BILL ANALYSIS
AB 491
Page 1
Date of Hearing: April 13, 1999
Chief Counsel: Harry M. Dorfman
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mike Honda, Chair
AB 491 (Scott) - As Amended: April 6, 1999
SUMMARY : Makes possession of a concealed or loaded firearm an
alternate misdemeanor/felony under certain circumstances.
Specifically, this bill :
1)Makes it an alternate misdemeanor/felony if both of the
following conditions are met:
a) Both the firearm and unexpended ammunition are either in
the immediate possession of the person or readily
accessible, and
b) The person is not listed with the Department of Justice
(DOJ) as the registered owner of the firearm, pursuant to
Penal Code Section 11106(c)(1).
2)A misdemeanor violation is punishable by up to a year in jail,
by a $1,000 fine, or both; a felony is punishable by 16
months, or 2 or 3 years in prison.
3)Makes it an alternate misdemeanor/felony to carry a loaded
firearm on one's person, or in a vehicle on any public street
where the person is not listed with the DOJ as the registered
owner, punishable as in #1 above.
4)Requires the district attorney of each county to submit an
annual report to the Attorney General detailing profiles by
race, age, gender, and ethnicity of any person charged under
this bill.
5)Requires the Attorney General to submit an annual report to
the Legislature compiling all the reports described in #3
above.
6)Provides that this bill's Penal Code sections will remain in
effect until January 1, 2005.
EXISTING LAW :
AB 491
Page 2
1)Provides that a person is guilty of carrying a concealed
firearm when the person:
a) Carries concealed within any vehicle under his or her
control any concealable firearm,
b) Carries concealed on his or her person any concealable
firearm, or
c) Causes to be carried concealed in any vehicle in which
he/she is an occupant a concealable gun. (Penal Code
Section 12025(a).)
2)Provides that where a person has previously been convicted of
a felony, a Penal Code Section 12025 violation is a felony,
punishable by 16 months, or 2 or 3 years in state prison.
(Penal Code Section 12025(b)(1).)
3)Provides that where the firearm is stolen and the person knew
or had reasonable cause to believe the firearm was stolen, a
Penal Code Section 12025 violation is a felony, punishable by
16 months, or 2 or 3 years in state prison. (Penal Code
Section 12025(b)(2).)
4)Provides that where the person is an active participant in a
criminal street gang, a Penal Code Section 12025 violation is
a felony, punishable by 16 months, or 2 or 3 years in state
prison. (Penal Code Section 12025(b)(3).)
5)Provides that where the person not in lawful possession of the
firearm is a felony, punishable by 16 months, or 2 or 3 years
in state prison. (Penal Code Section 12025(b)(4).)
6)Defines "lawful possession of the firearm" as "the person who
has possession or custody of the firearm either owns the
firearm or has the permission of the owner or a person who
otherwise has apparent authority to possess or have custody of
the firearm." (Penal Code Section 12025(f).)
7)Provides that all Penal Code Section 12025 violations other
than those specified in #1-5 above are misdemeanors,
punishable by up to one year in county jail, a $1,000 fine, or
both.
AB 491
Page 3
8)Provides that a person is guilty of carrying a loaded firearm
when he or she carries a loaded firearm on one's person, or in
a vehicle in any public place or on any public street. (Penal
Code Section 12031(a).)
9)Provides Penal Code Section 12031 violations, definitions and
penalties are parallel to Penal Code Section 12025 violations,
definitions, and penalties described in #2-6 above.
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement. According to the author, "Existing law
(Penal Code Section 12020) provides that concealed carrying of
pen knives, brass knuckles, dirks, daggers, zip guns and
certain other devices can be prosecuted as a felony; however,
the illegal carrying of a concealed handgun can only be
prosecuted as a misdemeanor.
"Former Attorney General Dan Lungren's Policy Council on
Violence Prevention concluded that 'carrying a concealed,
loaded firearm without a permit is a serious crime and should
be treated as such.' Therefore, the council recommended that
California enact legislation to increase the penalty to a
'misdemeanor or felony' at the discretion of the district
attorney.
"AB 491 would allow district attorneys and judges to charge or
convict individuals who illegally conceal unregistered
firearms with either a misdemeanor or felony."
2)Incentive to Possess Registered Firearms. This bill amends
two firearms sections commonly used by prosecutors: Penal
Code Sections 12025 and 12031. The change requires a person
to formally register his or her handgun enabling DOJ to have a
record of registration pursuant to Penal Code Section
11106(c)(1); a person who fails to register faces possible
felony charges. The existing definition of "lawful
possession" includes ownership of the firearm, but this bill's
addition requires that the formality of registration be
satisfied. Under this bill, when a police officer lawfully
confiscates a gun from a person the gun must be registered
with DOJ in order for the possession to be lawful.
AB 491
Page 4
3)Can DOJ Handle the Volume of Police and Prosecutor Inquiries?
Because this bill specifies that the DOJ's records of
registration will be the key to proving lawful possession,
will DOJ be able to process expeditiously the requests for
verification?
4)Similar Legislation. AB 304 (Scott), of the 1997-98
Legislative Session; AB 632 (Katz), of the 1995-96 Legislative
Session; AB 2469 (Burton), of the 1993-94 Legislative Session.
REGISTERED SUPPORT / OPPOSITION :
Support
California Police Chiefs' Association
City of Los Angeles
Handgun Control, Inc.
Legal Community Against Violence
Public Health Institute
Trauma Foundation
Women Against Gun Violence
Opposition
California Public Defenders Association
California Rifle and Pistol Association
California Shooting Sports Association
Gun Owners of California, Inc.
One Private Citizen
Analysis Prepared by : Harry Dorfman / PUB. S. / (916) 319-3744