BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 644 (Cannella)
As Amended April 1, 2013
Hearing date: April 30, 2013
Penal Code
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SERIOUS FELONY DESIGNATION
CONVICTED FELON IN POSSESSION OF A FIREARM
HISTORY
Source: Author
Prior Legislation: Proposition 36 of the November, 2012, General
Election
Proposition 21 of the March, 2000, Primary Election
Proposition 184 of the November, 1994, General
Election
Support: California Rifle and Pistol Association; National Rifle
Association of America; Stanislaus County Sheriff; City
of Modesto
Opposition:California Attorneys for Criminal Justice; American
Civil Liberties Union; Taxpayers for Improving Public
Safety
KEY ISSUE
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SHOULD POSSESSION OF A FIREARM BY A PERSON PREVIOUSLY CONVICTED
OF ANY FELONY, BE CLASSIFIED AS A "SERIOUS" FELONY?
PURPOSE
The purpose of this bill is to define as a "serious" felony any
conviction for possession of a firearm by a person who has been
convicted of any felony.
Special Penalties and Enhancements for being Armed with and
Using a Firearm in a Crime
Existing law - the 10-20-life law - establishes sentence
enhancements for use and discharge of a firearm in the
commission of specified felonies:
Use - 10 years.
Discharge - 20 years.
Discharge causing great bodily injury (gbi) - 25 years
to life.
Crimes subject to 10-20-life enhancement:
o Murder.
o Mayhem.
o Kidnapping.
o Robbery.
o Carjacking.
o Assault with intent to commit a specified
felony.
o Assault with a firearm on a peace officer
or firefighter.
o Rape.
o Rape or sexual penetration in concert.
o Sodomy.
o Lewd act on a child.
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o Oral copulation, as specified.
o Assault by a life prisoner.
o Assault by a prisoner.
o Holding a hostage by a prisoner.
o Any felony punishable by death or
imprisonment in the state prison for life.
o Any attempt to commit a crime listed in
this subdivision other than an assault.
Existing law requires "vicarious" imposition of a 10-20-life
enhancement on a defendant in a crime committed for the benefit
of a street gang if any accomplice in the crime used, discharged
or discharged a firearm so as to cause great bodily injury.
Except in gang cases, a 10-20-life enhancement only applies if
the defendant personally used of discharged the gun. (Pen. Code
§ 12022.53, subd. (e).)
Existing law provides that a defendant who personally uses a
firearm in the commission of any felony shall receive an
enhancement of 3, 4 or 10 years in prison. If the firearm used
was an assault weapon, the enhancement is 5, 6 or 10 years. One
uses a firearm in the commission of a felony when he or she
displays a firearm in a menacing manner, discharges the gun or
strikes a
person with the gun. To strike a person with a gun includes
pistol whipping and the like. The firearm used by the defendant
need not be loaded or operative. (Pen. Code §12022.5.)
Existing law provides that a person who is armed with a firearm
shall receive a sentence enhancement of at least one year. The
enhancement is three years if the firearm is an assault weapon,
a machine gun or a .50 caliber gun. The enhancement is three,
four or five years if the crime for which the defendant is armed
involves drug commerce. If there is more than one defendant in
a drug commerce crime, and one of the defendants is armed with a
firearm, each other defendant who knows one of them is armed
shall receive an enhancement of one, two or three years. These
penalties are subject to Penal Code Section 1170, subdivision
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(h).<1> (Pen. Code § 12022.)
Existing law provides that where two or more defendants commit a
crime, and one of the defendants used a firearm, each defendant
who did not actually use the firearm receives an enhancement
pursuant to Penal Code Section 12022 for being armed with a
firearm. One is armed with a firearm if he or she has the
firearm available for use. (Pen. Code § 12022, subd. (a)(1).)
Serious Felonies
Existing law defines the following offenses as serious felonies:
§ Murder or voluntary manslaughter.
§ Mayhem.
§ Rape.
§ Sodomy by force, violence, duress, menace, or fear of
bodily injury.
§ Oral copulation by force, violence, duress, menace or
fear of bodily injury.
§ Lewd act with child under fourteen years of age
(violent) and continuous sexual abuse of a child.
§ Any felony punishable by death or life imprisonment.
§ Any felony in which defendant inflicts great bodily
injury on defendant or personally uses a firearm.
§ Attempted murder.
§ Assault with intent to commit a sex crime, robbery or
mayhem.
§ Assault with a deadly weapon on peace officer.
§ Assault by life prisoner on a non-inmate.
§ Assault with a deadly weapon by inmate.
§ Arson.
§ Exploding a destructive device with intent to injure.
§ Explosion causing great bodily injury or mayhem.
§ Explosion with intent to murder.
§ Burglary of inhabited dwelling.
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<1> Defendants convicted of a crime subject to Section 1170,
subdivision (h) serve their felony sentences in jail, unless
they have been previously convicted of a serious, violent, or
sex offense.
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§ Robbery, bank robbery or carjacking.
§ Kidnapping.
§ Inmate taking a hostage.
§ Attempted crime carrying a life sentence or death
penalty.
§ Any felony where defendant personally uses a dangerous
or deadly weapon.
§ Sale or furnishing heroin, cocaine, PCP, or
methamphetamine to a minor.
§ Forcible foreign object rape.
§ Grand theft involving a firearm.
§ Any violation of 10-20-life firearm use and discharge
enhancement law.
§ Any gang-related felony maliciously throwing acid or
flammable substances.
§ Witness intimidation.
§ Credible threats to kill or cause great bodily injury.
§ Discharge of a firearm at an inhabited dwelling, vehicle
or aircraft.
§ Drive-by shooting.
§ Any conspiracy to commit a serious felony.
Existing law includes the following consequences that accompany
a serious felony charge or conviction:
Plea bargaining is limited for serious felonies. A plea
bargain may be accepted by the court only if the prosecutor
establishes that the case may be difficult to prove or that
the bargain does not involve a substantial diminution of
the punishment. (Pen. Code §1192.7.)
Bail is limited in a serious felony case. (Pen Code §
1270.1, subd. (b).)
A defendant must receive a five-year sentence
enhancement for each prior serious felony upon conviction
of a serious felony in the current case. (Pen Code § 667,
subd. (a).)
A serious felony is a qualifying prior conviction -
strike - under the Three Strikes law. (Pen. Code §§ 667,
subds. (b)-(j); 1170.12, subds. (a)-(e).)
Probation is prohibited or limited in specified
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circumstances. (Pen. Code §§ 1203, subd. (k) and
1203.085.)
Employment in positions in education is prohibited,
limited or subject to scrutiny for a person with a serious
felony conviction. (See, e.g., Ed. Code §44346.1.)
Possession of a Firearm by a Person Convicted of Specified Prior
Offenses
Existing law provides, as relevant to this bill, that any person
in a specified class who possesses or controls a firearm is
guilty of a felony, punishable by imprisonment in state prison
for 16 months, two years or three years. Classes of persons
prohibited from possessing a firearm:
A person previously convicted of any felony under the
laws of California, the United States or any state or
country.
A person convicted of a misdemeanor that involves
violent use of a firearm, including assault with a firearm
and brandishing a firearm in the presence of a police
officer
A person addicted to narcotics. (Penal Code §§ 29800,
subd. (a)(1) and 23515, subds. (a), (b) or (d).)<2>
This Bill: Possession of a Firearm by a Convicted Felon -
Increased Felony Terms and Designation as a Serious Felony
This bill provides that a conviction for possession of a firearm
by a person who is addicted to narcotics, or who has been
previously convicted of a felony or misdemeanor violent use of a
firearm, constitutes a serious felony within the meaning of
Penal Code Section 1192.7.
This bill places the category of persons who cannot possess or
control a firearm because they were convicted of a felony under
the laws of California or any other jurisdiction, as specified,
in a separate classification from persons who are addicted to
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<2> Some offenses listed in Section 23515 are felonies, such as
assault with a machine gun.
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narcotics or who have been convicted of any felony or a
specified misdemeanor involving violent use of a firearm.
This bill raises the imprisonment penalty for possession or
control of a firearm by a person previously convicted of a
felony from a term of 16 months, two years or three years, to a
term of four, five or six years.
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 issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part that the, ". .
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. 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 opposed the state's 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.
In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered the state of California to
"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
prison population to 137.5% design capacity by December 31,
2013."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. 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.
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COMMENTS
1. Need for This Bill
According to the author:
The Department of Justice reports that there are over
40,000 hand guns that are possessed illegally in
California. That number increases to nearly 60,000
when you include long guns. A substantial percentage
of those guns that are owned illegally are owned by
felons.
A felon in possession of a gun (PC 29800) ONLY carries
a triad of 16 months 2 or 3 years in prison. It is
also NOT a priorable offense. A felon in possession
of a gun is not considered a serious or violent crime
under the Three Strikes Law (PC 1170.12/ 667). A
felon in possession of a firearm is surely more of a
threat to public safety than someone entering a
private residence while no one is home, which is
considered a serious offense under the existing
statute.
California has a prison recidivism rate of 63.7%
within three years of release. With such a high
likelihood of repeat offenders, it is important to
make sure that our sentencing is reflective of the
severity of the crime.
2. Consequences of Serious Felony Convictions, Including the
Three Strikes Law
This bill could substantially increase the prison and jail
population. This bill would make possession of a firearm by a
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convicted felon a "serious felony"<3> for purposes of limits on
plea bargaining, exclusion from felony jail sentencing under
realignment, a five year enhancement for each prior serious
felon, and a doubled term or a life sentence under the Three
Strikes law. Numerous other consequences flow from a serious
felony charge or conviction, including bail restrictions,
probation limitations and employment prohibitions. Any person
convicted of any felony is barred for life from possessing or
controlling a firearm. The nature of the felony does not
matter.
Application of the Bill to Persons Previously Convicted of
Non-Violent Crimes
This bill would affect persons previously convicted of
non-violent offenses, as well as persons with prior violent
criminal convictions. Under existing law, crimes involving
violence, particularly violence against other persons, are
serious felonies. These include robbery, residential burglary,
rape and many others. This bill would make possession of a
firearm by a person previously convicted of crimes such as grand
theft, simple drug possession and perjury a serious felony.
Further, a person who successfully completed drug treatment
under the Substance Abuse and Crime Prevention Act of 2000
(SACPA) and had his or her arrest and conviction set aside is
still prohibited from possessing a firearm.
Application of this Bill to Persons Previously Convicted of
Serious Felonies
Under the recent amendments to the Three Strikes law, Three
Strikes sentences are not imposed in most cases where the
defendant is convicted of a non-serious<4> felony in the current
case. Numerous exceptions apply to the new limits on Three
Strikes terms for non-serious crimes. For example, a person
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<3> Penal Code Section 1192. 7, subdivision (c).
<4> All crimes classified by statute as violent (Pen. Code §
667.5, subd. (c)) are serious felonies (Pen. Code § 1192.7,
subd. (c).) In this context, references to serious felonies
include violent felonies.
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previously convicted of specified sex crimes, homicide, assault
with a machine gun and life-term offenses are fully subject to a
Three Strikes sentence, regardless of the non-serious nature of
the current conviction.
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By making a possession of a firearm by a convicted felon a
serious felony, a conviction for that crime in the current case
requires the court to impose a five-year enhancement for each
prior serious felony, in addition to the doubled term or
25-to-life Three Strikes sentence. That application of the bill
would by definitions greatly increase the penalties for
defendants previously convicted of serious and violent crimes
against other persons.
WOULD THIS BILL AFFECT PERSONS PREVIOUSLY CONVICTED OF
NON-VIOLENT, NON-SERIOUS OFFENSES, AS WELL AS PERSONS PREVIOUSLY
CONVICTED OF SERIOUS FELONIES SUCH AS ROBBERY, RAPE AND
RESIDENTIAL BURGLARY?
Realignment and Prison Population Issues
As noted above, by making possession of a firearm by a convicted
felon a serious felony, a defendant convicted of that crime is
ineligible for an executed felony jail sentence under Penal Code
Section 1170, subdivision (h). Thus, by definition, this bill
would increase the prison population by adding to the category
of inmates who must serve their felony sentences in prison.
Further, the bill would increase the prison population by
substantially lengthening prison terms for inmates convicted of
possession of a firearm by a convicted felon. First, the bill
raises the sentence for possession of a firearm by a convicted
felon from a term of 16 months, two years or three years to a
term of four, five or six years. Second, as noted above,
designating the crime as a serious felony requires the court to
double a defendant's base term - to a term of eight, 10 or 12
years and add a five-year serious felony enhancement for the one
prior serious felony conviction.<5> If the defendant has two
prior serious felony convictions, the court must impose a term
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<5> Serious felony sentencing has additional complications.
Even where the court dismisses a prior serious felony for
purposes of Three Strikes, the court must impose a five-year
enhancement for that offense if the defendant is convicted of a
serious felony in the current case.
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of at least 35-years-to-life: 25-years-to-life for the minimum
Three Strikes sentence and a five-year enhancement for each of
the prior serious felony convictions.
WOULD THIS BILL BE LIKELY TO SIGNIFICANTLY INCREASE THE PRISON
POPULATION?
Jail Population Issues
This bill also could impact jail populations. First, as serious
felonies are subject to bail restrictions, fewer inmates charged
with possession of a firearm by a convicted felon will be
released on bail pending resolution of the case. Even without
statutory bail restrictions, because defendants charged with
serious felonies are subject to very long prison terms, courts
will set high bail and not release prior to trial and will not
release convicted defendants prior to sentencing. Further,
because the penalties for serious felonies are so severe,
defendants who are not offered an acceptable plea bargain will
likely remain in jail for months preparing for and going to
trial, even where they will eventually be sentenced to prison.
WILL BAIL RESTRICTIONS AND THE LIKELIHOOD OF INCREASED JURY
TRIALS FOR DEFENDANTS CHARGED WITH POSSESSION OF A FIREARM BY A
CONVICTED FELON LIKELY INCREASE JAIL POPULATIONS?