BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 1235 Hearing Date: April 19, 2016
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|Author: |De León |
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|Version: |April 13, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JRD |
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Subject: Ammunition
HISTORY
Source: Author
Prior Legislation: SB 53 (De León) - failed passage on Assembly
Floor, 2013-2014
SB 427 (De León) - vetoed, 2011-2012
AB 2358 (De León) - failed passage on Senate Floor,
2010
AB 1663 (Hagman) - failed passage in Assembly
Public Safety, 2010
AB 962 (De León) - Ch. 628, Statutes of 2009
AB 2062 (De León) - held in Senate Appropriations
Committee, 2008
AB 362 (De León) - held in Senate Appropriations
Committee, 2007
AB 996 (Ridley-Thomas) - vetoed, 2006
AB 352 (Koretz) -died in conference, 2006
AB 2714 (Torrico) - vetoed, 2005-06
SB 1152 (Scott) - vetoed, 2003-04
Support: California Chapters of the Brady Campaign to Prevent
Gun Violence; Law Center to Prevent Gun Violence
Opposition:Firearms Policy Coalition; Gun Owners of America
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PURPOSE
The purpose of this legislation is to add a definition of
"ammunition" to the Penal Code, as specified.
Current law prohibits possession of ammunition by a person under
18 years of age, except as specified. A violation is generally
punishable as a misdemeanor, but, if the minor has been found
guilty of violating certain enumerated offenses previously, a
violation may be punished as either a felony by 16 months, two
or three years in county jail, or as a misdemeanor by up to one
year in the county jail. (Penal Code §§ 29650 and 29700.)
Current law provides that selling any ammunition to a person
under the age of 18, or selling ammunition designed and intended
for a handgun to a person under the age of 21 is a misdemeanor.
(Penal Code § 30300.)
Current law provides that, except as specified, any person who
is prohibited from owning or possessing a firearm is also
prohibited from owning, or possessing ammunition. A violation
may be punished as either a felony by 16 months, two or three
years in state prison or as a misdemeanor by up to one year in
the county jail. (Penal Code § 30305(a).)
Current law provides that, except as specified, a person
enjoined from engaging in activity pursuant to an injunction
against that person as a member of a criminal street gang is
prohibited from owning or possessing ammunition. Violation of
this section is punishable as a misdemeanor. (Penal Code §
30305(b).)
Current law provides that supplying, selling, or delivering
ammunition to someone that a person knows or reasonably should
know is prohibited from owning or possessing ammunition is a
misdemeanor punishable by up to one year in the county jail.
(Penal Code § 30306.)
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Current law provides that possession of ammunition on school
grounds without the written permission of the school district
superintendent is prohibited except for persons who have been
issued a license to carry a concealed weapon or in limited
situations involving law enforcement or military personnel.
Violation of this section is punishable as a misdemeanor.
(Penal Code
§ 30310.)
Current law prohibits possession of any handgun ammunition
designed primarily to penetrate metal or armor. A violation is
punishable as either a felony by 16 months, two or three years
in county jail or as a misdemeanor by up to one year in the
county jail, unless the person found the ammunition and they are
not otherwise prohibited from possessing firearms or ammunition,
and they are transporting it to a law enforcement agency for
disposal. (Penal Code § 30315.)
Current law provides that manufacturing, importing, or selling
handgun ammunition designed primarily to penetrate metal or
armor is a felony, punishable by 16 months, two or three years
in state prison and a fine of up to $5,000, or both. (Penal
Code § 30320.)
Current law provides that, with limited exceptions, delivery or
transfer of ownership of handgun ammunition may only occur in a
face-to-face transaction with bona fide evidence of identity
from the purchaser. Violation of this section is punishable as
a misdemeanor. (Penal Code
§ 30312.)*
Current law provides that vendors of handgun ammunition must
comply with certain conditions, requirements and prohibitions,
with limited exceptions, including not selling or transferring
ownership of any handgun ammunition without, at the time of
delivery, legibly recording the following information. (Penal
Code § 30352.):*
the date of the sale or other transaction;
the purchaser's/transferee's driver's license or ID
number and the state of issuance;
the brand, type, and amount of ammunition sold or
otherwise transferred.
the purchaser's/transferee's signature;
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the name of the salesperson who processed the sale or
other transaction;
the right thumbprint of the purchaser or transferee on
the above form;
the purchaser's /transferee's full residential address
and telephone number; and
the purchaser's/transferee's date of birth.
Current law requires that handgun ammunition vendors must keep
these records for a period of not less than 5 years and must
make these records available to inspection by specified law
enforcement during normal business hours. (Penal Code §§ 30355,
30357.)*
Current law requires that handgun ammunition vendors shall not
knowingly make a false entry or fail to make an entry or obtain
the required thumbprint. (Penal Code § 30360.)*
Current law provides that violations of the above laws regarding
handgun ammunition vendors are punishable as a misdemeanor.
(Penal Code § 30365.)*
Current law defines "handgun ammunition" as "ammunition
principally for use in pistols, revolvers, and other firearms
capable of being concealed upon the person, notwithstanding that
the ammunition may also be used in some rifles" and exempting,
as specified:
ammunition designed and intended to be used in an
antique firearm; and
blanks. (Penal Code § 16650.)*
* Enforcement of these sections is currently stayed per order of
the Fresno County Superior Court in Parker v. State of
California, No. 10 CECG 02116. That order is currently on
appeal.
This bill provides that, except as specified, ammunition means
"one or more loaded cartridges consisting of a primer case,
propellant, and with one or more projectiles." This bill
provides that ammunition does include blanks.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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For the past several 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
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 December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 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).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 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 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
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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
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1. Author's Statement
According to the author:
In 2009, AB 962 (De León), the Anti-Gang Neighborhood
Protection Act, was enacted to bring accountability to the
sale of handgun ammunition and deter prohibited individuals
from purchasing ammunition. Unfortunately, in an attempt to
upend the law, the National Rifle Association and others
challenged it in court. The resulting case, Parker v.
California, has prevented the implementation of the law as
we wait for the California Supreme Court to make an
ultimate decision. As a result of the court-issued
injunction applied to AB 962, today any criminal can walk
into a Big 5 or Wal-Mart and purchase ammunition, no
questions asked. It continues to be easier in California
to purchase a pallet of ammunition than a pack of
cigarettes or allergy medicine. There is no way to track
who is buying and selling bullets and this blind eye
approach is putting ammunition in the hands of killers.
This measure clarifies the definition of ammunition.
2.Background - AB 962 and the Ruling in Parker v. State of
California, et al.
AB 962 (De León), Chap. 628, Statutes of 2009, created several
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new requirements regarding handgun ammunition sales. These
include requiring that handgun ammunition sellers obtain
personal identification information from buyers and retain that
information for inspection by law enforcement upon request,
(Penal Code §§ 30345, et seq.) and that all delivery of handgun
ammunition take place in a face-to-face transaction (prohibiting
direct sales over the internet). (Penal Code § 30312.) On
January 31, 2011, a Superior Court in Fresno ruled that the
definition of "handgun ammunition" contained in sections
12060(b) and 12318(b)(2) (now renumbered as section 16650) was
unconstitutionally vague, rendering invalid the provisions of
sections 12060, 12061 (now renumbered as sections 30345, et
seq.) and 12318. Each of these sections were enacted pursuant
to AB 962.<1> As a result of this finding the Court enjoined
the State Attorney General from enforcing those statutes.
(Parker v. State of California, et al., Fresno County Superior
Court, Case No. 10 CECG 02116, Order Denying Plaintiff's Motion
for Summary Judgment and Granting In Part and Denying In Part
Defendant's Motion for Summary Adjudication, , pages 4, 11-17.)
The Court stated:
Because the language of the definition of "handgun
ammunition" fundamentally requires each law
enforcement officer to make a subjective determination
as to whether or not the ammunition at issue is
ammunition "principally for use" in a handgun and then
subjectively apply their own definition to the
situation before them, the definition of "handgun
ammunition" established in section 12060(b) and
12318(b)(2) gives unlimited discretion to each
individual law enforcement officer to determine
arbitrarily if the ammunition at issue is "handgun
ammunition" and to apply their particular
classification of "handgun ammunition" or not to the
specific issue before them. (Id at pages 14-15.)
The state appealed this decision and the 5th District Court
of Appeal stated in its holding:
This appeal presents a facial challenge under the
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<1> Old Penal Code section 12318 defines "handgun ammunition" by
cross-reference to old section 12323(a), now renumbered section
16650.
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void-for-vagueness doctrine to a
statutory scheme within the Penal Code regulating the
sale, display, and transfer of "handgun ammunition."
The statutes at issue, former sections 12060, 12061
and 12318, defined "handgun ammunition" as ammunition
"principally for use" in handguns as opposed to rifles
and other firearms. In the proceedings below,
respondents challenged the constitutionality of these
statutes on grounds that they failed to provide
adequate notice of the conduct proscribed and lacked
sufficiently definite guidelines to prevent arbitrary
or discriminatory enforcement by police.
The trial court agreed with respondents, declaring the
challenged statutes constitutionally invalid and
issuing a permanent injunction against their
enforcement. Appellants contend the statutes are not
unconstitutional because it is possible to conceive of
circumstances in which the statutory language would
not be vague. These issues are addressed in the first
part of our opinion. The second part of the opinion
pertains to the trial court's partial denial of a
motion to tax costs filed by appellants after the
permanent injunction was issued. We affirm the
judgment in full. (Parker v. State of California,
221 Cal. App. 4th 340, 346-47 (Cal. App. 5th Dist.
2013).)
Parker v. State of California is currently pending before
the California Supreme Court.
This bill adds a definition of ammunition to the penal code.
While the intent of this legislation is, seemingly, to cure the
vagueness issue citied by the Court in Parker, this legislation
does not amend the sections of the penal code that require
"handgun ammunition" vendors to complete a variety of tasks.
This legislation, additionally, does not amend the definition of
"handgun ammunition." Given this, it is doubtful that this
legislation will remedy the vagueness concerns raised in Parker.
3. Argument in Support
According to the California Chapters of the Brady Campaign to
Prevent Gun Violence:
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In 2009, the California Brady Campaign Chapters were
co-sponsors of AB 962, which was signed by Governor
Schwarzenegger. The law will reduce easy access to handgun
ammunition and give law enforcement a tool to find and
remove illegal guns and ammunition from prohibited persons.
Under AB 962, sellers of handgun ammunition are required
to store handgun ammunition so that is inaccessible to a
purchaser without the assistance of the vendor. Secondly,
the bill requires the sale or transfer of handgun
ammunition to be completed in face-to-face transactions.
Finally, AB 962 requires sellers of handgun ammunition to
maintain records containing certain information about the
purchaser and the type and amount of handgun ammunition
sold.
However, in 2011 a Superior Court in Fresno ruled in Parker
v. State of California, et al. that the definition of
"handgun ammunition" was unconstitutionally vague,
rendering invalid the provisions of AB 962. The Court
enjoined the State Attorney General from enforcing those
statutes. The case is currently on appeal and pending
before the California Supreme Court. SB 1235 seeks to
resolve the vague definition issue by having the AB 962
provisions apply to "ammunition" and defining it to mean
one or more loaded cartridges consisting of a primer case,
propellant, and with one or more projectiles.
From a policy perspective, it makes sense to apply the
requirements under AB 962 to long gun ammunition as long
guns are increasingly used in crime. Moreover, DOJ has
found that over the last three fiscal years, nearly half
the illegal firearms recovered from prohibited persons
through the Armed Prohibited Persons System are long
guns.<2> Further, over the past ten years, Californians
have annually purchased more long guns than handguns,
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<2>
California Department of Justice, "SB 140 Supplemental Report
of the 2015-16 Budget Package: Armed Prohibited Persons System,"
http://oag.ca.gov/sites/all/files/agweb/pdfs/publications/sb-140-
supp-budget-report.pdf
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including 534,469 long guns in 2013.<3> These long guns
include legal weapons that have military-style features and
mechanisms, such as a bullet button, to allow for the rapid
exchange of magazines. These weapons in the wrong hands
are a great threat to public safety.
The California Chapters of the Brady Campaign to Prevent
Gun Violence support reducing easy access to ammunition,
both for handguns and long guns, and providing law
enforcement with another investigative tool. The goal of
SB 1235 is to resolve the issue impeding the implementation
of AB 962 and accordingly, the California Brady Campaign is
in support of the measure.
4. Argument in Opposition
According to the Firearms Policy Coalition:
On behalf of the members and supporters of Firearms Policy
Coalition, I respectfully submit our opposition to Senate
Bill 1235 (De León), a measure that clumsily tinkers with
the definition of "ammunition".
SB 1235 was recently gutted amended to a non-germane
subject (from public employees' retirement to ammunition).
In its current form, the bill does not serve any purpose
other than to create redundancies and conflicts within
existing penal code statutes relating to ammunition.
To the extent that SB 1235 might later be amended to
restrict the purchase or possession of ammunition by
law-abiding citizens, we are unable to provide comments as
to why any potential amendments to the bill may be
unworkable, contrary to existing state or federals
statutes, or unconstitutional.
We urge the author to withdraw this measure, and barring
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<3>.
California Department of Justice, "Dealer's Record of Sale
(Calendar Year Statistics),"
http://oag.ca.gov/sites/all/files/agweb/pdfs/firearms/forms/dros_
chart.pdf?
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that, for the committee to
reject any further restrictions on the people's free
exercise of their civil rights.
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