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
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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
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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
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  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