BILL ANALYSIS Ó
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.)
AB 2305
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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
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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