BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 2305
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          Date of Hearing:  April 8, 2014
          Counsel:       Sandy Uribe


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

             AB 2305 (Ridley-Thomas) - As Introduced:  February 21, 2014
           
           
           SUMMARY  :  Modifies the elements of several weapons-possession  
          statutes to prohibit carrying the specified weapons on or about  
          the person, rather than on the person.  Specifically,  this bill  :  
           

          1)Prohibits carrying a switchblade on or about the person.

          2)Prohibits carrying a concealed firearm on or about the person.

          3)Prohibits carrying a loaded firearm on or about the person.

          4)Makes technical, non-substantive changes.

           EXISTING LAW  : 

          1)Makes it a misdemeanor to carry a switchblade having a blade  
            two or more inches in length upon the person, or to possess  
            the knife in the passenger's or driver's area of any vehicle  
            in any public place or place open to the public.  (Pen. Code,  
             21510.)

          2)Defines a "switchblade knife" as "a knife having the  
            appearance of a pocketknife and includes a spring-blade knife,  
            snap-blade knife, gravity knife or any other similar type  
            knife, the blade or blades of which are two or more inches  
            long and which can be released automatically by a flick of a  
            button, pressure on the handle, flip of the wrist or other  
            mechanical device, or is released by the weight of the blade  
            or by any type of mechanism whatsoever."  It does not include  
            "a knife designed to open with one hand utilizing thumb  
            pressure applied solely to the blade of the knife or a thumb  
            stud attached to the blade, provided that the knife has a  
            detent or other mechanism that provides resistance that must  
            be overcome in opening the blade, or that biases the blade  
            back towards it closed position."  (Pen. Code,  17235.)








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          3)Makes it a crime to carry a concealed firearm in a vehicle  
            that is under the person's control or in which the person is  
            an occupant, and also prohibits carry it upon the person.   
            (Pen. Code,  25400, subd. (a).)

          4)Exempts from prosecution for carrying a concealed firearm any  
            person who is licensed to carry that weapon in a concealed  
            manner.  (Pen. Code  25655 and 26150.)

          5)Contains other exemptions in the Penal Code and the Fish and  
            Game Code allowing individuals to carry concealed firearms.   
            (See e.g., Pen. Code,  25640 [licensed hunters or fisherman  
            while engaged in hunting or fishing].)

          6)Makes it a crime to carry a loaded firearm either upon the  
            person, or in a vehicle while in any public place or on any  
            public street in an incorporated city, or in any public place  
            or on any public street in a prohibited area of unincorporated  
            territory.  (Pen. Code,  25850, subd. (a).)

          7)Requires a firearm to be unloaded and kept in a locked  
            container when it is being transported from one place to  
            another.  (Pen. Code,  25505.)

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "Assembly Bill  
            2305 amends California law as suggested by the Court of Appeal  
            in the Pellecer decision to replace the language in existing  
            law that prohibits the carrying of a firearm or switchblade  
            'on the person' with 'on or about the person.'  This measure  
            makes clear the legislature's intent regarding prohibitions on  
            the unlawful carrying of concealed firearms and switchblade  
            knives in purses, backpacks, fanny packs, brief cases,  
            suitcases, or any other container by conforming statute to the  
            recent Court of Appeal ruling.

          "In the case of People v. Pellecer (2013) 215 Cal.App.4th 508,  
            the Court of Appeal held that a knife concealed in a backpack  
            was not a dirk or dagger 'carried concealed upon the person'  
            as prohibited in Penal Code.  The ruling in Pellecer has  
            serious implications for the statutes prohibiting the carrying  








                                                                  AB 2305
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            of a firearm or switchblade knife concealed upon the person  
            because they use the same language as used in the weapons  
            sections involved in the decision.  This bill replaces the  
            term 'upon the person' found in Penal Code sections 21510(a)  
            and 25400(a)(2), and 'on the person' found in Penal Code  
            section 25850, with 'on or about the person' as suggested by  
            the Court of Appeal in the Pellecer case."

           2)Impetus for this Bill  :  In People v. Pellecer, supra, 215  
            Cal.App.4th 508, the defendant appealed his conviction for  
            carrying a concealed dirk or dagger (former Pen. Code,   
            12020, subd. (a)(4), now  21310) because the knives he  
            possessed were in a backpack and not "on his person" as  
            required under the language of the statute.  The court agreed  
            that carrying a dirk or dagger in a backpack does not result  
            in a violation of the statute, because the statute requires  
            that the item be concealed "upon his or her person." (Id. at  
            p. 512.)  Applying the rules of statutory construction, the  
            court concluded that the ordinary meaning of "upon his or her  
            person" means on the body or in the clothing worn on the body.  
             (Id. at p. 513.)  The court found this interpretation was  
            also supported by the legislative history of the statute.   
            (Id. at pp. 514-515.)  

          The Court also discussed the conflicting decision of People v.  
            Dunn (1976) 61 Cal.App.3rd
            Supp. 12, which reached a contrary conclusion in interpreting  
            former Penal Code section 12025 (possession of a concealable  
            firearm).  In that case, the appellate department of the  
            superior court held that a concealable pistol found in a  
            briefcase carried by the defendant was "sufficiently on the  
            person" to be a violation of the statute.   The court here  
            ruled that the Dunn Court was simply wrong.  (People v.  
            Pellecer, supra, 215 Cal.App.4th at pp. 516-517.)  

            Had the Legislature wanted to criminalize the possession of a  
            dirk or dagger in a carried container, it would have used the  
            phrase "on or about his or her person" rather than "upon his  
            or her person."  (People v. Pellecer, supra, 215 Cal.App.4th  
            at p. 517.)  "That the Legislature did not outlaw carrying a  
            dirk or dagger in a backpack is understandable, given the  
            utility of a knife in such lawful pursuits as fishing,  
            hunting, camping, picknicking and the like."  (Ibid.)  The  
            court recognized that other statutes criminalizing possession  
            of weapons, such as shuriken, prohibit their possession per  








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            se.  (Id. at pp. 517-518.)

            This bill modifies three statutes relating to the possession  
            of weapons to prohibit their carrying on or about the person:   
            concealed firearms, loaded firearms, and switchblades.  It  
            does not change the law with respect to carrying a dirk or  
            dagger, which was the statute at issue in Pellecer.

           3)On or About the Person  :  Black's Law Dictionary defines the  
            phrase "on or about the person" as follows: "As used in  
            statutes making it an offense to carry a weapon 'on or about'  
            the person, it is generally held that the word 'on' means  
            connected with or attached to, and that 'about' is a  
            comprehensive term having a broader meaning than 'on,' and  
            conveying the idea of being nearby, in close proximity, within  
            immediate reach, or conveniently accessible." (Black's Law  
            Dict. (6th ed. 1990) p. 1089, col. 1.)  Should the bill be  
            amended to include a definition of the term in each of the  
            relevant statutes in order to avoid confusion as to the  
            meaning of the phrase?  
           
           4)Switchblades  :  Unlike some other knives, possession of a  
            switchblade is not per se illegal in California.  It is legal  
            to buy a switchblade and to own one.  However, there are  
            strict laws regulating both the possession and sale of  
            switchblades.  Specifically, if a switchblade has a blade two  
            inches or more in length, it is a misdemeanor to:  (1) possess  
            the knife in the passenger's or driver's area of a motor  
            vehicle in any public place or place open to the public; (2)  
            carry the knife upon the person, or (3) sell, offer or expose  
            for sale, loan, transfer, or give the knife to anyone else.   
            (Pen. Code,  21510.)  

          This bill will extend the prohibition of carrying the  
            switchblade to cover not only upon the person, but also about  
            the person.  In contrast to the laws dealing with concealed  
            firearms, there are no exemptions to carrying a switchblade,  
            nor is it possible to obtain a permit to carry one.  Also in  
            contrast to firearms laws, there are also no provisions  
            addressing how a switchblade is to be legally transported.   
            Since the carrying prohibition is not limited to public  
            places, would this law in effect ban switchblade?  
           
           5)Argument in Support  :  The  Los Angeles District Attorney's  
            Office  , a co-sponsor of this bill, argues "AB 2305 would amend  








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            California law as suggested by the Court of Appeal in the  
            Pellecer decision to replace the language in existing law that  
            prohibits the carrying of a firearm or switchblade 'on the  
            person' with 'on or about the person.'

          "According to the California Attorney General, firearms were  
            used in 71.2% of the murders committed in California in 2010.   
            Of the murders that involved a firearm, handguns were used 54%  
            of the time.  Knives were used 14.2% of the time and blunt  
            objects (clubs, etc.) were used 4.7% of the time.

          "According to 'Lost Youth: A County-by-County Analysis of 2011  
            California Homicide Victims Ages 10 to 24,' an annual study  
            analyzing unpublished California Department of Justice  
            Supplementary Homicide Report data released on March 6, 2013  
            by the Violence Policy Center, there were 631 homicide victims  
            ages 10 to 24 in California in 2011.  Of the 625 homicides for  
            which the murder weapon could be identified, 83% of the  
            victims died by gunfire.  Of these, 73% were killed with  
            handguns.

          "Our office believes that a proactive approach to address the  
            potential loophole in California law regarding the concealed  
            carrying of illegally possessed firearms and switchblades is  
            necessary because of the dangerousness of these weapons in the  
            hands of criminals.  The Legislature should act now, because  
            if the holding in Pellecer is extended to firearms and  
            switchblades the result would be a danger to the public safety  
            of Californians."

           6)Arguments in Opposition  :  

             a)   According to the  National Rifle Association  , "The intent  
               of Assembly Bill 2305 is an effort by the Los Angeles  
               District Attorneys Office to circumvent a recent California  
               Court of appeals decision.  The recent court decision  
               People v. Pellecer, 215 Cal.App.4th 508 (2013) confirmed  
               that individuals should not be held liable for unlawfully  
               carrying items if they are properly stored in a backpack or  
               purse, instead of directly on the person."

             b)   The  Outdoor Sportsmen's Coalition of California  argues,  
               "Of specific concern is the proposed addition of the words  
               'on or about' to Penal Code Sections 21510, 26400, and  
               25850.  The term is no defined in the bill for purposes of  








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               these sections, and it is very vague relative to what it  
               would include.

             "There are numerous exceptions in existing law to the  
               prohibitions in these sections, such as when traveling to  
               or from, or while engaged in, a lawful activity such as  
               practicing at a shooting range or while on a hunting trip  
               on public lands.

             "Addition of the term 'on or about' as proposed in AB 2305  
               raises concerns over how the current lawful exceptions  
               might be affected.  There is also concern that the  
               vagueness of the new term may be unconstitutionally vague,  
               and that, if enacted, the matter would ultimately be  
               decided by the courts."


           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          Los Angeles County District Attorney (Co-Sponsor)
          San Diego County District Attorney (Co-Sponsor)
          Brady Campaign to Prevent Gun Violence - California Chapters
          California District Attorneys Association
          California State Sheriffs' Association

           Opposition 
           
          California Association of Federal Firearms Licensees
          California Rifle and Pistol Association
          California Sportsman Lobby
          Gun Owners of California
          National Rifle Association
          Outdoor Sportsmen's Coalition of California
           

          Analysis Prepared by  :    Sandy Uribe / PUB. S. / (916) 319-3744