however, a person could still legally sell any knuckle
composed of a material other than metal or plastic in California.22 In fact,
wooden knuckles may still be commercially available from online retailers.23
III. CHAPTER 346
Chapter 346 addresses concerns about the rising use of hard knuckles,
composed of materials other than metal or plastic, by violent criminals.24 Chapter
346 achieves this goal by prohibiting the manufacture, importation, or sale of
hard wooden or composite knuckles.25 Chapter 346 amends the Penal Code,
which previously prohibited only plastic knuckles,26 to include any device made
“wholly or partially” of “plastic, wood, composite or paper products.”27 Chapter
346 defines these “knuckles” as any device worn on the hand for “purposes of
offense or defense . . . that either protects the wearer’s hand while striking a blow
or increases the force of impact from the blow or injury to the individual
receiving the blow.”28
IV. ANALYSIS OF CHAPTER 346
Recently, several other states have recognized the danger posed by non-metal
knuckles by enacting legislation curbing their use and distribution. In 2008, at
least three states expanded prohibition of knuckle weapons beyond that which is
prohibited in California by Chapter 346.29 First, New York expanded its list of
unlawful dangerous weapons to include plastic knuckles, and thereby outlawed
their possession, manufacture, and transportation in the state.30 Likewise, Illinois
enacted a ban on the sale, manufacture, purchase, possession, and carrying of any
21. SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF SB 1162, at H (Mar. 25, 2008).
22. See CAL. PENAL CODE § 12020 (West 2000 & Supp. 2009) (prohibiting sale of metal knuckles);
CAL. PENAL CODE § 12020.1 (West 2003) (amended by Chapter 346) (prohibiting sale of plastic knuckles).
23. See BoingBoing, Wooden Brass Knuckles, http://www.boingboing.net/2008/03/24/wooden-brassknuckle.html (last visited Oct. 16, 2008) (on file with the McGeorge Law Review) (listing wooden knuckles for
$40.00).
24. SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF SB 1162, at G (Mar. 25, 2008).
25. CAL. PENAL CODE § 12020.1 (amended by Chapter 346) (“Any person in this state who
commercially manufactures or causes to be commercially manufactured, or who knowingly imports into the
state for commercial sale, keeps for commercial sale, or offers or exposes for commercial sale, any hard plastic
knuckles or hard wooden knuckles is guilty of a misdemeanor.” (emphasis added)). Section 12020.1 does not
set forth any specific penalties other than stating that the infraction is a misdemeanor. Id.
26. Id.
27. Id.
28. Id.
29. GA. CODE ANN. § 16-11-126 (2003); 720 ILL. COMP. STAT. ANN. 5/24-1 (West 2003); N.Y. PENAL
LAW § 265.01 (McKinney 2008) (possession); N.Y. PENAL LAW § 265.10 (McKinney 2008) (manufacture and
transportation).
30. N.Y. PENAL LAW § 265.01 (possession); id. § 265.10 (manufacture and transportation).
533
2009 / Penal
“knuckle weapon regardless of its composition.”31 Finally, Georgia expanded its
list of prohibited concealed weapons to include “knuckles whether made from
metal, thermoplastic, wood, or other similar material.”32
California’s prohibition of knuckle weapons falls short of the protection
afforded by these other states because California law does not prevent the
possession of knuckle weapons other than metal knuckles.33 As originally
introduced, the bill that was eventually enacted as Chapter 346 included a
provision prohibiting the possession of plastic or wooden knuckles in addition to
their manufacture, importation, and sale;34 however, a subsequent amendment to
the bill reduced its scope.35 Even so, the goal remained the same: to update the
law to encourage the prohibition of the potentially deadly wooden knuckles36 and
ultimately reduce their prevalence.37 As the author of Chapter 346 noted, “[i]n
order to curb the possession of all metal, wood, plastic and other composite
constructed knuckles, the manufacture of these ‘knuckles’ must first be
stopped.”38 Chapter 346, however, only addresses the commercial sale and
production of these knuckles,39 and given the relative ease with which one can
produce homemade knuckle weapons, a loophole will remain until the actual
possession of these weapons is made unlawful.40
Progress toward a complete prohibition on possession of knuckle weapons is
likely to continue in the near future. During the prior legislative session, the
California State Senate and Assembly passed a bill outlawing the possession of
these knuckle weapons.41 Notably, the bill did not receive a single “no” vote in
either house,42 thus showing its broad-based support. In vetoing the bill,
31. 720 ILL. COMP. STAT. 5/24-1.
32. GA. CODE ANN. § 16-11-126.
33. CAL. PENAL CODE § 12020 (West 2000 & Supp. 2009) (prohibiting possession of metal knuckles).
34. SB 1162, 2008 Leg., 2007-2008 Sess. (Cal. 2008) (as introduced on Feb. 6, 2008, but not enacted)
(repealing CAL. PENAL CODE § 12020.1 and adding “plastic, wood, composite, or paper products” to metal
knuckles under CAL. PENAL CODE § 12020).
35. SB 1162, 2008 Leg., 2007-2008 Sess. (Cal. 2008) (as amended on Apr. 1, 2008, but not enacted)
(adding “wood, composite, or paper products” to plastic knuckles under PENAL CODE § 12020.1).
36. ASSEMBLY COMMITTEE ON APPROPRIATIONS, COMMITTEE ANALYSIS SB 1162, at 1 (June 18, 2008).
37. ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS SB 1162, at 2 (June 10, 2008).
38. Id.
39. CAL. PENAL CODE § 12020.1 (amended by Chapter 346).
40. A Google search for “how to make plastic knuckles” reveals numerous web pages with written and
video instruction on how to make various forms of knuckle weapons. See, e.g., Instructables.com, How to Make
Brass Knuckles (Out of Plastic and Duct Tape!!!), http://www.instructables.com/id/how-to-make-brassknuckless-out-of-plastic-and-du/ (last visited Feb. 6, 2009) (on file with the McGeorge Law Review) (describing
how to make plastic knuckles).
41. AB 2706, 2008 Leg., 2007-2008 Sess. (Cal. 2008) (as enrolled on Sept. 26, 2008, but not enacted)
(enrolled bill amending CAL. PENAL CODE § 12020.1 prohibiting possession of composite knuckles).
42. See SENATE FLOOR VOTE, UNOFFICIAL BALLOT FOR AB 2706, at 1 (Aug. 11, 2008) (passing the bill
35-0); ASSEMBLY FLOOR VOTE, UNOFFICIAL BALLOT FOR AB 2706, at 1 (Aug. 13, 2008) (passing the bill 780).
534
McGeorge Law Review / Vol. 40
Governor Schwarzenegger cited the historic delay in passing the 2008-2009 state
budget and remained silent as to its substance.43
V. CONCLUSION
Prior to Chapter 346, California law prevented the manufacture, importation,
and sale of metal and plastic knuckles, but not hard wooden or composite
knuckles.44 Although wooden knuckles are potentially just as deadly as their
metal counterparts,45 lawmakers previously overlooked these wooden weapons.46
With the rising popularity of these weapons, Chapter 346 outlaws wooden
knuckles to the same extent as plastic knuckles, but stops short of criminalizing
their possession.47
43. AB 2706, 2008 Leg., 2007-2008 Sess. (Cal. 2008) (as vetoed on Sept. 28, 2008) (“The historic delay
in passing the 2008-2009 State Budget has forced me to prioritize the bills sent to my desk at the end of the
year’s legislative session.”).
44. See supra Part II and notes 11-17 (discussing the history of California legislation on metallic
knuckles).
45. SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF SB 1162, at G (Mar. 25, 2008).
46. See CAL. PENAL CODE § 12020 (West 2000 & Supp. 2009) (prohibiting sale of metal knuckles); Id.
§ 12020.1 (West 2003) (amended by Chapter 346) (prohibiting sale of plastic knuckles).
47. Id. § 12020.1 (amended by Chapter 346).
535
Chapter 431: Reinforcing California’s on-Tolerance to
Trademark Counterfeiting
Mani Partheesh
Code Section Affected
Penal Code § 350 (amended).
AB 1394 (Krekorian); 2008 STAT. Ch. 431.
I. INTRODUCTION
In 1989, a Norwegian shipping company rewarded fifty of its employees
with a free trip to Germany on a chartered plane.1 The Norwegian plane, carrying
the fifty employees and five crew members, crashed near the North Sea en route
to Germany.2 Sadly, none of the fifty-five people on board the aircraft survived.3
It was the worst air crash in Norwegian history.4 Investigators later revealed that
substandard counterfeit bolts were used in the aircraft’s tail assembly that held
the tail to the rest of the aircraft’s body.5 The investigators concluded that the
aircraft’s tail fell off mid-air due to the counterfeit bolts, causing the crash.6
Stories like this, involving counterfeit products, are not so rare, and may actually
serve as examples of the threat counterfeit products pose to public health and
safety.7
In response to such unfortunate circumstances, California Penal Code section
350 made it a crime for a person to willfully manufacture, intentionally sell, or
knowingly possess counterfeit products.8 Chapter 431 aims to improve section
350’s effectiveness and deterrent value.9
1. 55 Killed in Crash of 8orwegian Plane 8one Aboard Survive as Craft Plunges into Sea 8ear
Denmark, L.A. TIMES, Sept. 9, 1989, at A1 [hereinafter 8orwegian Plane Crash].
2. Id.
3. Id.
4. Id.
5. Special Report: Imitating Property Is Theft - Counterfeiting, ECONOMIST, May 17, 2003, at 70 (on file
with the McGeorge Law Review).
6. Id.
7. See David J. Goldstone & Peter J. Toren, The Criminalization of Trademark Counterfeiting, 31
CONN. L. REV. 1, 4 (1998) (providing examples illustrating that trademark counterfeiting poses a danger to
public health and safety).
8. CAL. PENAL CODE § 350(a) (West 1999).
9. See SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 1394, at J (June 16,
2008) (discussing the various provisions in Chapter 431).
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McGeorge Law Review / Vol. 40
II. LEGAL BACKGROUND
A. Harmful Effects of Trademark Counterfeiting
Trademarks and service marks are vital ingredients of modern society.10 To a
consumer, these marks provide an instant source of reliable information about the
merits and durability of products in the market.11 For a manufacturer, the
goodwill and brand equity created by trademarks ensures continued customer
loyalty.12 Trademark counterfeiters negatively affect both the consumers and
manufacturers: consumers are defrauded because they take home a product of
inferior value;13 manufacturers suffer a loss of sales and reputation.14
Additionally, there have been several instances of products with
counterfeited trademarks that create a threat to public health and safety.15
Examples include food products that do not meet FDA standards,16 bath products
that are contaminated with harmful bacteria,17 children’s toys that do not comply
with consumer safety standards,18 and automotive parts that present safety
hazards.19
In Textron v. Aviation, Sales, the defendants manufactured and distributed
helicopter parts with counterfeited trademarks.20 These parts were used in critical
components of helicopters’ navigation instruments, and were later found to be
“defective, [and] not airworthy.”21 Several helicopters crashed during takeoff and
landing, resulting in injuries and the death of several people, causing the
helicopters’ manufacturers to recall the entire fleet of helicopters.22 The United
States District Court for the Central District of California found that the failure of
10. Goldstone & Toren, supra note 7, at 4. “A trademark can be a word, logo, slogan, package, design or
other source indicator, or a combination of them.” International Trademark Association, Statement on
Trademark Counterfeiting, Feb. 12, 2002, http://www.inta.org/index.php?option=com_content&task=view&
id=629& Itemid=152&getcontent=3 [hereinafter INTA] (on file with the McGeorge Law Review). Trademarks
are imperative marketing tools used by companies to “distinguish their products and services from those of their
competitors.” Id. Equally important is a trademark’s ability to “convey to consumers a message of quality,
consistency, safety, and predictability in an easy-to-understand form, answering basic, but critical questions like
‘Who am I?’ and ‘Where do I come from?’ and ‘What can I do for you?’” Id.
11. Goldstone & Toren, supra note 7, at 4.
12. Id.
13. Id.
14. Id.
15. See id. at 5 (providing a list of examples where trademark counterfeiting has resulted in public health
and safety issues).
16. Id.
17. Id.
18. Id.
19. Id.
20. Civ. 77-1317 (C.D. Cal. 1980), cited in S. REP. NO. 98-526, at 4 (1984), reprinted in 1984
U.S.C.C.A.N. 3627, 3630-31.
21. Id.
22. Id.
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the defendant’s parts “result[ed] in the in-flight loss of control of the
helicopters.”23 Additionally, the court found that the inferior parts with the
counterfeited trademarks resulted in the tragic loss of human life “as a result of
the failure of [the] parts manufactured and sold by the defendants.”24
B. Existing Federal Law
Congress has long realized the need to treat the use of counterfeit trademarks
as more than just a civil wrong.25 As early as 1876, Congress included penal
statutes against trademark counterfeiting as part of the Federal Trademark
Registration Act (FTRA).26 However, the Supreme Court soon held that the
FTRA was unconstitutional because it exceeded the federal government’s
interstate commerce power.27
It took more than a century for Congress to enact legislation that made
trademark counterfeiting a federal crime.28 In 1984, Congress enacted the
Trademark Counterfeiting Act (TCA) to criminalize trafficking in goods and
services bearing a counterfeit mark.29 Under the TCA, it is a federal crime to
intentionally or knowingly traffic goods or services that use a counterfeit mark.30
A counterfeit mark is defined as “a spurious mark . . . that is identical with, or
substantially indistinguishable from, a [registered mark] . . . the use of which is
likely to cause confusion, to cause mistake, or to deceive.”31 The TCA also
provides that a court shall order the counterfeiter to pay restitution to the owner
of the mark or to any victim.32
C. Existing California Law
Section 350 of the California Penal Code defines a counterfeit mark as a
spurious mark that is “identical with, or confusingly similar to, a registered
[trade]mark.”33 Section 359 provides that the spurious marks include any mark
23. Id.
24. Id.
25. Craig O. Correll, Using Criminal Sanctions to Combat Trademark Counterfeiting, 14 AIPLA Q.J.
278, 279 (1986).
26. Id.
27. See In re Trade-Mark Cases, 100 U.S. 82, 98-99 (1879) (holding that the Federal Trademark
Registration Act of 1870 is unconstitutional); BLACK’S LAW DICTIONARY 285 (8th ed. 2004) (defining
interstate commerce as “[t]rade and other business activities between those located in different states; esp.,
traffic in goods and travel of people between states”).
28. See Correll, supra note 25, at 279 (explaining how the FTRA was held unconstitutional in 1879 and
a new federal law criminalizing trademark counterfeiting was not enacted until 1984).
29. Id. at 280.
30. 18 U.S.C. § 2320(a) (2006).
31. Id. § 2320(e)(1)(A)(ii), (iv).
32. Id. § 2320(b)(4).
33. CAL. PENAL CODE § 350(e)(2) (West 1999).
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McGeorge Law Review / Vol. 40
that is used in connection with any “identical articles containing identical
marks.”34 Existing law also makes it a crime for a person to intentionally sell,
willfully manufacture, or knowingly possess for sale any counterfeit products.35
This is similar to the TCA, which places an intent requirement in the trafficking
of counterfeit products.36 However, existing law cannot be enforced against a
person who adopted and “lawfully” used the mark before the date the
complaining party registered the mark.37
Similar to the TCA, existing law allows a court to order the seizure of “all
goods, articles, or other matter bearing the marks, . . . all means of making the
marks, and any and all electrical, mechanical, or other devices for manufacturing,
reproducing, transporting, or assembling these marks.”38
III. CHAPTER 431
Chapter 431 expands the definition of a “counterfeit mark” to include
unassembled components, such as “labels, patches, fabric, stickers, wrappers,
badges, emblems, medallions, charms, boxes, containers, cans, cases, hangtags,
documentation, or packaging, or any other components of any type or nature that
are designed, marketed, or otherwise intended to be used on or in connection
with any articles.”39
In addition, Chapter 431 adds business entities to the list of those liable under
the provisions of section 350.40 A “business entity” includes corporations, limited
liability companies (LLCs), and partnerships, but does not include sole
proprietorships.41 However, Chapter 431 provides that section 350 cannot be
enforced against a person or business entity that engages in fair use42 of the
mark.43
34. Id.
35. Id. § 350(a).
36. 18 U.S.C. § 2320(a).
37. CAL. PENAL CODE § 350(f).
38. Id. § 350(d).
39. Id. § 350(e)(3) (amended by Chapter 431).
40. Id. § 350(a) (amended by Chapter 431).
41. Id. § 350(e)(2) (amended by Chapter 431).
42. See CAL. BUS. & PROF. CODE § 14247(b) (West 2008) (explaining that the fair use of a trademark
includes “[a]dvertising or promotion that permits consumers to compare goods or services . . . [and the
i]dentifying and parodying, criticizing, or commenting upon the famous mark owner or the goods or services of
the famous mark owner”).
43. CAL. PENAL CODE § 350(h) (amended by Chapter 431).
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2009 / Penal
IV. ANALYSIS OF CHAPTER 431
A. Deficiencies in Section 350 of the California Penal Code
According to Chapter 431’s author, Assembly Member Krekorian, “[u]nder
existing law, California’s consumers are not adequately protected from the traffic
of counterfeit goods.”44 Krekorian further indicated that “[w]ithout adequate
penalties to shut down the organized criminal operations that thrive on the sale of
creative works and goods that are not their own, law enforcement officers will
not be able to prevent the destruction of legitimate industries in California that
rely on their marks for economic success.”45
Chapter 431 sought to rectify a number of deficiencies in existing law.
Specifically, existing law: (1) does not clearly define the meaning of “business
entities,” thus allowing LLCs and other commercial entities to escape a higher
fine earmarked for business entities;46 (2) is “unclear on whether separate fake
components . . . are illegal counterfeit goods unless already assembled”;47 and (3)
does not allow persons or business entities that engage in fair use of the mark to
escape liability.48
B. Chapter 431 Addresses the Deficiencies in Existing Law
1. Meaning of “Business Entities”
To prevent LLCs and other commercial entities from escaping enhanced
fines, Chapter 431 provides that “a business entity” shall be liable.49 Under
Chapter 431, a business entity “includes, but is not limited to, a corporation, a
limited liability company, or [a] partnership.”50 Chapter 431 does not subject sole
proprietorships to the same enhanced fines as other larger commercial entities,
thus preserving the “distinction in the fine structure between individuals and
commercial entities.”51 The effect of this differentiation is that a person who runs
a small boutique will not be forced to pay the same fine as a company that
manufactures thousands of counterfeit items.52 In addition, Chapter 431 ensures
that LLCs will be subject to the same enhanced fines as corporations.53
44. SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 1394, at N (June 16, 2008).
45. Id.
46. Id. at R.
47. Letter from Kyla Christoffersen, Policy Advocate, Cal. Chamber of Commerce, to Members of the
Cal. State Senate (July 14, 2008) [hereinafter Christoffersen Letter] (on file with the McGeorge Law Review).
48. See generally CAL. PENAL CODE § 350 (failing to provide a fair use defense).
49. SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 1394, at R (June 16, 2008).
50. CAL. PENAL CODE § 350(e)(2) (amended by Chapter 431).
51. SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 1394, at R (June 16, 2008).
52. Id. at R-T.
53. See CAL. PENAL CODE § 350(e)(2) (amended by Chapter 431) (providing that limited liability
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McGeorge Law Review / Vol. 40
2. Unassembled Components
Prior to Chapter 431, the law did not specify whether unassembled
components that carry counterfeit marks carried the same protection as
assembled products.54 For example, prior law was “unclear on whether separate
fake components, e.g., fake computers and the fake brand name labels that are to
be affixed to them, are illegal counterfeit goods unless already assembled.”55
Chapter 431 clarifies this uncertainty by expressly providing that unassembled
goods are illegal goods, thus ensuring that unassembled components are also
covered under the provisions of section 350.56
3. “Fair Use” Defense
Chapter 431 provides that a person who engages in “fair use” of a trademark
is not subject to criminal prosecution.57 Federal law also has a similar provision,
but restricts the fair use defense to one of three categories where the defendant
can prove that the mark was the defendant’s own name, descriptive of the
defendant’s goods or services, or descriptive of the geographic origin of
defendant’s goods or services.58 Chapter 431, however, extends the fair use
defense to the “[a]dvertising or promotion that permits consumers to compare
goods or services[,] [i]dentifying and parodying, criticizing, or commenting upon
the famous mark owner or the goods or services of the famous mark owner.”59
Moreover, Chapter 431 allows a defendant to invoke the fair use defense in both
criminal and civil actions involving trademark counterfeiting.60
4. Support for Chapter 431
Chapter 431 had widespread recognition and support from a variety of
political and business organizations.61 In enacting Chapter 431, neither the State
companies are considered business entities).
54. See Christoffersen Letter, supra note 47 (“[S]tate law is unclear on whether separate fake
components . . . are illegal counterfeit goods.”).
55. Id.
56. CAL. PENAL CODE § 350(e)(3) (amended by Chapter 431).
57. Id. § 350(h) (amended by Chapter 431).
58. See 15 U.S.C. § 1115(b)(4) (2006) (stating specifically that the statute provides as a defense “[t]hat
the use of the name, term, or device charged to be an infringement is a use, otherwise than as a mark, of the
party’s individual name in his own business, or of the individual name of anyone in privity with such party, or
of a term or device which is descriptive of and used fairly and in good faith only to describe the goods or
services of such party, or their geographic origin”).
59. CAL. BUS. & PROF. CODE § 14247(b) (West 2008).
60. SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 1394, at J (June 16, 2008).
61. See id. at A (“Support [for Chapter 431]: California Grocers Association; California Retailers
Association; International AntiCounterfeiting Coalition; United States Chamber of Commerce; California
Alliance for Consumer Protection; Valley Industry and Commerce Association.”).
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2009 / Penal
Assembly nor the State Senate received any opposition.62 The California
Retailers Association, arguing in support of Chapter 431, indicated that
“[c]ounterfeiting of trademarked products has far-reaching negative
consequences, impacting numerous California industries” and that Chapter 431
would bring “California law into greater conformity with federal penalties for
counterfeiting.”63 The California Chamber of Commerce noted that Chapter 431
ensures that “California’s anti-counterfeiting standards are strong and effective
[and] will provide greater protections for trademark owners and consumers and
will help prevent significant revenue losses sustained by California businesses,
our state, and our local governments because of counterfeiting.”64 Supporters are
also confident that Chapter 431 “will assist in deterring individuals from
becoming involved in counterfeiting activity because it will no longer be seen as
a crime that is worth the risk.”65
V. CONCLUSION
California’s decision to treat the misuse of trademarks as a criminal matter is
consistent with the nation’s recognition of “the ever increasing value of
intellectual property to th[e] nation’s economic wellbeing, and of the damage to
the public caused by mis-marked goods and services.”66 The new criminal
liability has come as “a rude awakening for several counterfeiters who have
cooled their heels in county jails as a direct result of [California’s] push for
prosecution.”67 The overall effect of section 350 is “to deter future counterfeiters,
thereby protecting the public from fraud and the trademark owner’s intellectual
property from misuse.”68 Chapter 431 enhances the deterrent value of section 350
by extending its coverage, and further reinforces the zero tolerance attitude
California takes toward trademark counterfeiters.69 By enhancing the deterrent
value of section 350, Chapter 431 will also reduce the likelihood of tragic
accidents like the Norwegian plane crash that result from products with
counterfeited trademarks.70
62. See id. (indicating that there is no known opposition to the enactment of Chapter 431).
63. Id. at T.
64. Christoffersen Letter, supra note 47.
65. Garden Grove Chamber of Commerce, Chamber Supports AB1394 (Mar. 26, 2008) (on file with the
McGeorge Law Review).
66. Goldstone & Toren, supra note 7, at 35.
67. Correll, supra note 25, at 288.
68. Id.
69. See generally SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 1394 (June
16, 2008) (discussing the various amendments proposed in Chapter 431 and the advantages of the proposed
amendments to section 350).
70. 8orwegian Plane Crash, supra note 1.
542