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3390 University Avenue, 5th Floor, P.O. Box 1028, Riverside, CA 92502
Phone: (951) 686-1450 | Fax: (951) 686-3083 | www.bbklaw.com
Washington, DC
(202) 785-0600
Grover C. Trask
(951) 826-8277
[email protected]
California’s Business Community Restorative Justice
Precomplaint Education Program For Petty Theft Offenders
Overview
This memorandum summarizes the Corrective Education Company, LLC
(“CEC”) theft prevention precomplaint education program in partnership with the business
community and the petty theft offender.
The CEC program is based on the restorative justice philosophy that aims to
address and repair the harm done to the victim and the community. The model relies on a
voluntary, cooperative approach rather than punitive action to make the offender accountable for
his or her illegal conduct. If the offender does not want to voluntarily participate in the
merchant’s program or the offender is ineligible due to prior illegal conduct, the matter is
referred by the merchant victim to the criminal justice system.
This pre-complaint diversion type education program does not initially involve
the criminal justice system. The program creates a contractual arrangement between the petty
theft offender and his or her merchant victim before law enforcement is even contacted. The
agreement between the merchant and the offender includes the offender’s voluntary participation
using a 6 hour life skills educational course designed for low risk offenders. CEC charges a fee
to the offender for providing the educational course. The merchant also agrees not to seek a
criminal complaint through the judicial system if the program is successfully completed.
Only low-level, non-recidivist offenders qualify for this innovative pre-complaint
educational program. Based on its implementation in other states, positive outcomes include
reducing recidivism and developing life behavior skills for the offender; holding the offender
accountable by paying the cost of the program and making full restitution. In addition, the
program may help to conserve scarce law enforcement and prosecutor resources necessary to
deal with more serious crime. This becomes very important to the business community and local
government because of the newly enacted AB 109 dealing with prison inmate realignment to the
local communities and its public safety resource impact on the criminal justice system.
The CEC restorative justice education program is consistent with California’s
statutorily-authorized diversion programs and it does not contravene any California laws. In fact,
the legislative intent in California’s Penal Code regarding misdemeanor diversion statutes states
no existing or future diversion statutes or “any other provision of law be construed to preempt
other current or future pretrial or precomplaint [emphasis added] diversion programs.” (Penal
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Code Chapter 2.7; Section 1001). The “Business Community Restorative Justice Precomplaint
Education Program For Petty Offenders” is within the spirit of this legislative intent.
The Restorative Justice Model
The California Assembly’s Public Safety Committe has cited the following
definition of restorative justice: “Restorative justice is a theory of justice that emphasizes
repairing the harm caused by criminal behavior. It is best accomplished when the parties
themselves meet cooperatively to decide how to do this. This can lead to transformation of
people, relationships and communties.” Restorative justice acknowledges that “crime causes
injury to people and communities [and] it insists that justice repair those injuries and that the
parties be permitted to participate in that process. Restorative justice programs, therefore, enable
the victim, the offedner and affected members of the community to be directly involved in
responding to crime.” Restorative justice brings offenders and victims together and its ultimate
measure of success is based on “how much harm is repaired or prevented.”
The following restorative justice principles are incorporated into CEC’s petty
theft offender educational program:
•
Business community protection from a continuum of actions beginning
with the victim and the offender in cooperation and resolution of the
matter. When necessary, pursuing a criminal complaint through the
criminal justice system to protect the merchant victim and the law abiding
consumer citizens from repeat and recalcitrant offenders.
•
Accountability of the theft offender through restitution and related
education program costs.
•
Competency Development of the theft offender through skill and behavior
building needed for success in the community.
Summary of the CEC/Merchant Program
The CEC and merchant’s restorative justice program takes offenders from an
detention phase after the offender has be caught stealing merchandise through a voluntary
educational diversion life skills program without involving law enforcement or the district
attorney.
CEC’s program relies on trained loss prevention officers first detaining a suspect
for a reasonable time and conducting reasonable searches in exercise of a merchant’s
shopkeeper’s privilege under California Penal Code section 490.5 (f). This reasonable detention
period is used to establish probable cause and the necessary facts for proof beyond a reasonable
doubt that the theft was committed.
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Once this detention period is completed, the offender is given the opportunity to
hear about CEC and the merchant’s voluntary educations program. Only after the offender
voluntarily agrees to learn about the program will the offender be shown a video about CEC’s
restorative justice program. The offender at any time can stop the process and not participate. At
the conclusion of the video, the offender is given the opportunity to participate in a six hour
education program in lieu of having his or her case referred to law enforcement and the criminal
justice system. If the offender does not want to participate in the program, the matter is referred
to the appropriate law enforcement agency for their discretionary review and authority for a
criminal complaint.
Obtaining Offender Information
If an offender voluntarily opts to participate in the CEC program, their personal
information is logged into a computer program. The personal information includes an offender’s
name, address, social security number, date of birth, phone number, email address, drivers
license number, race, height, weight, hair color, and eye color. The system also has the
capability to scan an offender’s fingerprint. The loss prevention officer takes a photograph of the
offender and a photograph of the offender’s identification, both of which are saved in the CEC
database. The system tracks whether the offender has been detained previously by a
participating merchant.
Recording Theft
In addition to logging information about the offender, the CEC application
records information about the retail theft, including a photograph and description of the item
taken, its value, any witnesses to the theft, where the item was found, where the apprehension
occurred, and any statement made by the offender. The CEC application generates a written
report that can be printed, signed by the loss prevention officer, and forwarded to law
enforcement should the need arise.
Verifying Offender Eligibility
Once an offender’s information is gathered, it is confirmed as accurate through
LexisNexis databases. LexisNexis was chosen due to the most complete breadth and depth of
information with 36 billion public and proprietary records from over 10,000 separate data
sources. LexisNexis’ Identity Management solutions then use its Advanced Data Linking and
Analysis Technology to perform multiple core system data checks to ensure the contact’s name
and address is valid. The program requires confirmation of multiple sources of an offender’s
identity to guard against offenders who provide false information. This confirmation is done in
the offender’s presence. The offender’s personal information is run through LexisNexis’s
criminal database to determine whether the individual is a low-risk offender. Only low-risk
offenders are considered eligible to participate in the merchant/CEC run program.
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Entering into Contract with Offender
If an offender is eligible, they are given an agreement to sign with the merchant to
voluntarily participate in the course. The offender is responsible for paying the CEC course cost,
however, grant assistance is available through CEC to fully pay for the program when necessary
for low income or indigent offenders.
The contract is based on a voluntary restorative justice concept basis and it is
available to offender’s who desire to change his or her criminal behavior and at the same time
avoid possible criminal prosecution. There is a clear incentive for the low-risk offender to
participate in the merchant program because the cost is generally much less than the court costs,
fees, and fines an offender would pay if his or her case was handled through the criminal justice
system. Offenders are explained in detail about the voluntary nature of the program and each is
required to sign the agreement confirming that it is their voluntary choice to participate in the
program.
Failing the Program
An offender who does not complete the program or is deemed ineligible is
referred to local law enforcement based on the above stated standards for possible prosecution.
CEC has crafted its theft reports to track local enforcement agencies’ petty theft police reports
based upon a citizen merchant complaint. The forms and factual report are signed by the loss
prevention agent under penalty of perjury.
The theft report provides law enforcement with all the crime information and
necessary offender identification for review and if deemed appropriate referred on to the District
Attorney’s office for their complaint review and prosecution when deemed appropriate. The
merchant submitting the citizen criminal complaint to law enforcement is not involved in this
complaint review process in anyway.
The merchant’s petty theft offender information submitted to law enforcement
provides the agency sufficient offender information to send a notice to appear to the offender
should the agency decide to prosecute the offender. To avoid having a patrol officer take the
report at the scene, CEC has also developed the technology to provide the victim complaint
information directly to the local law enforcement agency or district attorney’s office if so
requested.
Legal Review of Restorative Justice Programs in California
CEC working with the business community has established a pre-complaint
restorative justice type program that deals with eligible offenders from theft detention through
final resolution without involving law enforcement personnel or the District Attoney’s office.
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California law does not require merchants to report minor crimes to law
enforcement allowing civil resolution of such matters. While there is no express statutory
authority specific to petty theft offenders merchant run education programs, there are also no
legal impediments. Such programs and practices are not prohibited by state law as evidenced by
legislative intent and by existing private traffic diversion educational schools for minor traffic
violations and private companies providing educational programs paid by the offender dealing
with bad checks or drug education and diversion programs.
Indeed, several counties in
California have created restorative justice programs that include a private entity that trains
volunteers to help non-serious imates returning to the community due AB 109 Realignment.
(See “In Restorative Justice, Criminals and Victims Come Together to Heal Wounds”, Monterey
Hearald (March 17, 2012).
Detention Issues
Under California Penal Code section 490.5 (f) (1), “[a] merchant may detain a
person for a reasonable time for the purpose of conducting an investigation in a reasonable
manner whenever the merchant has probable cause to believe the person to be detained is
attempting to unlawfully take or has unlawfully taken merchandise from the merchant's
premises.” In addition to the right to detain, merchants also enjoy protections from civil lawsuits
under Penal Code section 490.5(f)(7) as follows: “[i]n any civil action brought by any person
resulting from a detention or arrest by a merchant, it shall be a defense to such action that the
merchant detaining or arresting such person had probable cause to believe that the person had
stolen or attempted to steal merchandise and that the merchant acted reasonably under all the
circumstances.”
What constitutes a “reasonable” detention is fact specific. Any such detention
must “be carried out for a reasonable time and in a reasonable manner.” (Fermino v. Fedco, Inc.
(1994) 7 Cal.4th 701, 716.) The California Supreme Court has held that a 20-minute detention is
reasonable. (Collyer v. S.H. Kress and Co. (1936) 5 Cal.2d 175, 181.) The Court affirmed this
20-minute period in Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 716, provided that the
detention is to investigate a theft, as authorized by the statute.
Other courts have sanctioned detentions beyond 20 minutes. For example, in
MacIntyre v. Macy’s West, Inc. (2002) 2002 Cal.App.Unpub. LEXIS 8543, *21-24, a California
appellate court found that a merchant’s 50-minute detention of one of its employees to determine
whether the employee was giving away company property was reasonable, but that the
merchant’s detention privilege expired after 50 minutes when the employer established the
employee was innocent. The detention became unreasonable because it was too long and
because it no longer had a permissible purpose. The case is unpublished, which means that it
cannot be used as the basis for legal argument in court. It does, however, provide some guidance
as to what a court would find reasonable.
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Likewise, in another unpublished case from a Federal Court in Los Angeles, the
Court found that a company policy of detaining shoplifters for one hour did not provide probable
cause of illegal activity because such detentions are authorized under California’s shopkeeper’s
privilege. (United States v. Torres-Ramos (2008) 2008 U.S. Dist. LEXIS 89183, *50.)
The CEC screening process takes only 15 minutes to complete and ensures that
offenders are not kept beyond the reasonable period of time permitted by California law. At the
end, an offender indicates his or her willingness to participate by agreeing in writing to
voluntarily participate. Offenders are also given a form at the time of their initial detention and
by signing the form they consent to remaining with the merchant’s loss prevention officer to
learn about the program and determine eligibility.
Coercion Issues
Coercion, extortion, or intimidation used to obtain a criminal offender’s consent
and payment is unlawful and could expose a merchant to both criminal and civil liability. In
California, “extortion is the obtaining of property from another, with his consent, or the
obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or
under color of official right.” (Cal. Pen. Code § 518.) Penal Code section 519 defines fear as
follows: “Fear, such as will constitute extortion, may be induced by a threat, either: 1. To do an
unlawful injury to the person or property of the individual threatened or of a third person; or, 2.
To accuse the individual threatened, or any relative of his, or member of his family, of any
crime; or, 3. To expose, or to impute to him or them any deformity, disgrace or crime; or, 4. To
expose any secret affecting him or them.”
The threat of criminal prosecution can create criminal extortion liability if
property is obtained as a result of the threat. That liability attaches even if there is a good faith
belief by the party threatening to report the crime that a crime actually has occurred. (People v.
Hesslink (1985) 167 Cal.App.3d 781, 788; (People v. Asta (1967) 251 Cal.App.2d 65, 68). The
elements of the crime are: (1) A wrongful use of force or fear, (2) with the specific intent of
inducing the victim to consent to the defendant’s obtaining his or her property, (3) which does in
fact induce such consent and results in the defendant’s obtaining property from the victim. The
crime requires an unlawful use of fear with the specific intent of achieving a further consequence
of inducing a person to consent to the actor’s obtaining the other’s property based upon the threat
or fear. As the Hesslink court noted the crime of extortion is related to and sometimes difficult
to distinguish from the crime of robbery. (See 31 Am.Jur.2d, Extortion, Blackmail, etc. sec. 9
pp.906-907; Perkins on Criminal Law (2d ed. 1969)pp. 373-373; 1 Witkin, Cal. Crimes (1963)
sec. 443, p. 409; see also In re Stanley E. (1978) 81 Cal.App.3d 415.)
Extortion liability is not limited to a criminal case. An aggrieved party can state a
civil cause of action for extortion under California law. (See e.g. Flatley v. Mauro (2006) 39
Cal.4th 299, 305.) As with any intentional tort in California, a putative plaintiff could plead that
the conduct was malicious, fraudulent, or oppressive and thereby seek to recover punitive
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damages. (Cal. Civ. Code § 3294.) The punitive damages statute requires proof of malice,
oppression or fraud by clear and convincing evidence, an exacting standard.
CEC addresses these coercion issues very specific protocols and staff training.
First, retail theft and the detention of a low-risk offender for shoplifting are handled by the retail
victim and CEC as a civil matter. It is offering a voluntary option to go through a restorative
type diversion education program. Part of the accountability is that the shoplifter must pay for
and complete the program as part of a contractual agreement voluntarily entered into with CEC
similar to bad check or traffic diversion programs. Second, CEC’s Agreement expressly includes
language that the offender is voluntarily participating in the program. There is no threat of
criminal prosecution or incarceration. In the event that an individual fails to comply with the
terms and conditions of the program, the Agreement expressly provides language that such
default may result in the merchant victim forwarding the theft incident to law enforcement for
prosecution. Third, the diversion program enables the offender to have complete control in
deciding whether to voluntarily enter into the Agreement. The CEC process allows the offender
to have control over the computer used to view the instructional video on the value of the
program. Each offender is allowed to view and review the instructional multiple times if they
wish. Each is given complete decision-making authority with no influence, pressure or
interaction from the merchant’s prevention loss staff member assigned to the matter. Fourth, as
part of the signed Agreement, the suspect admits his or her wrong doing, has read, understands
and voluntarily enters into the agreement. The individual also acknowledge he or she has
reviewed the instructional video and that the agreement to participate in the program was not
obtained through any type of coercion. Fifth, the Agreement with the offender includes a
provision waiving any claim to wrongful detention, coercion or similar claims.
CEC and the merchants using the program are required to strictly conform to the
law and high ethical standards that ensure that the offender’s participation in the program is not
coercive and the entire process from explaining the program to signing the agreement is a
completely voluntary decision to be made by the offender and the offender alone.
Pre-Complaint Diversion programs in California
There is no California law that prohibits any precomplaint educational
misdemeanor type diversion program created by a private entity to deal with a merchant’s theft
problems. Within this frame work, the legislature clearly intended that no provisions of current
law may “be construed to preempt other current or future pretrial or precomplaint diversion
programs.” (Penal Code sec. 1001-Legislative Intent).
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