BILL ANALYSIS Ó
AB 150
Page A
Date of Hearing: March 24, 2015
Counsel: Sandra Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
150 (Melendez) - As Amended March 18, 2015
SUMMARY: Specifies that theft of a firearm valued at $950
dollars or less is a felony. Specifically, this bill:
1)Declares that the theft of a firearm is grand theft in all
cases, punishable by imprisonment in the state prison for 16
month, or two or three years.
2)States that every person who buys or receives a stolen firearm
is guilty of an alternate felony/misdemeanor offense
punishable by imprisonment in the county jail for a period of
not more than one year, or by imprisonment in the county jail
pursuant to realignment.
3)Provides that this bill amends Proposition 47, the Safe
Neighborhoods and Schools Act, and shall become effective only
when submitted to and approved by the voters.
4)Contains legislative findings and declarations regarding the
dangers to public safety posed by the theft of firearms.
AB 150
Page B
EXISTING LAW:
1)Divides theft into two degrees, petty theft and grand theft.
(Pen. Code, § 486.)
2)Defines grand theft as when the money, labor, or real or
personal property taken is of a value exceeding $950 dollars,
except as specified. (Pen. Code, § 487.)
3)States that notwithstanding any provision of law defining
grand theft, obtaining any property by theft where the value
of the money, labor, real or personal property taken does not
exceed $950 shall be considered petty theft and shall be
punished as a misdemeanor, except in the case where a person
has prior serious, violent, or sex convictions, in which case
the offense is punished as a felony by imprisonment in the
county jail pursuant to realignment. (Pen. Code, § 490.2,
subd. (a).)
4)Prohibits carrying a concealed firearm upon the person or in a
vehicle, and punishes that crime as a felony under certain
circumstances, including if the person is an ex-felon or a
gang member, or if the firearm was stolen. (Pen. Code, §
25400.)
5)Prohibits carrying a loaded firearm on the person or in a
vehicle while in any public place or on any public street and
punishes that crime as a felony under certain circumstances,
including if the person is an ex-felon or a gang member, or if
the firearm was stolen. (Pen. Code, § 25850.)
6)Prohibits any person previously convicted of a felony from
owning, purchasing, receiving, possessing, or having in his or
her custody a firearm, and punishes that offense as a felony.
(Pen. Code, § 29800, subd. (a)(1).)
7)Deems grand theft involving a firearm to be a serious felony.
(Pen. Code, § 1192.7, subd. (c)(26).)
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8)States that a felony is a crime that is punishable with death,
imprisonment in the state prison, or in the county jail under
the provisions of Penal Code section 1170, subdivision (h).
All other crimes are misdemeanors, except those classified as
infractions. (Pen. Code, § 17, subd. (a).)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "The vast
majority of handguns, rifles, and shotguns are valued under
$950. By reducing penalties, this would make current law
ineffective in curtailing gun theft and gun trafficking. This
change in the law has put the safety of our constituents at
risk. Not only will it be harder to prosecute gun theft, we
are essentially giving criminals the green light by lessening
the penalty. A criminal doesn't steal a gun to go duck
hunting, they steal a gun to commit crimes.
"It is important that California continues to enforce a strong
stance against the illegal acquisition and use of firearms."
2)Proposition 47: Proposition 47, also known as the Safe
Neighborhoods and Schools Act, was approved by the voters in
November 2014. Proposition 47 reduced the penalties for
certain drug and property crimes and directed that the
resulting state savings be directed to mental health and
substance abuse treatment, truancy and dropout prevention, and
victims' services. Specifically, the initiative reduced the
penalties for possession for personal use of most illegal
drugs to misdemeanors. The initiative also reduced the
penalties for theft, shoplifting, receiving stolen property,
writing bad checks, and check forgery valued at $950 or less
from felonies to misdemeanors. However, the measure limited
the reduced penalties to offenders who do not have prior
convictions for serious or violent felonies and who are not
required to registered sex offenders. (See Legislative
AB 150
Page D
Analyst's Office analysis of Proposition 47
< http://www.lao.ca.gov/ballot/2014/prop-47-110414.pdf >.)
3)Proposition 47 As it Relates to the Theft of a Gun:
Proposition 47 added Penal Code section 490.2 which provides a
new definition for grand theft: "Notwithstanding Section 487
or any other provision of law defining grand theft, obtaining
any property by theft where the value of the money, labor,
real or personal property taken does not exceed nine hundred
fifty dollars ($950) shall be considered petty theft and shall
be punished as a misdemeanor ?.." (Pen. Code, § 490.2, subd.
(a), emphasis added.) In other words, Proposition 47 put in a
blanket $950 threshold for conduct to be grand theft.
Previously, there were a number of carve-outs which made
conduct grand theft based on the conduct involved or the
manner in which the crime is committed or based on the value
being less than $950.
Because the new statute specifically states "notwithstanding
Section 487," it trumps all of Penal Code section 487,
including subdivision (d)(2), which says that grand theft
occurs when the property taken is a firearm. The question
becomes whether notwithstanding newly-created Penal Code
section 490.2, another provision of law deems this conduct to
be a felony.
Penal Code section 1192.7, states that grand theft involving a
firearm is a serious felony. Some may argue that this is a
"provision of law defining grand theft" because of how it
characterizes the crime. But not every description in section
1192.7 is coextensive with the statutory definition of a
specific crime. The general purpose of section 1192.7 is to
prohibit plea bargaining in cases arising out of the listed
offenses, and to enumerate crimes for sentence enhancements
under other statutory schemes.
AB 150
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The drafters of Proposition 47 stated that they did not intend
to reduce the penalty for the theft of a firearm. The
rebuttal to the argument against Proposition 47 contained in
the ballot arguments stated: "Proposition 47 maintains
penalties for gun crimes. Under Prop. 47, possessing a stolen
concealed gun remains a felony. Additional felony penalties
to prevent felons and gang members from obtaining guns also
apply."
<( http://vig.cdn.sos.ca.gov/2014/general/pdf/proposition-47-arg
uments-rebuttals.pdf .>) The ballot argument by itself does
not mean that they did not inadvertently do so. If the
proponents of Proposition 47 intended to "maintain the
penalties for gun crimes," and yet the language is susceptible
to that interpretation, there should be no harm in making the
clarification.
4)Practical Considerations: Assuming arguendo that Proposition
47 reduced the theft of a firearm to a misdemeanor offense,
the theft of a firearm or receipt or purchase of a stolen
firearm will not usually happen in isolation. That single act
will often involve violations of multiple criminal statutes,
many of which are felonies.
For example, if a firearm is stolen from a home, the defendant
could be charged with residential burglary, which is a felony
and a strike. (See Pen. Code, §§ 460, 461, and 1192.7, subd.
(c)(18).) If a firearm is stolen from a commercial
establishment, the defendant can be charged with second-degree
burglary, which can be punished as a felony (second-degree
burglary is an alternate felony/misdemeanor). (See Pen. Code,
§§ 460 and 461, subd. (b).) If a firearm is stolen from a
locked vehicle, the defendant can be charged with auto
burglary, which can be punished as a felony (auto burglary is
an alternate felony/misdemeanor). (See Pen. Code, §§ 459,
460, and 461, subd. (b).) If the firearm is taken from
another person by force or fear, then the defendant can be
charged with robbery, which is a felony and a strike. (See
Pen. Code, §§ 211, 213 and 1192.7, subd. (19).) Proposition
47 did nothing to changes these laws.
AB 150
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Moreover, one cannot steal a firearm, or receive or purchase a
stolen firearm without also possessing it. There are several
other statutes providing for felony punishment for conduct
related to firearms possession. For example, felons, narcotic
addicts, and those convicted of certain crimes of violence can
be prosecuted for a new felony if they own, purchase, receive,
possess or have a firearm in their custody or control. (Pen.
Code, §§ 29800, subd. (a), and 29900, subd. (a).) Since an
ex-felon is prohibited from possessing a firearm, presumably
that person would carry it in a concealed manner, either on
the person or in a vehicle, thereby committing a separate
felony. (Pen. Code, § 25400.) Additionally, if the firearm
was loaded and carried on the person or in a vehicle while in
any public place or on any public street, that conduct would
be punishable as a felony. (Pen. Code, 25850.) Thus, many of
the individuals convicted of stealing a firearm, or receiving
or purchasing a stolen firearm will also violate another
section in the Dangerous Weapons Control Act.<1>
In fact, the California Department of Corrections and
Rehabilitation has informed the committee that in Fiscal Year
2013/14 the numbers of new admissions with grand theft of a
firearm as the principal controlling offense was 37.
5)California Constitutional Limitations on Amending a Voter
Initiative: Because Proposition 47 was a voter initiative,
the Legislature may not amend the statute without subsequent
voter approval unless the initiative permits such amendment,
and then only upon whatever conditions the voters attached to
the Legislature's amendatory powers. (People v. Superior
Court (Pearson) (2010) 48 Cal.4th 564, 568; see also Cal.
Const., art. II, § 10, subd. (c).) The California
---------------------------
<1> Under Penal Code section 654, a defendant can be punished
only once for multiple convictions involving a single act or
omission. (People v. Jones (2012) 54 Cal.4th 350, 358.)
However, Penal Code section 654 does not bar multiple punishment
for multiple violations of the same criminal statute. (People
v. Correa (2012) 54 Cal.4th 331, 334.)
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Constitution states, "The Legislature may amend or repeal
referendum statutes. It may amend or repeal an initiative
statute by another statute that becomes effective only when
approved by the electors unless the initiative statute permits
amendment or repeal without their approval." (Cal. Const.,
art. II, § 10, subd. (c).) Therefore, unless the initiative
expressly authorizes the Legislature to amend, only the voters
may alter statutes created by initiative.
The purpose of California's constitutional limitation on the
Legislature's power to amend initiative statutes is to protect
the people's initiative powers by precluding the Legislature
from undoing what the people have done, without the
electorate's consent. Courts have a duty to jealously guard
the people's initiative power and, hence, to apply a liberal
construction to this power wherever it is challenged in order
that the right to resort to the initiative process is not
improperly annulled by a legislative body. (Proposition 103
Enforcement Project v. Quackenbush (1998) 64 Cal.App.4th
1473.)
As to the Legislature's authority to amend the initiative,
Proposition 47 states: "This act shall be broadly construed
to accomplish its purposes. The provisions of this measure
may be amended by a twothirds vote of the members of each
house of the Legislature and signed by the Governor so long as
the amendments are consistent with and further the intent of
this act. The Legislature may by majority vote amend, add, or
repeal provisions to further reduc6)e the penalties for any of
the offenses addressed by this act."
(< http://vig.cdn.sos.ca.gov/2014/general/pdf/text-of-proposed-l
aws1.pdf#prop47 >.)
If Proposition 47 is deemed not to have changed the punishment
for the theft of a firearm, then the provisions of this bill
do not amend the initiative, but rather would be consistent
with the language and intent of the initiative. On the other
hand, if Proposition 47 is interpreted as having reduced the
punishment for the theft of a firearm valued at $950 or less,
AB 150
Page H
as well as the receipt or purchase of a stolen firearm with
the same value, then the change will have to go before the
voters for ratification. The provisions of this bill so
provide.
7)Argument in Support: According to the California Peace
Officers Association (CPOA), a co-sponsor of this bill,
"Firearm theft does not occur for culprits to recreationally
use the weapons, but further crimes such as robbery, burglary,
assault, and illegal firearms dealing are most often the acts
associated with firearm theft. Ab 150 provides a reasonable
solution to this problem, and CPOA believes it to be a
solution that is common sense and bipartisan."
8)Argument in Opposition: According to the California Attorneys
for Criminal Justice, "Proposition 47 opponents' biggest and
loudest argument was that Proposition 47 should not be passed
because it would make theft of a firearm a misdemeanor. That
message was seen on billboards, flyers, mailers and TV
commercials throughout the State. In the face of this
opposition Proposition 47 still passed. The people of
California want to spend their tax dollars on safe
neighborhoods and schools not prosecuting and incarcerating
people who commit drug and low value theft crimes.
"Current law already permits felony prosecution in most firearm
theft cases. This writer has practiced as a criminal defense
attorney for almost ten years and worked in a public
defender's office with many experienced attorneys; Penal Code
section 487(d), firearm theft, is a crime we rarely if ever
see charged alone. Guns are not stolen during business hours
from sporting goods stores because they are largely under lock
and key. Citizens do not leave them unattended on their front
porches to be taken by opportunistic passer-byers. When we
see Penal Code section 487(d) charged it is almost always as a
secondary charge to much more serious crimes, i.e. firearms
stolen in the course of a residential burglary or home
invasion robbery, all felonies.
AB 150
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"Even with Proposition 47, prosecutors have many avenues to
bring felony prosecutions against those who steal firearms.
For example, possessing a concealed stolen firearm is a felony
as is possessing a loaded stolen firearm. Penal Code
25400(c)(2). Any theft of a firearm from a dwelling, a closed
store, locked car, or person is still a felony even after
Proposition 47. And, as always, it is still a felony for
certain dangerous persons such as those with prior felony
convictions, certain juvenile convictions and those under the
influence of controlled substances to possess a firearm."
9)Related Legislation:
a) AB 46 (Lackey) would reverse provisions recently enacted
by Proposition 47 related to possession for personal use of
specified controlled substances. AB 46 is pending hearing
in this Committee.
b) AB 390 (Cooper) would require persons convicted of
crimes newly categorized as misdemeanors under Proposition
47, approved by the voters on Nov. 4, 2014, to provide DNA
samples. AB 390 is pending hearing in this Committee.
c) AB 1415 (Steinorth) would make it a felony for a person
who has had his or her felony conviction recalled and has
been resentenced to a misdemeanor, or who has had a felony
designated as a misdemeanor, pursuant to Proposition 47, to
own, purchase, receive, or have in possession or under
custody or control any firearm. AB 1415 is pending
referral by the Rules Committee.
d) SB 333 (Galgiani) is substantially similar to AB 46
(Lackey). SB 333 is pending hearing in the Senate Public
Safety Committee.
e) SB 452 (Galgiani) is substantially similar to this bill,
but also addresses the crime of grand theft from the
person. SB 452 is pending hearing in the Senate Public
Safety Committee.
AB 150
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10)Prior Legislation: Proposition 47 of the November 2014
general election, the Safe Neighborhoods and Schools Act,
reduced the penalties for certain drug and property crimes.
REGISTERED SUPPORT / OPPOSITION:
Support
California Peace Officers Association (Co-Sponsor)
California State Sheriffs' Association (Co-Sponsor)
Alpine County Sheriff and Coroner
Association for Los Angeles Deputy Sheriffs
California Association of Code Enforcement Officers
California College and University Police Chiefs Association
California Correctional Supervisors Organization
California District Attorneys Association
California Fraternal Order of Police
California Narcotic Officers Association
California Police Chiefs Association
California Sportsman's Lobby
California Statewide Law Enforcement Association
Golden State Bail Agents Association
Gun Owners of California
Long Beach Police Officers Association
Los Angeles County Professional Peace Officers Association
Los Angeles Deputy Sheriffs
Los Angeles Police Protective League
National Rifle Association
National Shooting Sports Foundation, Inc.
Outdoor Sportsmen's Coalition of California
Riverside Sheriffs Association
Sacramento County Sheriff's Department
Sacramento County Deputy Sheriffs Association
Safari Club International
San Bernardino County Sherriff's Department
San Diego County District Attorney
San Diego County Sheriff's Department
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Santa Ana Police Officers Association
1015 Private Individuals
Opposition
American Civil Liberties Union of California
California Attorneys for Criminal Justice
California Public Defenders Association
Californians for Safety and Justice
Legal Services for Prisoners with Children
Analysis Prepared
by: Sandy Uribe / PUB. S. / (916) 319-3744