Amended in Senate May 13, 2013

Amended in Senate May 7, 2013

Amended in Senate April 1, 2013

Senate Bill No. 644

Introduced by Senator Cannella

February 22, 2013

An act to amend begin delete Sections 1170.125, 1192.7, and end delete begin insert Section end insert 29800 of the Penal Code, relating to firearms.

LEGISLATIVE COUNSEL’S DIGEST

SB 644, as amended, Cannella. Firearms: felons in possession: serious felonies.

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Existing law, as added by Proposition 8, adopted June 8, 1982, and amended by Proposition 21, adopted March 7, 2000, among other things, defines a serious felony. Existing law, also added by Proposition 8, and amended by Proposition 36, adopted November 6, 2012, commonly known as the Three Strikes law, requires increased penalties for certain recidivist offenders in addition to any other enhancement or penalty provisions that may apply, including individuals with current and prior convictions of a serious felony, as specified. The Three Strikes law specifies that references to code sections contained in the law, including references to the definition of a serious felony, are to those code sections as they existed on November 7, 2012. The Legislature may directly amend Proposition 8 and Proposition 21 by a statute passed in each house by a 2⁄3 vote, or by a statute that becomes effective only when approved by the voters. The Legislature may directly amend Proposition 36 by a statute passed in each house by a 2⁄3 vote and the Governor concurring, or with a majority vote to be placed on the next general ballot, or by a statute that becomes effective when approved by a majority of the electors.

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This bill would amend Proposition 21 to make the possession of a firearm by a felon a serious felony, as specified. The bill would specify that references to code sections contained in the Three Strikes law are to those code sections as they existed on January 1, 2014.

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Because the bill would impose additional duties on local prosecutors and would increase incarceration periods at county jails for this offense, it would impose a state-mandated local program.

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Existing law provides that any person convicted of a felony under the laws of the United States, the State of California, or any other state, and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony. Other existing law prescribes the punishment for that felony as imprisonment for a term of 16 months, or 2 or 3 years.

This bill would provide that the punishment for subsequent convictions of that felony would be imprisonment for a term of 4, 5, or 6 years. begin insert By increasing the penalties for an existing crime, this bill would impose a state-mandated local program. end insert The bill would also make technical, nonsubstantive changes to this provision.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote:  begin delete ²⁄₃ end delete begin insert majority end insert . Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

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SECTION 1.  

Section 1170.125 of the Penal Code is amended
to read:

1170.125.  

Notwithstanding Section 2 of Proposition 184, as
adopted at the November 8, 1994, general election, for all offenses
committed on or after January 1, 2014, the references in Sections
1170.12 and 1170.126 to other code sections are to those sections
as they existed on January 1, 2014.

SEC. 2.  

Section 1192.7 of the Penal Code is amended to read:

1192.7.  

(a) (1) It is the intent of the Legislature that district
attorneys prosecute violent sex crimes under statutes that provide
sentencing under a “one strike,” “three strikes,” or habitual sex
offender statute instead of engaging in plea bargaining over those
offenses.

(2) Plea bargaining in any case in which the indictment or
information charges any serious felony, any felony in which it is
alleged that a firearm was personally used by the defendant, or
any offense of driving while under the influence of alcohol, drugs,
narcotics, or any other intoxicating substance, or any combination
thereof, is prohibited, unless there is insufficient evidence to prove
the people’s case, or testimony of a material witness cannot be
obtained, or a reduction or dismissal would not result in a
substantial change in sentence.

(3) If the indictment or information charges the defendant with
a violent sex crime, as listed in subdivision (c) of Section 667.61,
that could be prosecuted under Sections 269, 288.7, subdivisions
(b) through (i) of Section 667, Section 667.61, or 667.71, plea
bargaining is prohibited unless there is insufficient evidence to
prove the people’s case, or testimony of a material witness cannot
be obtained, or a reduction or dismissal would not result in a
substantial change in sentence. At the time of presenting the
agreement to the court, the district attorney shall state on the record
why a sentence under one of those sections was not sought.

(b) As used in this section “plea bargaining” means any
bargaining, negotiation, or discussion between a criminal
defendant, or his or her counsel, and a prosecuting attorney or
judge, whereby the defendant agrees to plead guilty or nolo
contendere, in exchange for any promises, commitments,
concessions, assurances, or consideration by the prosecuting
attorney or judge relating to any charge against the defendant or
to the sentencing of the defendant.

(c) As used in this section, “serious felony” means any of the
following:

(1) Murder or voluntary manslaughter; (2) mayhem; (3) rape;
(4) sodomy by force, violence, duress, menace, threat of great
bodily injury, or fear of immediate and unlawful bodily injury on
the victim or another person; (5) oral copulation by force, violence,
duress, menace, threat of great bodily injury, or fear of immediate
and unlawful bodily injury on the victim or another person; (6)
lewd or lascivious act on a child under 14 years of age; (7) any
felony punishable by death or imprisonment in the state prison for
life; (8) any felony in which the defendant personally inflicts great
bodily injury on any person, other than an accomplice, or any
felony in which the defendant personally uses a firearm; (9)
attempted murder; (10) assault with intent to commit rape or
robbery; (11) assault with a deadly weapon or instrument on a
peace officer; (12) assault by a life prisoner on a noninmate; (13)
assault with a deadly weapon by an inmate; (14) arson; (15)
exploding a destructive device or any explosive with intent to
injure; (16) exploding a destructive device or any explosive causing
bodily injury, great bodily injury, or mayhem; (17) exploding a
destructive device or any explosive with intent to murder; (18) any
burglary of the first degree; (19) robbery or bank robbery; (20)
kidnapping; (21) holding of a hostage by a person confined in a
state prison; (22) attempt to commit a felony punishable by death
or imprisonment in the state prison for life; (23) any felony in
which the defendant personally used a dangerous or deadly weapon;
(24) selling, furnishing, administering, giving, or offering to sell,
furnish, administer, or give to a minor any heroin, cocaine,
phencyclidine (PCP), or any methamphetamine-related drug, as
described in paragraph (2) of subdivision (d) of Section 11055 of
the Health and Safety Code, or any of the precursors of
methamphetamines, as described in subparagraph (A) of paragraph
(1) of subdivision (f) of Section 11055 or subdivision (a) of Section
11100 of the Health and Safety Code; (25) any violation of
subdivision (a) of Section 289 where the act is accomplished
against the victim’s will by force, violence, duress, menace, or
fear of immediate and unlawful bodily injury on the victim or
another person; (26) grand theft involving a firearm; (27)
carjacking; (28) any felony offense, which would also constitute
a felony violation of Section 186.22; (29) assault with the intent
to commit mayhem, rape, sodomy, or oral copulation, in violation
of Section 220; (30) throwing acid or flammable substances, in
violation of Section 244; (31) assault with a deadly weapon,
firearm, machinegun, assault weapon, or semiautomatic firearm
or assault on a peace officer or firefighter, in violation of Section
245; (32) assault with a deadly weapon against a public transit
employee, custodial officer, or school employee, in violation of
Section 245.2, 245.3, or 245.5; (33) discharge of a firearm at an
inhabited dwelling, vehicle, or aircraft, in violation of Section 246;
(34) commission of rape or sexual penetration in concert with
another person, in violation of Section 264.1; (35) continuous
sexual abuse of a child, in violation of Section 288.5; (36) shooting
from a vehicle, in violation of subdivision (c) or (d) of Section
26100; (37) intimidation of victims or witnesses, in violation of
Section 136.1; (38) criminal threats, in violation of Section 422;
(39) any attempt to commit a crime listed in this subdivision other
than an assault; (40) any violation of Section 12022.53; (41) a
violation of subdivision (b) or (c) of Section 11418; (42) a violation
of paragraph (1) of subdivision (a) of Section 29800; and (43) any
conspiracy to commit an offense described in this subdivision.

(d) As used in this section, “bank robbery” means to take or
attempt to take, by force or violence, or by intimidation from the
person or presence of another any property or money or any other
thing of value belonging to, or in the care, custody, control,
management, or possession of, any bank, credit union, or any
savings and loan association.

As used in this subdivision, the following terms have the
following meanings:

(1) “Bank” means any member of the Federal Reserve System,
and any bank, banking association, trust company, savings bank,
or other banking institution organized or operating under the laws
of the United States, and any bank the deposits of which are insured
by the Federal Deposit Insurance Corporation.

(2) “Savings and loan association” means any federal savings
and loan association and any “insured institution” as defined in
Section 401 of the National Housing Act, as amended, and any
federal credit union as defined in Section 2 of the Federal Credit
Union Act.

(3) “Credit union” means any federal credit union and any
state-chartered credit union the accounts of which are insured by
the Administrator of the National Credit Union Administration.

(e) The provisions of this section shall not be amended by the
Legislature except by statute passed in each house by rollcall vote
entered in the journal, two-thirds of the membership concurring,
or by a statute that becomes effective only when approved by the
electors.

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begin insert SECTION 1. end insert   

Section 29800 of the Penal Code is amended to
read:

29800.  

(a) (1) Any person who has been convicted of a felony
under the laws of the United States, the State of California, or any
other state, government, or country and who owns, purchases,
receives, or has in possession or under custody or control any
firearm is guilty of a felony. If the person has previously been
convicted of this offense, the person is guilty of a felony punishable
by imprisonment for four, five, or six years.

(2) Any person who has been convicted of a misdemeanor
violation of paragraph (2) of subdivision (a) of Section 245, a
misdemeanor violation of Section 246, or a misdemeanor violation
of subdivision (c) of Section 417 and who owns, purchases,
receives, or has in possession or under custody or control any
firearm is guilty of a felony.

(3) Any person who is addicted to the use of any narcotic drug
and who owns, purchases, receives, or has in possession or under
custody or control any firearm is guilty of a felony.

(4) Any person who has two or more convictions for violating
paragraph (2) of subdivision (a) of Section 417 and who owns,
purchases, receives, or has in possession or under custody or
control any firearm is guilty of a felony.

(b) Notwithstanding subdivision (a), any person who has been
convicted of a felony or of an offense enumerated in Section 23515,
when that conviction results from certification by the juvenile court
for prosecution as an adult in an adult court under Section 707 of
the Welfare and Institutions Code, and who owns or has in
possession or under custody or control any firearm is guilty of a
felony.

(c) Subdivision (a) shall not apply to a person who has been
convicted of a felony under the laws of the United States unless
either of the following criteria is satisfied:

(1) Conviction of a like offense under California law can only
result in imposition of felony punishment.

(2) The defendant was sentenced to a federal correctional facility
for more than 30 days, or received a fine of more than one thousand
dollars ($1,000), or received both punishments.

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begin insert SEC. 2. end insert   

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.