BILL ANALYSIS
AB 2501
Page 1
Date of Hearing: April 20, 2004
Chief Counsel: Bruce E. Chan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mark Leno, Chair
AB 2501 (Horton) - As Amended: April 15, 2004
As Proposed to be Amended in Committee
SUMMARY : Revises the definition of a "loaded handgun".
Specifically, this bill :
1)Makes a technical, non-substantive change to provisions
relating to the offense of armed criminal action.
2)Creates the offense of illegally carrying a handgun when he or
she carries a handgun on his or her person or in a vehicle,
but not in a locked container, while in any public place while
the unexpended ammunition capable of being discharged from
that handgun is in the immediate possession of that person or
is readily accessible to that person.
3)Defines "immediate possession" as ammunition capable of being
discharged from that handgun is carried by an individual on
his or her person or within the passenger compartment of a
vehicle.
4)Defines "readily accessible" as ammunition capable of being
discharged from the handgun is under the immediate control of
the person or is otherwise knowingly available for immediate
use in the handgun.
5)Provides that ammunition carried in a locked container is not
in a person's immediate possession or readily accessible.
6)Provides for a sunset date of January 1, 2005.
EXISTING LAW :
1)Defines the offense of "armed criminal action" as carrying a
loaded firearm with the intent to commit a felony. Armed
criminal action is punishable as an alternate
felony-misdemeanor. For purposes of this section, "loaded" is
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defined as whenever both the firearm and the unexpended
ammunition capable of being discharged from the firearm are in
the immediate possession of the same person. [Penal Code
Sections 12023 and 12001(j).]
2)Provides, except as otherwise provided, that a person is
guilty of carrying a concealed firearm when he or she:
a) Carries concealed within any vehicle which is under his
or her control or direction any pistol, revolver, or other
firearm capable of being concealed upon the person; or,
b) Causes to be concealed within any vehicle in which the
person is an occupant any pistol, revolver, or other
firearm capable of being concealed upon the person; or,
c) Carries concealed upon his or her person any pistol,
revolver, or other firearm capable of being concealed upon
the person. [Penal Code Section 12025(a).]
3)Provides that a person guilty of carrying a concealed firearm
is generally a misdemeanor, punishable by up to one year in a
county jail; by a fine of up to $1,000; or by both the fine
and imprisonment. There are, however, six circumstances where
the penalty may be punishable as a felony or alternate
felony-misdemeanor:
a) A felony where the person has previously been convicted
of any felony or of any crime made punishable by the
Dangerous Weapons' Control Law;
b) A felony where the firearm is stolen and the person knew
or had reasonable cause to believe that the firearm was
stolen;
c) A felony where the person is an active participant in a
criminal street gang;
d) A felony where the person is not in lawful possession of
the firearm, as defined, or the person is within a class of
persons prohibited from possessing or acquiring a firearm;
e) An alternate felony-misdemeanor punishable by
imprisonment in the state prison; by imprisonment in a
county jail not to exceed one year; by a fine not to exceed
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$1,000; or by both that imprisonment and fine where the
person has been convicted of a crime against a person or
property or of a narcotics or dangerous drug violation;
and,
f) An alternate felony-misdemeanor punishable by
imprisonment in the state prison; by imprisonment in a
county jail not to exceed one year; by a fine not to exceed
$1,000; or by both that imprisonment and fine where:
i) Both the concealable firearm and the unexpended
ammunition for that firearm are either in the immediate
possession of the person or readily available to that
person or where the firearm is loaded; and,
ii) The person is not listed with the Department of
Justice (DOJ) as the registered owner of the firearm.
[Penal Code Section 12025(b).]
4)Provides a number of exceptions and limitations to the
prohibition on carrying a concealed firearm including methods
to lawfully carry firearms in a vehicle, a home, or a
business, etc. (Penal Code Sections 12025.5, 12026, 12026.1,
12026.2, 12027, and 12050.)
5)Prohibits a person from carrying a loaded firearm on his or
her person or in a vehicle while in any public place or on any
public street in an incorporated city or a prohibited area of
unincorporated territory. Defines a "loaded firearm" as "when
there is an unexpended cartridge or shell, consisting of a
case that holds a charge of powder and a bullet or shot, in,
or attached in any manner to, the firearm including, but not
limited to, in the firing chamber, magazine, or clip thereof
attached to the firearm; except that a muzzle-loader firearm
shall be deemed to be loaded when it is capped or primed and
has a powder charge and ball or shot in the barrel or
cylinder." [Penal Code Section 12031(g).]
6)Provides that a person guilty of carrying a loaded firearm is
generally a misdemeanor, punishable by up to one year in a
county jail; by a fine of up to $1,000; or by both the fine
and imprisonment. There are, however, six circumstances where
the penalty may be punishable as a felony or alternate
felony-misdemeanor:
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a) A felony where the person has previously been convicted
of any felony or of any crime made punishable by the
Dangerous Weapons' Control Law;
b) A felony where the firearm is stolen and the person knew
or had reasonable cause to believe that the firearm was
stolen;
c) A felony where the person is an active participant in a
criminal street gang;
d) A felony where the person is not in lawful possession of
the firearm, as defined, or the person is within a class of
persons prohibited from possessing or acquiring a firearm;
e) An alternate felony-misdemeanor punishable by
imprisonment in the state prison; by imprisonment in a
county jail not to exceed one year; by a fine not to exceed
$1,000; by both that imprisonment and fine where the person
has been convicted of a crime against a person or property
or of a narcotics or dangerous drug violation.
f) An alternate felony-misdemeanor punishable by
imprisonment in the state prison; by imprisonment in a
county jail not to exceed one year; by a fine not to exceed
$1,000; or by both that imprisonment and fine where the
person is not listed with the Department of Justice (DOJ)
as the registered owner of the firearm. [Penal Code
Section 12031(b).]
7)Provides numerous exceptions and limitation to this
prohibition for peace officers, retired peace officers,
members of the military, persons using target ranges, armored
vehicle guards, and specified uniformed security guards.
(Penal Code Section 12031.)
8)Defines a "locked container" as a secure container which is
fully enclosed and locked by padlock, key lock, combination
lock, or similar locking device. [Penal Code Section
12026.1(c).]
FISCAL EFFECT : Unknown
COMMENTS :
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1)Author's Statement : According to the author, "Under current
law, if a person has intent to commit a crime and is in
possession of a firearm, the weapon is loaded if the firearm
and ammunition are in the immediate possession of the same
person. However, for purposes of possession of a loaded
firearm, current law mandates that the weapon is only loaded
if it actually contains the ammunition in the cylinder,
chamber, or magazine. This bill corrects this problem by
bringing both definitions into line by stating that a gun is
loaded when the ammunition and the gun are in the immediate
possession of the same person.
Often, criminals realize the extent of the law in relation to
loaded firearms and make it a point to keep an unloaded weapon
on their person and the ammunition in a separate place, but
within reach so that they can load the weapon in a moment's
notice."
2)Background : According to the sponsor of this bill, in the
city of Los Angeles there are criminals who are sufficiently
aware of the elements of the crimes of carrying a concealed or
loaded firearm so as to avoid arrest for either violation of
law. The sponsor indicates that in some cases, several gang
members will be in a vehicle with a handgun. One individual
will have the weapon in his or her possession; another
individual will have the ammunition in his or her possession.
As a result of this tactic, law enforcement officers are
unable to arrest the person with the weapon because there is
no unexpended cartridge or shell in the firing chamber or
attached to the firearm in any manner. Another variation of
conduct that purportedly exploits the current definition of a
"loaded firearm" is when an individual in a vehicle
disconnects the magazine from a handgun just before he or she
is detained by a peace officer. Of course, to avoid any form
of criminal liability in both scenarios, the individuals would
have to ensure that the unloaded firearm was not concealed.
If a handgun was concealed, even partially, the fact that the
weapon was unloaded would not bar prosecution pursuant to
Penal Code Section 12025.
Although the law states in clear terms that a firearm must be
concealed in order to violate Penal Code Section 12025, courts
have held that only partial concealment is necessary. [See
People v. Hale (1974) 43 Cal.App.3d 353.] The court in Hale ,
explaining that the prohibition against concealed firearms is
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to prevent physical harm to others, stated that "concealment
of an essential component of a visible weapon, when done in
such a fashion as to make the weapon readily available for use
as a firearm, presents a threat to public order comparable to
concealment of the entire firearm and falls within the
prohibition of Penal Code Section 12025." [ Id . at 356.]
Similarly, a 1961 Attorney General's Opinion concluded that
the whole weapon must be in plain view, otherwise the weapon
is concealed for purposes of this law. The opinion concluded
with "it appears quite clear that a concealable firearm
carried on the seat of a vehicle is legally carried under
Penal Code Section 12025, so long as the weapon is in plain
view. It further appears that a concealable weapon may be
carried anywhere else in the vehicle, again provided it
remains in plain view." [38 Ops.Atty.Gen. 199, 200.] The
public safety rationale for the danger posed by a partially
concealed but accessible firearm presumably extends to an
exposed handgun as well.
It seems counter-intuitive to expect that persons who are
predisposed or preparing to commit a crime with a firearm
would openly carry an unloaded handgun in public or in a
vehicle, with the ammunition readily available, to avoid
criminal prosecution.
3)Consequences of Revising the Definition of a Loaded Handgun :
By revising the definition of a "loaded handgun" to include
the carrying of an unloaded weapon with the ammunition in the
immediate possession of the person or readily accessible to
the person, this bill may subject individuals to potential
criminal liability who lack any intent to violate the law.
For example, if a person was transporting a handgun and its
ammunition in the cab of a pick-up truck, but neither the
weapon nor the cartridges were in a locked container, the
person has committed the offense of illegally carrying a
handgun. Consider another possible scenario: if a person
transported a handgun and its ammunition in the trunk of a
car, would he or she be in violation of the law since arguably
both the pistol and its ammunition were "otherwise knowingly
available for immediate use"? If the same person intended to
hunt on private land, but needed to park his or her vehicle on
public property and walk some distance, how could the person
carry the unloaded handgun and ammunition without violating
the provisions of this bill? An individual would have to
either separately transport the handgun and its ammunition or
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use a locked container at all times to avoid criminal
liability.
According to the sponsor of this bill, some of the concerns
raised by Committee staff are the subject of on-going
discussions with opponents of this bill that may lead to the
drafting of a number of specific exemptions.
4)Statement in Support : According to the Brady Campaign to
Prevent Gun Violence, "This bill would define 'loaded firearm'
as whenever both the firearm and the unexpended ammunition
capable of being discharged from the firearm are in the
immediate possession of the same person. This bill would
increase public and law enforcement officer safety by
expanding the definition of 'carrying a loaded' firearm to
account for the facility with which a firearm can be loaded
when the ammunition is readily available."
5)Statement in Opposition : According to the California Public
Defenders Association, "The changed definition of 'loaded
firearm' would criminalize 'innocent' situations. An example
of this is as follows: a citizen picks up a new firearm at a
sporting goods store, a semi-automatic pistol, which he or she
has purchased legally, and at the same time buys a box of
ammunition for the new gun. He or she walks out of the store
with both boxes (the firearm and the ammunition for it), but
puts both boxes on the car seat beside him or her, drives to
his or her home, takes both out of the car and carries them,
at the same time, into the home. Under the new definition,
from the time this citizen left the store (and arguably while
still in the store) until the time he or she entered the home,
he or she has been carrying a loaded firearm in a public
place."
6)Author's Amendment : After discussions with Committee staff,
the author has agreed to delete: Page 2, Lines 1 to 9, and on
Page 3, Lines 1 to 2.
REGISTERED SUPPORT / OPPOSITION :
Support
Brady Campaign to Prevent Gun Violence
Gun Owners of California, Incorporated
Million Mom March, Orange County Chapter
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Orange County Citizens for the Prevention of Gun Violence
Opposition
California Public Defenders Association
California Waterfowl Association
National Rifle Association of America
Analysis Prepared by : Bruce Chan / PUB. S. / (916) 319-3744