BILL ANALYSIS Ó
AB 2478
Page 1
Date of Hearing: April 19, 2016
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
2478 (Melendez) - As Amended April 6, 2016
VOTE ONLY
SUMMARY: Increases penalties for specified offenses involving
straw purchasers of firearms. Specifically, this bill:
1)Specifies that knowingly selling, supplying, delivering, or
giving possession or control of a firearm to any person who is
a specified felon, certain misdemeanors, those subject to
protective orders, those with prior convictions of those
offenses shall be punished by two, three, or four years in
state prison in lieu of county jail under existing law.
2)Increases the penalty for a person, corporation, or firearms
dealer that violates selling, supplying, delivering, or giving
possession or control of a firearm to anyone whom the person,
corporation, or dealer has cause to believe is a prohibited
person, from an alternate misdemeanor/felony servable in the
county jail for either a year (misdemeanor) or 16 months, two,
or three years (felony) to a straight felony punishable by
two, three, or four years in state prison.
3)Increases the punishment for specified "straw purchase"
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firearms offenses from alternate misdemeanor/felony servable
in county jail for either a year (misdemeanor) or 16 months,
two, or three years (felony), to a straight felony punishable
by 16 months, two, or three years in state prison.
4)Specifies that the sentence enhancement imposed if a person
commits a straw sale or transfer to a specified prohibited
person and the firearm transferred is used in the commission
of a felony for which a conviction is obtained is punished by
one, two, or three years in state prison, in lieu of county
jail as imposed by existing law.
5)Appropriates $2,200,000 to fund vertical prosecution units
within the Department of Justice (DOJ) to prosecute straw
purchasers of firearms.
EXISTING LAW:
1)States that no person, corporation, or firm shall knowingly
sell, supply, deliver, or give possession or control of a
firearm to any specified persons which include felons, certain
misdemeanors, those subject to protective orders, those with
prior convictions of those offenses. Provides that this
offense is punishable by two, three, or four years, subject to
realignment rules (i.e., the defendant would serve the
sentence in county jail, not prison, unless the defendant was
also convicted of a "serious" felony, a "violent" felony, or
is required to register as a sex offender). (Pen. Code, §
27500, subd. (a).)
2)Provides that no person, corporation, or dealer shall sell,
supply, deliver, or give possession or control of a firearm to
anyone whom the person, corporation, or dealer has cause to
believe is within any of the classes prohibited as felons,
certain misdemeanors, those subject to protective orders,
those with prior convictions of those offenses, or certain
persons prohibited from possessing firearms due to mental
illness-related criteria. States that this offense is
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punishable as an alternative felony/misdemeanor ("wobbler"),
punishable by imprisonment in county jail for up to one year,
or 16 months, two, or three years, subject to realignment
rules. (Pen. Code, § 27500, subd. (b).)
3)Provides that a "straw purchase" sale, i.e., a person,
corporation, or dealer who sells, loans, or transfer a firearm
to anyone whom the person, corporation, or dealer knows or has
cause to believe is not the actual purchaser or transferee of
the firearm, or to anyone who is not the one actually being
loaned the firearm, if the person, corporation, or dealer has
knowledge that the firearm will be subsequently sold, loaned,
or transferred to avoid the laws relating to transfers of
firearms through dealers (background check, etc.). States
that this offense is punishable as an alternative
felony/misdemeanor ("wobbler"), punishable by imprisonment
in county jail for up to one year, or 16 months, two, or three
years, subject to realignment rules. (Pen. Code, § 27515.)
4)States that a "straw purchase" acquisition, i.e., a person,
corporation, or dealer who acquires a firearm for the purpose
of selling, loaning, or transferring the firearm, if the
person, corporation, or dealer has intent to transfer the
firearm to someone prohibited from possessing it due to the
age of the recipient or to bypass laws on transfers
(background check, waiting period, etc.). Provides that this
offense is punishable as an alternative felony/misdemeanor
("wobbler"), punishable by imprisonment in county jail for up
to one year, or 16 months, two, or three years, subject to
realignment rules. (Pen. Code, § 27520.)
5)Provides for an additional, consecutive sentence that applies
if a person commits a straw sale or transfer to a specified
prohibited person and the firearm transferred is used in the
commission of a felony for which a conviction is obtained.
States that the punishment for this offense is one, two, or
three years, subject to realignment rules. (Pen. Code §
27590, subd. (d).)
FISCAL EFFECT: Unknown
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COMMENTS:
1)Author's Statement: According to the author, "Since 2005,
nearly 200,000 aggravated assault firearm crimes were reported
statewide. According to a study by the federal Bureau of
Alcohol, Tobacco, Firearms and Explosives, stolen guns
accounted for 10% to 15% of guns used in crimes while 39.6% of
guns were bought legally by family members or friends and lent
to the perpetrator.
"Straw-man purchase crimes are rarely prosecuted by the
Department of Justice due to limited funding. Knowing this,
many criminals prefer to attain firearms through this avenue.
"Thousands of violent crimes are committed each year because
straw-man purchasers slip through state background checks and
loan their guns to dangerous criminals. Although this type of
crime has caused hundreds of injuries and deaths, many
perpetrators are only charged with a small fine, if at all."
2)Penalty Increases and the Imposition of State Prison
Sentences: This bill increases and modifies penalties for
several firearms violations related to "straw purchasers."
For all of the offenses, the bill imposes state prison
sentences, when the sentences under current law are served in
county jail. Additionally, for some specified offenses the
bill turns alternate misdemeanor/felony offenses (or
"wobblers") into straight felony sentences and requires that
those sentences are servable in state prison.
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|Current Law |Current Penalty |Proposed AB |
| | |2478 |
| | |(Melendez) |
| | |Penalty |
| | | |
| | | |
|----------------------------------+----------------+---------------|
|Penal Code § 27500(a): The crime |2, 3,or 4 |2, 3, or 4 |
|of knowingly selling, supplying, |years, subject |years in state |
|delivering, or giving possession |to realignment |prison. (No |
|or control of a firearm to any |rules (i.e., |realignment.) |
|person within any of the classes |the defendant | |
|prohibited by Chapter 2 |would serve the | |
|(commencing with Section 29800) |sentence in | |
|or Chapter 3 (commencing with |county jail, | |
|Section 29900) of Division 9 of |not prison, | |
|the Penal Code (i.e., felons, |unless the | |
|certain misdemeanors, those |defendant was | |
|subject to protective orders, |also convicted | |
|those with prior convictions of |of a "serious" | |
|those offenses) |felony, a | |
| |"violent" | |
| |felony, or is | |
| |required to | |
| |register as a | |
| |sex offender). | |
| | | |
| | | |
|----------------------------------+----------------+---------------|
|Penal Code § 27500(b): The |An alternative |2, 3, or 4 |
|crimes in Penal Code § 27500(a) |felony/misdemean|years in state |
|plus those prohibited due to |or |prison. (No |
|Welfare and Institutions Code § |("wobbler"), |realignment.) |
|8100, § 8103 (certain legal |punishable by |No misdemeanor |
|status of persons prohibited from |imprisonment in |option. |
|possessing firearms due to mental |county jail for | |
|illness-related criteria) |up to one year, | |
| |or 16 months, | |
| |2, or 3 years, | |
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| |subject to | |
| |realignment | |
| |rules. | |
| | | |
| | | |
|----------------------------------+----------------+---------------|
|Penal Code § 27515: A "straw |An alternative |16 months, 2, |
|purchase" sale, i.e., a person, |felony/misdemean|or 3 years in |
|corporation, or dealer who sells, |or |state prison. |
|loans, or transfer a firearm to |("wobbler"), |(No |
|anyone whom the person, |punishable by |realignment.) |
|corporation, or dealer knows or |imprisonment in |No misdemeanor |
|has cause to believe is not the |county jail for |option. |
|actual purchaser or transferee of |up to one year, | |
|the firearm, or to anyone who is |or 16 months, | |
|not the one actually being loaned |2, or 3 years, | |
|the firearm, if the person, |subject to | |
|corporation, or dealer has |realignment | |
|knowledge that the firearm will |rules. | |
|be subsequently sold, loaned, or | | |
|transferred to avoid the laws | | |
|relating to transfers of firearms | | |
|through dealers (background | | |
|check, etc.). | | |
| | | |
| | | |
|----------------------------------+----------------+---------------|
|Penal Code § 27520: A "straw |An alternative |16 months, 2, |
|purchase" acquisition, i.e., a |felony/misdemean|or 3 years. |
|person, corporation, or dealer |or |(No |
|who acquires a firearm for the |("wobbler"), |realignment.) |
|purpose of selling, loaning, or |punishable by |No misdemeanor |
|transferring the firearm, if the |imprisonment in |option. |
|person, corporation, or dealer |county jail for | |
|has intent to transfer the |up to one year, | |
|firearm to someone prohibited |or 16 months, | |
|from possessing it due to the age |2, or 3 years, | |
|of the recipient or to bypass |subject to | |
|laws on transfers (background |realignment | |
|check, waiting period, etc.) |rules. | |
| | | |
| | | |
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|----------------------------------+----------------+---------------|
|Penal Code § 27590(d) |1, 2, or 3 |1, 2, or 3 |
|enhancement. An additional, |years, subject |years |
|consecutive sentence that applies |to realignment |imprisonment. |
|if a person commits a straw sale |rules. |(No |
|or transfer to a prohibited | |realignment.) |
|person under Penal Code § | | |
|27590(b) (see description above) | | |
|and the firearm transferred is | | |
|used in the commission of a | | |
|felony for which a conviction is | | |
|obtained. | | |
| | | |
| | | |
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3)Effect on Criminal Justice Realignment: Criminal justice
realignment created two classifications of felonies: those
punishable in county jail and those punishable in state
prison. Realignment limited which felons can be sent to state
prison, thus requiring that more felons serve their sentences
in county jails. The law applies to qualified defendants who
commit qualifying offenses and who were sentenced on or after
October 1, 2011. Specifically, sentences to state prison are
now mainly limited to registered sex offenders and individuals
with a current or prior serious or violent offense. In
addition to the serious, violent, registerable offenses
eligible for state prison incarceration, there are
approximately 70 felonies which have been specifically
excluded from eligibility for local custody (i.e., the
sentence for which must be served in state prison).
This bill specifies that a number of felony offenses that
carried sentences which were servable in the county jail and
mandates that they must be served in state prison. In
addition, this bill eliminates a misdemeanor option for
several wobbler offenses and makes them straight felony
offenses.
4)On-Going Concerns for Prison Overcrowding: On February 10,
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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 February of last year the administration reported that as
"of February 11, 2015, 112,993 inmates were housed in the
State's 34 adult institutions, which amounts to 136.6% of
design bed capacity, and 8,828 inmates were housed in
out-of-state facilities. This current population is now below
the court-ordered reduction to 137.5% of design bed capacity."
(Defendants' February 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).
While significant gains have been made in reducing the prison
population, the state now 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).
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However, even though the state has complied with the federal
court order, the prison population needs to be maintained, not
increased. And according to the Legislative Analyst's Office
(LAO), "CDCR is currently projecting that the prison
population will increase by several thousand inmates in the
next few years and will reach the cap by June 2018 and exceed
it by 1,000 inmates by June 2019."
( http://www.lao.ca.gov/reports/2014/budget/criminal-justice/cri
minal-justice-021914.aspx .) The LAO also notes that
predicting the prison population is "inherently difficulty"
and subject to "considerable uncertainty." (Ibid.)
Nevertheless, creating a new exclusion for county jail
sentences when the prison population is already expected to
increase seems imprudent.
5)Argument in Support: According to the California State
Sheriffs' Association, "Currently it is illegal to sell and/or
deliver firearms to prohibited persons and a violation of the
law is punishable as a felony carrying a county jail term.
This bill enhances the punishment for those individuals that
disregard the law and make the conscious decision to promote
the dangerous and oftentimes deadly enterprise of firearm
sales and distribution."
6)Argument in Opposition: According to California Public
Defenders Association, "Existing law prohibits specified
persons from owning, purchasing, receiving, or having in his
or her possession, any firearm. Existing law prohibits a
person, corporation, or firm from knowingly selling,
supplying, delivering, or giving possession or control of a
firearm to one of those prohibited persons, and makes a
violation of that prohibition a felony punishable by
imprisonment for 2, 3, or 4 years in the county jail.
"This bill would make that offense punishable by imprisonment
for 2, 3, or 4 years in the state prison.
"Existing law prohibits a person, corporation, or firearms
dealer from selling, supplying, delivering, or giving
possession or control of a firearm to anyone whom the person,
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corporation, or dealer has cause to believe is a prohibited
person, and makes a violation of that prohibition punishable
as a felony or misdemeanor subject to imprisonment in the
county jail or by a fine not to exceed $1,000, or by both that
fine and imprisonment. Under existing law, for each felony
case, a court is required to hold, and a prosecutor is
required to attend, a preliminary hearing.
"This bill would make that offense a felony punishable by
imprisonment for 2, 3, or 4 years in the state prison. By
imposing additional duties on local prosecutors by increasing
the number of preliminary hearings, and by increasing the
penalties of an existing crime, this bill would impose a
state-mandated local program.
"Existing law prohibits a person, corporation, or dealer from
selling, loaning, or transferring a firearm to anyone whom the
person, corporation, or dealer knows or has cause to believe
is not the actual purchaser or transferee of the firearm, or
to anyone who is not the one actually being loaned the
firearm, if the person, corporation, or dealer has knowledge
that the firearm is to be subsequently sold, loaned, or
transferred to avoid provisions of law requiring firearms
transfers to be conducted through a firearms dealer and other
requirements pertaining to dealer transactions, or to avoid
provisions establishing exemptions from those requirements, as
specified. Existing law makes this offense punishable as a
felony or misdemeanor subject to imprisonment in the county
jail or by a fine not to exceed $1,000, or by both that fine
and imprisonment.
"This bill would make that offense a felony punishable by
imprisonment for 16 months, or 2 or 3 years in the state
prison. By imposing additional duties on local prosecutors,
this bill would impose a state-mandated local program.
"Existing law prohibits a person, corporation, or firearms
dealer from acquiring a firearm for the purpose of selling,
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loaning, or transferring the firearm if, for a dealer, he or
she has the intent to transfer the firearm to a minor or to
evade specified requirements on the transfer of firearms, or
in the case of a person or corporation, the person or
corporation intends to violate the requirement, or provisions
of an exception to the requirement, that the transaction be
conducted through a licensed firearms dealer. Existing law
makes this offense punishable as a misdemeanor by imprisonment
in the county jail not exceeding one year, or as a felony
punishable by imprisonment in the county jail for 16 months,
or 2 or 3 years, or by a fine not to exceed $1,000, or by both
that fine and imprisonment.
"This bill would make that offense punishable as a felony by
imprisonment for 16 months, or 2 or 3 years in the state
prison. By imposing additional duties on local prosecutors,
this bill would impose a state-mandated local program.
"Over the past several years, Criminal Justice Realignment (AB
109) and Proposition 47 have been passed in order to reduce
state prison population. Proposition 47 was passed by 59.6
percent of California voters less than 2 years ago. The voters
have spoken on this issue. At this point, other than lowering
jail and prison population, the effects on crime of
Proposition 47 are unknown.
"In addition, as previously stated, Proposition 47 has helped
to reduce prison population, as ordered by the United States
Supreme Court. Our Governor and our Legislature have worked
very hard to reduce the constitutionally impermissible
overcrowding in California prisons, this bill would undo some
of that hard work by increasing prison and/or local jail
population."
7)Prior Legislation: AB 1084 (Melendez), of the 2013-2014
Legislative Session, increased the penalties for numerous
offenses related to the illegal possession of firearms, and
requires that many related sentences be served in the state
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prison rather than county jail under realignment. AB 1084
failed passage in this committee.
REGISTERED SUPPORT / OPPOSITION:
Support
SFSCME, Local 685
Association for Los Angeles Deputy Sheriffs
California Sportsman's Lobby
California State Sheriffs' Association
Crossroads of the West
Gun Owners of California
Los Angeles County Probation Officers Union
Los Angeles Police Protective League
National Shooting Sports Foundation
Outdoor Sportsmen's Coalition of California
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Peace Officers Research Association of California (PORAC)
Riverside Sheriffs' Association
Safari Club International
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Legal Services for Prisoners with Children
Analysis Prepared
by: Gabriel Caswell / PUB. S. / (916) 319-3744