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  
          -------------------------
          <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,  
               -------------------------
          <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  
               -------------------------
          <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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