BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Mark Leno, Chair                S
                             2009-2010 Regular Session               B

                                                                     1
                                                                     1
                                                                     1
          SB 1115 (Committee on Public Safety)                       5
          As Introduced February 17, 2010 
          Hearing date:  April 6, 2010
          Business and Professions; Civil; Civil Procedure; Family; Fish  
          and Game; Government; Health and Safety; Penal; Public Contract;  
          Welfare and Institutions Codes
          SM:mc

                  NON-SUBSTANTIVE REVISION OF DEADLY WEAPONS STATUTES  

                                       HISTORY

          Source:  Committee on Public Safety

          Prior Legislation: ACR 73 (McCarthy) - Res. Chap. 128, Stats. of  
          2006

          Support: Legal Community Against Violence; California Brady  
          Campaign Chapters

          Opposition:None known



                                         KEY ISSUE
           
          SHOULD THE NONSUBSTANTIVE REVISION OF DEADLY WEAPON STATUTES  
          PREPARED BY THE CALIFORNIA LAW REVISION COMMISSION, AS DIRECTED BY  
          ACR 73 OF 2006, BE CODIFIED?



                                       PURPOSE




                                                                     (More)







                                       SB 1115 (Committee on Public Safety)
                                                                      PageB


          The purpose of this bill, in conjunction with companion bill SB  
          1080, is to codify the nonsubstantive reorganization of deadly  
          weapon statutes prepared by the California Law Revision  
          Commission, as directed by ACR 73 of 2006. 


           Existing law  creates the California Law Revision Commission  
          (CLRC) as a state agency, funded from the General Fund.  Created  
          in 1953 as the permanent successor to the Code Commission, the  
          CLRC is given responsibility for the continuing substantive  
          review of California statutory and decisional law.  CLRC studies  
          the law in order to discover defects and anachronisms and  
          recommends legislation to make needed reforms.  The CLRC  
          consists of nine voting members:  one member of the Senate  
          appointed by the Senate Rules Committee, one member of the  
          Assembly appointed by the Speaker, and seven members appointed  
          by the Governor with the advice and consent of the Senate.  The  
          Legislative Counsel is an ex officio member.  (Government Code  
           8280 to 8298.)

           Existing law  (The Dangerous Weapons Control Law) controls the  
          ownership or prohibition on ownership, of a variety of  
          "dangerous weapons"; the lawful manufacture, sale, transfer, and  
          ownership of firearms; and contains criminal penalties for  
          unlawful acts pertaining to dangerous weapons.  (Penal Code   
          12000-12101.)

           Existing law  provides that the Department of Justice shall  
          prepare a pamphlet which summarizes California firearms laws and  
          shall offer copies of the pamphlet at actual cost to firearms  
          dealers who shall have copies of the most current version  
          available for sale to retail purchasers or transferees of  
          firearms.  The cost of the pamphlet, if any, may be added to the  
          sale price of the firearm.  Other interested parties may  
          purchase copies directly from the Department of General  
          Services.  The pamphlet shall declare that it is merely intended  
          to provide a general summary of laws applicable to firearms and  
          is not designed to provide individual guidance for specific  
          areas.  Individuals having specific questions shall be directed  




                                                                     (More)







                                       SB 1115 (Committee on Public Safety)
                                                                      PageC

          to contact their local law enforcement agency or private  
          counsel.  (Penal Code  12080.)

           This bill  , together with companion bill SB 1080, makes numerous  
          technical, nonsubstantive revisions to the deadly weapons  
          statutes.  This nonsubstantive revision was prepared by the  
          state Law Revision Commission, in response to the Legislature's  
          directive.

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
          
          The severe prison overcrowding problem California has  
          experienced for the last several years has not been solved.  In  
          December of 2006 plaintiffs in two federal lawsuits against the  
          Department of Corrections and Rehabilitation sought a  
          court-ordered limit on the prison population pursuant to the  
          federal Prison Litigation Reform Act.  On January 12, 2010, a  
          federal three-judge panel issued an order requiring the state to  
          reduce its inmate population to 137.5 percent of design capacity  
          -- a reduction of roughly 40,000 inmates -- within two years.   
          In a prior, related 184-page Opinion and Order dated August 4,  
          2009, that court stated in part:

               "California's correctional system is in a tailspin,"  
               the state's independent oversight agency has reported.  
               . . .  (Jan. 2007 Little Hoover Commission Report,  
               "Solving California's Corrections Crisis: Time Is  
               Running Out").  Tough-on-crime politics have increased  
               the population of California's prisons dramatically  
               while making necessary reforms impossible. . . .  As a  
               result, the state's prisons have become places "of  
               extreme peril to the safety of persons" they house, .  
               . .  (Governor Schwarzenegger's Oct. 4, 2006 Prison  
               Overcrowding State of Emergency Declaration), while  
               contributing little to the safety of California's  
               residents, . . . .   California "spends more on  
               corrections than most countries in the world," but the  
               state "reaps fewer public safety benefits." . . .  .   
               Although California's existing prison system serves  
               neither the public nor the inmates well, the state has  




                                                                     (More)







                                       SB 1115 (Committee on Public Safety)
                                                                      PageD

               for years been unable or unwilling to implement the  
               reforms necessary to reverse its continuing  
               deterioration.  (Some citations omitted.)

               . . .

               The massive 750% increase in the California prison  
               population since the mid-1970s is the result of  
               political decisions made over three decades, including  
               the shift to inflexible determinate sentencing and the  
               passage of harsh mandatory minimum and three-strikes  
               laws, as well as the state's counterproductive parole  
               system.  Unfortunately, as California's prison
               population has grown, California's political  
               decision-makers have failed to provide the resources  
               and facilities required to meet the additional need  
               for space and for other necessities of prison  
               existence.  Likewise, although state-appointed experts  
               have repeatedly provided numerous methods by which the  
               state could safely reduce its prison population, their  
               recommendations have been ignored, underfunded, or  
               postponed indefinitely.  The convergence of  
               tough-on-crime policies and an unwillingness to expend  
               the necessary funds to support the population growth  
               has brought California's prisons to the breaking  
               point.  The
               state of emergency declared by Governor Schwarzenegger  
               almost three years ago continues to this day,  
               California's prisons remain severely overcrowded, and  
               inmates in the California prison system continue to  
               languish without constitutionally adequate medical and  
               mental health care.<1>

               ----------------------
          <1>   Three Judge Court Opinion and Order, Coleman v.  
          Schwarzenegger, Plata v. Schwarzenegger, in the United States  
          District Courts for the Eastern District of California and the  
          Northern District of California United States District Court  
          composed of three judges pursuant to Section 2284, Title 28  
          United States Code (August 4, 2009).




                                                                     (More)







                                       SB 1115 (Committee on Public Safety)
                                                                      PageE

          The court stayed implementation of its January 12, 2010 ruling  
          pending the state's appeal of the decision to the U.S. Supreme  
          Court.  That appeal, and the final outcome of this litigation,  
          is not anticipated until later this year or 2011.

           This bill  does not appear to aggravate the prison overcrowding  
          crisis described above.





                                      COMMENTS

          1.  Need for This Bill 

          The California Law Revision Commission states:

                      The Legislature has directed the Law Revision  
 
               Commission to "study, report on, and prepare recommended  
 
               legislation by July 1, 2009, concerning the revision of the  
 
               portions of the Penal Code relating to the control of  
 
               deadly weapons ?." 2006 Cal. Stat. res. ch. 128. The  
 
               general purpose of the study is to improve the organization  
 
               and accessibility of the deadly weapons statutes, without  
 
               making any change to criminal liability under those  
 
               statutes.



                      In drafting the proposed law, the Commission took  
               extreme care to ensure that it would not cause any  




                                                                     (More)







                                       SB 1115 (Committee on Public Safety)
                                                                      PageF

               substantive change in the law.

          2.  ACR 73 - The Legislature's Directive to Revise These Statutes  

          In 1996, the Legislature adopted ACR 73 (McCarthy).  (Chap. 128,  
 






































                                                                     (More)







                                       SB 1115 (Committee on Public Safety)
                                                                      PageG

          Res. of 2006.)<2>  This bill, and companion measure, SB 1115,  
          ---------------------------

          <2> That resolution states:

               WHEREAS, Title 2 (commencing with Section 12000) of Part 4  
               of the Penal Code, relating to the control of deadly  
               weapons, is lengthy and complex, and could be simplified;  
               and

               WHEREAS, It is the intent of the Legislature that the  
               firearms laws be simplified and reorganized; now,  
               therefore, be it

               Resolved by the Assembly of the State of California, the  
               Senate thereof concurring, That the Legislature authorizes  
               and requests that the California Law Revision Commission  
               study, report on, and prepare recommended legislation by  
               July 1, 2009, concerning the revision of the portions of  
               the Penal Code relating to the control of deadly weapons,  
               and that this legislation shall accomplish the following  
               objectives:

               (a) Reduce the length and complexity of current sections.

               (b) Avoid unnecessary use of cross-references.

               (c) Neither expand nor contract the scope of criminal  
               liability under current provisions.  In the event that the  
               commission's draft changes the scope of criminal liability  
               under the current provisions, this shall be made explicit  
               in the commission's draft or any commentary related to the  
               draft.

               (d) To the extent compatible with objective (c), use common  
               definitions of terms.

               (e) Organize existing provisions in such a way that similar  
               provisions are located in close proximity to each other.

               (f) Eliminate duplicative provisions; and be it further

               Resolved, That nothing in this resolution shall be  
               construed to prevent the Legislature, prior to receipt of  
               the commission's recommendations, from enacting any measure  
               related to the Penal Code sections under review by the  
               California Law Revision Commission; and be it further
               Resolved, That the Chief Clerk of the Assembly transmit  
               copies of this resolution to the California Law Revision  
               Commission and to the author for appropriate distribution.


                                                                     (More)







                                       SB 1115 (Committee on Public Safety)
                                                                      PageH

 
          are the recommended nonsubstantive revisions to the deadly  
 
          weapons statutes compiled by the Law Revision Commission in  
 
          response to the directive given to it by the Legislature in ACR  
 
          73.  


          3.  Why Deadly Weapon Statutes Are Ripe for Revision  

          This Committee's analysis of ACR 73 pointed out the existing  
          problem with California's statutes relating to deadly weapons:

               California's firearms laws are Byzantine in their  
               complexity.  This Committee's analysis of AB 491  
               (Scott) of 1999 observed, "California firearm law is  
               particularly dense, if not impenetrable, to the  
               non-aficionado or law enforcement expert."  The  
               Assembly Public Safety Committee's analysis of AB 754   
               (Jones) of 2005 states, "Every year changes to the  
               firearms laws create substantial chaptering problems  
               as it is far too complicated to correctly  
               cross-reference all firearms statute elements."  A  
               comprehensive review of these statutes for the purpose  
               of making recommendations for legislation to clarify  
               and simplify existing law could both assist the public  
               by making the law easier to understand and assist the  
               Legislature in making it easier to modify in the  
               future, as the need arises.  


          4.  Law Revision Commission Background  

          The Law Revision Commission provides the following background  
          information on the process it followed in carrying out the  
          Legislature's directive to reorganize these statutes:

                 SB 1080 and SB 1115 would implement the Law Revision  




                                                                     (More)







                                       SB 1115 (Committee on Public Safety)
                                                                      PageI

               Commission's recommendation on Nonsubstantive  
               Reorganization of Deadly Weapon Statutes, 38 Cal. L.  
               Revision Comm'n Reports (2009).

                 These bills are the product of many years of effort.  
               In 2004, Governor Schwarzenegger vetoed a bill (SB  
               1140 (Scott)) on the ground that the firearms laws  
               should be reorganized "to ensure that statutes that  
               impose criminal penalties are easily understandable."  
               Soon afterwards, the Legislature directed the Law  
               Revision Commission to prepare such legislation. The  
               Legislature made clear that this legislation should  
               simplify the law but "[n]either expand nor contract  
               the scope of criminal liability under current  
               provisions." See ACR 73 (McCarthy), 2006 Cal. Stat.  
               res. ch. 128.

                 The Commission began working on this project three  
               years ago, in January 2007. Since then, the Commission  
               has considered the topic at thirteen public meetings,  
               which were attended by representatives of gun control  
               organizations (such as the Legal Community Against  
               Violence and the Brady Campaign to Prevent Gun  
               Violence) and gun owner organizations (such as the  
               National Rifle Association, California Association of  
               Firearms Retailers, California Rifle and Pistol  
               Association, and Gun Owners of California). Before  
               these meetings, the Commission staff prepared written  
               materials for consideration, which were distributed to  
               over 120 interested groups and individuals, including,  
               but not limited to:

          Administrative Office of the Courts
          American Academy of Pediatrics, California District IX
          American College of Emergency Physicians, California
          Brady Center to Prevent Gun Violence
          California Attorneys for Criminal Justice
                 California Commission on Peace Officer Standards &  
                 Training ("POST")
                 California Department of Corrections & Rehabilitation,  




                                                                     (More)







                                       SB 1115 (Committee on Public Safety)
                                                                      PageJ

                 Office of Legislation
          California Department of Justice
          California Department of Motor Vehicles
          California District Attorneys Assn
          California Judges Assn
          California Office of the State Public Defender
          California Peace Officers Assn
          California Police Chiefs Assn
          California Public Defenders Assn
          California Rifle and Pistol Assn
          California Sportsman's Lobby, Inc. 
          California State Sheriff's Assn
          Central California Appellate Program
          Citizens Committee for the Right to Keep and Bear Arms 
          Crime Victims United of California
          Friends Committee on Legislation of California
          Gun Owners of California
          Judicial Council of California, Office of Governmental Affairs
          Legal Community Against Violence
          Los Angeles County District Attorney
          Los Angeles County Public Defender
          Michel & Associates P.C.
          Million Mom March
          National Rifle Assn
          National Shooting Sports Foundation, Inc.
          Office of the Attorney General
          Office of Criminal Justice Planning
          Office of Legislative Counsel
          Outdoor Sportsman's Coalition
          Peace Officers Research Assn of California
          Placer County District Attorney
          Physicians for Social Responsibility
          Safari Club International
          San Mateo County District Attorney
          Santa Clara County Public Defender's Office
          State Bar of California
          Tulare County Public Defender
          Women Against Gun Violence






                                                                     (More)












                      The written materials were also posted on the  
               Commission's website (www.clrc.ca.gov), where they  
               remain available. A total of 47 staff memoranda, seven  
               supplements, and two lengthy tentative recommendations  
               were prepared and distributed. Comments were welcome  
               throughout the Commission's process, in both oral and  
               written form. There was not much controversy, however,  
               because the Commission was scrupulous about avoiding  
               any risk of a substantive change.

                 The Commission submitted the original version of its  
               report in compliance with the legislative deadline of  
               July 1, 2009. Since then, the Commission has revised  
               the report to account for legislation enacted in 2009  
               and make other refinements. SB 1080 and SB 1115  
               contain the legislation proposed in the revised  
               report.

                 SB 1080 is the heart of the proposal. It would  
               reorganize the substance of Title 2 of Part 4 of the  
               Penal Code (Penal Code  12000-12809), relating to  
               control of deadly weapons. The sentence enhancement  
               provisions (Penal Code  12021.5-12022.95) would be  
               left in place, to minimize disruption in calculating  
               criminal sentences. The remaining material would be  
               relocated to a new Part 6 of the Penal Code, and  
               reorganized to make it more user-friendly without  
               changing its substantive effect. Among other things,  
               the bill would:



                     Put similar provisions in close proximity to each  
               other. In general, the rules relating to a particular kind  
               of weapon would be collected in one place, instead of  
               intermingled with other material. This will make it easier  
               for persons to find the rules applicable to their  
               situation, without having to read extensive irrelevant  




                                                                     (More)







                                       SB 1115 (Committee on Public Safety)
                                                                      PageL

               material.

                     Divide excessively long sections into short, simple  
               sections. This will enhance readability and understanding  
               of the law, and make it easier to locate and refer to  
               pertinent material.

                     Collect almost all definitions in alphabetical order  
               at the beginning of new Part 6.  Where possible to do so  
               without risking a substantive change, definitions would be  
               extended to the entirety of new Part 6. 

                     Eliminate unnecessary cross-references in statutory  
               text.

                     Place exceptions in close proximity to the  
               substantive rules they modify, so that the exceptions are  
               easier to find and understand than at present.



                 To ensure that there will be no substantive change,  
               the bill sticks closely to the language in existing  
               law. In addition, the bill includes several codified  
               provisions that would make the nonsubstantive intent  
               clear (Penal Code  16000-16025). The Commission's  
               Comment to each section and its narrative report would  
               further underscore the nonsubstantive nature of the  
               reform. Courts routinely rely on such Commission  
               materials as evidence of legislative intent.

                 SB 1115 is a companion bill, which is contingent on  
               enactment of the main proposal. It would amend  
               numerous statutes that cross-refer to the provisions  
               that would be relocated. It would update those  
               cross-references to reflect the relocation of the  
               pertinent material.

                 Both bills have a delayed operative date of January  
               1, 2012. This will allow time for law enforcement  












                                       SB 1115 (Committee on Public Safety)
                                                                      PageM

               personnel, courts, attorneys, and others affected by  
               the legislation to prepare for the transition to the  
               new statutory scheme.

                 SB 1080 will have to be coordinated with other  
               pending legislation that affects Title 2 of Part 4 of  
               the Penal Code. In contrast, SB 1115 includes a  
               subordination clause, so it will automatically be  
               coordinated with other legislation. If any of the  
               amendments in SB 1115 is chaptered out, there will be  
               time to fix the problem in a clean-up bill before the  
               new statutory scheme becomes operative.


          SHOULD THE RECOMMENDED NONSUBSTANTIVE REVISIONS TO THE DEADLY  
          WEAPON STATUTES BE ADOPTED?



                                   ***************