Amended  IN  Senate  June 04, 2024
Amended  IN  Assembly  May 16, 2024
Amended  IN  Assembly  April 01, 2024

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill
No. 3209

Introduced by Assembly Members Berman and Robert Rivas
(Coauthor: Assembly Member Gipson)

February 16, 2024

An act to add Section 490.8 to the Penal Code, relating to crimes.


LEGISLATIVE COUNSEL'S DIGEST


AB 3209, as amended, Berman. Crimes: theft: retail theft restraining orders.
Existing law prohibits the theft of merchandise from a retail establishment. Existing law authorizes a court, upon sentencing a person for specified offenses, including stalking and elder abuse, to issue a criminal protective order prohibiting the person from contacting any victim of their offense.
This bill would authorize a court, when sentencing a person for an offense involving theft from a retail establishment, vandalism of a retail establishment, or battery of an employee of a retail establishment, to issue a criminal protective order prohibiting a person from entering the retail establishment, including any parking lots and including other franchise or chain locations of the retail establishment, as specified.
The bill would also authorize a prosecuting attorney, city attorney, county counsel, or attorney representing a retail establishment to file a petition for the issuance of a criminal protective order of this type against a person who has been arrested, including, but not limited to, the issuance of a citation in lieu of a custodial arrest, 2 or more times for any of the offenses at the same retail establishment, as specified.
The bill would make a violation of these orders punishable as a misdemeanor. By creating a new crime, this bill would impose a state-mandated local program.
Existing law requires a person arrested for a misdemeanor to be issued a written notice to appear and to be released upon their signed promise to appear, except as otherwise provided.
This bill would exempt a violation of a retail establishment restraining order from that requirement.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

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


SECTION 1.

 Section 490.8 is added to the Penal Code, to read:

490.8.
 (a) A court sentencing a defendant for any violation described in subdivision (b) shall consider issuing an order restraining the defendant from entering the premises of the retail establishment, that may be valid for up to two years, as determined by the court.
(b) This section Subdivision (a) shall apply to a person convicted of any of the following offenses:
(1) Shoplifting in violation of Section 459.5.
(2) Any theft, including a violation of Section 487 or 488, from a retail establishment.
(3) Organized retail theft in violation of Section 490.4.
(4) Any vandalism of a retail establishment in violation of Section 594.
(5) Any assault or battery of an employee of a retail establishment while that person is working at the retail establishment, including a violation of Section 240, 242, or 245.
(c) (1) An order issued pursuant to this section subdivision (a) shall prohibit the restrained person from entering the retail establishment, or being present on the grounds of, or any parking lot adjacent to, to and used to service, the retail establishment.
(2) If the retail establishment is part of a chain or franchise, the court may include other retail establishments in that chain or franchise within a specified geographic range in the order.
(d) In determining whether to impose a retail crime restraining order, order pursuant to subdivision (a) or (e), the court shall consider whether the retail establishment is the only place that sells food, pharmaceuticals, or other basic life necessities within one mile of where the individual resides, or otherwise creates undue hardship for the individual.
(e) (1) A prosecuting attorney, city attorney, county counsel, or attorney representing a retail establishment may file a petition requesting a retail crime restraining order for an individual who has been arrested, including, but not limited to, the issuance of a citation in lieu of a custodial arrest pursuant to Section 853.6, two or more times for any of the offenses listed in subdivision (b) within the same retail establishment.
(2) An order issued pursuant to this subdivision shall be issued after a hearing.
(3) The respondent shall be personally served with notice of the hearing and shall be entitled to representation by court-appointed counsel.
(4) The petitioner shall bear the burden of proving, by a preponderance of the evidence, that the respondent, on two or more separate occasions, committed an offense described in subdivision (b) within the retail establishment or on the grounds thereof.
(5) The court may issue an order restraining the respondent from entering the premises of the retail establishment for a period not to exceed two years if the court finds by a preponderance of the evidence that both of the following are true:
(A) The respondent, on two or more separate occasions, committed an offense described in subdivision (b) within the retail establishment or on the grounds thereof.
(B) There is a substantial likelihood that the individual will return to the retail establishment.
(6) (A) An order issued pursuant to this subdivision shall prohibit the restrained person from entering the retail establishment, or being present on the grounds of, or any parking lot adjacent to, to and used to service, the retail establishment.
(B) If the retail establishment is part of a chain or franchise, the court may include other retail establishments in that chain or franchise within a specified geographic range in the order.
(f) A violation of an order issued pursuant to this section is punishable as a misdemeanor. Declarative of existing law, prosecution under this section shall not preclude prosecution for any other offenses committed during a violation of this section.
(g) Notwithstanding Section 853.6, an officer arresting a person for a violation of this section is not required to release the person pursuant to a written notice to appear.
(h) Declarative of existing law, a court may offer an individual charged with a violation of this section an opportunity to participate in a diversion program for which they are eligible, including those described in Title 6 (commencing with Section 976) of Part 2.

SEC. 2.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.