BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 755
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          Date of Hearing:   August 13, 2013
          Counsel:        Gabriel Caswell

                                       REVISED
          
                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                      SB 755 (Wolk) - As Amended:  June 27, 2013
                       As Proposed to be Amended in Committee

                                    FOR VOTE ONLY
           
          SUMMARY  :  Adds specified offenses to the list of misdemeanors  
          that result in a 10-year prohibition on firearms possession, and  
          adds certain misdemeanors related to substance abuse for which a  
          violation of two or more within a three-year period will result  
          in a 10-year prohibition on firearms possession.  Specifically,  
           this bill  :  

          1)Adds the following misdemeanor offenses to those for which a  
            conviction results in a 10-year prohibition on possession of a  
            firearm:

             a)   Obstructing or resisting an executive office by force or  
               threat of force.

             b)   Removing a weapon from the presence of a peace officer  
               while resisting arrest.

             c)   Active participation in a criminal street gang.

             d)   Commission of an offense for the benefit of a street  
               gang.

             e)   Sale of a firearm without a license.

             f)   Sale of ammunition to an underage person.

             g)   Possession of ammunition by a person prohibited from  
               possessing a firearm.

             h)   Sale or supplying ammunition to a person prohibited from  
               possessing a firearm.









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             i)   Bringing ammunition on school grounds.

             j)   Carrying a concealed firearm where the person has been  
               convicted of a drug offense or of a crime against a person  
               or property.

             aa)  Carrying a concealed firearm where the firearm was  
               loaded and not registered to the person in possession.

             bb)  Carrying a loaded firearm in public where the person has  
               been convicted of a drug offense or of a crime against a  
               person or property.

             cc)  Carrying a loaded firearm in public where the firearm  
               was not registered to the person in possession. 

          2)Provides that any person convicted of a misdemeanor violation  
            of two or more of the following offenses within a three-year  
            period (or two or more of any one of the following offenses)  
            and who, within 10 years of the second conviction, owns,  
            purchases, receives or has in his or her possession or under  
            his or her custody or control, any firearm, is guilty of an  
            infraction:

             a)   Being under the influence of any controlled substance.

             b)   Vehicular manslaughter while intoxicated.

             c)   Public intoxication.

             d)   Driving a vehicle under the influence of any alcoholic  
               beverage or drug.

             e)   Driving a vehicle under the influence of any alcoholic  
               beverage or drug and causing injury.

             f)   Driving a vehicle with a blood-alcohol concentration of  
               0.01% or greater while on probation for driving under the  
               influence 

             g)   Possession for sale or distribution of synthetic  
               cannabinoids, as defined.

             h)   Possession for sale or sale of specified controlled  
               substances.








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             i)   Possession for sale or sale of ketamine.

          3)Specifies that persons prohibited from possessing a firearm by  
            two or more of the substance abuse-related misdemeanors shall  
            be punished by an infraction.  

          4)Requires the court to notify persons subject to these firearms  
            prohibitions on forms prescribed by DOJ.  

          5)Provides that person ordered into outpatient treatment due to  
            mental illness, as specified, will be prohibited from  
            possessing firearms while subject to assisted outpatient  
            treatment.

           EXISTING LAW  :  
           
           1)Requires that firearms dealers obtain certain identifying  
            information from firearms purchasers and forward that  
            information, via electronic transfer to Department of Justice  
            (DOJ) to perform a background check on the purchaser to  
            determine whether he or she is prohibited from possessing a  
            firearm.  (Penal Code Sections 28160-28220.)  

           2)Requires that, upon receipt of the purchaser's information,  
            DOJ shall examine its records, as well as those records that  
            it is authorized to request from the State Department of  
            Mental Health pursuant to Section 8104 of the Welfare and  
            Institutions Code, in order to determine if the purchaser is  
            prohibited from purchasing a firearm.  (Penal Code Section  
            28220.)  

           3)Provides that it shall be unlawful for the following people to  
            ship or transport in interstate or foreign commerce, or  
            possess in or affecting commerce, any firearm or ammunition;  
            or to receive any firearm or ammunition which has been shipped  
            or transported in interstate or foreign commerce [18 USC  
            Section 922(g)]: 
           
              a)   Who has been convicted in any court of, a crime  
               punishable by imprisonment for a term exceeding one year; 

              b)   Who is a fugitive from justice;  

              c)   Who is an unlawful user of or addicted to any controlled  








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               substance, as defined;  

              d)   Who has been adjudicated as a mental defective or who  
               has been committed to a mental institution;  

              e)   Who, being "an alien":  

                i)     Is illegally or unlawfully in the United States; or,  

                ii)    Except as specified, has been admitted to the United  
                 States under a non-immigrant visa, as defined;   

              f)   Who has been discharged from the Armed Forces under  
               dishonorable conditions;  

              g)   Who, having been a citizen of the United States, has  
               renounced his citizenship;  

              h)   Who is subject to a court order that:  

                i)     Was issued after a hearing of which such person  
                 received actual notice, and at which such person had an  
                 opportunity to participate;  

                ii)    Restrains such person from harassing, stalking, or  
                 threatening an intimate partner of such person or child  
                 of such intimate partner or person, or engaging in other  
                 conduct that would place an intimate partner in  
                 reasonable fear of bodily injury to the partner or child;  
                 and:  

                   (1)       Includes a finding that such person represents  
                    a credible threat to the physical safety of such  
                    intimate partner or child; or,  

                   (2)       By its terms explicitly prohibits the use,  
                    attempted use, or threatened use of physical force  
                    against such intimate partner or child that would  
                    reasonably be expected to cause bodily injury; or,  

              i)   Who has been convicted in any court of a misdemeanor  
               crime of domestic violence.  

           4)Provides that certain people are prohibited from owning or  
            possessing a firearm.  This includes (Penal Code Sections  








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            29800, 23515, and 29805):  

              a)   Anyone convicted of a felony;  

              b)   Anyone addicted to a narcotic drug;  

              c)   Any juvenile convicted of a violent crime with a gun and  
               tried in adult court;  

              d)   Any person convicted of a federal crime that would be a  
               felony in California and sentenced to more than 30 days in  
               prison, or a fine of more than $1,000;  

              e)   Anyone convicted of certain violent misdemeanors, e.g.,  
               assault with a firearm; inflicting corporal injury on a  
               spouse or significant other; brandishing a firearm in the  
               presence of a police officer; and,   

              f)   Provides that a violation of these provisions is a  
               felony.   

           5)Specifies a 10-year ban for any person convicted of numerous  
            misdemeanors involving violence or threats of violence.   
            (Penal Code Section 29805.)  
           
           6)Provides that a violation of these provisions of the 10-year  
            firearm ban may be sentenced to one year in the county jail or  
            up to three years in state prison, as specified.  (Penal Code  
            Section 29805.)   

           7)Provides that persons who are bound by a temporary restraining  
            order or injunction or a protective order issued under the  
            Family Code or the Welfare and Institutions Code may be  
            prohibited from firearms ownership for the duration of that  
            court order.  (Penal Code Section 29825.)
          
          8)Specifies that the Attorney General maintains an online  
            database known as the Armed Prohibited Persons File (APPS).   
            The purpose of APPS is to cross-reference persons who have  
            ownership or possession of a firearm on or after January 1,  
            1991, as indicated by a record in the Consolidated Firearms  
            Information System, and who, subsequent to the date of that  
            ownership or possession of a firearm, fall within a class of  
            persons who are prohibited from owning or possessing a  
            firearm.  The information contained in APPS is only be  








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            available to specified entities through the California Law  
            Enforcement Telecommunications System, for the purpose of  
            determining if persons are armed and prohibited from  
            possessing firearms.  (Penal Code Section 30000.)
           
          FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  :   According to the author, "SB 755 adds a  
            consequence for those who are convicted of dangerous and  
            irresponsible behavior: give up your gun for 10 years.  The  
            easiest away to avoid that consequence is not to break the  
            law.  It's that simple."  
           
           2)Prison Overcrowding  :  This bill's provisions impose up to  
            three years in prison on individuals who possess a firearm who  
            have one conviction of any number of new specified  
            misdemeanors.

            When the offense is currently punishable by a prison term, any  
            proposed increase in that prison term causes concern for  
            additional prison overcrowding.  As California's prison crisis  
            worsens, close attention should be paid to legislation  
            increasing prison overcrowding.  The California Policy  
            Research Center (CPRC) recently issued a report on the status  
            of California's prisons.  The report stated, "California has  
            the largest prison population of any state in the nation, with  
            more than 171,000 inmates in 33 adult prisons, and the state's  
            annual correctional spending, including jails and probation,  
            amounts to $8.92 billion.  Despite the high cost of  
            corrections, fewer California prisoners participate in  
            relevant treatment programs than comparable states, and its  
            inmate-to-officer ratio is considerably higher.  While the  
            nation's prisons average one correctional officer to every 4.5  
            inmates, the average California officer is responsible for 6.5  
            inmates.  Although officer salaries are higher than average,  
            their ranks are spread dangerously thin and there is a severe  
            vacancy rate."  [Petersilia, Understanding California  
            Corrections, California Policy Research Center (May 2006).]   
            California's prison population will likely exceed 180,000 by  
            2010.

            According to the Little Hoover Commission, "Lawsuits filed in  
            three federal courts alleging that the current level of  








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            overcrowding constitutes cruel and unusual punishment ask that  
            the courts appoint a panel of federal judges to manage  
            California's prison population.  United States District Judge  
            Lawrence Karlton, the first judge to hear the motion, gave the  
            State until June 2007 to show progress in solving the  
            overpopulation crisis.  Judge Karlton clearly would prefer not  
            to manage California's prison population.  At a December 2006  
            hearing, Judge Karlton told lawyers representing the  
            Schwarzenegger administration that he is not inclined 'to  
            spend forever running the state prison system.'  However, he  
            also warned the attorneys, 'You tell your client June 4 may be  
            the end of the line.  It may really be the end of the line.'

            "Inmates, who are willing to improve their education, learn a  
            job skill or kick a drug habit find that programs are few and  
            far between, a result of budget choices and overcrowding.  
            Consequently, offenders are released into California  
            communities with the criminal tendencies and addictions that  
            first led to their incarceration.  They are ill-prepared to do  
            more than commit new crimes and create new victims."  [Little  
            Hoover Commission Report, Solving California's Corrections  
            Crisis:  Time is Running Out (2007), pg. 1, 2.]

            On February 9, 2009, a United States District Court  
            three-judge panel issued a tentative ruling mandating the  
            State of California to resolve chronic prison overcrowding.   
            In the tentative ruling, the judges state "[t]he evidence is  
            compelling that there is no relief other than a prisoner  
            release order that will remedy the unconstitutional prison  
            conditions."  With prisons housing twice the population they  
            were built to accommodate, the prospect of early release of  
            inmates appears imminent unless the Legislature relieves the  
            current prison population. 
             
             The United State Supreme Court upheld the decision of the  
            three-judge panel, declaring that "without a reduction in  
            overcrowding, there will be no efficacious remedy for the  
            unconstitutional care of the sick and mentally ill" inmates in  
            California's prisons.  [Brown v. Plata (2011) 131 S.Ct. 1910,  
            1939; 179 L.Ed.2d 969, 999.]

            According to a recent report by the Legislative Analyst's  
            Office, "Based on CDCR's [California Department of Corrections  
            and Rehabilitation] current population projections, it appears  
            that it will eventually reach the court-imposed population  








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            limit, though not by the June 2013 deadline."  [See Refocusing  
            CDCR After the 2011 Realignment, Feb. 23, 2012, pp.3  
            . 
            ]  "In particular, the projections show the state missing the  
            final population limit of no more than 110,000 inmates housed  
            in state prisons by June 2013.  Specifically, the projections  
            show the state exceeding this limit by about 6,000 inmates.   
            However, the projections indicate that the state will meet the  
            court-imposed limit by the end of 2014."  (Id. at p. 9.)

            "While the state has undergone various changes to reduce  
            overcrowding prior to the passage of the realignment  
            legislation-including transferring inmates to out-of-state  
            contract facilities, construction of new facilities, and  
            various statutory changes to reduce the prison population-the  
            realignment of adult offenders is the most significant change  
            undertaken to reduce overcrowding."  (Id. at p. 8.)  Because  
            this bill's provisions require a defendant convicted for  
            peeping to serve his or her sentence in state prison, it  
            appears to aggravate the on-going problem of prison  
            overcrowding.
             
             The Three Judge Panel, in issuing its most recent denial of  
            the State's request to modify and/or terminate the existing  
            population cap re-stated, "Crowding creates numerous barriers  
            to the provisions of medical and mental health care that  
            result in the constitutional violations."  [Coleman/Plata v.  
            Brown, April 11, 2013, Op. & Order Denying Defendants Motion  
            to Vacate or Modify Population Reduction Order (No.  
            C01-1351:2590:4).]  

          3)Three Judge Panel's Order to Immediately Begin Releasing  
            Inmates  :  On Thursday June 20, 2013, the Three Judge Panel  
            referenced above-ordered California's prisons to immediately  
            begin releasing inmates from state prisons.  The judges gave  
            Governor Brown the option of deciding how to carry out the  
            order:  by revising the state's already proposed good-time  
            credit program, substituting other prisoners for early  
            release, or adopting any other step that would result in an  
            equivalent reduction in the number of people held in state  
            prisons.  The judges took the hereto unprecedented step of  
            waiving all state and local laws and regulations which would  
            interfere with the order so that the administration could  
            "commence forthwith" steps to release inmates early.  This  
            bill, by increasing the number of people subject to prison  








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            sentences, would aggravate a problem which has reached a  
            critical impasse.   
           
           4)Firearms Prohibitions for Misdemeanor Offenses  :  As detailed  
            above, current state and federal laws prohibit persons who  
            have been convicted of specific crimes from owning or  
            possessing firearms.  For example, any person convicted of any  
            felony offense is prohibited for life from firearms ownership  
            under both federal and state law.  [18 U.S.C. Section 922(g);  
            Penal Code Section 29800.]  California goes further and  
            imposes a 10-year firearms prohibition on persons convicted of  
            numerous misdemeanor offenses that involve either violence or  
            the threat of violence.  (Penal Code Section 29805.)   
            Additionally, any person who has been found to be a danger to  
            himself, herself, or others due to mental illness is subject  
            to a five-year prohibition [Welfare and Institutions Code  
            Sections 8100 and 8103(f)], and persons under domestic  
            violence restraining orders are subject to a prohibition for  
            the duration of that court order.  (Penal Code Section 29825.)

            This bill expands the number of misdemeanor convictions  
            resulting in a 10-year prohibition by adding a number of  
            offenses involving violence or threats of violence,  
            gang-related activity and firearms-related activity.  This  
            bill also prohibits persons under court-ordered outpatient  
            therapy due to mental illness from firearm purchase or  
            possession while subject to that assisted outpatient therapy. 

            This bill expands the existing firearms prohibitions by  
            creating a class of misdemeanor offenses related to alcohol or  
            drug intoxication that would result in a 10-year firearms  
            prohibition if a person were convicted of two or more of them  
            within a three-year period. 

          5)Argument in Support  :  According to the  California Chapters of  
            the Brady Campaign to Prevent Gun Violence  , "Senate Bill 755  
            also adds to the class of prohibited persons those who have  
            been convicted of two or more drug or alcohol related offenses  
            within a three year period.  Both State and federal law  
            prohibit persons who are addicted to narcotics from possessing  
            firearms but this law is not particularly effective because  
            there is no data base of addicted persons.  The law is  
            completely silent with regard to alcohol abused and firearm  
            possession.









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            "The journal Injury Prevention reports that, 'there is a  
            large body of scientific evidence that people who abuse  
            alcohol or illicit drugs are at increased risk of committing  
            acts of violence or self harm.'  If drug and alcohol abusers  
            are at higher risk of committing violence, then it stands to  
            reason that these individuals should also be prohibited from  
            possessing firearms.  A follow up study by Dr. Garen  
            Wintemute found that firearm owners were more likely than  
            non firearm owners to have more than five drinks on one  
            occasion, to drink and drive and to have more than 60 drinks  
            in one month.  Further, he found that heavy alcohol use was  
            most common among firearm owners who engaged in behaviors  
            such as carrying a firearm for protection against other  
            people and keeping a firearm at home that was both loaded  
            and not locked away.  We believe that adding drug and  
            alcohol related offenses as a prohibited category for  
            firearm possession would add significantly to public safety.

            "Senate Bill 755 also creates a ten year prohibition on  
            firearm possession for individuals who have been ordered into  
            Assisted Outpatient Treatment (AOT) under Laura's Law (AB  
            1421, 2002).  This provision of the bill, while a good idea,  
            will impact a small number of people.  Most individuals who  
            are under AOT court orders have been repeatedly committed for  
            involuntary mental health treatment under WIC §5150, or have  
            been incarcerated, and are therefore likely already to be in a  
            prohibited class.  However, there is a small group that may  
            have committed themselves for inpatient treatment voluntarily  
            and are not prohibited under existing law.  These persons are  
            also considered a danger to self or others and should have a  
            firearm prohibition as well."

           6)Argument in Opposition:  According to the  California Public  
            Defenders Association  (CDPA), "CPDA, a statewide organization  
            of public defenders, private defense counsel, and  
            investigators, regrets to inform you of our opposition to SB  
            755 by Senator Wolk.
             
             "SB 755 seeks to amend Penal Code section 29805, which makes  
            it unlawful for individuals convicted of certain crimes to  
            possess a firearm for ten (10) years after conviction of that  
            crime. Specifically, the bill adds many more offenses where  
            two (2) or more convictions, within a three (3) year period,  
            of any of the added crimes would trigger the 10-year ban on  
            firearm possession, violation of which is a criminal offense.








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            "Initially, it is impossible for CPDA to determine whether the  
            intent of this bill is to limit possession of firearms to  
            persons, who otherwise would have the right to possess a  
            firearm, due to conviction of an offense which may be deemed  
            to make it more dangerous for them to possess a firearm, or  
            more likely to use a firearm in an unlawful manner, or whether  
            this bill simply increases the punishment for the added crimes  
            by increasing the penalty for conviction of that crime. Under  
            either rationale, CPDA opposes this legislation.

            "If the purpose of the bill is to limit persons, who because  
            of their conviction of these crimes, makes it more dangerous  
            for them to possess a firearm, hence, a firearm control bill,  
            this bill misses the mark because it adds offenses to the  
            firearms ban which have no nexus to either firearm use or  
            dangerousness. 

            "For example, the bill would add to the list of offenses that  
            trigger the 10-year ban on firearm possession, a number of  
            Vehicle Code violations, such as two convictions for driving  
            under the influence (VC 23152 or VC 23153), or simply being  
            drunk in public (PC 647(f)). None of these offenses have any  
            nexus to firearms, or their use. None of these offenses are of  
            the type that would make possession of a firearm more  
            dangerous to the public. 

            "On the other hand, the purpose of this bill may be to simply  
            increase penalties for conviction of the added offenses.  
            Unfortunately, the increased penalty of a 10-year firearm  
            possession ban has no real deterrent effect to people  
            committing these offenses. If that were the purpose, why not  
            take away the right to vote for people convicted of the added  
            offenses? Why the right to possess a firearm? Again, there is  
            no nexus between the proposed additional penalty and the  
            offense itself.

            "For the above reasons, on behalf of CPDA, I respectfully urge  
            your "No" vote on SB 755 when it comes before you in the  
            Assembly Public Safety Committee.  Please do not hesitate to  
            contact me at with any questions or concerns."  
             
           7)Prior Legislation  :  

             a)   SB 819 (Leno), Chapter 743, Statutes of 2011, provided  








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               that DOJ may use dealer record of sale funds for costs  
               associated with its firearms-related regulatory and  
               enforcement activities regarding the possession as well as  
               the sale, purchase, loan, or transfer of firearms, as  
               specified.

             b)   AB 302 (Beall), Chapter 344, Statutes of 2010, requires  
               that by July 1, 2012, specified mental health facilities  
               shall report to DOJ exclusively by electronic means when a  
               person is admitted to that facility either because that  
               person was found to be a danger to themselves or others, or  
               was certified for intensive treatment for a mental  
               disorder, as specified.
           
          REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          American Association of University Women, Santa Barbara-Goleta  
          Valley Branch
          American Association of University Women, Santa Maria Branch
          Anti-Defamation League 
          Auburn Area Democratic Club 
          Bend the Arc
          California Chapters of the Brady Campaign
          California Church Impact 
          CLUE CA 
          Coalition Against Gun Violence 
          Coalition to Stop Gun Violence 
          Courage Campaign 
          CREDO Action 
          Diablo Valley Democratic Club 
          Doctors for America 
          Jewish Public Affairs Committee of California 
          Laguna Woods Democratic Club
          Los Angeles District Attorney's Office 
          Los Angeles Mayor 
          Moms Demand Action for Gun Sense in America 
          Neighbors United to Protect Our Communities 
          Niles Discovery Church
          PICO California 
          Santa Barbara Rape Crisis Center 
          Sisters of St. Joseph of Orange 
          South County Citizens Against Gun Violence 
          Tri-Cities Democratic Forum 








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          Violence Policy Center 
          Violence Prevention Coalition of Greater Los Angeles 
          Violence Prevention Coalition of Orange County
          Women Against Gun Violence 
          Women For: Orange County
          Youth Alive 

           Opposition 
           
          California Association of Federal Firearms Licensees
          California Attorneys for Criminal Justice 
          California Public Defenders Association 
          California Rifle and Pistol Association 
          California Sportsman's Lobby 
          Disability rights California    
          Gun Owners of California 
          National Rifle Association 
          Outdoor Sportsmen's Coalition of California 
          Safari Club International
          Eight private individuals
           

          Analysis Prepared by  :    Gabriel Caswell / PUB. S. / (916)  
          319-3744