BILL ANALYSIS Ó
AB 1331
Page 1
Date of Hearing: May 3, 2011
Chief Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1331 (Davis) - As Amended: March 31, 2011
SUMMARY : Delays from January 1, 2011 until January 1, 2017 the
implementation of SB 1080 (Committee on Public Safety), Chapter
711, Statutes of 2010, and SB 1115 (Committee on Public Safety),
Chapter 178, Statutes of 2010, which reorganized without
substantive change Penal Code provisions relating to deadly
weapons and made numerous cross-referencing changes.
EXISTING LAW :
1)Provides that no person shall sell, lease, or transfer
firearms unless he or she has been issued a state firearms
dealer's license. A violation is a misdemeanor (punishable by
up to one year in county jail). (Penal Code Section 12070.)
2)Provides for specified exemptions including commercial
transactions among licensed wholesalers, importers, and
manufacturers. (Penal Code Section 12070.)
3)States that handguns are centrally registered with Department
of Justice (DOJ) are part of this process. A violation of
these handgun provisions is an alternate felony/misdemeanor
punishable, by up to one year in the county jail or by
imprisonment in the state prison for 16 months, two or three
years. The alternate felony/misdemeanor provisions that are
treated as felonies are offenses which presumptively mandate a
state prison sentence. ÝPenal Code Sections 1203(e)(13),
11106, and 12072(c) and (d).]
4)Allows DOJ to charge the dealer for a number of costs such as
a dealer record of sale (DROS). (Penal Code Section 12076.)
5)Exempts from the requirement (that sales, loans and transfers
of firearms be conducted through a dealer or local law
enforcement agency) transactions with authorized peace
officers, certain operation of law transactions, and
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intra-familial firearms transactions. However, all these
exempt transactions are subject to handgun registration as a
condition of the exemption. (Penal Code Section 12078.)
6)Provides that, on request, DOJ will register transactions
relating to handguns Ýindeed all firearms] in the Automated
Firearm System (AFS) Unit for persons who are exempt from
dealer processing, or are otherwise exempt by statute from
reporting processes. ÝPenal Code Section 12078(l).]
7)Requires California residents who are federally licensed curio
and relic firearms collectors who lawfully acquire a curio or
relic handgun outside this state to report the acquisition of
that firearm to the DOJ. ÝPenal Code Section 12072(f)(3).]
8)Requires a person moving into California (with a handgun
acquired outside of California) who did not receive the gun
from a California licensed gun dealer, to register the gun
with the DOJ by mailing a form. ÝPenal Code Section
12072(f)(2).]
9)Provides that handguns are centrally registered at time of
transfer, importation or sale, due to the fact that DOJ
compiles various transfer and reporting forms. (Penal Code
Section 11106.)
10)Provides for the "Armed and Prohibited" (APS) program which
identifies via registration records those persons who legally
acquired and are the registered owner of any firearm in DOJ's
data base and subsequently become ineligible to possess
firearms and creates a mechanism to disarm these persons.
(Penal Code Section 12010 to 12012.)
11)Requires each sheriff or police chief executive to submit
descriptions of serialized property, or non-serialized
property that has been uniquely inscribed, which has been
reported stolen, lost, found, recovered or under observation,
directly into the appropriate DOJ automated property system
for firearms, stolen bicycles, stolen vehicles, or other
property, as the case may be. ÝPenal Code Section 11108(a).]
12)States information about a firearm entered into the automated
system for firearms shall remain in the system until the
reported firearm has been found, recovered, is no longer under
observation, or the record is determined to have been entered
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in error. ÝPenal Code Section 11108(b).]
13)Provides that in addition to the requirements of existing law
that apply to a local law enforcement agency's duty to report
to DOJ the recovery of a firearm, a police or sheriff's
department shall, and any other law enforcement agency or
agent may, report to the depa rtment in a manner determined by
the A ttorney General (A G ) in consultation with the Bureau of
Alcohol, Tobacco, Firearms and Explosives (ATF) all available
information necessary to identify and trace the history of all
recovered firearms that are illegally possessed, have been
used in a crime, or are suspected of having been used in a
crime. ÝPenal Code Section 11108.3(a).]
14)States when the DOJ receives information from a local law
enforcement agency pursuant to existing law, it shall promptly
forward this information to the National Tracing Center of the
federal ATF to the extent practicable. Ý Penal Code Section
11108.3(b).]
15)States that in order to assist in the investigation of crime,
the prosecution of civil actions by city attorneys as
specified, the arrest and prosecution of criminals, and the
recovery of lost, stolen, or found property, the AG shall keep
and properly file a complete record of all copies of
fingerprints, copies of licenses to carry firearms,
information reported to DOJ pursuant to Penal Code Section
12053, dealers' records of sales for firearms, specified
reports, specified forms, and reports of stolen, lost, found,
pledged, or pawned property in any city or county of
California, and shall, upon proper application therefore,
furnish this information to the officers as specified. ÝPenal
Code Section 11106(a).]
16)States that except as provided, the AG shall not retain or
compile any information from specified reports for firearms
that are not handguns for firearms that are not handguns, or
from DROSs for firearms that are not handguns. All copies of
the forms submitted, or any information received in electronic
form, for firearms that are not handguns, or of the dealers'
records of sales for firearms that are not handguns shall be
destroyed within five days of the clearance by the AG unless
the purchaser or transferor is ineligible to take possession
of the firearm. All copies of the reports filed, or any
information received in electronic form for firearms that are
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not handguns shall be destroyed within five days of the
receipt by the AG, unless retention is necessary for use in a
criminal prosecution. ÝPenal Code Section 11106(b)(1).]
17)Provides that a peace officer, the AG, a DOJ employee
designated by the AG, or any authorized local law enforcement
employee shall not retain or compile any information from a
firearms transaction record for firearms that are not handguns
unless retention or compilation is necessary for use in a
criminal prosecution or in a proceeding to revoke a license
issued. ÝPenal Code Section 11106(b)(2).] A violation of
this subdivision is a misdemeanor. ÝPenal Code Section
11106(b)(3).]
18)States that notwithstanding Penal Code Section 11106, the DOJ
may retain personal information about an applicant in
connection with a claim for a firearm that is not a handgun to
allow for law enforcement confirmation of compliance with this
section. The information retained may include personal
identifying information regarding the individual applying for
the clearance, but may not include information that identifies
any particular firearm that is not a handgun. ÝPenal Code
Section 12021.3(h).]
19)States that on or after January 1, 1998, within 60 days of
bringing a handgun into California, a personal handgun
importer shall do one of the following ÝPenal Code Section
12072(f)(2)(A)]:
a) Forward by prepaid mail or deliver in person to DOJ, a
report prescribed by DOJ, including information concerning
that individual and a description of the firearm in
question;
b) Sell or transfer the firearm in accordance with
specified provisions;
c) Sell or transfer the firearm to a licensed dealer; or,
d) Sell or transfer the firearm to a sheriff or police
department.
20)States that if the personal handgun importer sells or
transfers the handgun, as specified, and the sale or transfer
cannot be completed by the dealer to the purchaser or
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transferee, and the firearm can be returned to the personal
handgun importer, the personal handgun importer shall have
complied with the provisions of this paragraph. ÝPenal Code
Section 12072(f)(2)(B).]
21)States that the provisions of this paragraph are cumulative
and shall not be construed as restricting the application of
any other law. However, an act or omission punishable in
different ways by this section and different provisions of the
Penal Code shall not be punished under more than one
provision. ÝPenal Code Section 12072(f)(2)(C).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "In 2006, former
Assemblyman Kevin McCarthy authored Assembly Concurrent
Resolution 73 which directed the California Law Revision
Commission (CLRC) 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 . . . . ' In June 2009, the CLRC issued its final
report on the 'Nonsubstantive Reorganization of Deadly Weapon
Statutes'. The final report was 1,102 pages long.
"In 2010, the California Legislature adopted the recommendation
of the CLRC to renumber almost 1,000 statutes in 10 codes,
dealing with firearms and deadly weapons. SB 1080 and SB 1115
were enacted by the Legislature and signed by Governor
Schwarzenegger. The effective date of the changes is
scheduled to be January 1, 2012. No funding was appropriated
for implementation of the changes.
"It should be noted that none of the brief discussion and debate
that either bill received in the Legislature concerned the
potential fiscal impact that the changes would cause to law
enforcement agencies, district attorney's offices, public
defender's offices, or the courts. In fact both bills were
keyed 'non-fiscal' and 'non-state mandated local programs'.
"The analyses of both bills indicate that the changes amount to
'nonsubstantive' reorganization. Although there are no
changes as to the elements of weapons offenses or to the
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punishment prescribed for violations, these bills make
sweeping and complicated modifications that will impede the
efficiency of the criminal justice system and impose massive
unfunded expenses at the state, county and city levels.
"As the state and local governments are negotiating a solution
to California's $26.2 billion deficit, the criminal justice
system must also deal with the implementation costs of SB 1080
and SB 1115. Some of the implementation costs that must be
considered are: the costs for retraining police, sheriffs,
judges, prosecutors, public defenders, and private criminal
defenders across the state; rewriting training manuals, duty
manuals, policy and procedure manuals, law books, and
law-related publications; and reprogramming computers in
district attorney offices, police agencies, courts, and county
jails to change code section numbers. There are also years
and years of appellate case law interpreting the sections that
SB 1080 and SB 1115 renumber. These cases will be used for
years to come by lawyers and judges. Therefore, anyone
practicing law now and in the future will have to know both
the current numbering system for weapons and the new numbering
created by SB 1080 and SB 1115.
"Even in the best of economic times, it makes no sense to throw
a monkey wrench into the already slow-turning wheels of our
criminal justice system. These, of course, are not the best
of economic times. We are now living in some of California's
worst economic times. This is the wrong time to force the
State and local governments to try to find millions of extra
dollars to implement a cosmetic makeover of the Penal Code and
nine other codes. There are no compelling reasons that
necessitate the immediate implementation of the massive
changes required by SB 1080 and SB 1115.
"AB 1331 would delay the implementation date of SB 1080 and SB
1115 for five years, until January 1, 2017. This will give
local governments time to recover from the worst economic
recession in the last 50 years."
2)Comments : ACR 73 (McCarthy), Chapter 128, Statutes of 2006,
directed CLRC to study, report on, and prepare recommended
legislation for the Legislature regarding the reorganization
of the control of deadly weapons provision of the Penal Code.
CLRC worked on the report to the Legislature and held public
meetings for over two- and one-half years before submitting
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the final report to the Legislature in June 2009.
The Legislature passed and the Governor signed SB 1080
(Committee on Public Safety), Chapter 711, Statutes of 2010,
and SB 1115 (Committee on Public Safety), Chapter 178,
Statutes of 2010, which contained CLRC's recommended
reorganization of the control of deadly weapons statutes.
In this session, legislators have introduced AB 144
(Portantino), AB 809 (Feuer), and SB 124 (De Leon), which are
all complex and some lengthy firearms bills. If enacted, all
these bills (AB 144, AB 809, and SB 124) will become effective
January 1, 2012. Therefore, the bills all refer to and
cross-reference the new code section designations enacted by
SB 1080 and SB 1115, which were scheduled to become effective
January 1, 2012. If this bill (AB 1331) is enacted, the
effective date of implementation of the deadly weapons will be
delayed for five years until January 1, 2017. The
introduction of this bill (AB 1331) requires that all other
firearms bills introduced this session be double-joined with
this bill (AB 1331) and be re-written using the old code
section designations in the event that this bill (AB 1331) is
enacted and the implementation of SB 1080 and SB 1115 is
delayed.
Every legislative session there are numerous lengthy and complex
firearms bills introduced; if the reorganization is delayed
for five years, these bills will continue to amend the old
code sections and add new code sections, which will require
CLRC, if authorized, to basically have to begin their work all
over again - this will be very expensive and make all of the
CLRC's previous recommendations obsolete.
3)Argument in Support : According to the California Public
Defenders Association , "In 2010 pursuant to SB 1080 and SB
1115 the California Legislature adopted and the Governor
signed into law the recommendation of the CLRC to renumber
almost 1000 statutes in 10 codes dealing with firearms and
deadly weapons. With absolutely no funding authorized or
appropriated in any way, the bills were incorrectly tagged as
'non-fiscal' and 'non-state mandated programs' and categorized
as a 'non-substantive reorganization.' SB 1080 and SB 1115
failed to consider the enormous cost of training and
implementation on public defender offices. Similarly, no
consideration was given to the costly and time-consuming
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impact such changes would make to law enforcement agencies,
district attorney's office, or the courts.
"In total almost 900 deadly weapons and firearms statutes were
impacted by the renumbering requirement. CLRC's report
contains 618 pages of actual revisions alone, and 370 pages of
disposition tables and conforming revisions. The enormity of
impact to Public Defender Departments cannot be
overemphasized. Significant additional time will be needed
for each and every Deputy Public Defender to read and
comprehend CLRC revised statutes, as well as to cross
reference disposition offers and advise clients regarding
renumbered weapons charges and enhancements. Sentencing
calculations will be made more difficult because our lawyers
will have to cross-reference existing sections and the former
sections. Before a counter-offer to a prosecutor's offer is
made, Deputy Public Defenders will first have to confirm
sentences and possible disposition offers in the many deadly
weapon and firearms cases handled on a daily basis to ensure
correct cross referencing in the revised statutes.
"While implementation of these measures will be statewide, the
Los Angeles County Public Defender's Office, which is the
largest indigent defender provider not only in California but
in the entire country, will be the hardest hit. Los Angeles
Public Defender's Office has approximately 780 attorneys
spread across 41 locations stretching from Pomona to
Lancaster, also employing paralegals, investigators and social
workers. In Fiscal Year 2009-10, the Public Defender
represented clients in approximately 132, 220 felony-related
proceedings; 306,232 misdemeanor-related proceedings; and
69,345 juvenile clients in juvenile delinquency proceedings
respectively. Approximately one-third of all state prison
commitments originate from Los Angeles County. Using a
conservative estimate, if all 780 lawyers spend only 10
minutes a day looking up cross-references to the firearms and
deadly weapons statues, the gross time would amount to 7800
minutes or 130 hours each day. Assuming 10 minutes per day
per lawyer, and using the hourly salary of a Grade III Deputy
Public Defender ($126/hour), this revision will cost our
department $12,500 per day. Note that this figure does not
include training of Public Defender's seventy paralegals and
70-80 investigators. It is more realistic that lawyers will
spend up to 20 minutes per day studying or investigating the
revisions. This amounts to $25,000 per day of staff time, or
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$125,000 per week. The total cost to the LA County Public
Defender would be roughly $6.5 million a year.
4)Argument in Opposition : According to the California Chapters
of the Brady Campaign to Prevent Gun Violence , "In 2004,
Governor Schwarzenegger vetoed SB 1140 (Scott) on the ground
that the firearms law should be reorganized 'to ensure that
statutes that impose criminal penalties are easily
understandable.' ACR 73 (2006), three years of intense effort
by the California Law Review Commission, and bills both last
year and this year to implement the Commission's
recommendations have been the result. During this time over
120 interested groups and individuals, including, but not
limited to, the Los Angeles County District Attorney, the Los
Angeles County Public Defender, the California Sheriffs
Association, the California Police Chiefs Association and the
National Rifle Association have participated in the4 process.
All of these organizations had an opportunity to provide input
and affect the implementation schedule.
"Efforts to date have required the expenditure of considerable
public resources. All bills currently in process have been
written to cross reference the new code sections. IF the
legislature were to turn back now, all of this effort could be
lost and there would be substantial future costs resulting
from the delay. In addition, the chance of mistakes in the
future by changing between codes is significant.
"The train has left the station on this issue and it is time now
to finish what was undertaken five years ago. Accordingly, we
respectfully ask for your NO vote on AB 1331."
5)Related Legislation : AB 1402 (Committee on Public Safety)
makes non-substantive minor changes to the various deadly
weapons provisions that have been reorganized and renumbered
by the enactment of SB 1080 (Committee on Public Safety),
Chapter 711, Statutes of 2010. AB 1402 is pending referral
by the Senate Rules Committee.
6)Prior Legislation :
a) SB 1080 (Committee on Public Safety), Chapter 711,
Statutes of 2010, reorganized, without substantive change,
Penal Code provisions relating to deadly weapons.
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b) SB 1115 (Committee on Public Safety), Chapter 178,
Statutes of 2010, made cross-referencing changes to Penal
Code provisions related to deadly weapons.
REGISTERED SUPPORT / OPPOSITION :
Support
California Public Defenders Association (Co-Sponsor)
Los Angeles County District Attorney's Office (Co-Sponsor)
Association for Los Angeles Deputy Sheriffs
California District Attorneys Association
California State Sheriffs' Association
Los Angeles County Board of Supervisors
Los Angeles County Probation Officers Union
Los Angeles County Public Defender's Office
Riverside Sheriffs' Association
Santa Clara County Board of Supervisors
Opposition
California Chapters of the Brady Campaign to Prevent Gun
Violence
Analysis Prepared by : Gregory Pagan / PUB. S. / (916)
319-3744