BILL ANALYSIS Ó
AB 1415
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Date of Hearing: April 21, 2015
Counsel: Sandra Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
1415 (Steinorth) - As Introduced February 27, 2015
As Proposed to be Amended in Committee
SUMMARY: Criminalizes for 10 years the ownership or possession
of a firearm by a person who has, under Proposition 47, had a
felony conviction recalled and has been resentenced to a
misdemeanor, or who has had a felony designated as a misdemeanor
after the completion of the sentence. Specifically, this bill:
1)Provides that a person who was either previously convicted of
a felony and had his or her sentence recalled and was
resentenced to a misdemeanor, as specified, or who had his or
her felony conviction designated as a misdemeanor, as
specified, after completing his or her sentence, and who
within 10 years of the recall and resentencing or designation,
owns, purchases, receives, or has in possession or under
custody or control a firearm, is guilty of a public offense.
2)Punishes that offense by imprisonment in a county jail not
exceeding one year or in the state prison, by a fine not
exceeding one thousand dollars ($1,000), or by both that
imprisonment and fine.
EXISTING LAW:
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1)Prohibits any person previously convicted of a felony, or any
person who is a narcotics addict, from owning, purchasing,
receiving, possessing, or having in his or her custody a
firearm, and punishes that offense as a felony. (Pen. Code, §
29800, subd. (a)(1).)
2)Prohibits any person convicted of numerous misdemeanors
involving violence or threats of violence from owning or
possessing a firearm within 10 years of the conviction, and
punishes that offense as an alternate felony/misdemeanor.
(Pen. Code, § 29805.)
3)Allows specified persons to petition for recall of a sentence
and resentencing for a crime that was previously a felony but
amended to be misdemeanor under Proposition 47. (Pen. Code, §
1170.18, subd. (a).)
4)Requires the court to deny resentencing if the petitioner has
a prior disqualifying conviction, is required to register as a
sex offender under section, or if the court, in its
discretion, determines that resentencing the petitioner would
pose an unreasonable risk of danger to public safety. (Pen.
Code, § 1170.18, subd. (b).)
5)Allows a person who has completed his or her sentence for a
conviction of a felony who would have been guilty of a
misdemeanor under the provisions of Proposition 47 if it would
have in effect at the time of the offense, to apply to have
the felony conviction designated as a misdemeanor. (Pen.
Code, § 1170.18, subd. (f).)
6)Provides that any felony conviction that is recalled and
resentenced or designated as a misdemeanor shall be considered
a misdemeanor for all purposes, except for the right to own or
possess firearms. (Pen. Code, § 1170.18, subd. (k).)
7) Provides that when the trial court reduces an offense from
a felony to a misdemeanor, it is "a misdemeanor for all
purposes." (Pen. Code, § 17, subd. (b).)
8) Provides a procedure for some felons and misdemeanants
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granted formal probation, with the exception of those
convicted of certain crimes, to have a conviction expunged.
This includes those who successfully complete formal
probation, as well as any other case in which a court, in its
discretion and in the interests of justice, determines the
relief is warranted. However, the expungement does not permit
the person to own or possess a firearm, or prevent him or her
from being convicted of the offense of being an ex-felon in
possession of a firearm. (Pen. Code, § 1203.4, subd. (a).)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "AB 1415
corrects an oversight of Proposition 47, which stated that
those serving or who have served sentences for felonies may be
re-sentenced with misdemeanors, but that they still maintain
their prohibition against firearm possession. While this was
passed in Proposition 47, statutory changes to the Penal code
are necessary to follow through with this policy and fulfill
the intent of Proposition 47. AB 1415 will make those
statutory changes.
"This policy only applies to persons re-sentenced or
re-classified, not those who are or have been convicted with
misdemeanors after the passage of Proposition 47. Further,
this legislation does not alter Proposition 47, and thus does
not need to return to the voters for approval."
2)Proposition 47: 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. Specifically, the initiative reduced the
penalties for possession for personal use of most illegal
drugs to misdemeanors. The initiative also reduced the
penalties for theft, shoplifting, receiving stolen property,
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writing bad checks, and check forgery valued at $950 or less
from felonies to misdemeanors. However, 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 >.)
3)Recall and Resentencing Provisions of Proposition 47:
Proposition 47 added Penal Code section 1170.18 which provides
that a "person currently serving a sentence for a conviction,
whether by trial or plea, of a felony or felonies who would
have been guilty of a misdemeanor under had this act been in
effect at the time of the offense may petition for a recall of
sentence before the trial court that entered the judgment of
conviction in his or her case to request resentencing?."
(Pen. Code, § 1170.18, subd. (a).) For individuals who have
completed their sentences, Penal Code section 1170.18 provides
that a "person who has completed his or her sentence for a
conviction, whether by trial or plea, of a felony or felonies
who would have been guilty of a misdemeanor under had this act
been in effect at the time of the offense, may file an
application before the trial court that entered the judgment
of conviction in his or her case to have the felony conviction
or convictions designated as misdemeanors." (Pen. Code, §
1170.18, subd. (f).)
Significantly, as to these procedures, the same statute also
provides, "Any felony conviction that is recalled and
resentenced ? or designated as a misdemeanor ? shall be
considered a misdemeanor for all purposes, except that such
resentencing shall not permit that person to own, possess, or
have in his or her custody or control any firearm or prevent
his or her conviction under Chapter 2 (commencing with Section
29800) of Division 9 of Title 4 of Part 6." (Pen. Code, §
1170.18, subd. (k), emphasis added.) The language intended
that those people who had originally been convicted of a
felony be prohibited from owning a firearm.
This bill makes a conforming cross-reference to the statute
which makes it a crime for some misdemeanants to own or
possess firearms in order to reflect that limitation. It
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criminalizes the ownership or possession of a firearm by a
person who successfully has had his or her prior felony
reduced to a misdemeanor under the provisions of Proposition
47.
4)Prohibitions on Firearms Access: Current California law
provides that certain people are prohibited from owning or
possessing a firearm. The length of the prohibition depends
on the nature of the crime.
A lifetime ban applies to anyone convicted of a felony; anyone
addicted to a narcotic drug; any juvenile convicted of a
violent crime with a gun and tried in adult court; any person
convicted of a federal crime that would be a felony in
California and sentenced to more than 30 days in prison, or a
fine of more than $1,000; and anyone convicted of certain
violent misdemeanors, e.g., assault with a firearm or
brandishing a firearm in the presence of a police officer.
(Pen. Code, §§ 29800 & 23515.) A violation of these
provisions is a felony. (Id.)
A ten-year ban is enforced against a person convicted of
numerous misdemeanors involving violence or threats of
violence, including: threatening a public official,
unauthorized possession of a weapon in a state building,
assault, battery, and assault with a deadly weapon or by force
likely to produce great bodily injury. (Pen. Code, § 29805.)
A violation of this provision is an alternate
felony/misdemeanor. (Id.) There are also five-year bans and
temporary bans that are not relevant for purposes of this
bill.
As introduced, the bill would have specified a life-time ban for
individuals who benefited from Proposition 47 by having their
felony convictions declared to be misdemeanors. However, as
noted above, very few misdemeanors are subject to a lifetime
ban. Most misdemeanants who are prohibited from possessing a
firearm are subject to a 10-year ban. Because the firearm
prohibition at issue in this bill would apply to non-serious,
non-violent misdemeanors, the proposed amendments apply to a
10-year ban from the date of the resentencing or
re-classification of the crime, rather than a life-time ban.
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5)Equal Protection: The Equal Protection Clause of the
Fourteenth Amendment to the U.S. Constitution is essentially a
direction that all persons similarly situated should be
treated alike. (Lawrence v. Texas (2003) 539 U.S. 558, 579
(conc. opn. of O'Connor J., citations and quote marks
omitted.) Under current law, a person can by punished more
severely for transporting marijuana for personal use than for
transporting methamphetamine or cocaine. That they are
treated differently raises equal protection concerns.
"The first prerequisite to a meritorious claim under the equal
protection clause is a showing that the state has adopted a
classification that affects two or more similarly situated
groups in an unequal manner." (In re Eric J. (1979) 25 Cal.3d
522, 530; Cooley v. Superior Court (2002) 29 Cal.4th 228,
253.) Under the equal protection clause, a court does not
inquire "whether persons are similarly situated for all
purposes, but 'whether they are similarly situated for
purposes of the law challenged.'" (Cooley v. Superior Court,
supra, 29 Cal.4th at p. 253, quoting People v. Gibson (1988)
204 Cal.App.3d 1425, 1438.) "The 'similarly situated'
prerequisite simply means that an equal protection claim
cannot succeed, and does not require further analysis, unless
there is some showing that the two groups are sufficiently
similar with respect to the purpose of the law in question
that some level of scrutiny is required in order to determine
whether the distinction is justified. (People v. Nguyen
(1997) 54 Cal.App.4th 705, 714.)
With respect to this bill and the application of Proposition 47,
as noted by the author, "This policy only applies to persons
re-sentenced or re-classified, not those who are or have been
convicted with misdemeanors after the passage of Proposition
47." Thus, two people convicted of the same offense may or
may not be able to possess a firearm depending simply on the
date of conviction. These people would be similarly situated
for purpose of the challenged law.
If it is found that that the groups are similarly situated, in
the second prong of an equal protection analysis, the court
will apply different levels of scrutiny to different types of
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classifications. "In the absence of a classification that is
inherently invidious or that impinges upon fundamental rights,
a state statute is to be upheld against equal protection
attack if it is rationally related to the achievement of
legitimate governmental ends." (Gates v. Superior Court
(1995) 32 Cal.App.4th 481, 514.)
Defendants who have their prior felonies reduced under the
reclassification procedures established by Proposition 47 and
are subject to the lifetime ban will argue that there is no
rational basis to treat them any differently than a person
convicted for the same crime after the effective date of
Proposition 47.
Therefore, while the provisions of this bill are consistent with
the language and intent of Proposition 47, there still remains
an arguable equal protection challenge. It should be noted,
however, that whether or not this bill passes, the equal
protection challenge remains under Proposition 47.
6)California Constitutional Limitations on Amending a Voter
Initiative: Because Proposition 47 was a voter initiative,
the Legislature may not amend the statute without subsequent
voter approval unless the initiative permits such amendment,
and then only upon whatever conditions the voters attached to
the Legislature's amendatory powers. (People v. Superior
Court (Pearson) (2010) 48 Cal.4th 564, 568; see also Cal.
Const., art. II, § 10, subd. (c).) The California
Constitution states, "The Legislature may amend or repeal
referendum statutes. It may amend or repeal an initiative
statute by another statute that becomes effective only when
approved by the electors unless the initiative statute permits
amendment or repeal without their approval." (Cal. Const.,
art. II, § 10, subd. (c).) Therefore, unless the initiative
expressly authorizes the Legislature to amend, only the voters
may alter statutes created by initiative.
The purpose of California's constitutional limitation on the
Legislature's power to amend initiative statutes is to protect
the people's initiative powers by precluding the Legislature
from undoing what the people have done, without the
electorate's consent. Courts have a duty to jealously guard
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the people's initiative power and, hence, to apply a liberal
construction to this power wherever it is challenged in order
that the right to resort to the initiative process is not
improperly annulled by a legislative body. (Proposition 103
Enforcement Project v. Quackenbush (1998) 64 Cal.App.4th
1473.) Yet, despite the strict bar on the Legislature's
authority to amend initiative statutes, judicial decisions
have recognized that the Legislature is not thereby precluded
from enacting laws addressing the general subject matter of an
initiative. The Legislature remains free to address a
"related but distinct area" or a matter that an initiative
measure "does not specifically authorize or prohibit." (People
v. Kelly (2010) 47 Cal.4th 1008, 1025-1026.)
As to the Legislature's authority to amend the initiative,
Proposition 47 states: "This act shall be broadly construed
to accomplish its purposes. The provisions of this measure
may be amended by a twothirds vote of the members of each
house of the Legislature and 7)signed by the Governor so long
as the amendments are consistent with and further the intent
of this act. The Legislature may by majority vote amend, add,
or repeal provisions to further reduce the penalties for any
of the offenses addressed by this act."
(< http://vig.cdn.sos.ca.gov/2014/general/pdf/text-of-proposed-l
aws1.pdf#prop47 >.)
Because Proposition 47 specifically did not restore gun
ownership rights to individuals who successfully petitioned to
have their felony sentences recalled and reduced to
misdemeanors, the provisions of this bill do not amend the
initiative; but rather are consistent with its language and
intent.
8)Argument in Support: The California District Attorneys
Association, a co-sponsor of this bill, states, "As you know,
Proposition 47 (2014) established a process through which
individuals currently serving, or who have previous served,
sentences for felonies that were reduced to misdemeanors by
Proposition 47 can petition the court for resentencing or
reclassification as a misdemeanor. The language in Penal Code
section 1170.18(k), as added by Proposition 47, also maintains
existing gun possession prohibitions, stating that:
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"'Any felony conviction that is recalled and resentenced under
subdivision (b) or designated as a misdemeanor under
subdivision (g) shall be considered a misdemeanor for all
purposes, except that such resentencing shall not permit the
person to own, possess, or have in his or her custody or
control any firearm or prevent his or her conviction under
Chapter 2 (commencing with Section 29800) of Division 9 of
Title 4 of Part 6.'
"The drafters of Proposition 47, and the voters who passed it,
very clearly intended existing prohibitions against firearm
possession to apply to individuals who are resentenced or
reclassified under PC 1170.18. However, the initiative did
not make the necessary amendments to include those individuals
in PC 29800, the section that actually contains the
prohibition language.
"AB 1415 corrects this oversight, and in doing so, furthers the
intent of Proposition 47 by making sure that individuals who
benefit from reduced or reclassified sentences do not have
access to firearms."
9)Argument in Opposition: According to the California Public
Defenders Association, "Proposition 47, by its own terms does
not allow persons who have their convictions reduced per Penal
Code section 1170.18 are not permitted to own firearms. This
bill is unnecessary."
10)Related Legislation:
a) AB 150 (Melendez) specifies that theft of a firearm
valued at $950 dollars or less is a felony. AB 150 is
pending hearing in the Assembly Appropriations Committee.
b) AB 390 (Cooper) would require persons convicted of
crimes newly categorized as misdemeanors under Proposition
47, approved by the voters on Nov. 4, 2014, to provide DNA
samples. AB 390 is pending hearing in this Committee
today.
c) AB 1104 (Rodriguez) authorizes the issuance of a search
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warrant on the grounds that the property or things to be
seized consist of an item or constitute evidence that tends
to show a violation of a crime affected by Proposition 47.
AB 1104 is pending hearing in this Committee today.
d) SB 333 (Galgiani) is substantially similar to AB 46
(Lackey). SB 333 is pending hearing in the Senate Public
Safety Committee.
e) SB 347 (Jackson) adds specifies misdemeanor offenses to
those for which a conviction results in a 10-year
prohibition on possession of a firearm. SB 347 is pending
hearing in the Senate Appropriations Committee.
f) SB 452 (Galgiani) is substantially similar to AB 150
(Melendez), but also addresses the crime of grand theft
from the person. SB 452 is pending hearing in the Senate
Public Safety Committee.
11)Prior Legislation: Proposition 47 of the November 2014
general election, the Safe Neighborhoods and Schools Act,
reduced the penalties for certain drug and property crimes
from felonies to misdemeanors.
REGISTERED SUPPORT / OPPOSITION:
Support
California District Attorneys Association (Co-Sponsor)
San Diego County District Attorney (Co-Sponsor)
California State Lodge, Fraternal Order of Police
California State Sheriffs' Association
Long Beach Police Officers Association
Los Angeles County Professional Peace Officers Association
Peace Officers Research Association of California
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Sacramento County Deputy Sheriffs' Association
San Bernardino County District Attorney
San Bernardino County Sheriff's Department
San Diego County Sheriff's Department
Santa Ana Police Officer's Association
Opposition
California Attorneys for Criminal Justice
California Public Defenders Association
Legal Services for Prisoners with Children
Analysis Prepared
by: Sandy Uribe / PUB. S. / (916) 319-3744