BILL ANALYSIS
SENATE COMMITTEE ON CRIMINAL PROCEDURE
Senator Milton Marks, Chair
S
1995-96 Regular Session
B
3
5
SB 357 (Polanco)
7
As amended April 26 , 1995
Hearing date: May 2, 1995
Penal Code
SAH:js
FIREARM AMMUNITION - RESTRICTIONS ON POSSESSION AND SALE/
TRANSFERS OF FIREARMS TO MINORS - PENALTIES
HISTORY
Source: Author
Prior Legislation: SB 1276 (1994) - held in Senate
Appropriations Committee
Support: Legal Community Against Violence; Handgun Control,
Inc.
Opposition: California Rifle and Pistol Association; NRA;
Sports and Arms Show
Producers of America, Inc.; California
Attorneys for Criminal Justice
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KEY ISSUES
SHOULD THE SALE AND TRANSFERS OF AMMUNITION BY DEALERS AND
LICENSEES TO PROHIBITED CLASSES OF PERSONS BE ADDED TO
EXISTING PROHIBITIONS ON SUCH TRANSACTIONS INVOLVING
FIREARMS?
(Continued)
SHOULD A NEW SECTION BE ADDED TO THE PENAL CODE TO STATE THAT NOTHING IS THIS BILL
WHICH PROHIBITS SALE AND TRANSFERS OF AMMUNITION TO PROHIBITED PERSONS SHALL BE
CONSTRUED TO REQUIRE DEALER RECORD OF SALE/BACKGROUND CHECKS FOR AMMUNITION
PURCHASES?
SHOULD A NEW SECTION BE ADDED TO THE PENAL CODE TO:
(1) REQUIRE THAT NO PERSON SHALL SELL OR TRANSFER FIREARM AMMUNITION UNLESS They
have a VALID FEDERAL FIREARMS LICENSE AND a Department of Justice oCertificate of
Eligibilityo which shows the person is not in a class prohibited from possessing a
firearm ( EXCEPT FOR SHOOTING RANGE OPERATORS AND IN COUNTIES WITH A POPULATION OF
LESS THAN 500,000 PERSONS)?
(2) PROHIBIT THE DELIVERY, SALE, OR TRANSFER OF AMMUNITION THROUGH THE MAILS OR
COMMON CARRIER UNLESS THE PERSON RECEIVING THE AMMUNITION HAS A VALID FEDERAL
FIREARMS LICENSE (EXCEPT IN COUNTIES WITH A POPULATION OF LESS THAN 500,000
PERSONS)?
(3) MAKE THE PURCHASE/TRANSFER OF AMMUNITION THROUGH THE MAILS OR COMMON CARRIER
UNLAWFUL UNLESS THE PERSON RECEIVING THE AMMUNITION HAS A VALID FIREARMS LICENSE
(EXCEPT FOR SHOOTING RANGE OPERATORS) (EXCEPT IN COUNTIES WITH A POPULATION OF
LESS THAN 500,000 PERSONS)?
(4) MAKE VIOLATIONS SUBJECT TO A FINE OF UP TO $10,000 FOR EACH OFFENSE?
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(5) PROVIDE THAT THIS SECTION SHALL NOT BE CONSTRUED TO
PREEMPT LOCAL ENTITIES ABILITY TO REGULATE AMMUNITION?
SHOULD THE PAMPHLET ON FIREARMS LAWS PREPARED BY THE
DEPARTMENT OF JUSTICE CONTAIN INFORMATION ABOUT LIMITATIONS
ON THE SALE AND TRANSFER OF AMMUNITION?
SHOULD THE TRANSFER OF AMMUNITION TO PROHIBITED CLASSES BASED
ON MENTAL DISORDER BE ADDED TO THE EXISTING PROHIBITION
CONCERNING FIREARMS TO SUCH PERSONS?
(Continued)
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SHOULD THE TRANSFER/SALE OF HANDGUNS TO MINORS BE MADE A
FELONY (CURRENTLY A oWOBBLERo) PUNISHABLE BY TWO, THREE, OR
FOUR YEARS IN THE STATE PRISON? SHOULD THE SAME PENALTY
APPLY FOR ANY TRANSFER OF A HANDGUN TO A PERSON UNDER AGE
21 YEARS BY A LICENSED DEALER? (SEE COMMENT #3 - INCLUDES
THREE-STRIKES IMPACT)
SHOULD THE TRANSFER OF A RIFLE/SHOTGUN (LONGGUNS) TO A MINOR
BY A LICENSED DEALER (CURRENTLY A MISDEMEANOR) BE MADE A
FELONY PUNISHABLE BY TWO, THREE, OR FOUR YEARS IN THE STATE
PRISON? (SEE COMMENT # 3 - INCLUDES THREE-STRIKES IMPACT)
PURPOSE
1. Existing law places prohibitions on any person,
corporation, or firm transferring firearms to prohibited
classes of persons (such as felons or persons adjudicated
mentally ill). Penalties may be either a misdemeanor or a
felony, as specified. (Penal Code Section 12072)
This bill would add transfers of ammunition to those classes
of person as well.
2. This bill would add a new Penal Code Section 12004 to
state that nothing being added by this bill shall be
construed to require any person, corporation, or firm that
sells or transfers ammunition to any person to utilize the
existing background/dealer record of sale procedures in
Sections 12071 and 12072.
3. Existing law places a number of restrictions on the sale
and delivery of firearms. However, few similar statewide
restrictions exist for transfers of ammunition.
This bill would add a new Penal Code Section 12071.5 to
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require the following regarding ammunition:
a. require that no person shall sell or transfer
firearm ammunition unless the person receiving the
ammunition has a valid federal firearms license and a
Department of Justice oCertificate of Eligibilityo
which shows the person is not in a class prohibited
from possessing a firearm (COE defined in existing
Section 12071 [a] [4]). This requirement would not
apply to shooting range operators, nor in any county
with a population of less than 500,000 persons.
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b. prohibit the delivery, sale, or transfer of
ammunition through the mails or common carrier unless
the person receiving the ammunition has a valid
federal firearms license. The person delivering would
be required to record the recipientos license number,
county of residence, and the date of delivery.
c. make the purchase/transfer of ammunition through
the mails or common carrier unlawful unless the person
receiving the ammunition has a valid federal firearms
license (except for shooting range operators).
d. make violations subject to a fine of up to $10,000
for each offense.
e. provide that this new section shall not be
construed to preempt local entities ability to
regulate ammunition?
4. Existing law places a number of restrictions and
requirements on California licensed firearms dealers,
including the requirement that the dealer shall offer a
pamphlet prepared by the Department of Justice to transferees
and may add the cost of the pamphlet to the cost of firearms.
Failure to comply with this section may result in the
forfeiture of the license. (Penal Code Section 12071)
This bill would add ammunition transfers to the requirement
for the gun law pamphlet to be offered.
5. Existing law requires the Department of Justice to
prepare a pamphlet generally summarizing California firearms
laws and to make that pamphlet available to firearms dealers
at cost. The cost of the pamphlet may be added to the cost
of a firearm. The pamphlet is to be available to other
interested parties from the Department. (Penal Code Section
12080)
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This bill would add information about laws pertaining to
ammunition to the required subject of that pamphlet and allow
the cost of that pamphlet to be added to the cost of
ammunition as well.
6. Existing law prohibits oknowingo transfers of ammunition
to minors under 18 years of age and prohibits specified
felons and mentally ill persons who may not own or possess
firearms from owning or possessing ammunition. (Penal Code
Section 12316)
This bill makes a technical change to that section.
7. Existing law prohibits knowingly providing or allowing
the possession of firearms or deadly weapons to specified
mentally ill persons. Violations are punishable by two,
three, or four years in the state prison. (Welfare and
Institutions Code Section 8101)
This bill adds ammunition to the prohibitions in that
section.
8. Existing law generally provides that no person,
corporation, or firm shall sell, loan, or transfer a firearm
to a minor; violations are a misdemeanor for longgun
transfers and an alternate misdemeanor/felony for transfers
of handguns. (Penal Code Section 12072) NOTE: Penal Code
Section 12078 (p) does provide exceptions for minors in
specific circumstances, such as when hunting with an adult.
This bill would make violations of the prohibition against
transferring handguns to a minor a straight felony punishable
by two, three, or four years in the state prison.
Existing law generally provides that no licensed gun dealer
shall transfer a handgun to any person under age 21 year or
any longgun to a person under age 18 years. Violations
involving a handgun are a owobblero punishable by either one
year in county jail; 16 months, two, or three years in state
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prison; a fine up to $1,000; or both the fine and
imprisonment. Violations involving a longgun are a
misdemeanor.
This bill would make violations of both those handgun and
longgun violations a straight felony punishable by two,
three, or four years in the state prison.
The purpose of this bill is to make the sale of ammunition
subject to additional restrictions and to make the transfer
of a handgun to a minor a felony.
COMMENTS
1. Authoros Stated Purpose for this Bill.
The author states that;
oThis measure primarily does two things: it prohibits sales
of ammunition to felons and it places requirements on
ammunition dealers.
oSB 357 will make it a crime to supply, deliver, sell, or
give possession of ammunition to a known felon. The penalty
would be the same for selling firearms to a felon -- two,
three, or four years in prison. This bill would not require
any background checks, so it would make it a crime only if
the seller knows the recipient is a felon.
oThe measure will also require that anyone who wishes to
sell, deliver, or transfer ammunition to another must have a
valid federal firearms license and a valid certificate of
eligibility (COE). This provision is only applicable to
counties with a population greater than 500,000. In
addition, sales of ammunition through the mails will only be
allowed if the recipient has a federal firearms license.
oThis provision is intended to address the serious problem of
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gun violence in California's cities. Currently, anyone with
a valid business license can sell ammunition in California
providing they comply with local ordinances. This bill
attempts to reduce the sales of ammunition at liquor stores,
corner markets, and the like, so that the availability of
ammunition in urban centers is reduced.
oThis is also an attempt to make current federal firearms
licensees who are selling firearms in California without a
COE come into compliance. With a penalty of $10,000 for each
time they sell ammunition without a COE, I believe many more
gun dealers will obtain valid COE's. If this occurs, the
Department of Justice can create a more complete list of all
firearms dealers in California and the number of dealers who
do comply with the law by doing background checks on firearms
purchasers will only increase.o
2. Current Law Regarding Ammunition Sales.
At the present time, there are few restrictions placed on the
sale of ammunition at either the federal or the state level.
The federal laws were changed in 1986 to allow almost anyone
to sell most ammunition in the United States. Ammunition may
be sold in California by most businesses subject to normal
local business licensing requirements. Federal laws do place
some restriction on federal firearms dealers regarding the
sale of ammunition to minors. Federal law does prohibit the
sale of armor-piercing ammunition and ammunition which
contains an explosive projectile. Federal law does prohibit
dealer sales to known persons in certain prohibited classes
and the knowing sale of stolen ammunition is prohibited by
anyone. However, there are few other limitations on the sale
of ammunition. In fact, ammunition and the components of
ammunition - shell casings, bullets, primers, and powder -
may be shipped interstate with few restrictions beyond those
placed by carriers.
California does place some restrictions and conditions on the
possession of ammunition by minors and others as noted in the
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purpose section of this analysis. California does impose a
sentence enhancement on persons convicted of a felony who
possess ammunition designed to penetrate metal or armor
(Penal Code Section 12022.2) and bullets containing an
explosive charge (Penal Code Section 12020). Possession of
handgun ammunition primarily designed to penetrate metal or
armor is prohibited (Penal Code Section 12320). However,
there are few other restrictions on the sale of firearm
ammunition in California. Retail stores of a variety of
types sell ammunition in California, subject to local
business practices (some local entities have been developing
regulatory approaches to local ammunition sales).
Current Government Code Section 53071 preempts local control
over the registration and licensing of commercially
manufactured firearms as encompassed in the Penal Code; that
section does not mention ammunition.
3. Change in Penalty for Transfer of a Handgun to a Minor.
Penal Code Section 12072 currently provides:
that no person, corporation, or firm shall sell, loan, or
transfer a firearm to a minor, with specified exceptions.
(sub. [3] [A] and [b]) Violations are generally a
misdemeanor except that if the firearm is a handgun the
violation is a owobblero punishable by either one year in
county jail; 16 months, two, or three years in state prison;
a fine up to $1,000; or both the fine and imprisonment.
This bill would make those handgun transfer violations a
straight felony punishable by two, three, or four years in
the state prison.
no licensed gun dealer shall transfer a handgun to any person
under age 21 year or any longgun to a person under age 18
years. (sub [b]) Violations involving a handgun are a
owobblero punishable by either one year in county jail; 16
months, two, or three years in state prison; a fine up to
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$1,000; or both the fine and imprisonment. Violations
involving a longgun are a misdemeanor.
This bill would make violations of both those handgun and
longgun violations a straight felony punishable by two,
three, or four years in the state prison.
The effect of those changes would be to eliminate a
misdemeanor option for existing wobblers involving transfers
of handguns and to add a new felony penalty in place of the
existing misdemeanor penalty for licensed dealers
transferring longguns to a minor. In addition, where the
felony penalty already exists as part of a owobblero, this
bill would increase the felony penalty from 16 months, two,
or three years to two, three, or four years in state prison.
SUGGESTED TECHNICAL AMENDMENT - LINES 1 THROUGH 3 ON PAGE 19
SHOULD BE DELETED SINCE THAT PENALTY HAS BEEN MOVED TO
ANOTHER SECTION.
This bill would technically only create one new felony
penalty category, the transfer by a licensed gun dealer of a
longgun to a minor.
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SHOULD THE NEW FELONY-ONLY PROVISIONS BE APPLICABLE ONLY
TO PROVIDING A HANDGUN TO A MINOR? (THUS AVOIDING THE
ALTOGETHER NEW FELONY PENALTY FOR LONGGUNS TRANSFERRED BY
DEALERS?)
IF THE MISDEMEANOR HALF OF AN EXISTING WOBBLER IS REMOVED,
LEAVING A STRAIGHT FELONY, IS THAT THE KIND OF CHANGE WHICH
SHOULD TRIGGER A oTHREE-STRIKESo LAW EXEMPTION? THAT COULD
CREATE AN UNINTENDED RESULT; IF THE oTHREE-STRIKESo EXEMPTION
IS ADDED, IS THAT IN FACT A SENTENCING REDUCTION (SINCE UNDER
CURRENT LAW, THE FELONY PART OF THE WOBBLER COULD BE A SECOND
OR THIRD STRIKE)?
4. Other Amendment Contemplated by the Author.
The authoros office has indicated that there may be some
future discussion about amending this bill to require that
all firearm thefts or losses of handguns be reported within a
specific time to local law enforcement, subject to an
infraction penalty (fine of up to $1,000; no imprisonment).
It is stated that some other states have such laws. At the
current time, only licensed firearms dealers are required to
report the olosso of firearms. (See existing Penal Code
Section 12071 [b] [13].)
5. The oTechnicalo Amendment to Penal Code Section 12316.
Penal Code Section 12316 (b) pertains to persons prohibited
from possessing firearms. That section prohibits such
persons from possessing ammunition as well. The penalty up
to last year was a misdemeanor. SB 37X of last year was
chaptered and added a penalty of an alternate
misdemeanor/felony. It seems clear that the intent of the
Legislature and the Governor in enacting SB 37X was to
increase the penalty. However, the ooldo misdemeanor
language in (b) was inadvertently left in. This bill removes
that language, leaving the new SB 37X owobblero. That same
clarifying change is proposed in AB 543 (Burton), currently
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in the Assembly.
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