BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1498
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          Date of Hearing:   April 21, 2009
          Counsel:                Kimberly A. Horiuchi


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Jose Solorio, Chair

                    AB 1498 (De Leon) - As Amended:  April 2, 2009
                       As Proposed to be Amended in Committee


           SUMMARY  :    Expands the list of misdemeanor offenses for which a  
          person may not possess a firearm for 10 years to include  
          carrying a concealed weapon in a vehicle; carrying a loaded  
          firearm, as specified; possession of an assault weapon; and any  
          misdemeanor committed for the benefit of a criminal street gang,  
          as specified.  

           EXISTING LAW  :

          1)Provides a person is guilty of carrying a concealed firearm  
            when he or she does any of the following:  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; carries concealed upon his or  
            her person any pistol, revolver, or other firearm capable of  
            being concealed upon the person; or causes to be carried  
            concealed within any vehicle in which he or she is an occupant  
            any pistol, revolver, or other firearm capable of being  
            concealed upon the person.  [Penal Code Section 12025(a)(1) to  
            (3).]

          2)States any person who has been convicted of a felony under the  
            laws of the United States, the State of California, or any  
            other state, government, or country or of an offense involving  
            violent use of a firearm, or who is addicted to the use of any  
            narcotic drug, and who owns, purchases, receives, or has in  
            his or her possession or under his or her custody or control  
            any firearm is guilty of a felony.  [Penal Code Section  
            12021(a).]

          3)Provides that any person who has been convicted of a felony or  
            of an offense involving violent use of a firearm, when that  
            conviction results from certification by the juvenile court  
            for prosecution as an adult in an adult court, as specified,  








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            and who owns or has in his or her possession or under his or  
            her custody or control any firearm is guilty of a felony.   
            [Penal Code Section 12021(b).]

          4)States any person who has been convicted of various  
            misdemeanors, and who, within 10 years of the conviction,  
            owns, purchases, receives, or has in his or her possession or  
            under his or her custody or control, any firearm is guilty of  
            a public offense, which shall be punishable by imprisonment in  
            a county jail not exceeding one year or in the state prison;  
            by a fine not exceeding $1,000; or by both that imprisonment  
            and fine.  The court, on forms prescribed by DOJ, shall notify  
            DOJ of persons subject to this provision.  [Penal Code Section  
            12021(c).]

          5)States any person who is convicted of a public offense  
            punishable as a felony or a misdemeanor, which is committed  
            for the benefit of, at the direction of or in association  
            with, any criminal street gang with the specific intent to  
            promote, further, or assist in any criminal conduct by gang  
            members, shall be punished by imprisonment in the county jail  
            not to exceed one year, or by imprisonment in the state prison  
            for one, two, or three years, provided that any person  
            sentenced to imprisonment in the county jail shall be  
            imprisoned for a period not to exceed one year, but not less  
            than 180 days, and shall not be eligible for release upon  
            completion of sentence, parole, or any other basis, until he  
            or she has served 180 days. If the court grants probation or  
            suspends the execution of sentence imposed upon the defendant,  
            it shall require as a condition thereof that the defendant  
            serve 180 days in a county jail.  [Penal Code Section  
            186.22(d).]

           FISCAL EFFECT  :   Unknown

           COMMENTS  :    

           1)Author's Statement  :  "In 2008 in the City of Los Angeles  
            alone, 11,314 crimes were committed with a firearm.  A handgun  
            was used in 5,319 of those crimes and an assault weapon was  
            used in 27.  As of March 2009, 2,449 crimes have involved a  
            firearm.  A handgun was used in 1,149 and an assault weapon  
            was used in 8.  Extrapolating those numbers, and we find that  
            statewide thousands of crimes are committed annually by  
            criminals.  








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           "A study published in the Journal of the American Medical  
            Association found that  handgun purchasers who had prior  
            convictions for non-violent, firearm-related offenses such as  
            carrying a concealed firearm in public, but none for violent  
            offenses, were at increased risk for later violent offenses.

           "On a local level, this legislative proposal has been considered  
            as a local ordinance in the City of Los Angeles by City  
            Council members Jack Weiss and Janice Hahn.  However, to  
            expand the list of crimes included in Penal Code Section  
            12021(c) and add an individual to the California Department of  
            Justice prohibited possessor list, state legislation is  
            necessary.   

           "GOAL:  PREVENT GUN OWNERSHIP BY GANG MEMBERS AND THOSE  
            CONVICTED OF GUN RELATED CRIMES:  This proposal has two goals.  
             First, by preventing gun ownership for 10 years targeting  
            individuals who have committed certain gun-related  
            misdemeanors, it would cure some of the infirmities in the  
            prohibited possessor laws.  Second, the law would target  
            misdemeanor gang offenders and prevent gun ownership for 10  
            years by individuals who would be likely to commit more  
            serious gun and gang-related crimes in the future.   This  
            proposal does not limit the rights of law abiding people.

           "EXPANDING THE LIST OF PROHIBITED POSSESSORS MAKES SENSE:  Penal  
            Code Section 12021(c) mandates that individuals convicted of  
            felony or certain misdemeanor offenses be prohibited from  
            possessing a firearm for 10 years from the date of their  
            conviction.  However, two important firearm-related  
            misdemeanor offenses are absent from that list; carrying a  
            concealed weapon (Penal Code Section 12025) and possessing an  
            assault weapon (Penal Code Section 12280).  Reasonable gun  
            safety regulations would dictate that  if an individual abuses  
            his right to possess a weapon by doing so illegally, he should  
            lose that right for a period of time.

           "Further, individuals who have been convicted of committing  
            misdemeanor gang crimes should also have their right to  
            possess a firearm restricted for the time already mandated by  
            law (10 years).   A gang enhancement to any misdemeanor is  
            proof of gang affiliation and activity and is reason to  
            prevent that individual from possessing firearms.









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           "The measure includes misdemeanor burglary because law  
            enforcement agencies indicate that this is frequently a crime  
            committed by people who later commit more serious,  
            particularly gun-related gang, crimes.  In order to try to  
            prevent proliferation of more serious crimes, burglary should  
            be added to the list of misdemeanors for which an individual  
            is prohibited from possessing a firearm for 10 years.  

           "POSSESSORS OF ILLEGAL AND DEADLY ASSAULT WEAPONS SHOULD LOSE  
            THEIR RIGHT TO OWN GUNS:  Assault weapons have been used in  
            many high profile cases including Columbine, the shooting at  
            the 101 California Street building in San Francisco, and the  
            mall shootings in Omaha, Nebraska.  The Washington D.C. area  
            snipers also used assault weapons.  Just last month, an  
            assault weapon was involved in the killing of Oakland police  
            officers.  California law already bans possession of an  
            assault weapon.  Therefore,  if an individual possesses a  
            weapon already banned in California, that person should lose  
            the privilege to own any kind of firearm for at least the  
            prescribed 10-year period. "

          2)Second Amendment and Firearms Prohibition  :  The Second  
            Amendment to the United States Constitution was ratified in  
            1791 and states, "A well regulated militia, being necessary to  
            the security of a free state, the right of the people to keep  
            and bear arms, shall not be infringed".  (U.S. Const., 2nd  
            Amend.)  For many years, courts have wrestled with the  
            question of whether the Second Amendment protects the  
            individual's right to own a weapon.  However, after the  
            seminal United States Supreme Court ruling in U.S. v. Miller  
            (1939) 307 U.S. 178, it seemed relatively settled that the  
            operative term in the Second Amendment is "militia" and that  
            must be considered in interpreting and applying the Second  
            Amendment; most scholars on the issue agreed."  In United  
            States vs. Cruikshank (1875) [92 U.S. 542], the Supreme Court  
            held that the Second Amendment guaranteed states the right to  
            maintain militias but did not guarantee to individuals the  
            right to possess guns.  Subsequently, in United States vs.  
            Miller (1939), the Court upheld a federal law banning the  
            interstate transportation of certain firearms.  Miller, who  
            had been arrested for transporting a double-barreled sawed-off  
            shotgun from Oklahoma to Arkansas, sought the protection of  
            the Second Amendment.  

          The Court rejected Miller's argument, asserting that "we cannot  








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            say that the Second Amendment guarantees the right to keep and  
            bear such an instrument.  . . .  As currently interpreted, the  
            Second Amendment does not pose a significant constitutional  
            barrier to the enactment or enforcement of gun control laws,  
            whether passed by Congress, state legislatures or local  
            governments."  [Stephens & Scheb, American Constitutional Law,  
            Vol. II; Civil Rights and Liberties (hereinafter American  
            Constitutional Law) 2008, pg. 10.]  

          "For many years following the Supreme Court's decision in United  
            States vs. Miller, the orthodox opinion among academics and  
            federal appeals courts alike was that the Second Amendment to  
            the United States Constitution did not protect possession of  
            firearms unrelated to service in the lawfully established  
            militia."  [Merkel, Parker v. District of Columbia and the  
            Hollowness of the Originalist Claims to Principled Neutrality  
            (hereinafter Merkel) 18 Geo. Mason U. Civil Right L. Journal  
            251, 251.]

          In June of 2008, the United States Supreme Court ruled in  
            District of Columbia vs. Heller that a District of Columbia  
            ban on possession of a handgun was an unconstitutional  
            violation of the 2nd Amendment [District of Columbia vs.  
            Heller (hereinafter Heller) (2008) 128 S. Ct. 2783, 2797.]   
            The Court stated:  

           "Putting all of these textual elements together, we find that  
            they guarantee the individual right to possess and carry  
            weapons in case of confrontation. This meaning is strongly  
            confirmed by the historical background of the Second  
            Amendment. We look to this because it has always been widely  
            understood that the Second Amendment, like the First and  
            Fourth Amendments, codified a pre-existing right.  The very  
            text of the Second Amendment implicitly recognizes the  
            pre-existence of the right and declares only that it 'shall  
            not be infringed.'  As we said in United States v. Cruikshank,  
            92 U.S. 542, 553, 23 L. Ed. 588 (1876), '[t]his is not a right  
            granted by the Constitution.  Neither is it in any manner  
            dependent upon that instrument for its existence.  The Second  
            Amendment declares that it shall not be infringed . . . . ' "   
            [Heller at 2797.]  

          3)Possession of a Firearm  :  Under existing law, there are  
            instances in which possession of a handgun is illegal.  A  
            felon may not possess a firearm.  [Penal Code Section  








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            12021(b).]  A person who has been convicted of a specified  
            crime of violence charged as a misdemeanor may not possess a  
            firearm for a period of 10 years.  [Penal Code Section  
            12021(c)(1).]  A person may not possess a firearm in his or  
            her car except under specific circumstances, as specified.   
            [Penal Code Section 12025 (a) and (b).]  Generally, a person  
            may not carry a loaded or concealed weapon in public.  [Penal  
            Code Section 12025(a); Penal Code Section 12031(a)(1).]   
            However, unless a person is otherwise prohibited, nothing in  
            existing law states a person may not possess a handgun in his  
            or her home.  Penal Code Section 12026(a) and (b) states:   
            "[Provisions of law prohibiting possession under specified  
            circumstances] shall not apply to or affect any citizen of the  
            United States or legal resident over the age of 18 years who  
            resides or is temporarily within this state, and who is not  
            [otherwise prohibited] who carries, either openly or  
            concealed, anywhere within the citizen's or legal resident's  
            place of residence, place of business, or on private property  
            owned or lawfully possessed by the citizen or legal resident  
            any pistol, revolver, or other firearm capable of being  
            concealed upon the person."  [Penal Code Section 12026(a).]  
           
          4)Arguments in Support  :  
           
              a)   According to the  Brady Campaign to Prevent Gun Violence ,  
               "Existing law mandates that individuals who have been  
               convicted of a felony or certain misdemeanor offenses are  
               prohibited from possessing a firearm.  This bill would  
               expand the list of misdemeanor offenses for which a firearm  
               prohibition applies.  Specifically, conviction for illegal  
               carrying of a concealed firearm, illegal possession of an  
               assault weapon and certain gang related activities would  
               trigger a 10 year prohibition.  If a person abuses his  
               right to possess a firearm by doing so illegally, or  
               engaged in activity that carries with it a risk of future  
               violence, such as participation in a gang, then the logical  
               consequences would be to lose the right to possess a  
               firearm for a period of time."
              
              b)   According to the  Office of the Mayor, Antonio  
               Villaraigosa  , "In 2008 there were 1626 gunshot victims and  
               of those 1050were gang-related incidents.  Prohibiting  
               ownership, possession, purchase or receipt of firearms  
               would provide safety measures that would lead to a  
               reduction in crimes involving guns in the City of Los  








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               Angeles.  The City of Los Angeles has made using all means  
               necessary to prevent gun and gang violence one of its top  
               priorities."
              
          5)Argument in Opposition  :  According to  Taxpayers for Improving  
            Public Safety  , "Existing law provides that a person convicted  
            of specified misdemeanor crimes that, within 10 years of the  
            conviction, owns, purchases, receives or has in his or her  
            possession or under his or her control any firearm is guilty  
            of an additional public offense.  This bill would add  
            specified misdemeanor crimes related to possession of a loaded  
            weapon in public and other activities.  While possession of a  
            loaded weapon in public (PC 12031) arguably sounds serious,  
            there are many other instances where the act is entirely  
            without any criminal intent or violence. For example, an  
            otherwise lawful firearm enthusiast at a public shooting range  
            may suddenly be in violation of PC 12031 upon stepping over  
            the boundary of the shooting range and onto an adjoining  
            property to recover spent cartridges or other equipment while  
            still holding the loaded firearm.  Additionally, after a day  
            at the shooting range a similar enthusiast who believes they  
            have no more ammunition in their possession and intends to  
            lawfully transport the weapon in the vehicle may be found  
            guilty of PC 12031 based on the presence of a lone loose round  
            of ammunition that has rolled under a seat, between the seats,  
            or in some other nook of the vehicle in such a manner that the  
            individual or individuals are now technically in violation of  
            the code section.  The 10 year prohibition on firearms  
            ownership and possession was designed to address violent acts,  
            with criminal intent, which are plausibly linked to incidences  
            of increased violence due to the presence or access to  
            firearms.  AB 1498 disregards this model entirely and seeks  
            instead to push California down a slippery slope of  
            prohibiting firearms owners and possession-and the ability to  
            adequately protect one's family, self, and home against  
            harm-for any misdemeanor act."
           
          6)Related Legislation  :  AB 814 (Krekorian) establishes a  
            procedure for a defendant who owns, possesses, or has custody  
            or control of a firearm to sell that firearm to a firearms  
            dealer or relinquish the firearm to a law enforcement agency  
            when the defendant has been convicted of a specified offense  
            and prohibited from owning a firearm.  AB 814 pending hearing  
            by the Assembly Committee on Appropriations. 
           








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          REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California Chapters of the Brady Campaign to Prevent Gun  
          Violence
          Office of the Mayor, Antonio Villaraigosa 
          Legal Community Against Violence

           Opposition 
           
          California Public Defenders Association
          Gun Owners of California
          Taxpayers for Improving Public Safety
           

          Analysis Prepared by  :    Kimberly Horiuchi / PUB. S. / (916)  
          319-3744