BILL ANALYSIS Ó SENATE COMMITTEE ON APPROPRIATIONS Senator Ricardo Lara, Chair 2015 - 2016 Regular Session AB 1176 (Cooper) - Theft: firearms ----------------------------------------------------------------- | | | | | | ----------------------------------------------------------------- |--------------------------------+--------------------------------| | | | |Version: May 4, 2016 |Policy Vote: PUB. S. 7 - 0 | | | | |--------------------------------+--------------------------------| | | | |Urgency: No |Mandate: Yes | | | | |--------------------------------+--------------------------------| | | | |Hearing Date: May 16, 2016 |Consultant: Jolie Onodera | | | | ----------------------------------------------------------------- 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: AB 1176 (Cooper) Page 1 of ? 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 AB 1176 (Cooper) Page 2 of ? 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 AB 1176 (Cooper) Page 3 of ? 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 AB 1176 (Cooper) Page 4 of ? 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. AB 1176 (Cooper) Page 5 of ? 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 AB 1176 (Cooper) Page 6 of ? 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 AB 1176 (Cooper) Page 7 of ? 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 AB 1176 (Cooper) Page 8 of ? 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. AB 1176 (Cooper) Page 9 of ? 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. -- END --