BILL ANALYSIS Ó
AB 1869
Page 1
Date of Hearing: April 13, 2016
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Shirley Weber, Chair
AB 1869
(Melendez) - As Introduced February 10, 2016
SUBJECT: Theft: firearms.
SUMMARY: Calls for a special election to amend Proposition 47,
the Safe Neighborhoods and Schools Act, an initiative statute
that was approved by the voters at the November 4, 2014
statewide general election. Makes the theft of a firearm grand
theft in all cases and punishable by a state prison term, as
specified. Specifically, this bill:
1)Contains the following Legislature findings and declarations:
a) The theft of firearms and receipt of stolen firearms
pose dangers to public safety that are different in kind
from other types of theft or the receipt of other types of
stolen property.
b) Many handguns have value of less than $950. The threat
to public safety in regard to stolen firearms goes above
and beyond the monetary value of the firearm.
c) Given the significant and particular threat to public
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safety in regard to stolen firearms, it is appropriate to
restore the penalties that existed prior to the passage of
the Safe Neighborhoods and School Act of 2014 in regard to
stolen firearms.
d) It is not the intent of the Legislature in submitting
this act to the electors to undermine the voters' decision
to decrease penalties for low-level theft and receiving
stolen property, only to give 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 Neighborhood and School Act.
2)Provides that the theft of a firearm is grand theft in all
cases, punishable by imprisonment in state prison for 16
months, or two or three years.
3)Provides that every person who buys or receives a stolen
firearm, as specified, 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
imprisonment in the county jail pursuant to the Criminal
Justice Realignment Act of 2011.
4)Provides for this bill to become effective only when submitted
to and approved by the voters at a statewide election.
5)Calls for a statewide special election to be held on November
8, 2016, for voter approval of these provisions and requires
the special election to be consolidated with the statewide
general election to be held on that date. Requires the
special election to be held and conducted in all respects as
if there were only one election, and provides that only one
form of ballot shall be used.
EXISTING LAW:
1)Divides theft into two degrees, petty theft and grand theft.
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2)Defines grand theft to mean when money, labor, or real or
personal property taken is of a value exceeding $950 dollars,
except as specified.
3)Provides 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.
4)Prohibits carrying a concealed firearm on 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.
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.
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.
7)Deems grand theft involving a firearm to be a serious felony.
8)Provides that a felony is a crime that is punishable with
death, imprisonment in the state prison, or in the county jail
in accordance with existing law. Provides that all other
crimes are misdemeanors, except those classified as
infractions.
9)Provides that statutes calling elections to go into effect
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immediately upon their enactment.
10)Permits the Legislature to 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 voter approval.
FISCAL EFFECT: Unknown
COMMENTS:
1)Purpose of the Bill: 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 voters at the
November 4, 2014 statewide general election. Proposition 47
reduced the penalties for certain drug and property crimes and
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provided 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. Additionally, 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, however, limited the reduced penalties to
offenders who do not have prior convictions for serious or
violent felonies and who are not required registered sex
offenders.
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.
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Penal Code Section 1192.7, states that grand theft involving a
firearm is a serious felony. Some 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
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." 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
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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.)
4)California Constitutional Limitations on Amending a Voter
Initiative: Article II, Section 10 of 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." In other words,
unless an initiative expressly authorizes the Legislature to
amend an initiative, only the voters may alter statutes
created by initiative.
Consequently, because Proposition 47 was a voter initiative, the
Legislature does not have the authority to amend the statute
without subsequent voter approval unless the initiative
specifically 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 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
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
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improperly annulled by a legislative body. (Proposition 103
Enforcement Project v. Quackenbush (1998) 64 Cal.App.4th
1473.)
Proposition 47 states, "This act shall be broadly construed to
accomplish its purposes. The provisions of this measure may
be amended by a two-thirds 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 reduce the penalties for any of
the offenses addressed by this act."
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.
5)Legislative Deadlines for Placing a Measure on the Ballot:
Current law requires every constitutional amendment, bond
measure, or other legislative measure submitted to the people
by the Legislature to appear on the ballot of the first
statewide election occurring at least 131 days after the
adoption of the proposal by the Legislature. The statutory
deadline to place a measure on the ballot for the November 8,
2016 statewide election is June 30, 2016.
This bill calls for a statewide special election to be held on
November 8, 2016, for voter approval of the provisions of this
bill. Additionally, this bill requires the special election
to be consolidated with the statewide general election to be
held on that date and requires the special election to be held
and conducted in all respects as if there were only one
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election, and only one form of ballot shall be used. If this
bill is approved by the Legislature and signed by the Governor
by June 30, it will be placed on the November 8, 2016 ballot.
6)Bill Calling an Election: Because this bill calls an election
within the meaning of Article IV of the Constitution, it would
go into immediate effect if signed by the Governor.
7)Arguments in Support: One of the sponsors of this bill,
California State Sheriffs' Association writes:
As we have seen many times over the last year, and as
it was very plainly put by the 4th District Court of
Appeal earlier this year, Proposition 47 "converted
receipt of stolen property and grand theft or 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 other 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 is why prior to Prop 47, theft of a
firearm was always treated as grand theft?
8)Arguments in Opposition: In opposition, the American Civil
Liberties Union of California, writes:
The changes proposed in AB 1869 are both unnecessary
and contrary to the will of California voters.
On November 4, 2014, in our statewide general
election, California voters approved Proposition 47,
which, among other things, reduced the classification
of certain nonviolent felonies and wobblers to
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misdemeanors. The voters made their decision after
being fully apprised of the arguments now being raised
in support of AB 1869?
After reviewing arguments both in favor and against
the ballot initiative, the majority of California
voter 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?
9)Related Legislation: 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 felony when stolen items include a firearm.
AB 2369 failed passage in the Assembly Public Safety Committee
on a vote of 2-4.
AB 2854 (Cooper), is substantially similar to this bill,
except that it calls for a special election to be held on June
7, 2016, as specified. AB 2854 is pending in the Assembly
Public Safety Committee.
10)Prior Legislation: AB 150 (Melendez) of 2015, was
substantially similar to this bill. AB 150 was held on the
Assembly Appropriations Committee's suspense file.
11)Double-Referral: This bill passed out of the Assembly Public
Safety Committee on a 7-0 vote.
REGISTERED SUPPORT / OPPOSITION:
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Support
California District Attorneys Association (co-sponsor)
California Peace Officers' Association (co-sponsor)
California State Sheriffs' Association (co-sponsor)
Association for Los Angeles Deputy Sheriffs
California Association of Code Enforcement Officers
California College and University Police Chiefs Association
California Narcotic Officers Association
California Police Chiefs Association
California Sportsman's Lobby
California Statewide Law Enforcement Association
City of Burbank
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City of Canyon Lake
City of Indian Wells
City of Lodi
Criminal Justice Legal Foundation
Fraternal Order of Police
Gun Owners of California
League of California Cities
Los Angeles County Professional Officers Association
Los Angeles Deputy Sheriffs
Los Angeles Police Protective League
Los Angeles Professional Peace Officers Association
Mayor of the City of Murrieta
National Rifle Association
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National Shooting Sports Foundation
Outdoor Sportsmen's Coalition of California
Riverside County Board of Supervisors
Riverside Sheriffs' Association
Rural County Representatives of California
Sacramento County Sheriff Scott Jones
Safari Club International
Safari Club International Foundation
San Bernardino County Sheriff-Coroner
San Diego County Office of the District Attorney
Opposition
American Civil Liberties Union of California
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California Attorneys for Criminal Justice
Legal Services for Prisoners with Children
Analysis Prepared by:Nichole Becker / E. & R. / (916) 319-2094