BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1176|
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THIRD READING
Bill No: AB 1176
Author: Cooper (D), et al.
Amended: 6/30/16 in Senate
Vote: 21
PRIOR VOTES NOT RELEVANT
SENATE PUBLIC SAFETY COMMITTEE: 6-1, 5/10/16
AYES: Hancock, Anderson, Glazer, Liu, Monning, Stone
NOES: Leno
SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/16/16
AYES: Lara, Bates, Beall, Hill, McGuire, Mendoza, Nielsen
ASSEMBLY FLOOR: Not relevant
SUBJECT: Theft: firearms
SOURCE: Author
DIGEST: This bills: (1) clarifies that theft of a firearm is
grand theft and is punishable as a felony, as specified; (2)
provides that every person who buys or receives a stolen firearm
is guilty of an alternate felony/misdemeanor offense, as
specified; and, (3) adds the following misdemeanor theft of a
firearm (Penal Code § 490.2) and receipt of stolen property to
offenses for which a conviction results in a 10-year prohibition
on possession of a firearm.
Senate Floor Amendments of 6/30/16 add coauthors, and make a
technical change.
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ANALYSIS:
Existing law:
1) Provides that every person who feloniously steals, takes,
carries, leads, or drives away the personal property of
another is guilty of theft, as specified. (Penal Code §
484.)
2) Defines "grand theft" as any theft where the money, labor,
or real or personal property taken or when the property is
taken from the person of another is of a value exceeding
$950. (Penal Code §§ 487(a) and (c).)
3) Provides that grand theft is committed when the money,
labor, or real or personal property taken is of a value in
excess of $950, except as specified. (Penal Code § 487(a).)
4) Provides that, notwithstanding the default value of $950
to establish grand theft, grand theft is committed in any of
the following cases:
a) When domestic fowls, avocados, or other farm crops
are taken of a value exceeding $250;
b) When fish or other aqua-cultural products are taken
from a commercial or research operation that is producing
that product of a value exceeding $250;
c) Where money, labor or property is taken by a servant
or employee from his or her principal and aggregates $950
or more in any consecutive 12-month period;
d) When the property is taken from the person of
another;
e) When the property taken is an automobile, firearm,
horse, mare, gelding, bovine animal, caprine animal,
mule, jack, jenny, sheep, lamb, hog, sow, boar, gilt,
barrow, or pig;
f) When the property is taken from the person of
another; or
g) When the property taken is an automobile and
firearm. (Penal Code § 487(b) through (d).)
5) States that if the grand theft involves the theft of a
firearm, punishable by imprisonment in the state prison for
16 months, or two or three years. (Penal Code § 489(a).)
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6) Provides that grand theft is an alternate
felony-misdemeanor, punishable by imprisonment in the county
jail for up to one year, a fine of up to $1,000, or both, or
by a felony jail sentence of 16 months, two years or three
years pursuant to Penal Code Section 1170, subdivision (h),
and a fine of up to $10,000. (Penal Code § 489(b).)
7) Provides that, 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, except that such person
may instead be punished pursuant to subdivision (h) of
Section 1170 if that person has a prior conviction for a
serious or violent felony or an offense requiring
registration pursuant to 290, as specified. (Penal Code §
490.2(a).)
8) Provides that any person who buys or receives any property
that has been stolen or that has been obtained in any manner
constituting theft or extortion, knowing the property to be
so stolen or obtained, or who conceals, sells, withholds, or
aids in concealing, selling, or withholding any property
from the owner, knowing the property to be so stolen or
obtained, shall be punished by imprisonment in a county jail
for not more than one year, or imprisonment pursuant to
subdivision (h) of Section 1170. However, if the value of
the property does not exceed nine hundred fifty dollars
($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 an offense
specified in clause (iv) of subparagraph (C) of paragraph
(2) of subdivision (e) of Section 667 or for an offense
requiring registration pursuant to subdivision (c) of
Section 290. A principal in the actual theft of the
property may be convicted pursuant to this section. However,
no person may be convicted both pursuant to this section and
of the theft of the same property. (Penal Code § 496 (a).)
9) Requires that firearms dealers obtain certain identifying
information from firearms purchasers and forward that
information, via electronic transfer to Department of
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Justice (DOJ) to perform a background check on the purchaser
to determine whether he or she is prohibited from possessing
a firearm. (Penal Code § 28160-28220.)
10) Requires that, upon receipt of the purchaser's
information, DOJ shall examine its records, as well as those
records that it is authorized to request from the State
Department of Mental Health pursuant to Section 8104 of the
Welfare and Institutions Code, in order to determine if the
purchaser is prohibited from purchasing a firearm. (Penal
Code § 28220.)
11) Prohibits anyone convicted of numerous misdemeanors
involving violence or threats of violence are prohibited
from owning or possessing a firearm for ten years. And,
provides that a violation of these provisions is a wobbler,
as specified. (Penal Code § 29805.)
This bill:
1)Provides that it becomes effective only upon approval of the
voters, and provides for the submission of this measure to the
voters for approval at the next statewide general election.
2)Makes the theft of a firearm grand theft in all cases,
punishable by imprisonment in the state prison for 16 months,
or 2 or 3 years.
3)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 a period of
not more than one year, or by imprisonment in the county jail
pursuant to realignment, as specified.
4)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 (Penal Code § 490.2) and (2)
receipt of stolen property, if the property is a firearm
(Penal Code § 496).
5)Provides that the provisions of this legislation that amend
Proposition 47 (the firearm theft and receipt of a stolen
firearm penalty provisions) shall become effective only when
submitted to and approved by the voters at a statewide
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election. This bill further provides that a special election
is hereby called, to be held throughout the state on November
8, 2016. The special election shall be consolidated with the
statewide general election to be held on that date. The
consolidated election shall be held and conducted in all
respects as if there were only one election, and only one form
of ballot shall be used. This bill additionally provides that
the Secretary of State shall submit the specified portions of
this bill to the voters for their approval at the November 8,
2016, statewide general election.
6)Calls an election within the meaning of Article IV of the
Constitution and states that it goes go into effect
immediately.
Comments
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. (See Legislative Analyst's Office
analysis of Proposition 47,
http://www.lao.ca.gov/ballot/2014/prop-47-110414.pdf.)
Grand Theft of a Firearm
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.
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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 supersedes 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,
theft of a firearm remains a felony.
The drafters of Proposition 47 state that they did not intend to
reduce the penalty for theft of a firearm and explain:
Proposition 47 maintained California's numerous gun
laws-the strictest in the country-enabling felony
prosecution for any and all criminal activity related
to guns. This includes gun thefts regardless of the
value of the gun. Gun crimes are, by definition,
serious crimes. Proposition 47 is exclusively limited
to non-serious and nonviolent crimes. Additionally,
dozens of felony provisions related to gun crimes are
maintained by Proposition 47, including (but not
limited to): possession of a concealed stolen gun or
possession of a loaded stolen gun; use of a firearm to
facilitate any crime (including when the gun involved
is being stolen and theft is crime in question);
stealing guns from residences, stores during
non-business hours, or locked automobiles; taking a
firearm from the person of another with force or fear;
or possession of a concealed stolen weapon by a gang
member or possession of a gun by a felon.
(http://www.safeandjust.org/prop47faq.)
A recent appellate court decision concluded otherwise in dicta.
(People v. Perkins (2016) 244 Cal.App.4th 129.) In People v.
Perkins, supra, the defendant was convicted of burglary,
receiving stolen property, three counts of grand theft of a
firearm, and several other offenses. He was sentenced to state
prison. After California voters passed Proposition 47, the
defendant filed a petition for resentencing to convert some of
his offenses to misdemeanors. (Id. at p. 132-133.) The
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petition was denied and he appealed. The Court of Appeal did
not squarely address the issue of whether Proposition 47 reduced
the theft of a firearm to a misdemeanor when its value is less
than $950. Rather, what was at issue in the case was the
adequacy of the petition. The defendant actually had petitioned
only for resentencing on the receiving stolen property count
because the form provided by the superior court excluded the
option of petitioning for resentencing grand theft offenses.
(Id. at p. 136.) In affirming denial of the petition without
prejudice, the court noted, "Proposition 47 added a new
provision, section 490.2, subdivision (a), which reclassifies
felony section 487, subdivision (d)(2) grand theft violations
into misdemeanors. Thus, petitioner would be entitled to
resentencing on each conviction, provided he can meet his burden
of showing, separately for each firearm, that its value does not
exceed $950." (Id. at p. 141.)
Whether Proposition 47 made theft of a firearm a misdemeanor is
clearly subject to interpretation and debate. Given that the
proponents contend that Proposition 47 did not change the
penalties for gun theft, clarifying the intent of the proponents
by stating that theft of a firearm remains a felony is seemingly
innocuous.
Receipt of Stolen Property: Firearm
Proposition 47 amended Penal Section 496 to state: "Every
person who buys or receives any property that has been
stolen or that has been obtained in any manner constituting
theft or extortion, knowing the property to be so stolen or
obtained, or who conceals, sells, withholds, or aids in
concealing, selling, or withholding any property from the
owner, knowing the property to be so stolen or obtained,
shall be punished by imprisonment in a county jail for
not more than one year, or imprisonment pursuant to subdivision
(h) of Section 1170. However, if the district attorney or the
grand jury determines that this action would be in the interests
of justice, the district attorney or the grand jury, as the
case may be, may, if the value of the property does not exceed
nine hundred fifty dollars ($950), specify in the
accusatory pleading that the offense shall be a
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misdemeanor, punishable only by imprisonment in a county
jail not exceeding one year, if such person has no prior
convictions for an offense specified in clause (iv) of
subparagraph (C) of paragraph (2) of subdivision (e) of Section
667 or for an offense requiring registration pursuant to
subdivision (c) of Section 290."
Unlike theft of a firearm, pre-Proposition 47 receipt of a
stolen firearm was not a felony (it was a wobbler) and, thus,
was not a serious felony. (See Penal Code § 1192.7.)
The court explains how Proposition 47 changed the receipt
of stolen property provision in the Penal Code,
Receiving Stolen Property [punishment: up to one
year in jail]. If the value of the property
received does not exceed $950, section 496(a)
specifies the crime is a misdemeanor. Previously
section 496(a) gave the district attorney the
discretion to charge the crime as a misdemeanor if the
property did not exceed $950; now the district
attorney must charge the crime as a misdemeanor if the
value of the property does not exceed $950.
(http://www.courts.ca.gov/documents/Prop-47-Information
.pdf)
This bill adds a provision to the Penal Code making receipt of a
stolen firearm a wobbler.
Firearms Prohibitions for Misdemeanor Offenses
As detailed above, current state and federal laws prohibit
persons who have been convicted of specific crimes from owning
or possessing firearms. For example, anyone convicted of any
felony offense is prohibited for life from firearms ownership
under both federal and state law. (18 U.S.C. § 922(g); Penal
Code § 29800.) California goes further and imposes a 10-year
firearms prohibition on persons convicted of numerous
misdemeanor offenses that involve either violence or the threat
of violence. (Penal Code § 29805.) Additionally, anyone who
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has been found to be a danger to themselves or others due to
mental illness is subject to a five-year prohibition (Welfare
and Institutions Code §§ 8100, 8103(f)), and people under
domestic violence restraining orders are subject to a
prohibition for the duration of that court order. (Penal Code §
29825.)
According to a study published in the Journal of American
Medical Association:
Handgun purchasers with only 1 prior misdemeanor
conviction and no convictions for offenses involving
firearms or violence were nearly 5 times as likely as
those with no prior criminal history to be charged
with new offenses involving firearms or violence.
(Wintemute GJ. Prior Misdemeanor Convictions as a Risk Factor
for Later Violent and Firearm Related Criminal Activity Among
Authorized Purchasers of Handguns. Journal of the American
Medical Association 1998; 280: 2083-2087.)
To this end, this bill expands the number of misdemeanor
convictions resulting in a 10-year prohibition by adding theft
of a firearm and receipt of a stolen firearm.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: Yes
According to the Senate Appropriations Committee, the fiscal
impact includes:
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
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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. Appropriations staff
notes that 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
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
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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) - Appropriations
staff notes that 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.
SUPPORT: (Verified5/17/16)
California Peace Officers' Association
California State Sheriffs' Association
Coalition Against Gun Violence, a Santa Barbara County Coalition
Law Center to Prevent Gun Violence
National Rifle Association
OPPOSITION: (Verified5/17/16)
American Civil Liberties Union of California
California Attorneys for Criminal Justice
California Public Defenders Association
ARGUMENTS IN SUPPORT: The California State Sheriffs'
Association states:
We are pleased to support your measure, Assembly Bill
1176, which would restore the penalty provisions
attached to the theft of a firearm that were in place
prior to Proposition 47 by specifying that the theft of
a firearm, regardless of its value, is a felony,
punishable by imprisonment in the state prison for 16
months, two years, or three years.
The California Penal Code generally criminalizes theft
and provides different penalties and parameters based
upon the item that is stolen, the item's value, and
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whether it was taken directly from a person. Prior to
the passage of Proposition 47, the theft of a firearm,
regardless of its value, was classified as grand theft,
punishable as a felony carrying a state prison term of
16 months, two years, or three years.
Proposition 47 reduced the penalty for stealing a
firearm to a misdemeanor, punishable by up to six
months in county jail and/or a fine of up to $1,000,
unless the firearm is valued at more than $950 or the
defendant has at least one of a list of certain prior
offenses.
Whether because of a drafting error or an intentional
change, Prop 47 drastically reduces the penalty for the
serious act of stealing a firearm. We can be quite
confident that stealing a gun is done to facilitate
other nefarious acts, not to bolster one's firearm
collection. The Legislature should remedy this
significant devaluing of the criminality at issue here.
We have debated and will undoubtedly continue to
discuss the merits of Proposition 47. That said, it is
our hope that, regardless of where one stands on the
notions underlying Prop 47, the Legislature will
recognize the inherent danger in drastically reducing
the penalty for stealing a gun, particularly in the
context of the Legislature's work in ensuring that
persons who should not be armed do not have access to
firearms.
ARGUMENTS IN OPPOSITION: According to the American Civil
Liberties Union:
The American Civil Liberties Union of California regrets
to inform you that we must respectfully oppose AB 1176.
This bill proposes to alter the Safe Neighborhoods and
Schools Act, enacted by Proposition 47, by making theft
of a firearm grand theft in all cases regardless of the
dollar amount of the loss, and by making buying or
receiving a stolen firearm an alternate
misdemeanor-felony regardless of the property value.
These changes proposed by AB 1176 are both unnecessary
and contrary to the will of California voters.
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This bill states that "[i]t is not the intent of the
Legislature in submitting this act to the electors to
undermine the voter's [sic] decision to decrease
penalties for low-level theft and receiving stolen
property, only to give the voters the opportunity to
decide whether firearm thefts and the receipt of stolen
firearms should be subject to penalties that existed
prior to the passage of the Safe Neighborhoods and
Schools Act." However, California voters already had the
opportunity to make a decision on this issue and on
November 4, 2014, in our statewide general election, they
overwhelmingly decided to approve Proposition 47.
The voters' decision to support Proposition 47 was an
informed one, the voters having made their choice after
being fully apprised of the arguments now being raised in
support of AB 1176. The Official Voter Information
Guide, published by the Secretary of State and mailed to
every voter in California, specifically explained the
following arguments in opposition to the ballot
initiative:
"Stealing any handgun valued at less than $950 will no
longer be a felony." [Footnote omitted.]
"Prop. 47 would eliminate automatic felony prosecution
for stealing a gun. Under current law, stealing a gun is a
felony, period. Prop. 47 would redefine grand theft in
such a way that theft of a firearm could only be
considered a felony if the value of the gun is greater
than $950. Almost all handguns (which are the most stolen
kind of firearm) retail for well below $950. People don't
steal guns just so they can add to their gun collection.
They steal guns to commit another crime. People stealing
guns are protected under Proposition 47." [Footnote
omitted.]
"Reduces penalties for stealing guns." [Footnote
omitted.]
In response to the arguments against Proposition 47, the
Guide provided voters with the following rebuttal
argument:
"Proposition 47 maintains penalties for gun
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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." [Footnote omitted.]
After reviewing the arguments both in favor and against
the ballot initiative, the majority of California voters
chose to approve Proposition 47. The arguments in favor
of the initiative were true in 2014 and remain true
today: there are already numerous state and federal laws
that impose felony penalties on those who steal guns or
use stolen guns to commit crimes. Proposition 47 did
nothing to change those laws. California voters
understood the decision they made when they approved
Proposition 47, and there is no justification for
nullifying their decision.
Prepared by:Jessica Devencenzi / PUB. S. /
6/30/16 10:18:31
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