BILL ANALYSIS Ó
SB 755
Page 1
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