BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 1366 (DeSaulnier) 6
As Amended March 29, 2012
Hearing date: April 10, 2012
Penal Code
SM:mc
LOST AND STOLEN FIREARMS
HISTORY
Source: Brady Campaign to Prevent Gun Violence; Legal Community
Against Violence; Los Angeles County Sheriff
Prior Legislation:AB 334 (Levine) - 2007, "lost and stolen
handgun" provisions deleted in 2008 before
enactment with other unrelated provisions.
AB 86 (Levine) - Chapter 167, Statutes of 2006
SB 59 (Lowenthal) - 2006, vetoed
AB 1203 (Lowenthal) - 2004, "stolen handgun"
provisions deleted before enactment with other
unrelated firearms provisions
AB 131 (Ortiz) - 1997, failed passage,
reconsideration granted; provisions subsequently
deleted in 1998 and enacted pertaining to food
stamp penalties
Support: California Police Chiefs Association; California
Chapter of the Brady Campaign to Prevent Gun Violence
Opposition:California Outdoor Heritage Alliance; California
Rifle and Pistol Association; The California
Sportsman's Lobby; Safari Club International; Outdoor
Sportsmen's Coalition of California; National Rifle
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Association; Gun Owners of California
KEY ISSUE
SHOULD THE LAW REQUIRE THE REPORTING TO LAW ENFORCEMENT OF LOST
OR STOLEN FIREARMS, AS SPECIFIED?
PURPOSE
The purpose of this bill is to (1) require that every person
must report the theft or loss of a firearm he or she owns or
possesses to a local law enforcement agency in the jurisdiction
in which the theft or loss occurred within 48 hours of the time
he or she knew or reasonably should have known that the firearm
had been stolen or lost (2) provide that, for purposes of this
requirement, a "firearm" includes the frame or receiver of the
weapon; (3) require that every person who has reported a firearm
lost or stolen, as required above, shall notify the local law
enforcement agency in the jurisdiction in which the theft or
loss occurred within 48 hours if the firearm is subsequently
recovered by the person; (4) provide that a violation of either
of the above provisions would be, for a first violation, an
infraction punishable by a fine not to exceed $100 and a second
or subsequent violation, would be a misdemeanor, punishable by
imprisonment in a county jail not exceeding six months, or by a
fine not exceeding $1,000, or both; (5) require that every
person reporting a lost or stolen firearm shall report the make,
model, and serial number of the firearm, if known by the person;
(6) provide that, beginning January 1, 2013, anyone who reports
to a local law enforcement agency that a firearm has been lost
or stolen, knowing the report to be false, shall be guilty of a
misdemeanor, punishable by imprisonment in a county jail not
exceeding six months, or by a fine not exceeding $1,000, or
both; (7) require firearms dealers to conspicuously post within
the licensed premises the requirement that firearms owners
report lost and stolen firearms, as detailed above; and (8)
provide specified exceptions to the reporting requirement.
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Existing law provides that persons licensed to make, import,
collect, or deal in firearms are required to report the loss or
theft of firearms they possess, to a law enforcement agency.
For example, Penal Code section 26885 requires licensed dealers
to report losses within 48 hours and Penal Code section 29115(a)
requires licensed firearms manufacturers - whether of handguns
or long guns - to report the loss or theft of firearms within 48
hours to specified law enforcement agencies.
Existing law provides that the sale, loan or transfer of
firearms in almost all cases must be processed by, or through, a
state licensed dealer or a local law enforcement agency with
appropriate transfer forms being used. (Penal Code §§ 26500,
27545.) In those cases where dealer or law enforcement
processing is not required, a handgun change of title report
must still be sent to the Department of Justice (DOJ). (Penal
Code § 27920.)
Existing law provides that, on request, DOJ will register
transactions relating to handguns in the Automated Firearm
System Unit for persons who are exempt from dealer processing or
are otherwise exempt by statute from reporting processes.
(Penal Code § 28000.)
Existing law requires handguns to be centrally registered at
time of transfer or sale due to various transfer forms centrally
compiled by the DOJ. DOJ is required to keep a registry from
data sent to DOJ indicating who owns what handgun by make,
model, and serial number and the date thereof. (Penal Code §
11106(a) and (c).) After 2014, this registry will include data
on ownership of long guns, as well as handguns. (Chap. 745,
Stats. of 2011.) Law enforcement agencies must promptly report
to DOJ all reports they receive of lost, stolen, and found
property. (Penal Code §§ 11107, 11108.) DOJ must keep a
centralized and computerized list of all lost, stolen, and found
serialized property reported to it. (Penal Code § 11106(a).)
Existing law provides that in addition to the requirements of
Section 11108 that apply to a local law enforcement agency's
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duty to report to the 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 department in a manner determined by
the AG in consultation with the Bureau of Alcohol, Tobacco,
Firearms and Explosives 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. In addition, any law
enforcement agency or agent may report to the Attorney General
pursuant to this section all information pertaining to any
firearm taken into custody, except where the firearm has been
voluntarily placed with the law enforcement agency for storage.
(Penal Code § 11108.3.)
Existing law requires that a "personal handgun importer" - a
person in lawful possession of a handgun who moves to California
after January 1, 1998 - shall either report that ownership to
the Department of Justice within 60 days or shall otherwise
dispose of the handgun, as specified. (Penal Code §§ 17000(a),
27560.)
Existing law provides that if any weapon has been stolen and is
thereafter recovered from the thief or his or her transferee, or
is used in such a manner as to constitute a nuisance because it
was unlawfully carried or used without the prior knowledge of
its lawful owner that it would be so used, it shall be restored
to the lawful owner, as soon as its use as evidence has been
completed. The lawful owner must identify the weapon and
provide proof of ownership. (Penal Code § 18005(b).)
Existing law requires that any person seeking the return of a
firearm in the custody or control of a court or law enforcement
agency must submit specified information, including for handguns
the firearm's make, model, caliber, barrel length, handgun type,
country of origin, and serial number. If the firearm has been
reported lost or stolen to a law enforcement agency, as
specified, the agency shall notify the owner or person entitled
to possession of the firearm. The person seeking return of the
firearm shall be subject to a background check, as specified.
(Penal Code §§ 33850, 33855.)
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Existing law excludes from the definition of "firearm,"
for a number of provisions of law, an unloaded "antique
firearm" and uses the federal definition of that term.
(Penal Code § 16170.)
Existing law requires licensed firearms dealers to post
specified warnings in a conspicuous place on their premises,
such as a warning about penalties for leaving a loaded firearm
where a child obtains it. (Penal Code § 26835.)
Existing law pertaining to the "criminal storage" of firearms -
both handguns and rifles and shotguns - makes it a crime to
store firearms negligently and where a child (person under 18
years of age) gains access to the firearm(s), as specified.
(Penal Code §§ 25100, et seq.)
Existing law provides that every person is responsible, not only
for the result of his or her willful acts, but also for an
injury occasioned to another by his or her want of ordinary care
or skill in the management of his or her property or person,
except so far as the latter has, willfully or by want of
ordinary care, brought the injury upon himself or herself. The
design, distribution, or marketing of firearms and ammunition is
not exempt from the duty to use ordinary care and skill that is
required by this section. (Civil Code § 1714.)
Existing law provides that civil liability for any injury to the
person or property of another proximately caused by the
discharge of a firearm by a minor under the age of 18 years
shall be imputed to a parent or guardian having custody and
control of the minor for all purposes of civil damages, and such
parent or guardian shall be jointly and severally liable with
such minor for any damages resulting from such act, if such
parent or guardian either permitted the minor to have the
firearm or left the firearm in a place accessible to the minor;
the liability imposed by this section is in addition to any
liability otherwise imposed by law. However, no person, or
group of persons collectively, shall incur liability under this
section in any amount exceeding $30,000 for injury to or death
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of one person as a result of any one occurrence or, subject to
the limit as to one person, exceeding $60,000 for injury to or
death of all persons as a result of any one such occurrence.
(Civil Code § 1714.3.)
Existing law provides that no person shall make an application
to purchase more than one handgun within any 30-day period.
(Penal Code § 27535(a).) However, an exemption to that
restriction applies to the replacement of a handgun when the
person's handgun was lost or stolen, and the person reported
that firearm lost or stolen prior to the completion of the
application to purchase to any local law enforcement agency of
the city, county, or city and county in which the person
resides. (Penal Code § 27535(b) (11).)
This bill would require that, beginning January 1, 2013, every
person must report the theft or loss of a firearm he or she owns
or possesses to a local law enforcement agency in the
jurisdiction in which the theft or loss occurred within 48 hours
of the time he or she knew or reasonably should have known that
the firearm had been stolen or lost.
This bill provides that, for purposes of this requirement, a
"firearm" includes the frame or receiver of the weapon.
This bill provides that, for purposes of this requirement, a
"firearm" does not include an unloaded antique firearm.
This bill would also require that every person who has reported
a firearm lost or stolen, as required above, shall notify the
local law enforcement agency in the jurisdiction in which the
theft or loss occurred within 48 hours if the firearm is
subsequently recovered by the person.
This bill provides that a violation of either of the above
provisions would be, for a first violation, an infraction
punishable by a fine not to exceed $100 and a second or
subsequent violation, would be a misdemeanor, punishable by
imprisonment in a county jail not exceeding six months, or by a
fine not exceeding $1,000, or by both that fine and
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imprisonment.
This bill requires that every person reporting a lost or stolen
firearm shall report the make, model, and serial number of the
firearm, if known by the person.
This bill provides that, beginning January 1, 2013, no person
shall report to a local law enforcement agency that a firearm
has been lost or stolen, knowing the report to be false. A
violation of this section shall be a misdemeanor, punishable by
imprisonment in a county jail not exceeding six months, or by a
fine not exceeding $1,000, or by both that fine and
imprisonment.
This bill would require firearms dealers to conspicuously post
within the licensed premises the following warnings in block
letters not less than one inch in height: "IF A FIREARM YOU OWN
OR POSSESS IS LOST OR STOLEN, YOU MUST REPORT THE LOSS OR THEFT
TO A LOCAL LAW ENFORCEMENT AGENCY WHERE THE LOSS OR THEFT
OCCURRED WITHIN 48 HOURS OF THE TIME YOU KNEW OR REASONABLY
SHOULD HAVE KNOWN THAT THE FIREARM HAD BEEN LOST OR STOLEN."
This bill provides that the lost or stolen firearm reporting
requirement shall not apply to:
Any law enforcement agency or peace officer acting
within the course and scope of his or her employment or
official duties, if he or she reports the loss or theft to
his or her employing agency.
Any United States Marshal or member of the Armed Forces
of the United States or the National Guard, while engaged
in his or her official duties.
Any federally licensed firearms dealer or manufacturer,
as specified, who reports the theft or loss in accordance
with specified federal law, or the successor thereto, and
the applicable regulations.
Any person whose firearm was lost or stolen prior to
January 1, 2013.
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RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
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three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for This Bill
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According to the author:
Currently, seven states, the District of Columbia, and
nine cities in California require firearm owners to
report to law enforcement when their firearms are lost
or stolen. The State of California does not.
Under current law, firearms dealers and manufacturers
must report any lost or stolen firearms within 48
hours, and local law enforcement must enter reports of
lost or stolen firearms into the state's Automated
Property System database. However, firearm owners
whose guns are lost or stolen are not required to do
anything. As a result, law enforcement efforts to
investigate gun crimes and disarm dangerous criminals
are significantly hindered.
The public overwhelmingly supports laws requiring the
reporting of lost or stolen firearms. A nationwide
poll in 2011 found that 94% of Americans surveyed,
including 94% of gun owners, favor laws to require the
reporting of lost or stolen firearms.
SB 1366 requires that, beginning January 1, 2013,
every person whose firearm is lost or stolen must
notify local law enforcement within 48 hours of the
time the person knew or reasonably should have known
that the firearm had been lost or stolen.
2. Does the Bill Violate the Fifth Amendment?
This bill raises the issue of whether it could violate the Fifth
Amendment right against self-incrimination to require a person
to report the loss or theft of a firearm that the person
obtained or possessed illegally. In Marchetti v. United States
(1968) 390 U.S. 39, the United States Supreme Court granted an
individual who was charged with failing to comply with a
gambling registration tax statute a defense from prosecution
based on the Fifth Amendment. In Marchetti, however, the
gambling statute was written in such a manner that the only
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persons required to comply with the statute were those engaged
in illegal gambling activities. As such, the statute was
designed to ferret out and cause the prosecution of illegal
gambling through an ostensible tax scheme.
This bill, by contrast, would require "Commencing January 1,
2013, every person shall report the theft or loss of a firearm
he or she owns or possesses to a local law enforcement agency in
the jurisdiction in which the theft or loss occurred within 48
hours of the time he or she knew or reasonably should have known
that the firearm had been stolen or lost." Both those in lawful
possession of the handgun and those not in lawful possession
would be required to make the report or be subject to an
infraction on the first offense and a misdemeanor for subsequent
offenses. The requirement also does not differentiate between
circumstances of the theft or loss, whether the weapon was
stolen while carried illegally, for example, versus whether the
weapon was lawfully stored at the person's residence.
Therefore, because the statute does not appear to be designed to
identify persons who are in illegal possession of a handgun
before it was lost or stolen, there would not appear to be any
Fifth Amendment defense to failure to comply.
SHOULD REPORTING STOLEN OR LOST HANDGUNS AS PROPOSED BY THIS
BILL BE REQUIRED?
3. Mandating Reporting Lost and Stolen Firearms
In 2007, the International Association of Chiefs of Police held
a summit on gun violence. The report issued following that
summit states:
Nearly 30,000 American lives are lost to gun violence
each year-a number far higher than in any other
developed country. Two to three times that many
suffer non-fatal injuries. Since 1963, more Americans
died by gunfire than perished in combat in the whole
of the 20th century (statistics cited in Private Guns,
Public Health, University of Michigan Press, 2004).
And the overall impact goes much farther. Gun
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violence reaches across borders and jurisdictions and
compromises the safety of everyone along the way.
(International Association of Chiefs of Police, Taking
a Stand: Reducing Gun Violence in Our Communities
(Sept. 2007), at page 8.
http://www.theiacp.org/LinkClick.aspx?fileticket=%2Fs0L
iOkJK5Q%3D&tabid=87 .)
The report discusses the causes of gun violence and makes
several specific recommendations. Many of the recommendations
are already state law in California such as a ban on
military-style assault weapons, mandating safe storage and
trigger-lock devices, and requiring all firearms transfers to
take place through a licensed dealer. One recommendation
contained in the report that is not currently required under
state law in California is the reporting of all lost and stolen
firearms. The report states:
State and local governments should mandate the
reporting of lost and stolen firearms, and federal law
in this area should be tightened.
The federal government has already taken steps to
protect citizens against the criminal misuse of lost
and stolen guns. As of 1994, federal law requires
FFLs to report their lost and stolen guns to ATF and
local law enforcement within 48 hours of discovering
that the gun is missing. This law should be
strengthened to ensure that dealers keep track of
their inventories by requiring them to report missing
firearms within 48 hours after they know or should
know that the gun is missing.
As a result of current federal policy, and in
particular the work of ATF's Stolen Firearms Program
at the National Tracing Center, many stolen guns have
been recovered and instances of gun violence averted.
Every state and local government should mandate that
gun owners report lost and stolen guns. Stolen guns
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represent a major risk to the community at large,
because they have, by definition, entered criminal
hands. Ensuring law enforcement's early awareness of
every lost and stolen gun will enhance their ability
to recover those guns and reduce gun violence. (Id at
page 22.)
Mayors Against Illegal Guns is group of over 600 mayors from
across the country. In September 2010, the group published a
report on the connection between gun laws and illegal interstate
gun trafficking. Two findings detailed in the report were that
states that do not require gun owners to report lost or stolen
guns to police export crime guns at a rate more than two and a
half times greater than states that require such reporting and
such states are also the source of a greater proportion of short
"time to crime" guns.<1>
Lost or stolen guns account for a large share of
firearms trafficking. Over 150,000 firearms were
reported lost or stolen in 2008. Eighty-five percent
of these guns were never recovered, and tens of
thousands more were likely never even reported.
Reporting lost or stolen guns to local law enforcement
fights illegal gun trafficking in two ways. First, it
enables police to respond more rapidly to a report
that a gun was stolen and possibly return it to its
owner or track down the thieves. Second, if a
trafficker or straw buyer is identified through gun
tracing and confronted by police, such a requirement
prevents them from evading responsibility by claiming
that the crime gun was stolen from them. Federal law
requires FFLs Ýfederally licensed dealers,
manufacturers or collectors] to report lost or stolen
guns, but this requirement does not apply to other gun
owners. Currently, seven states and the District of
Columbia require gun owners to report lost or stolen
guns to local law enforcement.
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<1> Time-to-Crime ("TTC") measures the time between a gun's
initial retail sale and its recovery in a crime.
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These states have an average export rate of 6.2 guns
per 100,000 inhabitants. In comparison, the 43 states
that do not require such reporting have a crime gun
export rate of 16.1 guns per 100,000 inhabitants,
which is more than two and a half times greater than
the rate of states that do.
Furthermore, the states that do not require gun owners
to report lost or stolen guns are also the source of a
greater proportion of short TTC guns - 23.1% of guns
originating from these states have a short TTC, while
only 17.8% of guns originating from states that
require gun owners to report lost or stolen guns have
a short TTC. (Trace the Guns - The Link Between Gun
Laws and Interstate Gun Trafficking, A Report from
Mayors Against Illegal Guns, September 2010, page
22-23.
http://www.mayorsagainstillegalguns.org/downloads/pdf/t
race_the_guns_report.pdf.)
WOULD REQUIRING LOST AND STOLEN FIREARMS TO BE REPORTED TO LAW
ENFORCEMENT HELP TRACE CRIME GUNS?
WOULD REQUIRING LOST AND STOLEN FIREARMS TO BE REPORTED TO LAW
ENFORCEMENT HELP REDUCE ILLEGAL GUN TRAFFICKING?
4. Potential for Inadvertent Violation
Making it a crime to fail to report a lost or stolen firearm
would create what is known as a strict liability crime. Most
crimes require both a bad act (actus reus) and a concomitant
mental state (mens rea) such as intent to harm another or
recklessness about the consequences of one's actions. (See,
Staples v. United States, 511 U.S. 600 (1994).) A strict
liability crime requires no malevolent mental state, just the
act itself. In this case, to violate this law would not even
require a bad act but merely an omission or failure to act. As
such, this could be a very easy statute to violate
inadvertently. For example, a person might inherit a firearm,
put it in a box in the attic and forget about it. Later, the
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person's house is burglarized and the person doesn't think to
look in the box in the attic where the gun was kept to see if it
is still there. If it turns out the gun was stolen in the
burglary, the person could be in violation of this law because
they failed to report the theft of the gun. The bill requires
gun owners to report any firearm that they knew or reasonably
should have known was lost or stolen within 48 hours of the
loss. In the above scenario, a court might well conclude that
the gun owner should have checked to see if the gun was stolen
after the burglary, that the failure to do so was unreasonable,
and therefore the failure to report the loss resulted in a
violation of this statute.
Imposing this reporting requirement does involve something of a
paradigm shift in attitudes about firearm ownership. Simply
put, this bill requires firearms owners to be aware of the
whereabouts of their firearms at all times. While most firearms
owners are undoubtedly law abiding citizens, it is not clear
what percentage of them would report a lost or stolen gun
currently. Making it a crime to fail to do so imposes a
significant new responsibility on gun owners.
SHOULD GUN OWNERS BE REQUIRED TO BE AWARE OF THE WHEREABOUTS OF
THEIR GUNS AT ALL TIMES AND REPORT ANY LOST OR STOLEN GUNS
WITHIN 48 HOURS?
5. Proposed Author's Amendment
Because, as described above, this offense could be violated
without any intent to do so, the author may wish to consider
amending the bill to provide that a second offense would be
punishable as an infraction, with a fine of no greater than
$1,000 and that any subsequent offense be a misdemeanor,
punishable by up to six months in jail, a fine of up to $1,000,
or both. A fine
of $1,000, when combined with all the mandatory penalty
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assessments applicable in every criminal case<2> turns out to
cost the defendant approximately $3,800. Therefore, the
monetary penalty for a second offense would be substantial but
there would be no risk of an otherwise law-abiding person going
to jail for failing to report a lost or stolen gun. It could
also increase the likelihood of this statute actually being
enforced. Resource-strapped district attorney's offices might
be more likely to prosecute a charge punishable as an infraction
than a misdemeanor because infractions do not carry with them
the right to a jury trial and the possibility of appointed
counsel for the defendant.
SHOULD THIS AMENDMENT BE TAKEN?
6.Governor's Veto of SB 59 (2006)
SB 59 of 2006 was similar to this bill and was vetoed by
Governor Schwarzenegger. The Governor's veto message stated:
While I share the Legislatures concern about the
criminal use of lost or stolen weapons, the ambiguous
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<2> As of June 24, 2010 these included: A "state penalty" of
$10 for every $10 or fraction thereof, upon every fine, penalty
or forfeiture imposed and collected by the courts for criminal
offenses including all offenses, except parking offenses,
involving the Vehicle Code. Of the money collected, 70 percent
is transmitted to the state and 30 percent remains with the
county. The state portion of the money collected from the
penalty is distributed in specified percentages among: the Fish
and Game Preservation Fund (0.33 percent); the Restitution Fund
(32.02 percent); the Peace Officers Training Fund (23.99
percent); the Driver Training Penalty Assessment Fund (25.70
percent); the Corrections Training Fund (7.88 percent); the
Local Public Prosecutors and Public Defenders Fund (0.78
percent, not to exceed $850,000 per year); the Victim-Witness
Assistance Fund (8.64 percent); and the Traumatic Brain Injury
Fund (0.66 percent). (Penal Code § 1464.) Plus an additional
county penalty assessment of $7 is imposed for every $10 or
fraction thereof, upon every fine, penalty, or forfeiture
imposed and collected by the courts for criminal offenses,
including all offenses involving a violation of the Vehicle Code
or any local ordinance adopted pursuant to the Vehicle Code
except parking offenses. The money collected shall be placed in
any of the following funds if established by a County Board of
Supervisors: Courthouse Construction Fund; a Criminal Justice
Facilities Construction Fund; Automated Fingerprint
Identification Fund; Emergency Medical Services Fund; DNA
Identification Fund. (Government Code § 76000 et seq.)
Additionally, as a part of the 2002-03 Budget Act, the
Legislature imposed what was to be a temporary state surcharge
of 20 percent on every base fine collected by the court. All
money collected shall be deposited in the General Fund. This
section was made permanent in the 2007 Budget. (Penal Code §
1465.7.) Also, the "State Court Facilities Construction Fund"
added a state court construction penalty assessment in an amount
up to $5 for every $10 or fraction thereof, upon every fine,
penalty, or forfeiture imposed and collected by the courts for
criminal offenses. The variation in the amount is dependent on
the amount collected by the county for deposit into the local
Courthouse Construction Fund established pursuant to Government
Code Section 76100. As a result, the penalty assessment ranges
from $0.00 for every $10 in two counties to the full $5 for
every $10 in nine counties. This provision took effect on
January 1, 2003. (Government Code § 70372.) Additionally, a
flat fee of $30 is imposed on every conviction for a criminal
offense to ensure adequate funding for court security. (Penal
Code § 1465.8.) Also, Prop 69, Nov. 2004, levies a $1 penalty
assessment on every $10 in fines and forfeitures resulting from
criminal and traffic offenses and dedicates these revenues to
state and local governments for DNA databank implementation
purposes - the state will receive 70% of these funds in the
first two years, 50% in the third year and 25% annually
thereafter. The remainder will go to local governments.
(Government Code § 76104.6.) An additional penalty assessment
of $2 is imposed on every $10 to support emergency medical
services. (Government Code § 76000.5.)
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SB 1366 (DeSaulnier)
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manner in which this bill was written would make
compliance with the law confusing for legitimate
gun-owners and could result in cases where law-abiding
citizens face criminal penalties simply because they
were the victim of a crime, which is particularly
troubling given the unproven results of other
jurisdictions in California that have passed similar
measures.
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In addition, this bill may have undesirable legal
consequences as it allows local governments to pass
ordinances that differ from State law, thereby leaving
law-abiding citizens with the task of navigating
through a maze of different or conflicting local laws
depending upon the jurisdiction they are in. A
patchwork of inconsistent local ordinances creates
compliance and enforcement problems that erode the
State's ability to effectively regulate handguns
statewide.
7. Statement in Support
The California Police Chiefs Association states:
SB 1366 would provide a tool for law enforcement to
detect firearms trafficking and charge criminals who
engage in it. A requirement to report lost or stolen
firearms would assist in the identification and
prosecution of "straw buyers," individuals who
purchase guns legally, then sell them to people who
cannot legally purchase firearms such as gang members,
criminals or minors. When crime guns are traced to
straw buyers, they falsely claim that the firearm was
lost or stolen. The lack of a reporting requirement
enables straw buyers to shield their criminal activity
and continue to sell guns illegally to dangerous
criminals. A reporting requirement would likewise
assist in the prosecution of armed criminals who
falsely claim that a crime gun traced to them was lost
or stolen when in fact it was used in a crime. The
lack of a reporting requirement enables criminals to
hide their involvement in a crime and evade
apprehension.
SB 1366 would help law enforcement efforts to disarm
individuals who possess a firearm and subsequently
become prohibited by law from purchasing or possessing
firearms because of falling into a prohibited class.
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When law enforcement attempts to recover these illegal
firearms, gun owners may falsely claim that the gun
was lost or stolen. A reporting requirement would
improve the efficiency and implementation of the
state's Armed and Prohibited Persons System Program,
in which law enforcement agencies work to proactively
disarm prohibited individuals before they harm
themselves or others.
8. Statement in Opposition
The California Outdoor Heritage Alliance states:
SB 1366 would unfairly penalize innocent victims of
crime and increase the criminal liability of law
abiding individuals without significant public safety
benefits. It should be noted that in cities such as
San Francisco, Oakland and Berkeley, where similar
schemes have been tried, few if any arrests or
convictions of criminals have arisen as a result.
Although perhaps well-intended, SB 1366 would
unnecessarily burden and possibly make criminals out
of otherwise law-abiding sportsmen and women. Without
evidence to suggest that such measures are effective,
COHA stands in opposition.
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