BILL ANALYSIS Ó
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
AB 1176 (Cooper) - Theft: firearms
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|Version: May 4, 2016 |Policy Vote: PUB. S. 7 - 0 |
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|Urgency: No |Mandate: Yes |
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|Hearing Date: May 16, 2016 |Consultant: Jolie Onodera |
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This bill meets the criteria for referral to the Suspense File.
Bill
Summary: AB 1176 would call for a special election to amend
Proposition 47 and make the theft of a firearm grand theft in
all cases, punishable by a state prison term, as specified.
Additionally, this bill:
Provides 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 up to one
year, or by imprisonment in the county jail or state prison
for 16 months, two years, or three years, as specified.
Expands the list of misdemeanor offenses subject to the
10-year prohibition from possession of a firearm to include
(1) theft of a firearm, and (2) buying or receiving a stolen
firearm.
Fiscal
Impact:
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Ballot costs : One-time costs in the range of $414,000 to
$552,000 (General Fund) to the Secretary of State (SOS) for
printing and mailing costs to place the measure on the ballot
in the next statewide election.
State prisons : To the extent the voters approve the
amendments to the Proposition, significant increase in state
incarceration costs potentially in the millions of dollars
(General Fund) annually for (1) felony convictions for theft
of a firearm, (2) felony convictions for receipt of a stolen
firearm for persons with a current or prior serious or violent
felony conviction, and (3) potential future violations of the
lifetime firearms ban imposed for these felony convictions
that otherwise may have been charged as misdemeanors. Separate
from the initiative, potential increase in felony violations
of the 10-year firearms ban under the expanded list of
misdemeanor offenses. To the extent the 10-year prohibition is
applied retroactively could significantly increase the
potential fiscal impact to the state. Staff notes commitments
to state prison for both (1) theft of a firearm and (2)
receipt of stolen property as a principal offense decreased by
about 70 percent after passage of Proposition 47. To the
extent some defendants continue to be committed to prison for
other felony convictions, while not resulting in new
commitments, this bill could result in longer prison sentences
for these cases.
County jails : To the extent the voters approve the amendments
to the Proposition, potentially major increase in
non-reimbursable local costs (Local Funds) for felony jail
sentences for receipt of stolen property violations that
previously would have been subject to misdemeanor penalties,
offset in minor part due to fewer jail terms for petty theft
of a firearm that would be subject to a state prison term.
Separate from the initiative, potentially significant
increases or decreases in local costs (Local Funds) resulting
from violations of the 10-year firearms ban (See Staff
Comments). To the extent the 10-year firearms ban is applied
retroactively would significantly increase the potential
fiscal impact to counties. To the extent local agencies incur
a net increase in overall costs, funding could be required
from the State (Proposition 30 General Fund).
Reduction in Proposition 47 savings : Potential reduction in
future funds allocated to the Safe Neighborhoods and Schools
Fund (SNSF) to the extent raising the criminal penalties for
the specified firearm offenses results in a reduction in
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future calculated savings under Proposition 47 by the
Department of Finance.
Department of Justice (DOJ) : Potentially significant increase
in DOJ administration and enforcement costs in the hundreds of
thousands of dollars (Special Fund*) due to increases to the
Armed Prohibited Persons System (APPS) list resulting from the
expanded application of the firearms prohibition. It is
unclear how the DOJ would determine the convictions for
receipt of stolen property that are specific to firearms
(should the voters choose not to approve amendments to the
initiative that would make the offense a wobbler), given that
level of detail is not currently available with regard to
arrests/convictions under existing law.
*Dealers Record of Sale Special Account (DROS) - Staff notes the
DROS is structurally imbalanced, with less than a $1 million
reserve balance projected by year-end FY 2016-17. As a result,
an appropriation from another fund source, potentially the
General Fund, may be required to support the activities
resulting from this bill.
Background: 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. The initiative
reduced the penalties for theft, shoplifting, receiving stolen
property, writing bad checks, and check forgery valued at $950
or less from felonies to misdemeanors. 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.
Grand Theft of a Firearm
Proposition 47 added Penal Code § 490.2, which by virtue of
specifically defining petty theft, narrowed the pre-existing
provisions that constituted grand theft, as follows:
"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 ?.." (PC §
490.2 (a).) In other words, Proposition 47 put in a blanket $950
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threshold for conduct to be classified as grand theft.
Previously, there were a number of carve-outs which constituted
grand theft based on the conduct involved, the manner in which
the crime was committed, or the type of property stolen,
irrespective of its value. Because the new statute specifically
includes the phrase, "Notwithstanding Section 487," it
supersedes all of Penal Code § 487, including subdivision
(d)(2), which specifies that grand theft occurs when the
property taken is a firearm.
Receipt/Purchase of a Stolen Firearm
Under existing law, knowingly purchasing or receiving any stolen
property is an alternate felony-misdemeanor, punishable by
imprisonment in a county jail for not more than one year, or by
imprisonment in county jail or state prison for 16 months, two
or three years. Prior to the passage of Proposition 47, in cases
where the value of the property did not exceed $950, the
district attorney or grand jury could specify in the accusatory
pleading that the offense shall be a misdemeanor. Proposition 47
amended this section of law to specify that in all cases in
which the value of the property (including a firearm) does not
exceed $950, the offense shall be a misdemeanor, punishable only
by imprisonment in a county jail not exceeding one year, if such
person has no prior convictions for a serious or violent felony
or an offense requiring registration as a sex offender.
10-Year Firearms Prohibition
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. (PC § 29805.)
Proposed Law:
This bill would call for a special election to amend
Proposition 47 and make the theft of a firearm grand theft in
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all cases and punishable by a state prison term. Specifically,
this bill:
Declares that the theft of a firearm is grand theft in all
cases, punishable by imprisonment in the state prison for 16
months, or two or three years.
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
for 16 months, two or three years (or state prison in the
defendant has a current or prior serious or violent felony
conviction or a conviction for an offense requiring sex
offender registration).
Adds the following misdemeanor offenses to those for which a
conviction results in a 10-year prohibition on possession of a
firearm: (1) theft of a firearm, and, (2) receipt of stolen
property, if the property is a firearm.
Calls for a special election to be held on November 8, 2016,
for voter approval of these provisions.
Requires consolidation of the special election with the
statewide general election to be held on that date. Requires
the consolidated election be held and conducted in all
respects as if there were only one election, and only one form
of ballot shall be used.
Related
Legislation: AB 2854 (Cooper) 2016 is substantially similar to
this measure but does not include the provision expanding the
list of misdemeanor offenses subject to the 10-year prohibition
from possession of a firearm. AB 2854 failed passage in the
Assembly Committee on Public Safety.
Prior Legislation: AB 150 (Melendez) 2015 was substantially
similar to this measure but did not include the provision
expanding the list of misdemeanor offenses subject to the
10-year prohibition from possession of a firearm. AB 150 was
held on the Suspense File of the Assembly Committee on
Appropriations.
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SB 452 (Galgiani) 2015 would have clarified that theft of a
firearm is grand theft and is punishable as a felony, as
specified. SB 452 was not set for hearing in this Committee.
SB 347 (Jackson) 2015 would have added specified offenses,
including theft of a firearm and receipt of stolen property if
the property is a firearm, to the list of misdemeanors that
result in a 10-year prohibition from firearms possession. SB 347
was vetoed by the Governor with the following message:
Each of these bills creates a new crime - usually by finding a
novel way to characterize and criminalize conduct that is
already proscribed. This multiplication and particularization of
criminal behavior creates increasing complexity without
commensurate benefit.
Over the last several decades, California's criminal code has
grown to more than 5,000 separate provisions, covering almost
every conceivable form of human misbehavior. During the same
period, our jail and prison populations have exploded.
Before we keep going down this road, I think we should pause and
reflect on how our system of criminal justice could be made more
human, more just and more cost-effective.
Staff
Comments:
Special Election
The SOS has indicated that printing and mailing costs associated
with placing a measure on the statewide ballot are approximately
$69,000 per page, depending on the length of the ballot. This
fiscal estimate of $414,000 to $552,000 (General Fund) reflects
the costs for the addition of six to eight pages in the Voter
Information Guide. Actual costs would depend upon the length of
the title and summary, analysis by the Legislative Analyst's
Office, proponent and opponent arguments, and text of the
proposal.
Theft of a firearm - grand theft in all cases
By specifying the theft of a firearm is grand theft in all
cases, this bill could result in additional or longer
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commitments to state prison. Data from the CDCR indicates a
reduction of over 70 percent (29 commitments in 2014, 8
commitments in 2015) in the number of commitments to state
prison for theft of a firearm as a principal offense. To the
extent this bill results in a comparable increase in commitments
to prison over the decrease experienced post-Proposition 47,
annual costs could increase by over $600,000 annually based on
the contract bed rate of $29,000 per inmate. To the extent the
defendants formerly committed for theft of a firearm as a
principal offense continue to be committed to prison under other
felony offenses would not result in new commitments but could
potentially result in longer prison sentences for these cases.
Purchase or receipt of a stolen firearm
This bill increases the penalty for purchase or receipt of a
stolen firearm to an alternative felony/misdemeanor offense in
all cases, irrespective of the value of the stolen firearm,
punishable by up to one year in county jail or by 16 months, two
or three years in county jail or state prison dependent on the
defendant's criminal history. As a result, this bill could
result in cost increases to both state prisons and county jails
for felony convictions for violations that previously would have
been subject to a misdemeanor charge should the firearm be
valued under $950.
Data from the DOJ reflects a 47 percent decrease in felony
arrests for receipt of stolen property from 2014 (33,310
arrests) to 2015 (17,689 arrests), and over a 100 percent
increase in misdemeanor arrests over the same period. Likewise
felony convictions decreased by nearly 65 percent. Data from the
CDCR indicates a decrease of nearly 69 percent for commitments
to state prison for receipt of stolen property as a principal
offense (396 commitments in 2014, and 123 commitments in 2015).
Although the number of commitments specific to receipt of a
stolen firearm is unknown, it is likely some portion of these
offenses would be impacted. Assuming 20 percent of the reduction
in cases was attributable to stolen firearms, costs for state
incarceration could increase by about $1.6 million per year. To
the extent the percentage of cases is higher or lower, the
impact to state prison costs could vary greatly.
Lifetime firearms ban
To the extent the two provisions above - theft of a firearm and
purchase/receipt of a stolen firearm - result in additional
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felony convictions that otherwise would have been charged as
misdemeanors, this bill could have the effect of imposing the
lifetime firearms ban on a larger group of individuals. A
violation of the lifetime prohibition from firearms possession
is a felony.
Expanded list of misdemeanors subject to 10-year firearms ban
By expanding the list of misdemeanors subject to the 10-year
firearms prohibition, this bill could result in future increases
in commitments to state prison and county jail for violations of
the firearms ban resulting in felony or misdemeanor convictions,
respectively. Data from the DOJ indicates nearly 3,000
misdemeanor convictions per year on average for each of three
years (2012-2014) for the "receipt of stolen property," although
the data cannot be broken out to specifically identify that the
stolen property was a firearm. Staff notes to the extent the
voters approve the amendments to the Proposition, theft of a
firearm will no longer be classified as petty theft, a
misdemeanor, and the addition of this offense to the list of
applicable crimes subject to the 10-year firearms ban will not
have an effect prospectively. The receipt of stolen property
offense will still be classified as an alternate
felony/misdemeanor should the voters so decide, but will no
longer have the straight misdemeanor charge for property valued
at less than $950, so the impact may be somewhat mitigated.
Data from the CDCR indicates that only 20 individuals per year
have been committed to state prison on average for each of three
years (2012-2014) for a violation of the 10-year prohibition on
firearms possession for existing crimes subject to the ban.
While it is unknown how many additional individuals will be
committed to state prison under this provision of law, future
costs could potentially be significant given the size of the
applicable population, especially if the application is
determined to be retroactive.
Local jails will potentially incur significant increases and
decreases in local costs under the firearm prohibition
provisions of this measure. New commitments to county jail for
misdemeanor violations of the 10-year firearms ban under the
expanded list of applicable crimes will result in increased
costs of an unknown, but potentially significant amount.
Staff notes that the offense of receipt of stolen property is an
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alternate felony/misdemeanor, with felony convictions subject to
punishment pursuant to PC § 1170(h). Unless the defendant has a
current or prior conviction for a serious or violent felony, or
a felony requiring sex offender registration, the felony
sentence will be served in county jail. Data from the DOJ
indicates nearly 6,500 felony convictions per year on average
attributable to the crime of receipt of stolen property. To the
extent some percentage of felony convictions resulting in county
jail sentences are instead charged as misdemeanors due to the
additional public safety provision of the mandated 10-year ban
on firearms possession, local jails could realize cost savings
due to shorter jail sentences. While the net impact to local
agencies cannot be known with certainty and would vary by
county, it is estimated the amount of potential savings to
county jails could be substantial given the number of felony
convictions annually.
Under 2011 Realignment Legislation, the state provided funding
to the counties to place offenders in county jail for specified
felonies that previously would have required a state prison
sentence. Pursuant to Proposition 30 (2012), legislation enacted
after September 30, 2012, that has an overall effect of
increasing the costs already borne by a local agency for
programs or levels of service mandated by the 2011 Realignment
Legislation apply to local agencies only to the extent that the
state provides annual funding for the cost increase. Proposition
30 specifies that legislation defining a new crime or changing
the definition of an existing crime is not subject to this
provision, however, legislation changing the penalty for a crime
is not similarly exempted. To the extent it is determined that
the provisions of this bill change the penalty for specified
crimes, any net increase in costs to local agencies could
potentially require annual funding from the State (General
Fund).
Staff notes it is unclear whether the firearms prohibition would
apply retroactively to those persons convicted of applicable
misdemeanors prior to the effective date of this bill should it
be enacted - this determination would be dependent on whether
the firearms prohibition is considered an administrative
function or part of the penalty for the underlying offense
triggering the prohibition. As a result, the estimated fiscal
impacts to the state and counties could vary widely.
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Similarly, to the extent the firearms prohibition is applied
retroactively to prior misdemeanor convictions could result in a
significant increase in DOJ administration and enforcement costs
to input and address new listings on APPS.
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