BILL ANALYSIS Ó Senate Appropriations Committee Fiscal Summary Senator Kevin de León, Chair SB 755 (Wolk) - Firearms: prohibited persons. Amended: April 3, 2013 Policy Vote: Public Safety 5-2 Urgency: No Mandate: Yes Hearing Date: May 6, 2013 Consultant: Jolie Onodera This bill meets the criteria for referral to the Suspense File. Bill Summary: SB 755 would: Add specified offenses to the list of misdemeanors that result in a 10-year prohibition from firearms possession. Provide that a violation of two or more specified misdemeanors related to substance abuse result in a 10-year prohibition from firearms possession. Provide that persons ordered into outpatient treatment due to mental illness, as specified, are prohibited from possessing firearms while subject to assisted outpatient treatment. Require the court to notify the Department of Justice (DOJ) of persons subject to the prohibitions, as specified. Fiscal Impact: One-time automation system enhancement costs of $270,000 (Special Fund*) to the DOJ to update various reporting systems. Ongoing increase in annual state incarceration costs potentially in the millions of dollars (General Fund) to the extent additional violations of the firearms prohibition, which is a wobbler, occur under the expanded list of misdemeanor crimes. Ongoing increase in annual local incarceration costs potentially in the millions of dollars (Local) to the extent additional violations of the firearms prohibition occur under the expanded list of misdemeanor crimes. Substantial increase in annual DOJ enforcement costs (Special Fund*) for the likely increase to the Armed Prohibited Persons System (APPS) due to a significant increase in the number of individuals prohibited from owning or possessing firearms under the provisions of this bill. Ongoing significant court costs (General Fund**) for notifications to the DOJ for both violations of the list of expanded misdemeanors and outpatient treatment cases. *Dealers' Record of Sale (DROS) Special Account SB 755 (Wolk) Page 1 **Trial Court Trust Fund Background: Existing law prohibits persons who have been convicted of specified crimes from owning or possessing firearms. Under both federal and state law, for example, any individual convicted of a felony offense is prohibited for life from firearms ownership. Existing state law also imposes a 10-year firearms prohibition on any person convicted of numerous misdemeanor offenses involving violence or the threat of violence. A violation of this provision is an alternate felony-misdemeanor (wobbler), punishable by imprisonment in a state prison for 16 months, two, or three years, or in a county jail for up to one year, a fine not exceeding $1,000, or both. In addition, state law imposes a 5-year firearms prohibition on any person convicted of specified misdemeanors or found to be a danger to themselves or others due to a mental illness, as specified. A violation of these provisions is a wobbler, punishable by imprisonment in a state prison or county jail for 16 months, two, or three years, or in a county jail for not more than one year. Proposed Law: This bill: Expands the number of misdemeanor offenses subject to the 10-year firearms prohibition by adding 15 offenses involving violence, threats of violence, gang-related activity, and firearms-related activity including resisting arrest by threat of force, threatening a peace officer, active participation in a criminal street gang, sale of a firearm without a license, possession of ammunition by a person prohibited from possessing a firearm, and illegally carrying a concealed firearm. Provides that any person convicted of a misdemeanor violation of two or more of 20 specified offenses (list of offenses on page 5) related to alcohol or drug intoxication and who, within 10 years of the conviction owns, purchases, receives, or possesses any firearm, is guilty of a wobbler punishable as a felony by 16 months, two, or three years in state prison or county jail, or as a misdemeanor in a county jail for up to one year, by a fine up to $1,000 or both. Provides that any person ordered by a court to obtain assisted outpatient treatment is prohibited from purchasing or possessing any firearm or any other deadly weapon while subject to assisted outpatient treatment. A violation of this provision would be a wobbler, punishable as a felony for 16 months, two, or three years in county jail or state SB 755 (Wolk) Page 2 prison, or as a misdemeanor for up to one year in county jail. Requires the court to notify the DOJ of 1) persons subject to the 10-year firearm prohibition, and 2) within two days of the order, persons ordered to obtain assisted outpatient treatment, and subsequently, when the person is no longer subject to assisted outpatient treatment. Related Legislation: This measure is part of the following legislative package deemed the Lifesaving Intelligent Firearms Enforcement (LIFE) Act: SB 47 (Yee) 2013 would revise the definition of assault weapon to include a firearm that has one of several specified features and does not have a "fixed magazine" as defined. This bill would require the registration of specified lawfully possessed assault weapons that do not have a fixed magazine, as defined, with the DOJ. This bill is scheduled to be heard today by this committee. SB 53 (De Leon) 2013 would require the sale, purchase, and transfer of ammunition to be subject to additional regulations, as specified. This bill would 1) require ammunition purchasers to obtain an ammunition purchase permit and complete a background check prior to any transaction, and, 2) require DOJ to maintain records of all ammunition vendor licenses and purchase permits issued, as well as all ammunition sales. This bill is scheduled to be heard today by this committee. SB 140 (Leno) 2013 Chapter 2/2013, an urgency measure, appropriates $24 million from the DROS Special Account to the DOJ to address the backlog of unlawfully held firearms in the Armed Prohibited Persons System (APPS). This bill was signed by the Governor on May 1, 2013. SB 374 (Steinberg) 2013 would 1) redefine the definition of what rifles would be considered assault weapons, 2) provide a definition for both "fixed magazine" and "detachable magazine," 3) require the registration of specified lawfully possessed assault weapons with the DOJ, and, 4) enact provisions establishing a Firearm Ownership Record, as specified. This bill is scheduled to be heard today by this committee. SB 396 (Hancock) 2013 would ban the possession of large-capacity ammunition magazines capable of holding more than 10 rounds, and would require the disposal of any large-capacity magazine, as defined, in specified ways. This bill is scheduled to be heard SB 755 (Wolk) Page 3 today by this committee. SB 567 (Jackson) 2013 would revise 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 stating a shotgun may include a weapon with a rifled bore as well as a smooth bore. This bill is scheduled to be heard today by this committee. SB 683 (Block) 2013 would expand the current safety certificate requirement on handguns to all firearms. This bill is scheduled to be heard today by this committee. Staff Comments: By expanding the list of misdemeanors subject to the 10-year firearms prohibition, this bill could result in a substantial increase in ongoing state and local incarceration costs. Arrest data for 2012 from the DOJ indicates over 415,000 arrests associated with the enumerated misdemeanor crimes in this bill. Any person convicted of two or more of the listed offenses that include, but are not limited to disorderly conduct or driving under the influence of alcohol or drugs, would be prohibited from firearm purchase or possession for 10 years after the conviction. Though not specified in the bill's provisions, it is assumed the 10-year prohibition period would begin after the second conviction. As currently drafted, there is no time period within which the two misdemeanor convictions must occur. The practical effect being that two separate misdemeanor convictions that occurred over a span of many years could trigger the 10-year firearms ban. The DOJ would incur one-time costs of about $270,000 (Special Fund) to develop enhancements to the Mental Health Reporting System, Mental Health Firearms Prohibition System, and the Consolidated Firearm Information System. In addition, to the extent the provisions of this bill result in a significant increase in persons prohibited from firearms possession and purchase, it is projected there would be a commensurate increase in enforcement costs for the DOJ to address new listings on APPS. The courts would incur increased workload and costs to notify the DOJ of 1) persons subject to the 10-year firearm prohibition, and 2) within two days of the court order, persons ordered to obtain assisted outpatient treatment, and subsequently, when the person is no longer subject to assisted outpatient treatment. Given the number of additional violations SB 755 (Wolk) Page 4 subject to firearms prohibitions currently proposed in this measure, the ongoing workload and costs are unknown, but could be substantial. According to the CDCR, 38 individuals in 2012 were committed to state prison specific to these crimes. It is unknown how many persons will be convicted under the expanded scope of these crimes, though it is assumed the convictions could likely be highest in the near-term. For every 100 individuals, increased state incarceration costs could range from $2.8 million to $6 million (General Fund) per year, compounding to $5.6 million to $12 million due to overlapping sentences (assuming the middle term for the 16 month, 2, 3 year triad), based on the range of potential costs to accommodate extended state prison sentences. To the extent the number of individuals impacted is greater/less or the average sentence imposed is longer/shorter than estimated, annual costs would be impacted accordingly. California's prison system continues to operate under federal oversight as it addresses the issues of prison overcrowding and constitutionally adequate health care in its 33 facilities. On April 11, 2013, the three-judge panel denied the state's motion to vacate/modify the inmate population cap and ordered the state to provide a list of proposed population reduction measures within 21 days of the order (May 2, 2013). To the extent this measure exacerbates prison overcrowding due to lengthier prison terms, this bill creates future cost pressure (General Fund) to potentially utilize additional contract beds, out-of-state facilities, or capital outlay in order to comply with the court-ordered population limit. Recommended Amendments: The author has indicated amendments will be offered to reduce the list of misdemeanor violations subject to the provisions of this bill, as well as clarify that the two misdemeanor convictions must occur within a three-year period in order to trigger the 10-year firearms prohibitions, thereby narrowing the impact of this bill. SB 755 (Wolk) Page 5 VIOLATIONS OF TWO OR MORE OF THE FOLLOWING OFFENSES WOULD RESULT IN A 10-YEAR PROHIBITION FROM FIREARM POSSESSION/OWNERSHIP: Being under the influence of alcohol or a controlled substance while engaged in the practice of dentistry, dental hygiene in actual attendance on patients to an extent that impairs his or her ability to conduct the practice of dentistry or dental hygiene with safety to patients and the public (Business and Professions Code (BPC) §§ 1700(e), 1958(e)). Practicing medicine while under the influence of any narcotic drug or alcohol to such an extent as to impair his or her ability to conduct the practice of medicine with safety to the public and his or her patients (BPC § 2280). Any person who, while on duty, sells, dispenses or compounds any drug while under the influence of any dangerous drug or alcoholic beverages (BPC § 4327). Operating any vessel or manipulating water skis, an aquaplane, or a similar device while under the influence of an alcoholic beverage, any drug, or the combined influence of an alcoholic beverage and any drug (HNC § 655(b)). Operating any recreational vessel or manipulating any water skis, aquaplane, or similar device if the person has an alcohol concentration of 0.08 percent or more in his or her blood (HNC § 655(c)). No person shall operate any vessel other than a recreational vessel if the person has an alcohol concentration of 0.04 percent or more in his or her blood (HNC § 655(d)). Operating any vessel or manipulate water skis, an aquaplane, or a similar device while under the influence of an alcoholic beverage, any drug, or under the combined influence of an alcoholic beverage and any drug, and while so operating, do any act forbidden by law, or neglect any duty imposed by law in the use of the vessel, water skis, aquaplane, or similar device, which act or neglect proximately causes bodily injury to any person other than himself or herself (HNC § 655(f)). Serving as a crew member on any charter boat while under the influence of intoxicating liquor, any drug, or the combined influence of intoxicating liquor and any drug (HNC § 655.4(a)). Serving as a crew member on any charter boat while under the influence of intoxicating liquor, any drug, or under the combined influence of intoxicating liquor and any drug, and while so serving, do any act forbidden by law, or neglect any duty imposed by law in the use of the vessel, which act or neglect proximately causes bodily injury to any person other than himself or herself (HNC § 655.4(b)). SB 755 (Wolk) Page 6 Being under the influence of any controlled substance (HSC § 11550). Vehicular manslaughter while intoxicated (PC § 191.5) Public intoxication (PC § 647(f)). Operating an aircraft in the air, or on the ground or water, or engaging in parachuting for sport while under the influence of an alcoholic beverage or any drug, or the combined influence of an alcoholic beverage and any drug (PUC § 21407.1(a)). Operating an aircraft in the air or on the ground or water with 0.04 percent or more, by weight, of alcohol in your blood (PUC § 21407.1(b)); Riding a bicycle upon a highway while under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug (VC § 21200.5). Driving a vehicle under the influence of any alcoholic beverage or drug (VC § 23152). Driving a vehicle under the influence of any alcoholic beverage or drug and causing injury (VC § 23153). Driving a vehicle with a blood-alcohol concentration of 0.01 percent or greater while on probation for driving under the influence (VC § 23154). Possession for sale or distribution of synthetic cannabinoids, as defined (HSC § 11357.5). Possession for sale or sale of specified controlled substances (HSC § 11375). Possession for sale or sale of ketamine (HSC § 11379.2).