Often, California political leaders would rather support their political party’s agenda than do what is right for their constituents. There is no greater example of this than in the criminal justice arena. Some political leaders would rather be perceived as tough on crime instead of actually being tough on crime. For those of us who have dedicated our lives to protecting the public and fighting for crime victims, there is nothing more frustrating.
What is a political leader supposed to do when his party seeks to pass a series of criminal justice statutes that support criminals, especially when that political leader’s constituents would not support that legislation? He waits. If it appears that the particular criminal statute he supports will pass, then that opportunistic political leader will vote no on the bill. This places the political leader in the proverbial win-win situation. Behind the scenes, the political leader has supported the bill. In public, the political leader tells his constituents he did not, which is why he voted no. The general public is never the wiser.
To undercover this deception, a citizen simply needs to dig under the surface a little. Did the political leader do anything to stop the bill from passing? Did he reach out to victim advocacy groups and law enforcement agencies for support? Did he form a caucus made up of other like-minded political leaders to stop the bill dead in its tracks? The answer is no, of course. Typically, all this political leader does is vote no and tell his constituents he did his best.
Because of the influx of organized retail thefts and smash-and-grab burglaries, in 2018, California legislators passed a law codified as Penal Code section 490.4. While this law made it easier to prosecute organized retail thefts, it didn’t provide the penalties necessary to act as a deterrent. This was because other newly-enacted criminal statutes made it almost impossible to charge these crimes as felonies or send those convicted of organized retail theft to prison. Thus, the organized retail theft law was toothless, only created to give the appearance of tough-on-crime legislation.
Also signed into law at the same time was Penal Code section 786.5. This allowed for organized retail theft committed by a subject in multiple jurisdictions to be prosecuted in one. For example, if a subject committed organized retail theft in Los Angeles, Ventura and Santa Barbara Counties, any one of those counties could prosecute that subject for all of those thefts. To those not versed in criminal prosecution and who trusted their political leaders to protect them from criminals, this sounded great. However, just like the organized retail theft law, Penal Code section 786.5 was never designed to really curtail organized retail thefts. It was designed to give the appearance that it assisted public safety. This was because it was highly unlikely that any county would have the means or resources to prosecute organized retail theft crimes committed in other jurisdictions.
Hypothetically, let’s say the subject mentioned above who committed multiple organized retail thefts in Santa Barbara, Ventura and Los Angeles Counties was charged in Santa Barbara County. Santa Barbara would need to gather all police reports and evidence from the other jurisdictions, which would be no easy task. Even if Santa Barbara County were able to do so, now the case is set for a preliminary hearing, which is a hearing where the prosecution has the burden to prove there is some evidence to support the criminal charges against the defendant before a jury trial can proceed. These hearings require witnesses. This means witnesses would need to come from Los Angeles and Ventura Counties to Santa Barbara County to testify. Given that the penalties for organized retail theft are so light, how likely would it be that a witness would drive from Los Angeles to Santa Barbara for a preliminary hearing where the worst penalty the defendant could receive would be a few months in local jail? Extremely unlikely.
I have been a prosecutor in Ventura County for more than 17 years. I have only known of two cases in my office where one county decided to try a case that occurred in another county. One was a cold case homicide that I personally prosecuted, in which one of the victims was from Kern County. The other was the Golden State Killer case, which would have been tried in Sacramento County, but only under the condition that each affected county supply its own prosecutors to try their respective cases. Now you understand why enacting a multi-jurisdictional section to organized retail theft crimes is designed more for perception than fact.
To underscore even more how ineffective these statutes were meant to be, each contained what was called a “sunset provision.” This meant that unless the legislature acted, these 2018 laws supposedly designed to help crime victims would expire automatically on January 1, 2021. That meant when the California legislature enacted these statutes, they were hoping the rising trend of organized retail theft would subside, and they could proclaim to all how responsive to crime they had been while still adhering to their criminal-first agenda.
The organized retail theft law was toothless, only created to give the appearance of tough-on-crime legislation.
However, that did not happen. Last July, Gov. Newsom held a large press conference where he proudly proclaimed that he was extending the “sunset provision” of the mostly ineffective organized retail theft law to January 1, 2026. However, whether by design or simply by oversight, the jurisdictional part of this theft law, the aforementioned Penal Code section 786.5, was not extended. Thus, as of the writing of this article, that unimpressive part of the equally unimpressive organized retail theft law is no longer valid.
Here is where perception plays its ugly role again. Recently, Assemblymember Jacqui Irwin introduced Assembly Bill 1613, which would reenact Penal Code section 786.5 to allow for multi-jurisdictional prosecution of organized retail thefts. Appointed district attorney Erik Nasarenko appeared in a photo with the assemblywoman and stated that this was “an important public safety tool.” This is simply false. The real purpose of Assembly Bill 1613 was for these local political leaders to be perceived as tough on crime instead of doing something that would actually assist public safety.
The fact is that the organized retail theft laws are pointless because their penalties are weak.
Last month I wrote an article entitled “California Leaders to Blame for Scourge of Smash-and-Grab Burglaries,” where I explained that the reason for the sudden increase in these burglaries was because of a long series of laws passed by California legislators. If Assemblywoman Irwin and appointed district attorney Nasarenko were really interested in authoring bills that would serve as tools for public safety, they would propose legislation that recalled most of these laws.
Perception is not fact. Fortunately, voters are beginning to see the difference, and they are not going to tolerate it any longer.
John Barrick has worked as a prosecutor in the Ventura County district attorney’s office for more than 16 years and has prosecuted some of the most violent crimes committed in the county. He currently serves in the Major Crimes-Homicide Unit. He is also a 2022 candidate for District Attorney.