BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2013-2014 Regular Session               B

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          AB 1591 (Achadjian)                                        1
          As Introduced February 3, 2014 
          Hearing date:  May 13, 2014
          Penal Code
          JRD:mc

                                      FIREARMS: 

                          PROHIBITED PERSONS: NOTIFICATION

                                           
                                       HISTORY

          Source:  Author

          Prior Legislation: AB 1131 (Skinner) - Chapter 747, Statutes of  
          2013
                           
          Support: California Police Chiefs Association Inc.; American  
                   Academy of Pediatrics, California; Judicial Council of  
                   California (support, if amended and funded)

          Opposition:None known

          Assembly Floor Vote:  Ayes  76 - Noes  0


                                         KEY ISSUE
           
          SHOULD THE COURTS HAVE TO REPORT INFORMATION THAT COULD LEAD TO A  
          FIREARMS PROHIBITION WITHIN 24 HOURS? 






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                                       PURPOSE

          The purpose of this legislation is to reduce the time the court  
          has to notify the Department of Justice (DOJ) of court actions  
          that would result in the prohibition of a person from possessing  
          a firearm or any other deadly weapon or result in the person no  
          longer being subject to that prohibition, from two court days to  
          24 hours.

           Under existing law  the Attorney General is required to establish  
          and maintain an online database known as the Prohibited Armed  
          Persons File.  The purpose of the file is to cross-reference  
          persons who have ownership or possession of a firearm on or  
          after January 1, 1991, as indicated by a record in the  
          Consolidated Firearms Information System, and who, subsequent to  
          the date of that ownership or possession of a firearm, fall  
          within a class of persons who are prohibited from owning or  
          possessing a firearm.  The information contained in the  
          Prohibited Armed Persons File is only available to specified  
          entities through the California Law Enforcement  
          Telecommunications System, for the purpose of determining if  
          persons are armed and prohibited from possessing firearms.   
          (Penal Code § 30000.)
                                          
           Current law  provides that no person who, after October 1, 1955,  
          has been adjudicated by a court of any state to be a danger to  
          others as a result of a mental disorder or mental illness, or  
          who has been adjudicated to be a mentally disordered sex  
          offender, shall purchase or receive, or attempt to purchase or  
          receive, or have in his or her possession, custody, or control  
          any firearm or any other deadly weapon unless there has been  
          issued to the person a certificate by the court of adjudication  
          upon release from treatment or at a later date stating that the  
          person may possess a firearm or any other deadly weapon without  
          endangering others, and the person has not, subsequent to the  
          issuance of the certificate, again been adjudicated by a court  
          to be a danger to others as a result of a mental disorder or  
          mental illness.  (WIC § 8103(a)(1).)





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           Current law  requires the court to notify DOJ within two court  
          days of the court order finding the individual to be a danger to  
          others as a result of a mental disorder or mental illness, or  
          who has been adjudicated to be a mentally disordered sex  
          offender.  The court shall also notify DOJ of any certificate  
          issued by the court stating that the person may possess a  
          firearm or any other deadly weapon.  (WIC § 8103(a)(2).)

           Current law  prohibits a person who has been found not guilty by  
          reason of insanity of murder, mayhem, carjacking or robbery in  
          which the victim suffers great bodily injury, burglary in the  
          first degree, or any of the other specified offenses involving  
          death, great bodily injury, or an act which poses a serious  
          threat of bodily harm to another person, from purchasing or  
          receiving, or attempting to purchase or receive, or having in  
          his or her possession or under his or her custody or control any  
          firearm or any other deadly weapon.  The court is required to  
          notify DOJ within two court days of the order finding the person  
          to be a person described in this section.  (WIC 
          § 8103(b).)

           Current law  prohibits a person who has been found not guilty by  
          reason of insanity for any offense not specifically listed from  
          purchasing or receiving, or attempting to purchase or receive,  
          or having in his or her possession, custody, or control any  
          firearm or any other deadly weapon unless the court of  
          commitment has found the person to have recovered sanity.  The  
          court is required to notify DOJ of the court order finding the  
          person to be a person described in this section within two court  
          days.  The court is also required to notify the Department of  
          Justice when it finds that the person has recovered his or her  
          sanity.  (WIC § 8103(c).)

           Current law  prohibits a person who has been found by a court to  
          be mentally incompetent to stand trial, from purchasing or  
          receiving, or attempting to purchase or receive, or having in  
          his or her possession, custody, or control, any firearm or any  
          other deadly weapon, unless there has been a finding with  
          respect to the person of restoration to competence to stand  




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          trial by the committing court.  The court is required to notify  
          DOJ within two court days of the order finding the person to be  
          mentally incompetent and shall also notify DOJ when it finds  
          that the person has recovered his or her competence.  (WIC §  
          8103(d).)

           Existing law  prohibits a person who has been placed under  
          conservatorship by a court from purchasing or receiving, or  
          attempting to purchase or receive, or having in his or her  
          possession, custody, or control, any firearm or any other deadly  
          weapon while under the conservatorship if, at the time the  
          conservatorship was ordered or thereafter, the imposing court  
          found that possession of a firearm or any other deadly weapon by  
          the person would present a danger to the safety of the person or  
          to others.  Existing law also requires the court to notify DOJ  
          as soon as possible, but not later than two court days, of the  
          court order placing the person under conservatorship and  
          prohibiting firearm or any other deadly weapon possession,  
          including the dates the conservatorship was imposed and is to be  
          terminated, and requires the court to notify DOJ as soon as  
          possible, but not later than two court days, if the  
          conservatorship is subsequently terminated before the date  
          listed in the notice to DOJ or the court subsequently finds that  
          possession of a firearm or any other deadly weapon by the person  
          would no longer present a danger to the safety of the person or  
          others.  (WIC § 8103(e).)

           Current law  prohibits a person who has been taken into custody  
          as provided in Section 5150 because that person is a danger to  
          himself, herself, or to others, assessed and admitted to a  
          designated facility because that person is a danger to himself,  
          herself, or others, from owning, possessing, controlling,  
          receiving, or purchasing, or attempting to own, possess,  
          control, receive, or purchase any firearm for a period of five  
          years after the person is released from the facility.  A person  
          described in the preceding sentence, however, may own, possess,  
          control, receive, or purchase, or attempt to own, possess,  
          control, receive, or purchase any firearm if after a hearing  
          requested by the person, the superior court finds that the  




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          People of the State of California have not met their burden of  
          showing by a preponderance of the evidence that the person would  
          not be likely to use firearms in a safe and lawful manner.  (WIC  
          § 8103(f).)

           This bill  would reduce the time the court has to notify DOJ of  
          court actions that would result in the prohibition of a person  
          from possessing a firearm or any other deadly weapon or result  
          in the person no longer being subject to that prohibition, from  
          two court days to 24 hours, as specified.

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the last several years, severe overcrowding in California's  
          prisons has been the focus of evolving and expensive litigation  
          relating to conditions of confinement.  On May 23, 2011, the  
          United States Supreme Court ordered California to reduce its  
          prison population to 137.5 percent of design capacity within two  
          years from the date of its ruling, subject to the right of the  
          state to seek modifications in appropriate circumstances.   


          Beginning in early 2007, Senate leadership initiated a policy to  
          hold legislative proposals which could further aggravate the  
          prison overcrowding crisis through new or expanded felony  
          prosecutions.  Under the resulting policy, known as "ROCA"  
          (which stands for "Receivership/ Overcrowding Crisis  
          Aggravation"), the Committee held measures that created a new  
          felony, expanded the scope or penalty of an existing felony, or  
          otherwise increased the application of a felony in a manner  
          which could exacerbate the prison overcrowding crisis.  Under  
          these principles, ROCA was applied as a content-neutral,  
          provisional measure necessary to ensure that the Legislature did  
          not erode progress towards reducing prison overcrowding by  
          passing legislation, which would increase the prison population.  
            

          In January of 2013, just over a year after the enactment of the  
          historic Public Safety Realignment Act of 2011, the State of  




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          California filed court documents seeking to vacate or modify the  
          federal court order requiring the state to reduce its prison  
          population to 137.5 percent of design capacity.  The State  
          submitted that the, ". . .  population in the State's 33 prisons  
          has been reduced by over 24,000 inmates since October 2011 when  
          public safety realignment went into effect, by more than 36,000  
          inmates compared to the 2008 population . . . , and by nearly  
          42,000 inmates since 2006 . . . ."  Plaintiffs opposed the  
          state's motion, arguing that, "California prisons, which  
          currently average 150% of capacity, and reach as high as 185% of  
          capacity at one prison, continue to deliver health care that is  
          constitutionally deficient."  In an order dated January 29,  
          2013, the federal court granted the state a six-month extension  
          to achieve the 137.5 % inmate population cap by December 31,  
          2013.  

          The Three-Judge Court then ordered, on April 11, 2013, the state  
          of California to "immediately take all steps necessary to comply  
          with this Court's . . . Order . . . requiring defendants to  
          reduce overall prison population to 137.5% design capacity by  
          December 31, 2013."  On September 16, 2013, the State asked the  
          Court to extend that deadline to December 31, 2016.  In  
          response, the Court extended the deadline first to January 27,  
          2014 and then February 24, 2014, and ordered the parties to  
          enter into a meet-and-confer process to "explore how defendants  
          can comply with this Court's June 20, 2013 Order, including  
          means and dates by which such compliance can be expedited or  
          accomplished and how this Court can ensure a durable solution to  
          the prison crowding problem."

          The parties were not able to reach an agreement during the  
          meet-and-confer process.  As a result, the Court ordered  
          briefing on the State's requested extension and, on February 10,  
          2014, issued an order extending the deadline to reduce the  
          in-state adult institution population to 137.5% design capacity  
          to February 28, 2016.  The order requires the state to meet the  
          following interim and final population reduction benchmarks:

                 143% of design bed capacity by June 30, 2014;




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                 141.5% of design bed capacity by February 28, 2015; and
                 137.5% of design bed capacity by February 28, 2016. 

          If a benchmark is missed the Compliance Officer (a position  
          created by the February 10, 2016 order) can order the release of  
          inmates to bring the State into compliance with that benchmark.   


          In a status report to the Court dated February 18, 2014, the  
          state reported that as of February 12, 2014, California's 33  
          prisons were at 144.3 percent capacity, with 117,686 inmates.   
          8,768 inmates were housed in out-of-state facilities.

          The ongoing prison overcrowding litigation indicates that prison  
          capacity and related issues concerning conditions of confinement  
          remain unresolved.  While real gains in reducing the prison  
          population have been made, even greater reductions may be  
          required to meet the orders of the federal court.  Therefore,  
          the Committee's consideration of ROCA bills -bills that may  
          impact the prison population - will be informed by the following  
          questions:

                 Whether a measure erodes realignment and impacts the  
               prison population;
                 Whether a measure addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
                 Whether a bill corrects a constitutional infirmity or  
               legislative drafting error; 
                 Whether a measure proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy; and,
                 Whether a bill addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy.
          
                                      COMMENTS

          1.  Need for This Bill  




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          According to the author: 

               AB 1591 would implement the State Auditor's  
               recommendation that courts abide by the same reporting  
               standards required of other reporting entities,  
               establishing consistent procedures regarding the  
               urgency with which we identify and report Armed  
               Prohibited Persons to the Department of Justice.

          2.    State Audit

           On March 13, 2013, the Joint Legislative Audit Committee  
          approved a request for an audit of the California Department of  
          Justice's Armed Prohibited Persons Program.  (http://legaudit.  
          assembly.ca.gov/sites/legaudit.assembly.ca.gov/files/March%2013%2 
          0Vote%20Tally.pdf.)  The focus of the audit was on "the  
          reporting and identification of persons with mental illness who  
          are prohibited from owning or possessing a firearm."  (Armed  
          Persons with Mental Illness, California State Auditor (2013)  
          Report 2013-103.)  The audit revealed that DOJ was not obtaining  
          necessary information from mental health facilities and the  
          courts.  As a result, the 
          audit concluded that, "Justice cannot identify all armed  
          prohibited persons in California as effectively as it should,  
          and the information it uses to ensure public safety by  
          confiscating firearms is incomplete."  (Id. at 1.)  With regard  
          to the courts, the audit stated: 
           
                [N]one of the court divisions we visited that kept a  
               record of the date they sent reports met their own  
               definitions of immediately.  For instance, Santa Clara  
               Court's criminal division interpreted immediately as  
               called for in state law to mean two to three business  
               days or as soon as possible.  However, we found that  
               for the items we tested, the average time Santa Clara  
               Court took to process and submit firearm report forms  
               was more than four business days.  In one instance,  
               court staff did not report a determination to Justice  




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               until 13 business days after the court determination  
               date.  Similarly, Santa Clara Court's probate division  
               exceeded its interpretation of immediately by two  
               business days on average.  Further, Los Angeles  
               Court's Criminal Justice Center defined immediately as  
               within two court days, which is generally equivalent  
               to business days, but exceeded that definition by six  
               days on average for the items we tested.  For one  
               particular determination, the Criminal Justice Center  
               staff did not complete the firearm report form until  
               28 business days after the court determination date.   
               A senior administrator at the Criminal Justice Center  
               noted that our calculation does not distinguish  
               between the dates the findings were made in the  
               courtroom and the dates the findings were received in  
               the clerk's office.  Although that is true, when  
               discussing how soon courts must report to Justice,  
               state law does not distinguish between the time of the  
               determination and when the clerk's office receives  
               information from the courtroom.  (Id. at 29.)























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          The audit further stated: 

               In October 2013 the governor signed legislation that  
               will change the reporting requirements for mental  
               health firearm prohibitions effective January 1, 2014.  
                Beginning on that date, state law will require that  
               courts report their determinations electronically and  
               will include revised timelines for both courts and  
               mental health facilities to report prohibiting events  
               to Justice.  Specifically, state law will no longer  
               require courts and mental health facilities to report  
               immediately.  Instead, it will require the courts to  
               report to Justice as soon as possible but not later  
               than two court days after the prohibiting  
               determination.  However, the new requirement for  
               mental health facilities to report to Justice will be  
               a shorter period of time: within 24 hours of a  
               prohibiting event.  In effect, this change to the law  
               will place less urgency on prohibition reports from  
               courts
               than on those from mental health facilities.

               The director of AOC's Office of Governmental Affairs  
               commented that the AOC believes that courts require at  
               least two court days because orders from court  
               proceedings are typically not available for processing  
               immediately after the proceedings.  He stated that  
               unlike mental health facilities, courts operate on  
               limited business hours and are not staffed around the  
               clock and on weekends.  Coupled with broad  
               understaffing due to unprecedented budget cuts, he  
               believed any shorter deadline would be impractical in  
               light of typical demands on court staff.  Further, he  
               noted that many courts currently lack electronic  
               reporting capabilities.  Although this may be true at  
               some courts, it does not reflect capabilities and  
               processes that courts may develop in response to a  
               change in state
               law.  We question a change to state law that provides  




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               courts more time to report than mental health  
               facilities.  Existing law requires reports to be  
               submitted immediately regardless of where the report  
               originates.  Having the deadline for reporting be the  
               same for courts and mental health facilities seems  
               appropriate, especially considering that both types of  
               entities will be able to electronically report and  
               that it is important for public safety that  
               prohibiting events be reported promptly, no matter  
               where they originate.  (Id. at 29-30.)

          Based on these findings, the audit report recommended,  
          "[t]he Legislature . . . amend state law to specify that  
          all mental healthrelated prohibiting events must be  
          reported to Justice within 24 hours regardless of the  
          entity required to report.  (Id. at 39.)
                
           3.    Effect of This Legislation
           
          Last session, the Legislature amended state law to require the  
          courts to report prohibiting information electronically to the  
          Department of Justice within two days of adjudication.  This  
          legislation would further reduce the amount of time the courts  
          have to report to 24 hours.  According to Judicial Council: 

               The council supports the bill, if it is amended, to  
               require the courts to report, within one court day of  
               adjudication, individuals who have been adjudged by a  
               court to be incompetent to stand trial, not guilty by  
               reason of insanity, a danger to others as a result of  
               a mental disorder or mental illness or a mentally  
               disordered sex offender provided the bill contains a  
               specific appropriation to cover the courts' cost of  
               implementation.  The council believes 24 hours is an  
               unrealistic timeframe because often minutes of the  
               proceedings and other relevant court records are not  
               available for processing within 24 hours.  Because  
               courts, unlike hospitals, are not open on evenings and  
               weekends, courts will need to pay employees overtime  
                                                                        










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               to work evenings and on weekends to meet this  
               requirement. 

          Members may wish to consider addressing the Judicial Council's  
          timing concerns by recommending language that will require the  
          courts to report within one business day. 
               

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