BILL ANALYSIS                                                                                                                                                                                                    






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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


                                   ****  END  ****