BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 1869 Hearing Date: June 21, 2016
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|Author: |Melendez |
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|Version: |February 10, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JRD |
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Subject: Theft: Firearms
HISTORY
Source: California District Attorneys Association; California
Peace Officers Association; California State Sheriffs'
Association
Prior Legislation: SB 452 (Galgiani) - died Senate
Appropriations, 2015
AB 150 (Melendez)-died Assembly Appropriations,
2015
Support: California Association of Code Enforcement Officers;
California Chapters of the Brady Campaign to Prevent
Gun Violence; California College and University Police
Chiefs; California Narcotics Officers; California
Police Chiefs Association; California Sportsman's
Lobby; California Statewide Law Enforcement
Association; City of Burbank; City of Canyon Lake;
City of Lodi; City of Indian Wells; City of Murietta;
City of Palm Desert; City of Riverside; Criminal
Justice Legal Foundation; Fraternal Order of Police;
Gun Owners of California; League of California Cities;
Los Angeles Deputy Sheriffs; Los Angeles County
District Attorney; Los Angeles Police Protective
League; Los Angeles Professional Peace Officers
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Association; National Rifle Association; 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's Department; San Bernardino County
Sheriff-Coroner; San Diego County District Attorney;
Safari Club International
Opposition:American Civil Liberties Union; California Attorneys
for Criminal Justice; California Public Defenders
Association; Legal Services for Prisoners with
Children
Assembly Floor Vote: 79 - 0
PURPOSE
The purpose of this legislation is to: (1) clarify that theft of
a firearm is grand theft and is punishable as a felony, as
specified; (2) and provide that every person who buys or
receives a stolen firearm is guilty of an alternate
felony/misdemeanor offense, as specified.
This bill would provide that it would become effective only upon
approval of the voters, and would provide for the submission of
this measure to the voters for approval at the next statewide
general election.
This bill 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 election.
This legislation 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 legislation additionally provides
that the Secretary of State shall submit the specified portions
of this legislation to the voters for their approval at the
November 8, 2016, statewide general election.
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This bill calls an election within the meaning of Article IV of
the Constitution and states that it goes go into effect
immediately.
Firearm Theft
Existing law 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.)
Existing law 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).)
Existing law 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).)
Existing law provides that, notwithstanding the default value of
$950 to establish grand theft, grand theft is committed in any
of the following cases:
When domestic fowls, avocados, or other farm crops are
taken of a value exceeding $250;
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;
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;
When the property is taken from the person of another;
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;
When the property is taken from the person of another;
or
When the property taken is an automobile and firearm.
(Penal Code § 487(b) through (d).)
Existing law states that if the grand theft involves the theft
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of a firearm, punishable by imprisonment in the state prison for
16 months, or two or three years. (Penal Code § 489(a).)
Existing law 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).)
Existing law 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).)
This bill would make 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.
Receipt of Stolen Firearm
Existing law 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
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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).)
This bill 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.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
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(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1.Need for Legislation
According to the author:
Proposition 47 lessened the penalties for the theft of
firearms. Prior to the passage of Proposition 47, the penalty
would be imprisonment in state prison for 16 months, 2, or 3
years. Under current law, the theft of a firearm (not
exceeding $950) is a misdemeanor punishable by imprisonment
in county jail for up to six months and/or a fine of up to
$1,000 - the standard penalty for petty theft under the
provisions of Penal Code § 490.
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In addition, current law dictates that gun trafficking related
crimes (receiving/selling stolen firearms) will only be
considered a misdemeanor so long as the property is not valued
more than $950. This crime would be punishable by imprisonment
in county jail for up to six months and/or a fine of up to
$1,000 (subject to realignment rules).
The majority of handguns and most rifles and shotguns are
valued under $950. This would make current law, as written in
Proposition 47, ineffective in curtailing gun theft and gun
trafficking.
2.Proposition 47: Effect of this Legislation
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.
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.
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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
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
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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
appears to be 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.
SHOULD THE LAW BE CLARIFIED TO EXPLICITLY STATE THAT THEFT
OF A FIREARM IS A FELONY?
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
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
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(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 legislation would add a provision to the Penal Code making
receipt of a stolen firearm a wobbler.
SHOULD RECEIPT OF A STOLEN FIREARM BE A WOBBLER?
3. 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.
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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 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."
(http://vig.cdn.sos.ca.gov/2014/general/pdf/text-of-proposed-laws
1.pdf#prop47.)
This bill provides that the Proposition 47 provisions go to the
voters for ratification.
4. Argument in Support
The California District Attorneys Association states:
As we have 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.
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5. 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
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
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justification for nullifying their decision.
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