BILL ANALYSIS Ó
AB 1869
Page A
Date of Hearing: March 15, 2016
Counsel: Sandra Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
1869 (Melendez) - As Introduced February 10, 2016
SUMMARY: Calls for a special election to amend Proposition 47
and make the theft of a firearm grand theft in all cases and
punishable by a state prison term. Specifically, this bill:
1)Declares that the theft of a firearm is grand theft in all
cases, punishable by imprisonment in the state prison for 16
months, or two or three years.
2)States that every person who buys or receives a stolen firearm
is guilty of an alternate felony/misdemeanor offense
punishable by imprisonment in the county jail for a period of
not more than one year, or by imprisonment in the county jail
pursuant to realignment.
3)Provides that this bill amends Proposition 47, the Safe
Neighborhoods and Schools Act, and shall become effective only
when submitted to and approved by the voters.
4)Calls for a special election to be held on November 8, 2016,
for voter approval of these provisions.
AB 1869
Page B
5)Requires consolidation of the special election with the
statewide general election to be held on that date.
6)Requires the consolidated election be held and conducted in
all respects as if there were only one election, and only one
form of ballot shall be used.
EXISTING LAW:
1)Divides theft into two degrees, petty theft and grand theft.
(Pen. Code, § 486.)
2)Defines grand theft as when the money, labor, or real or
personal property taken is of a value exceeding $950 dollars,
except as specified. (Pen. Code, § 487.)
3)States that notwithstanding any 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 $950 shall be considered petty theft and shall be
punished as a misdemeanor, except in the case where a person
has prior serious, violent, or sex convictions, in which case
the offense is punished as a felony by imprisonment in the
county jail pursuant to realignment. (Pen. Code, § 490.2,
subd. (a).)
4)Prohibits carrying a concealed firearm upon the person or in a
vehicle, and punishes that crime as a felony under certain
circumstances, including if the person is an ex-felon or a
gang member, or if the firearm was stolen. (Pen. Code, §
25400.)
5)Prohibits carrying a loaded firearm on the person or in a
vehicle while in any public place or on any public street and
punishes that crime as a felony under certain circumstances,
including if the person is an ex-felon or a gang member, or if
the firearm was stolen. (Pen. Code, § 25850.)
AB 1869
Page C
6)Prohibits any person previously convicted of a felony 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).)
7)Deems grand theft involving a firearm to be a serious felony.
(Pen. Code, § 1192.7, subd. (c)(26).)
8)States that a felony is a crime that is punishable with death,
imprisonment in the state prison, or in the county jail under
the provisions of Penal Code section 1170, subdivision (h).
All other crimes are misdemeanors, except those classified as
infractions. (Pen. Code, § 17, subd. (a).)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "The vast
majority of handguns, rifles, and shotguns are valued under
$950. By reducing penalties, this would make current law
ineffective in curtailing gun theft and gun trafficking. This
change in law has put the safety of our constituents at risk.
Not only will it be harder to prosecute gun theft, we are
essentially giving criminals the green light by lessening the
penalty. A criminal doesn't steal a gun to go duck hunting,
they steal a gun to commit crimes.
"It is important that California continues to enforce a strong
stance against the illegal acquisition and use of firearms."
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
AB 1869
Page D
drugs to misdemeanors. The initiative also reduced the
penalties for theft, shoplifting, receiving stolen property,
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)Proposition 47 As it Relates to the Theft of a Gun:
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.
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 trumps 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, another provision of law deems this conduct to
be a felony.
Penal Code section 1192.7, states that grand theft involving a
firearm is a serious felony. Some may argue that this is a
"provision of law defining grand theft" because of how it
characterizes the crime. But not every description in section
1192.7 is coextensive with the statutory definition of a
specific crime. The general purpose of section 1192.7 is to
AB 1869
Page E
prohibit plea bargaining in cases arising out of the listed
offenses, and to enumerate crimes for sentence enhancements
under other statutory schemes.
The drafters of Proposition 47 stated that they did not intend
to reduce the penalty for the theft of a firearm. The
rebuttal to the argument against Proposition 47 contained in
the ballot arguments stated: "Proposition 47 maintains
penalties for gun 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."
<( http://vig.cdn.sos.ca.gov/2014/general/pdf/proposition-47-arg
uments-rebuttals.pdf .>) The ballot argument by itself does
not mean that they did not inadvertently do so.
Notably, 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 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,
AB 1869
Page F
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.)
4)Practical Considerations: Assuming arguendo that Proposition
47 reduced the theft of a firearm to a misdemeanor offense,
the theft of a firearm or receipt or purchase of a stolen
firearm will not usually happen in isolation. That single act
will often involve violations of multiple criminal statutes,
many of which are felonies.
For example, if a firearm is stolen from a home, the defendant
could be charged with residential burglary, which is a felony
and a strike. (See Pen. Code, §§ 460, 461, and 1192.7, subd.
(c)(18).) If a firearm is stolen from a commercial
establishment, the defendant can be charged with second-degree
burglary, which can be punished as a felony (second-degree
burglary is an alternate felony/misdemeanor). (See Pen. Code,
§§ 460 and 461, subd. (b).) If a firearm is stolen from a
locked vehicle, the defendant can be charged with auto
burglary, which can be punished as a felony (auto burglary is
an alternate felony/misdemeanor). (See Pen. Code, §§ 459,
460, and 461, subd. (b).) If the firearm is taken from
another person by force or fear, then the defendant can be
charged with robbery, which is a felony and a strike. (See
Pen. Code, §§ 211, 213 and 1192.7, subd. (19).) Proposition
47 did nothing to changes these laws.
Moreover, one cannot steal a firearm, or receive or purchase a
stolen firearm without also possessing it. There are several
other statutes providing for felony punishment for conduct
related to firearms possession. For example, felons, narcotic
addicts, and those convicted of certain crimes of violence can
be prosecuted for a new felony if they own, purchase, receive,
possess or have a firearm in their custody or control. (Pen.
Code, §§ 29800, subd. (a), and 29900, subd. (a).) Since an
ex-felon is prohibited from possessing a firearm, presumably
AB 1869
Page G
that person would carry it in a concealed manner, either on
the person or in a vehicle, thereby committing a separate
felony. (Pen. Code, § 25400.) Additionally, if the firearm
was loaded and carried on the person or in a vehicle while in
any public place or on any public street, that conduct would
be punishable as a felony. (Pen. Code, 25850.) Thus, many of
the individuals convicted of stealing a firearm, or receiving
or purchasing a stolen firearm will also violate another
section in the Dangerous Weapons Control Act.<1>
Last year, the California Department of Corrections and
Rehabilitation (CDCR) informed the committee that in Fiscal
Year 2013/14 the numbers of new admissions with grand theft of
a firearm as the principal controlling offense was 37.
5)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
---------------------------
<1> Under Penal Code section 654, a defendant can be punished
only once for multiple convictions involving a single act or
omission. (People v. Jones (2012) 54 Cal.4th 350, 358.)
However, Penal Code section 654 does not bar multiple punishment
for multiple violations of the same criminal statute. (People
v. Correa (2012) 54 Cal.4th 331, 334.)
AB 1869
Page H
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
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.)
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 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 reduc6)e 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 >.)
If Proposition 47 is deemed not to have changed the punishment
for the theft of a firearm, then the provisions of this bill
do not amend the initiative, but rather would be consistent
with the language and intent of the initiative. On the other
hand, if Proposition 47 is interpreted as having reduced the
punishment for the theft of a firearm valued at $950 or less,
as well as the receipt or purchase of a stolen firearm with
the same value, then the change will have to go before the
voters for ratification.
This bill, upon its approval by the Legislature, calls for a
special election to be held on November 8, 2016, for the
voters of California to approve its provisions.
7)Argument in Support: The California District Attorneys
Association, a co-sponsor of this bill, writes, "As we have
AB 1869
Page I
seen many times over the last year, and as it was plainly put
by the 4th District Court of Appeal earlier this year,
Proposition 47 'converted receipt of stolen property and grand
theft of a firearm into misdemeanors where the value of the
stolen property does not exceed $950.' People v. Perkins
(2015) 241 Cal.App.4th __ (E062878). Despite assertions to
the contrary from the proponents of Proposition 47, it has
become quite clear that this was one of the greatest
unintended consequences of that initiative.
"Stolen firearms are often used in other serious and violent
crimes because they are difficult to trace back to the
perpetrator. The Legislature recognized this inherent threat
posed by firearms in the hands of criminals, which was why,
prior to Prop 47, theft of a firearm was always treated as a
felony.
"Under current law, the penalty for stealing a firearm is based
wholly on value - as if stealing a $300 gun is somehow
ultimately less dangerous than stealing a $951 gun - and thus
fundamentally misunderstands why theft of a firearm was ever
treated as grand theft in the first place."
8)Argument in Opposition: The American Civil Liberties Union
states, "The voters made their decision after being fully
apprised of the arguments now being raised in support of AB
1869. 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."
"Prop. 47 would eliminate automatic felony
AB 1869
Page J
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."
"Reduces penalties for stealing guns."
"In response to the arguments against Proposition 47, the
Guide provided voters with the following rebuttal argument:
" "Proposition 47 maintains penalties for gun 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."
"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."
1)Related Legislation:
a) AB 2369 (Patterson) authorizes the prosecutor to charge
a defendant with a felony if the person has been convicted
twice or more in a 12-month period of the crimes reduced to
a misdemeanor by Proposition 47. AB 2369 also makes it a
AB 1869
Page K
felony when stolen items include a firearm. AB 2369 is
pending referral.
b) AB 2854 (Cooper) is substantially similar to this bill,
but calls for a special election to be held in June 2016.
AB 2854 is pending referral.
2)Prior Legislation:
a) AB 150 (Melendez) of the 2015 Legislative session was
substantially similar to this bill. AB 150 was held on the
Assembly Appropriation Committee's suspense file.
b) Proposition 47 of the November 2014 general election,
the Safe Neighborhoods and Schools Act, reduced the
penalties for certain drug and property crimes.
REGISTERED SUPPORT / OPPOSITION:
Support
California District Attorneys Association (Co-Sponsor)
California Peace Officers Association (Co-Sponsor)
California Police Chiefs Association
California Sportsman's Lobby
California State Sheriffs' Association
California Statewide Law Enforcement Association
City of Burbank
City of Indian Wells
Fraternal Order of Police
Gun Owners of California
League of California Cities
Los Angeles Professional Peace Officers Association
National Rifle Association
National Shooting Sports Foundation
AB 1869
Page L
Outdoor Sportsmen's Coalition of California
Riverside County Board of Supervisors
Rural County Representatives of California
Sacramento County Sheriff's Department
San Diego County District Attorney
Safari Club International
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Right to Carry
Legal Services for Prisoners with Children
Analysis Prepared
by: Sandy Uribe / PUB. S. / (916) 319-3744