BILL ANALYSIS Ó
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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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