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" AB 2478 Page 2 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 AB 2478 Page 3 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 AB 2478 Page 4 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. AB 2478 Page 5 ------------------------------------------------------------------- |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, | | AB 2478 Page 6 | |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. | | | | | | | | | | AB 2478 Page 7 |----------------------------------+----------------+---------------| |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, AB 2478 Page 8 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). AB 2478 Page 9 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, AB 2478 Page 10 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, AB 2478 Page 11 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 AB 2478 Page 12 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 AB 2478 Page 13 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