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