BILL ANALYSIS                                                                                                                                                                                                    



          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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