BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 452 Hearing Date: April 28, 2015
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|Author: |Galgiani |
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|Version: |February 25, 2015 (As Proposed to be Amended) |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JRD |
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Subject: Theft: Firearms
HISTORY
Source: Author
Prior Legislation:None known
Support: California District Attorneys Association; California
Association of Code Enforcement Officers; California
College and University Police Chiefs Association;
California Narcotics Officers Association; California
Police Chiefs Association; California Rifle and Pistol
Association; California Sportsman's Lobby; California
State Sheriffs' Association; Golden State Bail
Association; Sacramento County Deputy Sheriffs'
Association; Long Beach Police Officers Association;
Los Angeles Deputy Sheriffs; Los Angeles County
Professional Peace Officers Association; Los Angeles
Police Protective League; California State Lodge,
Fraternal Order of Police; National Rifle Association
of America; National Shooting Sports Foundation;
Outdoor Sportsmen's Coalition of California; Peace
Officers Research Association of California; Riverside
Sheriffs Association; Santa Ana Police Officers
Association; San Bernardino County Sheriff; Safari
Club International
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Opposition: California Attorneys for
Criminal Justice; Californians for Safety and Justice;
Legal Services for Prisoners with Children
PURPOSE
The purpose of this legislation is to clarify that theft of a
firearm is grand theft and is punishable as a felony, as
specified.
Existing law provides that every person who feloniously steals,
takes, carries, leads, or drives away the personal property of
another is guilty of theft, as specified. (Penal Code § 484.)
Existing law defines "grand theft" as any theft where the money,
labor, or real or personal property taken or when the property
is taken from the person of another is of a value exceeding
$950. (Penal Code §§ 487(a) and (c).)
Existing law provides that grand theft is committed when the
money, labor, or real or personal property taken is of a value
in excess of $950, except as specified. (Penal Code § 487(a).)
Existing law provides that, notwithstanding the default value of
$950 to establish grand theft, grand theft is committed in any
of the following cases:
When domestic fowls, avocados, or other farm crops are
taken of a value exceeding $250;
When fish or other aqua-cultural products are taken from
a commercial or research operation that is producing that
product of a value exceeding $250;
Where money, labor or property is taken by a servant or
employee from his or her principal and aggregates $950 or
more in any consecutive 12-month period;
When the property is taken from the person of another;
When the property taken is an automobile, firearm,
horse, mare, gelding, bovine animal, caprine animal, mule,
jack, jenny, sheep, lamb, hog, sow, boar, gilt, barrow, or
pig;
When the property is taken from the person of another;
or
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When the property taken is an automobile and firearm.
(Penal Code § 487(b) through (d).)
Existing law states that if the grand theft involves the theft
of a firearm, punishable by imprisonment in the state prison for
16 months, or two or three years. (Penal Code § 489(a).)
Existing law provides that grand theft is an alternate
felony-misdemeanor, punishable by imprisonment in the county
jail for up to one year, a fine of up to $1,000, or both, or by
a felony jail sentence of 16 months, two years or three years
pursuant to Penal Code Section 1170, subdivision (h), and a fine
of up to $10,000. (Penal Code § 489(b).)
Existing law provides that, notwithstanding Section 487, or any
other provision of law defining grand theft, obtaining any
property by theft where the value of the money, labor, real or
personal property taken does not exceed nine hundred fifty
dollars ($950) shall be considered petty theft and shall be
punished as a misdemeanor, except that such person may instead
be punished pursuant to subdivision (h) of Section 1170 if that
person has a prior conviction for a serious or violent felony or
an offense requiring registration pursuant to 290, as specified.
(Penal Code § 490.2(a).)
This bill would, upon approval by the voters, make the theft of
a firearm grand theft in all cases, punishable by imprisonment
in the state prison for 16 months, or 2 or 3 years.
This bill would provide that it would become effective only upon
approval of the voters, and would provide for the submission of
this measure to the voters for approval at the next statewide
general election.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
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content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing 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;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In February of this 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). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
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proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1. Need for This Legislation
According to the Author:
Existing law, the Safe Neighborhoods and Schools Act,
enacted by Proposition 47, as approved by the voters
at the November 4, 2014, statewide general election,
requires the theft of property that does not exceed
$950 to be considered petty theft, and makes the crime
punishable as a misdemeanor, except in cases when the
defendant has previously been convicted of one or more
specified serious or violent felonies or an offense
requiring registration as a sex offender. . .
This bill would, upon approval by the voters, make the
theft of a firearm grand theft in all cases,
punishable by imprisonment in the state prison for 16
months, or 2 or 3 years.
2. Proposition 47: Effect of this Legislation
Proposition 47, also known as the Safe Neighborhoods and Schools
Act, was approved by the voters in November 2014. Proposition
47 reduced the penalties for certain drug and property crimes
and directed that the resulting state savings be directed to
mental health and substance abuse treatment, truancy and dropout
prevention, and victims' services. The initiative reduced the
penalties for theft, shoplifting, receiving stolen property,
writing bad checks, and check forgery valued at $950 or less
from felonies to misdemeanors. The measure limited the reduced
penalties to offenders who do not have prior convictions for
serious or violent felonies and who are not required to
registered sex offenders. (See Legislative Analyst's Office
analysis of Proposition 47,
http://www.lao.ca.gov/ballot/2014/prop-47-110414.pdf.)
Proposition 47 added Penal Code section 490.2 which provides a
new definition for grand theft: "Notwithstanding Section 487 or
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any other provision of law defining grand theft, obtaining any
property by theft where the value of the money, labor, real or
personal property taken does not exceed nine hundred fifty
dollars ($950) shall be considered petty theft and shall be
punished as a misdemeanor ?.." (Pen. Code, § 490.2, subd. (a),
emphasis added.) In other words, Proposition 47 put in a
blanket $950 threshold for conduct to be grand theft.
Previously, there were a number of carve-outs which made conduct
grand theft based on the conduct involved or the manner in which
the crime is committed or based on the value being less than
$950.
Because the new statute specifically states "notwithstanding
Section 487," it supersedes all of Penal Code section 487,
including subdivision (d)(2), which says that grand theft occurs
when the property taken is a firearm. The question becomes
whether, notwithstanding newly-created Penal Code section 490.2,
theft of a firearm remains a felony.
When Proposition 47 was pending before the voters, the
California District Attorneys Association (CDAA) released an
analysis of the proposition, "CDAA Looks at Proposition 47." In
this analysis CDAA states:
Currently, the theft of any firearm is defined as a
felony pursuant Penal Code §s 487(d)(2) and 489. A
felony conviction of Penal Code § 487(d)(2) is a
serious felony (or strike) pursuant to Penal Code §
1192.7(c)(26). (People v. Rodola (1998) 66 Cal.App.4th
1505.)
There are sound policy reasons for providing that
theft of a firearm is a felony. Persons who steal
firearms do so with the intent to use that firearm -
now untraceable to the thief - in the commission of a
violent crime. Unhappily, Proposition 47 de-emphasizes
the seriousness of that crime by now providing that
virtually all firearm thefts - and certainly all
hand-gun thefts - would be reduced to misdemeanors.
Proposed Penal Code § 490.2 would require that theft
of a firearm, valued at less than $950, shall be
punished as a misdemeanor, unless the offender has a
conviction for one of a very narrow list of prior
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violent felonies or is a sex offender. Thus, a
conviction of theft of a firearm would only qualify as
a felony if the value of the gun was valued at over
$950.
(http://californiansagainst47.com/about-proposition-47/.)
The California Police Chiefs Association, who support this
legislation, state:
Proposition 47, as approved by voters in the November
4, 2014, statewide general election, requires theft of
property including the theft of a firearm that does
not exceed $950 to be considered petty theft, and
makes the crime punishable as a misdemeanor except in
cases when the defendant has previously been convicted
of one or more specified serious or violent felonies
or an offense requiring registration as a sex
offender.
The drafters of Proposition 47, however, state that they did not
intend to reduce the penalty for theft of a firearm.
Specifically, the rebuttal to the argument against Proposition
47 contained in the ballot arguments stated:
Proposition 47 maintains penalties for gun crimes.
Under Prop. 47, possessing a stolen concealed gun
remains a felony. Additional felony penalties to
prevent felons and gang members from obtaining guns
also apply.
(http://vig.cdn.sos.ca.gov/2014/general/pdf/proposition-47-argume
nts-rebuttals.pdf.)
Californians for Safety and Justice, who are opposed to this
legislation, additionally state:
We urge your opposition for SB 452, which is
unnecessary and may cause confusion with current
felony prosecutions for gun theft. Gun theft, is by
definition, a serious crime, and Proposition 47 was
exclusively limited to non-serious and nonviolent
crimes. Additionally, there are numerous felony code
sections, maintained by Proposition 47, that allow for
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felony prosecution for anyone stealing or in
possession of a stolen firearm.
Whether Proposition 47 made theft of a firearm a misdemeanor is
clearly subject to debate. Given that the proponents contend
that Proposition 47 did not change the penalties for gun theft,
clarifying the intent of the proponents by stating that theft of
a firearm remains a felony is seemingly innocuous.
SHOULD THE LAW BE CLARIFIED TO EXPLICITLY STATE THAT THEFT
OF A FIREARM IS A FELONY?
3. California Constitutional Limitations on Amending a
Voter Initiative
Because Proposition 47 was a voter initiative, the Legislature
may not amend the statute without subsequent voter approval
unless the initiative permits such amendment, and then only upon
whatever conditions the voters attached to the Legislature's
amendatory powers. (People v. Superior Court (Pearson) (2010)
48 Cal.4th 564, 568; see also Cal. Const., art. II, § 10, subd.
(c).) The California Constitution states, "The Legislature may
amend or repeal referendum statutes. It may amend or repeal an
initiative statute by another statute that becomes effective
only when approved by the electors unless the initiative statute
permits amendment or repeal without their approval." (Cal.
Const., art. II, § 10, subd. (c).) Therefore, unless the
initiative expressly authorizes the Legislature to amend, only
the voters may alter statutes created by initiative.
As to the Legislature's authority to amend the initiative,
Proposition 47 states: "This act shall be broadly construed to
accomplish its purposes. The provisions of this measure may be
amended by a twothirds vote of the members of each house of the
Legislature and signed by the Governor so long as the amendments
are consistent with and further the intent of this act. The
Legislature may by majority vote amend, add, or repeal
provisions to further reduce the penalties for any of the
offenses addressed by this act."
(http://vig.cdn.sos.ca.gov/2014/general/pdf/text-of-proposed-laws
1.pdf#prop47.)
Given that the proponents argue that it was their intent to keep
theft of a firearm, regardless of the value, grand theft, it can
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certainly be argued that this legislation is "consistent with
and further the intent of this act."
4. Amendments
The author will offer the following amendments in
committee: (1) strike subdivision (d) of Penal Code section
490.2; (2) strike references to subdivision (d); (3) strike
section three; and, (4) amend the intent language to
reflect these changes.
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