BILL NUMBER: SB 644 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 13, 2013
AMENDED IN SENATE MAY 7, 2013
AMENDED IN SENATE APRIL 1, 2013
INTRODUCED BY Senator Cannella
FEBRUARY 22, 2013
An act to amend Sections 1170.125, 1192.7, and
Section 29800 of the Penal Code, relating to firearms.
LEGISLATIVE COUNSEL'S DIGEST
SB 644, as amended, Cannella. Firearms: felons in possession:
serious felonies.
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.
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.
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.
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. By increasing the penalties for an existing crime,
this bill would impose a state-mandated local program. 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: 2/3 majority . Appropriation:
no. Fiscal committee: yes. State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
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.
SEC. 3. SECTION 1. 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.
SEC. 4. SEC. 2. 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.