BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Elaine K. Alquist, Chair S
2005-2006 Regular Session B
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SB 532 (Torlakson)
As Amended March 31, 2005
Hearing date: April 5, 2005
Penal Code
SH:mc
"BB DEVICES" -
ADDITION TO THE CRIME OF GROSSLY NEGLIGENT DISCHARGE OF A
FIREARM
WHICH COULD RESULT IN INURY OR DEATH
HISTORY
Source: Constituent
Prior Legislation: AB 3066 (Polanco) - Chapter 1275, Statutes of
1988
Support: California Alliance for Consumer Protection
Opposition:None known
KEY ISSUES
SHOULD "BB DEVICE" BE ADDED TO THE EXISTING CRIME - PUNISHABLE AS AN
ALTERNATIVE MISDEMEANOR/FELONY - OF DISCHARGING A FIREARM IN A
GROSSLY NEGLIGENT MANNER WHICH COULD RESULT IN INJURY OR DEATH TO A
PERSON, AS SPECIFIED?
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SHOULD "BB DEVICE" BE DEFINED FOR PURPOSES OF THE CRIME TO MEAN ANY
INSTRUMENT THAT EXPELS A PROJECTILE, SUCH AS A BB OR A PELLET,
THROUGH THE FORCE OF AIR PRESSURE, GAS PRESSURE, OR SPRING ACTION,
OR ANY SPOT MARKER GUN?
PURPOSE
The purpose of this bill is to add "BB device" to the existing
alternative misdemeanor/felony crime of discharging a firearm in
a grossly negligent manner which could result in injury or death
to a person, as specified.
Existing law provides that, except as otherwise authorized by
law, any person who willfully discharges a firearm in a grossly
negligent manner which could result in injury or death to a
person is guilty of a public offense and shall be punished by
imprisonment in the county jail not exceeding one year, or by
imprisonment in the state prison (an alternative
misdemeanor/felony or wobbler). (Penal Code 246.3.)
Existing law provides a number of crimes and penalties involving
dangerous weapons, including but not limited to the following
pertaining only to "assault" and "battery" and not involving
special "persons" and "places":
An "assault" is an unlawful attempt, coupled with a
present ability, to commit a violent injury on the person
of another. (Penal Code 240.)
Any person who commits an assault upon the person of
another with a deadly weapon or instrument other than a
firearm or by any means of force likely to produce great
bodily injury shall be punished by imprisonment in the
state prison for two, three, or four years, or in a county
jail for not exceeding one year, or by a fine not exceeding
$10,000, or by both the fine and imprisonment. (Penal Code
245(a)(1).)
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A "battery" is any willful and unlawful use of force or
violence upon the person of another. (Penal Code 242.)
A battery is punishable by a fine not exceeding $2,000,
or by imprisonment in a county jail not exceeding six
months, or by both that fine and imprisonment. (Penal Code
243(a).)
When a battery is committed against any person and
serious bodily injury is inflicted on the person, the
battery is punishable by imprisonment in a county jail not
exceeding one year or imprisonment in the state prison for
two, three, or four years. (Penal Code 243(d).)
Existing law includes the following definitions:
1. The word "willfully," when applied to the intent, with
which an act is done or omitted, implies simply a purpose
or willingness to commit the act, or make the omission
referred to. It does not require any intent to violate
law, or to injure another, or to acquire any advantage.
(Penal Code 7.)
2. The words "neglect," "negligence," "negligent," and
"negligently" import a want of such attention to the nature
or probable consequences of the act or omission as a
prudent man ordinarily bestows in acting in his own
concerns. (Penal Code 7.)
This bill does the following:
Adds "BB device" to the existing alternative
misdemeanor/felony crime of discharging a firearm in a
grossly negligent manner which could result in injury or
death to a person.
Defines "BB device" for purposes of the crime to mean
any instrument that expels a projectile, such as a BB or a
pellet, through the force of air pressure, gas pressure, or
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spring action, or any spot marker gun.
COMMENTS
1. Need for This bill
The author's background on this bill includes the following:
This bill adds air-powered guns to the Penal Code section
that makes discharging a firearm in a grossly negligent
manner that could injure or kill someone a crime punishable
by up to one year in jail, or 16 months, two, or three
years in state prison.
I introduced this bill at the request of a constituent from
Orinda who was shot in the neck with a pellet gun while
driving in October 2003. The pellet hit him in the neck,
almost struck his carotid artery, and caused lingering
injuries.
Police arrested a suspect, but the District Attorney's
Office declined to prosecute based on the current Penal
Code. This bill provides additional authority to prosecute
when pellet guns are involved in such crimes.
I have spoken with the Contra Costa County District
Attorney, who has agreed to support the bill. The
California Alliance for Consumer Protection also supports
the measure.
Air guns have become more powerful, and the projectiles are
potentially deadly. More than 21,000 people nationwide in
2000 were treated at hospital emergency rooms for air
gun-related injuries, according to the federal Centers for
Disease Control.
This bill addresses one specific situation and helps
provide prosecutors with additional ability to prosecute
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suspects who use an air-powered gun in some crimes.
2. Intent Required - Existing Crimes and This Bill
As noted in the Purpose section above, there are a variety of
crimes which could be charged if a person threatens or injures
another with a BB device. However, each of those crimes
involves some degree of "criminal intent" which becomes a
necessary element for the prosecution to prove. The California
Supreme Court, for example, in People v. Williams, (2001) 26
Cal.4th 779, found that:
Accordingly, we hold that assault does not require a
specific intent to cause injury or a subjective awareness
of the risk that an injury might occur. Rather, assault
only requires an intentional act and actual knowledge of
those facts sufficient to establish that the act by its
nature will probably and directly result in the application
of physical force against another. [footnotes omitted]
This bill adds BB devices to Penal Code section 246.3 which
requires that a person "willfully" - intended to commit the act,
i.e., discharge a firearm, or BB device if this bill is enacted,
but does not require any intent to violate law or to injure
another - discharge a firearm in a grossly negligent manner
which could result in injury or death.
As stated in 1 Witken California Criminal Law Crimes - Pers
48:
(1) In General. Except as otherwise authorized by law, a
person who wilfully discharges a firearm in a grossly
negligent manner that could result in injury or death to a
person is guilty of a public offense? (P.C. 246.3; see In
re Jerry R. (1994) 29 C.A.4th 1432, 1437, 1440, 35 C.R.2d
155 [element of wilfulness requires proof of intent to fire
gun; honest belief that gun was empty negates required
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mental state]; CALJIC (6th ed.), No. 9.03.3.)
(2) Gross Negligence. "Gross negligence" has the meaning
commonly attributed to it in criminal law, i.e., disregard
of human life or indifference to consequences, but criminal
liability attaches only if the act also has the potential
for causing personal injury or death. ( People v. Alonzo
(1993) 13 C.A.4th 535, 539, 540, 16 C.R.2d 656 [firing gun
in air in busy commercial area presents possibility of
injuring someone and thus constitutes gross negligence].)
3. Inability to Prosecute in the Case of the Author's
Constituent
An article in the Contra Costa Times on October 29, 2003,
indicates that the suspect in the case of the author's
constituent "was arrested on suspicion of assault with a deadly
weapon" and that the suspect "had been firing at passing
motorists on and off all day." However, it may be presumed that
there were some issues unresolved in proving either an assault
with a deadly weapon or a battery where serious bodily injury is
inflicted. Committee staff understands that the 18 year old
suspect was on his parent's property when he discharged the BB
device and that the victim also was able to and did file a civil
lawsuit for damages.
Enactment of this bill would establish a crime which would
appear applicable in situations similar to the one faced by the
author's constituent.
4. How Powerful is a BB Device ?
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There has been some peripheral discussion regarding this bill
about the "power" of BB devices and the muzzle "velocity" of
such devices compared to firearms. However, in addition to the
velocity of projectiles, the mass of the projectile is part of
the equation of "impact" of any such device and firearms,
including .22 caliber, would appear to have more projectile mass
than BB devices, which is not to say that BB devices cannot
cause serious injury, especially to eyes and soft tissue.
As indicated in a recent newspaper article:
BB and pellet guns injure an estimated 30,000 people a
year, more than three-fourths of them children and teens.
The majority of such injuries are unintentional and result
from an adolescent male shooting himself or being shot by a
friend, acquaintance or relative. Boys between the ages of
10 and 14 are most likely to be injured. Between 1980 and
2000, at least 63 deaths were caused by BB and pellet guns.
Most unintentional firearm injuries occur in or near the
home and when children are unsupervised. Sources: U.S.
Centers for Disease Control and Prevention, U.S. Consumer
Product Safety Commission, Annals of Emergency Medicine,
HELP Network, National Safe Kids Campaign (Omaha
World-Herald, June 29, 2004)
5. BB Devices as Dangerous Weapons
1 Witken California Criminal Law Crimes - Pers 47 - includes:
(2) Pellet guns. (See People v. Lochtefeld (2000) 77
C.A.4th 533, 538, 91 C.R.2d 778 [compressed air pellet gun
that in normal operating condition would expel pellets at
speeds in excess of those required to penetrate significant
distance into muscle tissue or to enter eyeball was easily
capable of inflicting great bodily injury, hence, was
"deadly weapon" as matter of law].)
6. Children and BB Devices - California Statutes
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While not an essential part of the discussion about this bill,
California statutes do place the restrictions on BB devices,
including the following:
Restrictions on possession in a variety of places.
(Penal Code 171b - state or local public buildings, and,
626.10 - public or private schools.)
Restrictions on sale or furnishing to a minor. (Penal
Code 12551 and 12552.)
Warning advisories required in packaging for specified
devices. (Penal Code 12554.)
Restrictions on public display for specified devices (a
crime). (Penal Code 12556.)
Every person who, except in self-defense, draws or
exhibits an imitation firearm, as defined, in a threatening
manner against another in such a way as to cause a
reasonable person apprehension or fear of bodily harm is
guilty of a misdemeanor. (Penal Code 417.4.)
7.This Bill "expands" an Existing Felony for Conduct Which Could
Result in Injury or Death
In previous years, a majority of the members of this committee
generally declined to create new felonies for non-violent
conduct. However, this bill expands an existing felony penalty
which involves activity which could result in injury or death to
a person.
Under the Three Strikes law, where a defendant has two prior
serious or violent felonies, he or she shall receive a term of
at least 25 years to life in the sentence for the commission of
any new felony, including grand theft (an alternate
felony/misdemeanor). Where the defendant has a single prior
serious or violent felony, he or she shall receive a doubled
term in the sentence for the commission of any new felony.
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Where a defendant has been convicted of an alternate
felony/misdemeanor that has been charged and prosecuted as a
felony by the District Attorney, the sentencing court has the
discretion to deem the offense to be a misdemeanor pursuant to
the decision of the Court in People v. Superior Court (Alvarez)
(1996) 14 Cal.4th 968 and Penal Code section 17, subdivision (b)
unless the dismissal is arbitrary and contrary to substantial
justice.
Where a defendant has been convicted of a straight felony, the
court's ability to ameliorate the severity of the Three Strikes
law is much more limited. A court has discretion to dismiss one
or more prior "strikes," but only where the defendant's record
and the current conviction establish that the defendant should
be treated as though he or she does not fall under the terms of
the Three Strikes law. (People v. Superior Court (Romero)
(1996) 13 Cal.4th 497-530-531; People v. Williams (1998) 17
Cal.4th 198.)
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