BILL ANALYSIS                                                                                                                                                                                                    



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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  
                        2666 (Baker) - As Amended  March 17, 2016




          SUMMARY: Increases the punishment for a second or subsequent  
          violation of felon in possession of a firearm from 16 months,  
          two, or three years in state prison to four, five, or six years  
          in state prison.   



          EXISTING LAW:  


          1)Requires that firearms dealers obtain certain identifying  
            information from firearms purchasers and forward that  
            information, via electronic transfer to Department of Justice  
            (DOJ) to perform a background check on the purchaser to  
            determine whether he or she is prohibited from possessing a  
            firearm (Pen. Code , subds. 28160-28220); and  

           2)Requires that, upon receipt of the purchaser's information,  
            DOJ shall examine its records, as well as those records that  
            it is authorized to request from the State Department of  
            Mental Health pursuant to Section 8104 of the Welfare and  
            Institutions Code, in order to determine if the purchaser is  
            prohibited from purchasing a firearm.  (Pen. Code  28220.)  








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           3)Provides that it shall be unlawful for the following people to  
            ship or transport in interstate or foreign commerce, or  
            possess in or affecting commerce, any firearm or ammunition;  
            or to receive any firearm or ammunition which has been shipped  
            or transported in interstate or foreign commerce:  (18 USC   
            922(g).)
           
              a)   Who has been convicted in any court of, a crime  
               punishable by imprisonment for a term exceeding one year;  

              b)   Who is a fugitive from justice;  

              c)   Who is an unlawful user of or addicted to any controlled  
               substance, as defined;  

              d)   Who has been adjudicated as a mental defective or who  
               has been committed to a mental institution;  

              e)   Who, being "an alien" -  

                i)     is illegally or unlawfully in the United States; or  

                ii)    except as specified, has been admitted to the United  
                 States under a non-immigrant visa, as defined;   

              f)   Who has been discharged from the Armed Forces under  
               dishonorable conditions;  

              g)   Who, having been a citizen of the United States, has  
               renounced his citizenship;  

              h)   Who is subject to a court order that -  

                i)     was issued after a hearing of which such person  
                 received actual notice, and at which such person had an  
                 opportunity to participate;  

                ii)    restrains such person from harassing, stalking, or  
                 threatening an intimate partner of such person or child  
                 of such intimate partner or person, or engaging in other  
                 conduct that would place an intimate partner in  








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                 reasonable fear of bodily injury to the partner or child;  
                 and  



                   (1)       includes a finding that such person represents  
                    a credible threat to the physical safety of such  
                    intimate partner or child; or  

                   (2)       by its terms explicitly prohibits the use,  
                    attempted use, or threatened use of physical force  
                    against such intimate partner or child that would  
                    reasonably be expected to cause bodily injury; or  

              i)   Who has been convicted in any court of a misdemeanor  
               crime of domestic violence  

           4)Provides that certain people are prohibited from owning or  
            possessing a firearm.  This includes (Pen. Code  29800;  
            23515; 29805.):  

              a)   Anyone convicted of a felony;  

              b)   Anyone addicted to a narcotic drug;  

             c)   Any juvenile convicted of a violent crime with a gun and  
               tried in adult court;  

              d)   Any person convicted of a federal crime that would be a  
               felony in California and sentenced to more than 30 days in  
               prison, or a fine of more than $1,000;  

              e)   Anyone convicted of certain violent misdemeanors, e.g.,  
               assault with a firearm; inflicting corporal injury on a  
               spouse or significant other; brandishing a firearm in the  
               presence of a police officer; and   

              f)   Provides that a violation of these provisions is a  
               felony.   

           5)Specifies a ten year ban for anyone convicted of numerous  
            misdemeanors involving violence or threats of violence.  (Pen.  








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            Code  29805.)  
           
           6)Provides that a violation of these provisions of the ten year  
            firearm ban may be sentenced to a year in the county jail or  
            up to 3 years in state prison, as specified.  (Pen. Code   
            29805.)   

           7)Provides that persons who are bound by a temporary restraining  
            order or injunction or a protective order issued under the  
            Family Code or the Welfare and Institutions Code, may be  
            prohibited from firearms ownership for the duration of that  
            court order.  (Pen. Code  29825.)
          
          8)Specifies that the Attorney General maintains an online  
            database known as the Armed Prohibited Persons File ("APPS").   
            The purpose of APPS is to cross-reference persons who have  
            ownership or possession of a firearm on or after January 1,  
            1991, as indicated by a record in the Consolidated Firearms  
            Information System, and who, subsequent to the date of that  
            ownership or possession of a firearm, fall within a class of  
            persons who are prohibited from owning or possessing a  
            firearm.  The information contained in APPS is only be  
            available to specified entities through the California Law  
            Enforcement Telecommunications System, for the purpose of  
            determining if persons are armed and prohibited from  
            possessing firearms.  (Pen. Code  30000.)

          FISCAL EFFECT:  Unknown.


          COMMENTS: 


          1)Author's Statement:  According to the author, "A felon who is  
            found to be illegally in possession of a firearm is precisely  
            the individual on whom we should be focusing our limited law  
            enforcement and public safety efforts. We need to get guns out  
            of their hands. Yet California law only slaps their hands when  
            these felons are found to illegally possess a firearm."


          2)Prohibited Persons:  California has several laws that prohibit  








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            certain persons from purchasing firearms.  All felony  
            convictions lead to a lifetime prohibition, while specified  
            misdemeanors will result in a 10-year prohibition.  A person  
            may be prohibited due to a protective order or as a condition  
            of probation.  Another prohibition is based on the mental  
            health of the individual.  If a person communicates to his or  
            her psychotherapist a serious threat of physical violence  
            against a reasonably identifiable victim or victims, the  
            person is prohibited from owning or purchasing a firearm for  
            six months, starting from the date the psychotherapist reports  
            to local law enforcement the identity of the person making the  
            threat.  (Welf. & Inst. Code,  8100 (b) (1).]  If a person is  
            admitted into a facility because that person is a danger to  
            himself, herself, or to others, the person is prohibited from  
            owning or purchasing a firearm for five years.  (Welf. & Inst.  
            Code,  8103(f).]  For the provisions prohibiting a person  
            from owning or possessing a firearm based on a serious threat  
            of violence or based on admittance into a facility as a threat  
            to self or others, the person has the right to request a  
            hearing whereby the person could restore his or her right to  
            own or possess a firearm if a court determines that the person  
            is likely to use firearms or other deadly weapons in a safe  
            and lawful manner.  [WELF. & INST. CODE,    8100(b) (1) and  
            8103(f).]

          DOJ developed the Armed Prohibited Persons System (APPS), an  
            automated system for tracking handgun and assault weapon  
            owners in California who may pose a threat to public safety.   
            (Penal Code Section 30000 et seq.)  APPS collects information  
            about persons who have been, or will become, prohibited from  
            possessing a firearm subsequent to the legal acquisition or  
            registration of a firearm or assault weapon.  DOJ receives  
            automatic notifications from state and federal criminal  
            history systems to determine if there is a match in the APPS  
            for a current California gun owner.  DOJ also receives  
            information from courts, local law enforcement and state  
            hospitals as well as public and private mental hospitals to  
            determine whether someone is in a prohibited status.  When a  
            match is found, DOJ has the authority to investigate the  
            person's status and confiscate any firearms or weapons in the  
            person's possession.  Local law enforcement may also request  
            from DOJ the status of an individual, or may request a list of  








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            prohibited persons within their jurisdiction, and conduct an  
            investigation of those persons.

          According to DOJ, about 50% of the persons on APPS are  
            prohibited due to criminal history; about 30% due to mental  
            health status, and about 20% due to active restraining orders.

          3)Overview of Current Law:  California for many years has  
            required registration of handguns at point of transfer of  
            ownership.  In addition, persons who move into the state with  
            handguns have to register the same and licensed collectors who  
            acquire guns outside the state have to register them as well.   
            There is also a voluntary system of firearms that has been in  
            code for over 20 years and is now reflected in Penal Code  
            Section 28000.  The exact dates as to when these requirements  
            have applied to the following categories are subject to  
            question, but they appear to be as follows:

             a)   California residents who acquired a handgun from an  
               in-state source and the transfer took place in California  
               after September 30, 1953 by virtue of the enactment of then  
               Penal Code Section 12072 which was added by virtue of the  
               enactment of the Dangerous and Deadly Weapons Control Law.   
               In 1953, statutes went into effect at an earlier timer than  
               is the case today. 

             b)   An individual, who acquired a handgun outside of state,  
               was not a California resident at the time of acquisition  
               and brought the guns here after January 1, 1998 as new  
               California residents. 

             c)   An individual who acquired a handgun as a California  
               residents in mail order or other transactions from an  
               out-of-state after November 8, 1967.  In 1967, AB 1324  
               (Biddle), Ch. 1282/1967 required anyone who was not state  
               licensed as a dealer who acquired a handgun from an  
               out-of-state source had to register the gun with DOJ. This  
               was former Penal Code Section 12079 and it was repealed in  
               1988 as obsolete in a Department of Justice sponsored bill  
               on the basis federal law and subsequent legal developments  
               covered it. 









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             d)   Since October 22, 1968 anyone who acquires a firearm  
               from an out-of-state source after that date must have that  
               transaction brokered through an in-state federally licensed  
               [and in California state licensed as well] firearms dealer  
               with the transaction being subject to state requirements.   
               In California this would include the waiting period,  
               background checks, gun registration etc. That federal  
               requirement under various proposals would make that a  
               California state law requirement as well as is now the case  
               in Maryland and Oregon. 

             Because of confusion over dates and for other reasons, the  
             Department of Justice has taken the position that it will  
             accept for registration and place in the centralized registry  
             using the "voluntary system" codified in Section 28000 of the  
             Penal Code the ownership of a firearm where the person is not  
             within a prohibited status, the gun is not reported lost or  
             stolen, and the person is at least 18 years of age.  


             However, in the normal run-of-the mill transaction where  
             someone goes into a dealership, fills out paperwork, goes  
             through the waiting period-background check system, save in  
             very few situations, DOJ is not notified that a person who  
             applied to acquire a firearm and was cleared to take  
             possession of that firearm took possession of that firearm.  
             In most transactions, the process works so that the dealer  
             pre-registers the gun in the recipient's name.  Only if the  
             gun is not picked up is DOJ to be notified.  It is not  
             uncommon to have handguns to be pre-registered to multiple  
             persons or other registration issues that prevent guns from  
             otherwise being properly registered.  This issue is magnified  
             by the huge spikes in DROS transactions and will be even more  
             problematical come January 1, 2014 when registration applies  
             to all gun transactions.


             After the waiting period has expired and the background check  
             is completed, current law requires the dealer to record on  
             the DROS form the date and time of delivery of the firearm to  
             the gun recipient.  They are also required to provide the  
             recipient of the gun his DROS form if requested though the  








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             timing is unclear - See SB 41 discussion below.  


              The DROS form prepared by the DOJ and used by licensed  
             dealers in California, as modified October 2003, does contain  
             at the top under "Transaction Information" a line for both  
             "Delivery Date" and "Time" of that delivery, which reflects  
             the changes made by SB 824 (Scott), Ch. 502/2003.  Dealers  
             must keep that form and make it available for inspection by  
             law enforcement officials; however, there is some debate  
             about whether that information must be submitted to DOJ as a  
             matter of course.  



             Prior to SB 824 Legislative Counsel issued an opinion that  
             DOJ could require dealers to write the delivery date on DROS  
             register and also make other changes to the DROS form.    
             Dealers are also currently required to provide a copy of the  
             DROS form when the buyer takes possession of the firearm if  
             the buyer asks for it.  Lastly, existing law allows persons  
             to check with DOJ to determine whether DOJ lists them as the  
             owner of any firearm.  The language of Penal Code  28000  
             also is opaque enough so that a person who receives a gun  
             from a dealer just to protect himself or herself can register  
             the gun in his or own name if the registration is not  
             properly done. 
             However, DOJ could not compel dealers to submit the  
             information on delivery to DOJ.  DOJ could only enter that  
             information into its Automated Firearms System (AFS) if DOJ  
             obtains the delivery information by physically inspecting the  
             registry kept by dealers.  Given this now applies to rifles  
             and shotguns as of January 1, 2014.


          4)On-Going Concerns for 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;








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                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).



            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  








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            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 California State Sheriffs'  
            Association, "Assembly Bill 2666 provides that subsequent  
            convictions for being a felon in possession of a firearm shall  
            be punished by imprisonment for a term of four, five, or six  
            years.  


            "Existing law provides that a felon in possession of a firearm  
            is guilty of a felony punishable by imprisonment for a term of  
            16 months, or two or three years.  However, current law does  
            not provide for increased penalties for subsequent offenses.  


            "Gun possession by felons is a concern for the general public.  
             A convicted felon has already proven a disregard for  
            society's laws, which is why he or she is prohibited from  
            possessing guns.  AB 2666 provides a necessary enhancement to  
            deter individuals from reoffending."


          6)Argument in Opposition:  According to the California Public  
            Defenders Association, "Existing law provides that any person  
            convicted of a felony under the laws of the United States, the  
            State of California, or any other state or country, and who  
            owns, purchases, receives, or has in possession or under  
            custody or control any firearm is guilty of a felony. Existing  
            law prescribes the punishment for that felony as imprisonment  
            for a term of 16 months, or 2 or 3   years in the state prison.


            "This bill would provide that the punishment for subsequent  
            convictions of that felony would be imprisonment for a term of  
            4, 5, or 6 years in the state prison. By creating a new crime,  
            this bill would impose a state-mandated local program. The  








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            bill would also make additional technical, no substantive  
            changes.


            "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, the effects on crime  
            of Proposition 47 are unknown. 


            "In addition, Proposition 47 and AB 109 have 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 population." 


          7)Prior Legislation:


             a)   SB 755 (Wolk), of the 2013-2014 Legislative Session,  
               would have added specified offenses to the list of  
               misdemeanors that result in a 10-year prohibition on  
               firearms and ammunition possession, and adds certain  
               misdemeanors related to substance abuse for which a  
               violation of two or more within a three-year period will  
               result in a 10-year prohibition on firearms possession.  SB  
               755 was vetoed by the Governor.  


             b)   SB 819 (Leno), Chapter 743, Statutes of 2011, provided  
               that the Department of Justice may use dealer record of  
               sale funds for costs associated with its firearms-related  
               regulatory and enforcement activities regarding the  
               possession as well as the sale, purchase, loan, or transfer  
               of firearms, as specified.


          








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          REGISTERED SUPPORT / OPPOSITION:




          Support


          California State Sheriffs' Association 


          Crime Victims United 


          Gun Owners of California 




          Opposition


          American Civil Liberties Union 


          California Public Defenders Association 


          California Right to Carry


          Legal Services for Prisoners with Children  

          Analysis Prepared  
          by:              Gabriel Caswell / PUB. S. / (916) 319-3744













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