BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2478


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          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.                         |                |               |
          |                                  |                |               |
          |                                  |                |               |
           ------------------------------------------------------------------- 



          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