BILL ANALYSIS                                                                                                                                                                                                    Ó







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

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          SB 567 (Jackson)                                            
          As Amended April 1, 2013 
          Hearing date: April 16, 2013
          Penal Code
          SM:mc


                                 DEFINITION OF SHOTGUN  


                                       HISTORY


          Source:  Author

          Prior Legislation: AB 2728 (Klehs) - Chapter 793, Statutes of  
          2006
                       SB 238 (Perata) - Chapter 499, Statutes of 2003
                       SB 626 (Perata) - Chapter 937, Statutes of 2001
                       SB 23 (Perata) - Chapter 129, Statutes of 1999
                       Roberti-Roos Assault Weapons Control Act - Ch. 19,  
          § 3, Stats. 1989

          Support: California Chapters of the Brady Campaign to Prevent  
                   Gun Violence; California Church Impact; Coalition  
                   Against Gun Violence; Youth Alive!; Moms Demand Action  
                   for Gun Sense in America; CLUE California; Violence  
                   Prevention Coalition of Orange County; Laguna Woods  
                   Democratic Club; PICO California; Law Center to Prevent  
                   Gun Violence; The Christy Lynn Wilson Foundation; Bend  
                   the Arc: Jewish Partnership for Justice; Courage  
                   Campaign; several letters from private citizens





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          Opposition:California Right to Carry; National Rifle  
                   Association; California Association of Federal Firearms  
                   Licensees; California Rifle and Pistol Association;  
                   several letters and phone calls from private citizens






                                      KEY ISSUES
           
          SHOULD THE DEFINITION OF "SHOTGUN" BE AMENDED TO DELETE LANGUAGE  
          STATING THAT TO BE CONSIDERED A SHOTGUN, THE WEAPON MUST BE  
          "INTENDED TO BE FIRED FROM THE SHOULDER?" 

          SHOULD THE DEFINITION OF "SHOTGUN" BE AMENDED TO ADD LANGUAGE TO  
          STATE THAT A SHOTGUN MAY INCLUDE A WEAPON WITH A RIFLED BORE, AS  
          WELL AS A SMOOTH BORE?

                                          

                                       PURPOSE

          The purpose of this bill is to amend the definition of "shotgun"  
          to (1) delete language stating that to be considered a shotgun,  
          the weapon must be "intended to be fired from the shoulder," and  
          (2) add language to state that a shotgun may include a weapon  
          with a rifled bore, as well as a smooth bore.
          
          Current law  defines the following shotguns as assault weapons:

                 A semiautomatic shotgun that has both of the following:

               o      a folding or telescoping stock; and
               o      a pistol grip that protrudes conspicuously beneath  
                 the action of the weapon,     thumbhole stock, or  
                 vertical handgrip.

                 A semiautomatic shotgun that has the ability to accept a  




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               detachable magazine. 
                 Any shotgun with a revolving cylinder.  (Penal Code §  
               30515(a)(6) - (8).)

           Current law  contains legislative findings and declarations that  
          the proliferation and use of assault weapons poses a threat to  
          the health, safety, and security of all citizens of California.   
          (Penal Code § 30505.)

           Current law  states legislative intent to place restrictions on  
          the use of assault weapons and to establish a registration and  
          permit procedure for their lawful sale and possession.  (Penal  
          Code
          § 30505.)

           Current law  provides that unlawful possession of an assault  
          weapon is an alternate felony-misdemeanor and shall be punished  
          by imprisonment in a county jail for a period not exceeding one  
          year, or by imprisonment pursuant to subdivision (h) of Section  
          1170 (16 months, two or three years).  Notwithstanding the  
          above, a first violation of these provisions is punishable by a  
          fine not exceeding $500 if the person was found in possession of  
          no more than two firearms and certain specified conditions are  
          met.  (Penal Code § 30605.)

           Current law  provides that any person who within California  
          manufactures, imports into California, offers for sale, or who  
          gives or lends any assault weapon with specified exceptions is  
          guilty of a felony punishable by imprisonment in state prison  
          for four, six, or eight years.  (Penal Code § 30600.)

           Current law  defines a "shotgun" as a weapon designed or  
          redesigned, made or remade, and intended to be fired from the  
          shoulder and designed or redesigned and made or remade to use  
          the energy of the explosive in a fixed shotgun shell to fire  
          through a smooth bore either a number of projectiles (ball shot)  
          or a single projectile for each pull of the trigger.  (Penal  
          Code § 17190.)

           This bill  would amend the definition of "shotgun" to delete  




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          language stating that to be considered a shotgun, the weapon  
          must be "intended to be fired from the shoulder" and add  
          language to state that a shotgun may include a weapon with a  
          rifled bore, as well as a smooth bore.
          
                    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 which 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.  ROCA necessitated many hard and  
          difficult decisions for the Committee.

          In January of 2013, just over a year after the enactment of the  
          historic Public Safety Realignment Act of 2011, the State of  
          California filed court documents seeking to vacate or modify the  
          federal court order to reduce the state's prison population to  
          137.5 percent of design capacity.  The State submitted in part  
          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, who oppose the state's  




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          motion, argue in part 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 % prisoner  
          population cap by December 31st of this year.  

          The ongoing litigation indicates that prison capacity and  
          related issues concerning conditions of confinement remain  
          unsettled.  However, in light of the real gains in reducing the  
          prison population that have been made, although even greater  
          reductions are required by the court, the Committee will review  
          each ROCA bill with more flexible consideration.  The following  
          questions will inform this consideration:

                 whether a measure erodes realignment;
                 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  

          According to the author:

               Under California's existing assault weapons ban,  
               smooth bored shotguns with revolving cylinders are  
               classified as assault weapons and are illegal to sell,  
               use or possess in this state.  Gun makers have begun  
               manufacturing this same banned shotgun, but with a  




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               "rifled" bore which is not specifically banned in  
               California even though it shoots the same ammunition.

               Because California's current definition of banned  
               assault weapons does not cover this newly designed  
               shotgun that manufacturers are now producing, the  
               definition needs to be updated to close a loophole  
               that manufacturers are exploiting.  

               The new "rifled" bore shotgun with a revolving  
               cylinder has characteristics similar to the "Street  
               Sweeper" shotgun that has been named as a banned  
               assault shotgun since the Roberti-Roos Assault Weapons  
               Act of 1989.  The same firearm was deemed to be a  
               Federal "destructive device" in 1994.  Failure to  
               update the law to add "rifled" bore shotguns with  
               revolving cylinders to the ban on "smooth" bored  
               shotguns with revolving cylinders could result in  
               "Street Sweeper"
               guns reappearing on California streets.  

          2.  Background - The Genesis and Evolution of the Assault Weapons  
          Ban in California.  

          The origin of and subsequent modifications to the assault  
          weapons ban in California are described by the federal Court of  
          Appeal in the following extended excerpt from Silveira v.  
          Lockyer, 312 F.3d 1052 (9th Cir. 2002) (as amend. Jan. 27,  
          2003):

               In response to a proliferation of shootings involving  
               semi-automatic weapons, the California Legislature  
               passed the Roberti-Roos Assault Weapons Control Act  
               ("the AWCA") in 1989.  The immediate cause of the  
               AWCA's enactment was a random shooting earlier that  
               year at the Cleveland Elementary School in Stockton,  
               California.  An individual armed with an AK-47  
               semi-automatic weapon opened fire on the schoolyard,  
               where three hundred pupils were enjoying their morning  
               recess.  Five children aged 6 to 9 were killed, and  




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               one teacher and 29 children were wounded. 

               The California Assembly met soon thereafter in an  
               extraordinary session called for the purpose of  
               enacting a response to the Stockton shooting.  The  
               legislation that followed, the AWCA, was the first  
               legislative restriction on assault weapons in the  
               nation, and was the model for a similar federal  
               statute enacted in 1994.  The AWCA renders it a felony  
               offense to manufacture in California any of the  
               semi-automatic weapons specified in the statute, or to  
               possess, sell, transfer, or import into the state such  
               weapons without a permit.1 The statute contains a  
               grandfather clause that permits the ownership of  
               assault weapons by individuals who lawfully purchased  
               them before the statute's enactment, so long as the  
               owners register the weapons with the state Department  
               of Justice.2 The grandfather clause, however, imposes  
               significant restrictions on the use of weapons that  
               are registered pursuant to its provisions.3  
               Approximately forty models of firearms are listed in  
               the statute as subject to its restrictions.  The  
               specified weapons include "civilian" models of  
               military weapons that feature slightly less firepower  
               than the military-issue versions, such as the Uzi, an  
               Israeli-made military rifle; the AR-15, a  
               semi-automatic version of the United States military's  
               standard-issue machine gun, the M-16; and the AK-47, a  
               Russian-designed and Chinese-produced military rifle.  
               The AWCA also includes a mechanism for the Attorney  
               General to seek a judicial declaration in certain  
               California Superior Courts that weapons identical to  
               the listed firearms are also subject to the statutory  
               restrictions.4 


               FOOTNOTES

               n1 Semiautomatic weapons differ from fully automatic  
               machine guns in the following respects: Automatic  




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               weapons feed ammunition into the gun's chamber  
               immediately after the firing of each bullet, so that  
               the weapon will continue to reload and fire  
               continuously so long as the trigger is depressed.   
               Purchase and 
               ownership of automatic weapons has been restricted by  
               the federal government since the days of Al Capone and  
               the machine gun violence associated with the  
               Prohibition Era. 

               In contrast to automatic weapons, only one bullet is  
               fired when the user of a semi-automatic weapon  
               depresses the trigger, but another is automatically  
               reloaded into the gun's chamber.  Thus, by squeezing  
               the trigger repeatedly and rapidly, the user can  
               release many rounds of ammunition in a brief period of  
               time -- certainly many more than the user of a  
               standard, manually-loaded weapon.  Moreover, the  
               semi-automatic weapons known as assault weapons  
               contain large-capacity magazines, which require the  
               user of the weapon to cease firing to reload  
               relatively infrequently because the magazines contain  
               so much ammunition.  Consequently, users of such  
               weapons can "spray-fire" multiple rounds of  
               ammunition, with potentially devastating effects. 

               n2 An individual who lawfully obtained an assault  
               weapon prior to the enactment of the AWCA may avoid  
               the requirement of registering it with the state if he  
               renders the weapon permanently inoperable,  
               relinquishes it to a state law enforcement agency,  
               sells it to a licensed California firearms dealer, or  
               removes it from the State of California. 

               n3 A person who has registered an assault weapon may  
               possess the weapon only at his own residence, his place  
               of business, certain private and public clubs organized  
               for the purpose of target shooting, certain fire-arms  
               exhibitions approved by law enforcement agencies, or on  
               specified public lands.  Additionally, an assault  




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               weapon owner may transport his registered weapon to any  
               of the above locations only so long as he complies with  
               the methods of transportation prescribed in the  
               statute. 

               n4 Unless otherwise noted, citations to statutory  
               provisions in this opinion refer to the sections of  
               the AWCA as codified in the California Penal Code. 


               The AWCA includes a provision that codifies the  
               legislative findings and expresses the legislature's  
               reasons for passing the law: The Legislature hereby  
               finds and declares that the proliferation and use of  
               assault weapons poses a threat to the health, safety,  
               and security of all citizens of this state.  The  
               Legislature has restricted the assault weapons  
               specified in [the statute] based upon finding that  
               each firearm has such a high rate of fire and capacity  
               for firepower that its function as a legitimate sports  
               or recreational firearm is substantially outweighed by  
               the danger that it can be used to kill and injure  
               human beings.  It is the intent of the Legislature in  
               enacting this chapter to place restrictions on the use  
               of assault weapons and to establish a registration and  
               permit procedure for their lawful sale and possession.  
                It is not, however, the intent of the Legislature by  
               this chapter to place restrictions on the use of those  
               weapons which are primarily designed and intended for  
               hunting, target practice, or other legitimate sports  
               or recreational activities.

               In 1999, the Legislature amended the AWCA in order to  
               broaden its coverage and to render it more flexible in  
               response to technological developments in the  
               manufacture of semiautomatic weapons.  The amended  
               AWCA retains both the original list of models of  
               restricted weapons, and the judicial declaration  
               procedure by which models may be added to the list.   
               The 1999 amendments to the AWCA statute add a third  




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               method of defining the class of restricted weapons:  
               The amendments provide that a weapon constitutes a  
               restricted assault weapon if it possesses certain  
               generic characteristics listed in the statute.5   
               Examples of the types of weapons restricted by the  
               revised AWCA include a 'semiautomatic, center-fire  
               rifle that has a fixed magazine with the capacity to  
               accept more than 10 rounds,' and a semiautomatic,  
               centerfire rifle that has the capacity to accept a  
               detachable magazine and also features a flash  
               suppressor, a grenade launcher, or a flare launcher.   
               The amended AWCA also restricts assault weapons  
               equipped with 'barrel shrouds,' which protect the  
               user's hands from the intense heat created by the  
               rapid firing of the weapon, as well as semiautomatic  
               weapons equipped with silencers. 

               FOOTNOTES

               n5 The reason that the legislature defined the  
               restricted assault weapons generically, by feature, is  
               that after the enactment of the AWCA, gun  
               manufacturers began to produce 'copycat' weapons in  
               order to evade the statute's restrictions.  These  
               weapons varied only slightly from the models listed in  
               the act, but were different enough from those models  
               that they evaded the law's restrictions.  (Silveira v.  
               Lockyer, 312 F.3d 1052, 1057-1059 (9th Cir. Cal. 2002)  
               (citations omitted).)















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          3.  How This Bill Would Change the Existing Assault Weapons Ban  

          This bill addresses issues that have arisen regarding the  
          current definition of a shotgun, and whether, like the  
          adaptations made to the definition of other assault weapons, it  
          needs to be adjusted to keep pace with, as the Silveira Court  
          put it, the "technological developments in the manufacture of  
          semiautomatic weapons."

          The current definition of shotgun is incorporated into the  
          definition of what types of shotguns are considered assault  
          weapons.  That definition appears to be out-of-date in that to  
          be considered a shotgun, the weapon must have a smooth bore, as  
          opposed to a rifled bore.  New designs of shotguns are now  
          appearing on the market with rifled bores for greater accuracy.   
          Some of these weapons also come equipped with a revolving  
          cylinder, which would bring them within the definition of an  
          assault weapon in California; but for the fact that, if they  
          have a rifled bore, they do not meet the definition of a  
          shotgun.  This would appear to run contrary to the intent of the  
          assault weapons ban.  This bill would amend the definition of  
          shotgun to include those with a rifled bore.

          This bill also expands the definition of shotgun by deleting the  
          requirement that to be considered a shotgun, the weapon must  
          "intended to be fired from the shoulder."

          4.  Sentencing Considerations

           This bill would amend the definition of shotguns, which are  
          assault weapons.  The punishment for unlawful possession of an  
          assault weapon is a wobbler; the felony punishment is 16 months,  
          2 or 3 years imprisonment pursuant to Penal Code section  
          1170(h).  Currently, there are 8 people in prison under Penal  
          Code section 30605.


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