California Legislature—2015–16 Regular Session

Assembly Bill No. 947

Introduced by Assembly Member Chávez

(Coauthor: Assembly Member Jones)

February 26, 2015

An act to amend Section 11370.1 of the Health and Safety Code, and to amend Section 12022 of the Penal Code, relating to controlled substances.

LEGISLATIVE COUNSEL’S DIGEST

AB 947, as introduced, Chávez. Controlled substances: firearms.

(1) Existing law makes it a felony, punishable by imprisonment in the state prison for 2, 3, or 4 years to unlawfully possess any amount of a substance containing cocaine base, cocaine, heroin, methamphetamine, or phencyclidine while armed with a loaded, operable firearm.

This bill would instead make that felony punishable in a county jail. By requiring the felony to be served in county jail, this bill would impose a state-mandated local program.

(2) Existing law imposes an enhancement of 3, 4, or 5 years on the sentence of a person who is personally armed with a firearm in the commission of a violation of specified controlled substance offenses.

This bill would require the enhancement to be served in state prison.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

Section 11370.1 of the Health and Safety Code
is amended to read:

11370.1.  

(a)  Notwithstanding Section 11350 or 11377 or any
other begin delete provision of end delete law, begin delete every end delete begin insert a end insert person who unlawfully possesses
any amount of a substance containing cocaine base, a substance
containing cocaine, a substance containing heroin, a substance
containing methamphetamine, a crystalline substance containing
phencyclidine, a liquid substance containing phencyclidine, plant
material containing phencyclidine, or a hand-rolled cigarette treated
with phencyclidine while armed with a loaded, operable firearm
is guilty of a felony punishable by imprisonment begin delete in the state prison end delete
begin insert pursuant to subdivision (h) of Section 1170 of the Penal Code end insert for
two, three, or four years.

As used in this subdivision, “armed with” means having available
for immediate offensive or defensive use.

(b)   begin delete Any end delete begin insert A end insert person who is convicted under this section shall be
ineligible for diversion or deferred entry of judgment under Chapter
2.5 (commencing with Section 1000) of Title 6 of Part 2 of the
Penal Code.

SEC. 2.  

Section 12022 of the Penal Code is amended to read:

12022.  

(a) (1) Except as provided in subdivisions (c) and (d),
a person who is armed with a firearm in the commission of a felony
or attempted felony shall be punished by an additional and
consecutive term of imprisonment pursuant to subdivision (h) of
Section 1170 for one year, unless the arming is an element of that
offense. This additional term shall apply to a person who is a
principal in the commission of a felony or attempted felony if one
or more of the principals is armed with a firearm, whether or not
the person is personally armed with a firearm.

(2) Except as provided in subdivision (c), and notwithstanding
subdivision (d), if the firearm is an assault weapon, as defined in
Section 30510 or 30515, or a machinegun, as defined in Section
16880, or a .50 BMG rifle, as defined in Section 30530, the
additional and consecutive term described in this subdivision shall
be three years imprisonment pursuant to subdivision (h) of Section
1170 whether or not the arming is an element of the offense of
which the person was convicted. The additional term provided in
this paragraph shall apply to any person who is a principal in the
commission of a felony or attempted felony if one or more of the
principals is armed with an assault weapon, machinegun, or a .50
BMG rifle, whether or not the person is personally armed with an
assault weapon, machinegun, or a .50 BMG rifle.

(b) (1) A person who personally uses a deadly or dangerous
weapon in the commission of a felony or attempted felony shall
be punished by an additional and consecutive term of imprisonment
in the state prison for one year, unless use of a deadly or dangerous
weapon is an element of that offense.

(2) If the person described in paragraph (1) has been convicted
of carjacking or attempted carjacking, the additional term shall be
in the state prison for one, two, or three years.

(3) When a person is found to have personally used a deadly or
dangerous weapon in the commission of a felony or attempted
felony as provided in this subdivision and the weapon is owned
by that person, the court shall order that the weapon be deemed a
nuisance and disposed of in the manner provided in Sections 18000
and 18005.

(c) Notwithstanding the enhancement set forth in subdivision
(a), a person who is personally armed with a firearm in the
commission of a violation or attempted violation of Section 11351,
11351.5, 11352, 11366.5, 11366.6, 11378, 11378.5, 11379,
11379.5, or 11379.6 of the Health and Safety Code shall be
punished by an additional and consecutive term of imprisonment
begin delete pursuant to subdivision (h) of Section 1170 end delete begin insert in the state prison end insert for
three, four, or five years.

(d) Notwithstanding the enhancement set forth in subdivision
(a), a person who is not personally armed with a firearm who,
knowing that another principal is personally armed with a firearm,
is a principal in the commission of an offense or attempted offense
specified in subdivision (c), shall be punished by an additional and
consecutive term of imprisonment pursuant to subdivision (h) of
Section 1170 for one, two, or three years.

(e) For purposes of imposing an enhancement under Section
1170.1, the enhancements under this section shall count as a single
enhancement.

(f) Notwithstanding any other begin delete provision of end delete law, the court may
strike the additional punishment for the enhancements provided
in subdivision (c) or (d) in an unusual case where the interests of
justice would best be served, if the court specifies on the record
and enters into the minutes the circumstances indicating that the
interests of justice would best be served by that disposition.

SEC. 3.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.