A bill introduced by Assemblyman James Ramos and co-authored by Assemblyman Avelino Valencia, if approved by the legislature, governor and then passed by the state’s voters, will impose stiffer penalties against retail theft suspects, in particular those engaging in smash-and-grab thefts and swarm robberies.
In 2020, a perfect storm descended upon retail establishments in California as massive demonstrations in the aftermath of the George Floyd death taken together with thinned-out personnel in stores and markets because of the coronavirus pandemic inspired looting, which law enforcement agencies did not respond to out of fear or concern encounters with those looters might result in fatalities. That lack of response emboldened criminals who innovated and incorporated swarm techniques into coordinated robberies.
In a typical swarm theft, a significant number of participants – a dozen or more and, in some, multiple dozens or scores of thieves – will enter a business and spend several minutes collecting and/or pocketing merchandise and then, upon a prearranged signal, walk out en masse without paying for any of it. By their sheer numbers, they overwhelm the clerks or store personnel and their ability to prevent what is occurring.
Smash and grab robberies likewise involve multiple participants, but usually far fewer than in a swarm theft scenario. Such actions similarly involve a rush and entail, at the very least, implied violence which often extends to actual violence, with an intentional display of destruction or mayhem. A key element is the distraction or disabling of any form of security or theft preventative measures. This can involve the brandishing of weapons – usually firearms – or the employment of chemical agents such as bear spray, pepper spray or mace against any security guards, the use of hammers or heavy metal rods in smashing glass display or containment cases, all carried out rapidly and with aggression. In effectuating such thefts, perpetrators are not reluctant to make noise or conspicuously inflict damage on property to accentuate the intimidation effect. Upscale stores featuring expensive items and valuable commodities are popular smash and grab robbery targets.
This circumstance was exacerbated by the disenabling effect of Proposition 47, which was approved by voters by a 60% to 40% margin in 2014.
Proposition 47 grew out of an effort to comply with a 2011 California Supreme Court order aimed at lessening the Golden State’s per capita incarceration, the second highest in the nation at that time. The California Supreme Court in that ruling held that California’s overcrowded prisons violated incarcerated individuals’ Eighth Amendment rights against cruel and unusual punishment. The Supreme Court’s order mandated a reduction in California’s prison population by 33,000 inmates.
Proposition 47 reclassified theft offenses such that the threshold for prosecuting an incidence of shoplifting or robbery as a felony rose from items or merchandise valued at $400 to $950. Thus, stealing anything worth less than $950 was classified as petty theft or a misdemeanor. In many cases, depending upon the jurisdiction and the manpower of the prosecutor’s office, this meant a whole series of offenses went without being prosecuted at all.
In combination with the tactics and trends of swarm robberies or smash and grab robberies, there was a perception that retail theft had risen to a point where it was completely out of control.
This prompted Ramos to take a swing at authoring a bill, AB 1772, aimed at deliberalizing the impact of Proposition 47 and what he said was the undesirable side effect of encouraging swarm and smash and grab robberies.
According to the Legislative Counsel’s Digest, “Existing law, the Safe Neighborhoods and Schools Act, enacted by Proposition 47, as approved by the voters at the November 4, 2014, statewide general election, defines and prohibits an act of shoplifting and prohibits prosecution for an act of shoplifting under any other law. Existing law defines shoplifting as entering a commercial establishment with intent to commit larceny while the establishment is open during regular business hours. AB 1772 would revise the definition of shoplifting to require an intent to steal retail property or merchandise. Existing law provides that a person with a prior conviction for specified offenses may be charged with a felony for shoplifting or for theft of property not exceeding $950 in value. AB 1772, would require a person convicted of petty theft or shoplifting, if the person has 2 or more prior convictions for specified theft-related offenses, to be punished by imprisonment in the county jail for up to one year, or for 16 months, or 2 or 3 years, and would make conforming changes.”
According to the Legislative Counsel’s Digest, because the provisions of the Safe Neighborhoods and Schools Act were put in place by a vote of the people in approving Proposition 47, those provisions cannot be removed simply by an act of the state legislature and the signing of that legislation into law by the governor. Rather, the provisions of Proposition 47 must be rescinded by another majority vote of the citizens of the state, according to the Legislative Counsel’s analysis.
“This bill, AB 1772, would provide that its provisions would become effective only upon approval of the voters, and would provide for the submission of its provisions to the voters for approval at the next statewide general election,” according to the Legislative Counsel’s Digest.
Assemblyman Ramos’s office offered a statement that “Prosecutors will find it easier to seek sterner penalties against retail theft suspects if AB 1772 is approved by the legislature, governor and then wins voter approval. If approved, store thefts would no longer be processed as a misdemeanor with no jail time if a suspect has been convicted of two or more specified theft-related offenses, and punishment could range from imprisonment in the county jail ranging from six months to as long as three years.”
Ramos said, “Shoplifting, smash-and-grab thefts, and other acts of retail theft trends are causing retailers to close their businesses and endangering customers and employees. Since the pandemic, these crimes have increased. That is not the direction California needs to go.“
Ramos added, “The Public Policy Institute reported that the 2022 rates for commercial burglary rates had increased by almost 16 percent compared to 2019. The Public Policy Institute also reported that shoplifting in 2022 had increased by nearly 29 percent from the pandemic years.”
Ramos’s office noted that one of Proposition 47’s provisions “increased the threshold amount for theft misdemeanors from $450 to $950 and did not allow prior such convictions to count toward the new $950 threshold. AB 1772 does not state a new threshold for triggering the increased penalties for retail theft, only the existence of prior convictions on the suspect’s criminal record.”
In February 2023, Ramos requested the state auditor to review the effectiveness of Proposition 47 to determine whether it had escalated crime rates in San Bernardino and Riverside counties and if so, what categories had been affected. The auditor’s report is expected later this year.
Ramos characterized rising retail theft as “an issue that’s been plaguing the State of California. We need to start holding people accountable for their actions. AB 1772 was introduced the first day, January 3, of [this year’s legislative] session in response to the different retail thefts, smash and grabs, that are going on throughout the State of California. This bill is meant to start the dialogue moving forward, but also to start to hold people accountable and making sure we are bringing the pendulum back to the middle.”
Assemblyman Valencia said, “I am proud to joint-author AB 1772, with Assembly Member James Ramos, which will make our communities safer and support our businesses, while holding theft offenders accountable. We have all witnessed the disturbing continuous increase in crimes since the pandemic. Robberies, burglaries, petty retail theft have become so common in our communities. These incidents are taking place all across our Golden State. In addition to the financial impacts, these incidents also leave emotional trauma, causing individuals to feel vulnerable. According to the Public Policy Institute of California, in 2022, California experienced a 28.7 percent increase in reported commercial shoplifting. The state’s largest counties have experienced the largest increases in reported retail theft crime. Thieves are brazen, committing these crimes in broad daylight and walking away without any repercussions. These criminal actions are leaving our communities feeling unsafe and negatively affecting our quality of life. Our business partners are suffering, losing profit and being forced to increase their security measures or going completely out of business. Small business retailers have been able to remain operative, but they’ve had to increase their prices to make up for the loss due to theft. These increased costs and unexpected financial hits can have devastating implications, not only on the business owner but also on the employees of that business. This is unacceptable and it’s time we hold these bad actors to account for their actions.”
Valencia said, “AB 1772 increases the ability of law enforcement and district attorneys to prosecute repeat offenders and reverse the spikes we have seen in theft crimes. Repeat offenders will no longer receive a ‘get out of jail free card,’ even if the stolen goods are under $950. AB 1772 requires jail time if the perpetrator is convicted of a third offense. This bill aims to hold offenders accountable and will bring justice and a sense of security to our communities. Voters will have the final say if AB 1772 is enacted because it will amend Prop 47. I look forward to working collaboratively with our colleagues on this policy and addressing the public safety challenges our state is facing.”
-Mark Gutglueck