BILL ANALYSIS SENATE COMMITTEE ON Public Safety Senator John Vasconcellos, Chair A 1999-2000 Regular Session B 4 9 1 AB 491 (Scott) As Amended June 15, 1999 Hearing date: June 22, 1999 Penal Code JM:br CONCEALED HANDGUNS/LOADED FIREARMS - PENALTIES; FIREARM POSSESSION BY PERSONS SUBJECT TO PSYCHIATRIC HOLDS HISTORY Sources: California Police Chiefs' Association (Possession of firearm with ready ammunition) Attorney General (Alleged mental incompetence and firearm possession) Prior Legislation: AB 304 (Scott) - Chapter 459, Statutes of 1997 AB 632 (Katz) - Chapter 787, Statutes of 1976 Support: California Police Chiefs' Association; City of Los Angeles; City of West Hollywood; Handgun Control; Legal Community Against Violence; Public Health Institute; Trauma Foundation; Women Against Gun Violence Opposition:California Public Defenders Association; (More) AB 491 (Scott) Page 2 California Rifle and Pistol Association; California Shooting Sports Association; Gun Owners of California, Inc.; National Rifle Association Assembly Floor Vote: Ayes 43 - Noes 27 KEY ISSUES SHOULD ANY PERSON WHO POSSESSES A CONCEALED HANDGUN IN PUBLIC WITH READY AMMUNITION BE GUILTY OF AN ALTERNATE FELONY/MISDEMEANOR, NOT A MISDEMEANOR AS UNDER CURRENT LAW, IF HE OR SHE IS NOT THE REGISTERED OWNER OF THE FIREARM? SHOULD ANY PERSON WHO OPENLY CARRIES A LOADED HANDGUN IN PUBLIC BE GUILTY OF AN ALTERNATE FELONY/MISDEMEANOR, NOT A MISDEMEANOR AS UNDER CURRENT LAW, IF HE OR SHE IS NOT THE REGISTERED OWNER OF THE FIREARM? SHOULD THE STATE BEAR THE BURDEN OF PROOF IN A HEARING TO DETERMINE WHETHER A PERSON WHO HAS BEEN SUBJECTED TO A 72- HOUR HOLD PURSUANT TO WELFARE AND INSTITUTIONS CODE SECTION 5150 CAN SAFELY POSSESS A FIREARM? PURPOSE The purpose of this bill is to allow a felony conviction where a person carries in public a loaded handgun, or a handgun for which he or she has ready ammunition, and where he or she is not the registered owner of the firearm. The purpose of this bill is to allow a felony penalty regardless of whether or not the handgun is concealed and regardless of whether or not the possessor is otherwise the lawful owner or borrower of the handgun. The purpose of this bill is to require the Department of Justice to bear the burden of proof in a hearing to determine whether a person held for 72-hours observation and subsequently released without further commitment pursuant to Welfare and Institutions Code section 5150 can (More) AB 491 (Scott) Page 3 safely possess a firearm. EXITING LAW AND THIS BILL - CARRYING GUNS IN PUBLIC 1. Existing Law as to Carrying Concealed Handguns a. Carrying a Concealed Firearm, Defined: i. Every person who carries concealed within any vehicle which is under his or her control or direction any pistol, revolver, or other firearm capable of being concealed upon the person; or, ii Causes to be concealed within any vehicle in which the person is an occupant any pistol, revolver, or other firearm capable of being concealed upon the person; or iii. Carries concealed upon his or her person any pistol, revolver, or other firearm capable of being concealed upon the person, is guilty of carrying a concealed handgun. (Pen. Code 12025, subd. (a).) A number of exceptions and limitations are contained in law pertaining to this crime, including methods to lawfully carry firearms in a vehicle, in a home or business, etc.. (Pen. Code 12025, 12025.5, 12026, 12026.2, 12027, and 12050.) b. Punishment for Carrying a Concealed Firearm i Violations of carrying a concealable firearm concealed or in a vehicle are generally punished as a misdemeanor punishable by up to one year in a county jail. ii Violations by a person who has been convicted of a crime against a person or property, or of a narcotics or dangerous drug violation, are punishable as either a misdemeanor (up to one year (More) AB 491 (Scott) Page 4 in jail) or a felony. iii Specified violations are punishable as a felony: where the person has previously been convicted of any felony, or of any crime made punishable by the Dangerous Weapons' Control Law; where the firearm is stolen and the person knew or had reasonable cause to believe that it was stolen; where the person is an active participant in a criminal street gang; and where the person is not in lawful possession of the firearm, as defined, or the person is within a class of persons prohibited from possessing or acquiring a firearm. (Penal Code 12025, subd. (b).) 2. Existing Law as to Openly Carrying a Loaded Firearm in Public : A person is guilty of carrying a loaded firearm when he or she carries a loaded firearm on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory. (Pen. Code 12031, subd. (a)(1).) (A number of exceptions and limitations are contained in law pertaining to this crime.) Violations are punishable as in Penal Code section 12025: generally as a misdemeanor (up to one year in jail); a felony in specified circumstances; and as a misdemeanor (up to one year in jail)/felony where the person has been convicted of a crime against a person or property or of narcotics or dangerous drug violations. (Pen. Code 12031, subd. (a)(2).) 3. Existing Law - Definition of a Loaded Firearm A person is guilty of carrying a loaded firearm under existing law when he or she carries a loaded firearm on his or her person or in a vehicle while in any public place or (More) AB 491 (Scott) Page 5 on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory. (Pen. Code 12031(a)(1).) A number of exceptions and limitations are contained in law pertaining to this crime. Violations are punishable as in Penal Code section 12025: generally as a misdemeanor (up to one year in jail); a felony in specified circumstances; and as a misdemeanor (up to one year in jail)/felony where the person has been convicted of a crime against a person or property or of narcotics or dangerous drug violations. (Pen. Code 12031, subd. (a)(2).) 4. This Bill - New Alternate Felony/Misdemeanor of Carrying a Concealed Handgun with Ready Ammunition This bill creates a new alternate felony/misdemeanor of carrying a concealable firearm (handgun), punishable by 16 months, two or three years in state prison, or by up to one year in the county jail and/or a fine up to $1,000, where the following are proved: a) A person conceals and carries, on his or her person, or within any vehicle, a concealable firearm (handgun); b) The gun is loaded, or ammunition for the handgun is in the person's immediate possession or is readily accessible; and b) The person is not listed as the registered owner or the borrower of the handgun on Department of Justice (DOJ) records pursuant to Penal Code section 11106. 5. This Bill - New Alternate Felony Misdemeanor of Openly Carrying a Loaded Firearm This bill increases the penalty for possession of a loaded (More) AB 491 (Scott) Page 6 firearm to an alternate misdemeanor/felony where the firearm is a pistol, revolver, or other firearm capable of being concealed upon the person and the possessor is not the registered owner. EXISTING LAW AS TO PROHIBITION ON POSSESSION OF A FIREARM BECAUSE OF MENTAL HEALTH TREATMENT OR MENTAL CONDITION Existing law , the Lanterman-Petris-Short Act (LPS), provides that persons, who, by reason of a mental disorder, are dangerous to others or to themselves, or who are gravely disabled" may be involuntarily held for 72 hours, and then treated for 14 additional days, and 180 days following a judicial hearing. (Welf. & Inst. Code 5000 et seq.) Existing law provides that a person who has been taken into custody for a 72 hour LPS hold may not own a firearm for five years unless the person proves by a preponderance in a judicial hearing that he or she may safely possess a firearm. (Welf. & Inst. Code 8130, subd. (f).) Existing law provides that a person who has been certified for intensive treatment under the LPS law may not own a firearm for five years unless the person proves by preponderance in a judicial hearing that he or she may safely possess a firearm. (Welf. & Inst. Code 8130, subd. (f).) Existing law provides that a person found to be a mentally disordered offender or a mentally disordered sex offender, a person who have been placed under a conservatorship, a person who has been found to be a danger to self or others because of a mental disorder, may not possess a firearm unless a court certifies that the person may possess a firearm without endangering others. (Welf. & Inst. Code 8130, subd. (a)(1).) Existing law provides that any person who has been found guilty of specified serious offenses by reason of insanity (More) AB 491 (Scott) Page 7 may not possess a firearm. (Welf. & Inst. Code 8130, subd. (b).) Existing law provides that any person who has been found guilty of lesser offenses by reason of insanity may not possess a firearm until sanity has been restored. (Welf. & Inst. Code 8130, subd. (c).) This bill would provide that a person previously held for a 72 hour "5150" - and not held for further treatment beyond the 72-hours - may request a hearing for relief from the five-year firearm possession prohibition at which the state would bear the burden of proving that the person would not safely possess a firearm. COMMENTS 1. Need for this Bill According to the author: Existing law (Pen. Code 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 [absent additional elements]. The Policy Council on Violence Prevention convened by the former Attorney General Lungren 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 (More) AB 491 (Scott) Page 8 to charge or convict individuals who illegally conceal unregistered firearms with either a misdemeanor or felony. The only individuals subject to the wobbler will be those carrying a gun and ammunition if they have not undergone a background check to acquire the gun. Prior to the 1997 decision of the Sacramento County Superior Court in Dayacamos v. Department of Justice (Sacramento No. 96 CS 10471) Welfare and Institutions Code section 8103, subdivision (f) prohibited persons placed in a mental health facility from owning or possessing firearms for a period of five years. However the Sacramento Superior Court in Dayacamos invalidated section 8103, subdivision (f) as a violation of procedural due process under both the federal and state constitutions. Specifically, the court emphasized that the statute did not provide for any meaningful notice or hearing prior to the deprivation of the ability to possess, own, control, receive or purchase a firearm. Furthermore, the court found that the statutory burden of proof placed on the person subject to the firearm disqualification also violated due process. The court then permanently enjoined the Attorney General from the receipt or processing of information regarding persons placed on 72-hour holds. (Welf. and Inst. Code 5150-5152.) This bill would address the constitutional infirmities cited by court in Dayacamos with respect to Welfare and Institutions Code section 8103, subdivision (f). It would expressly provide person discharged from a mental health facility following a 72 hour hold to be informed of their right to a judicial hearing concerning their firearms legal disability under section 8103, subdivision (f). The proposal would also (More) AB 491 (Scott) Page 9 place the burden of proof upon the People to show by preponderance of the evidence that the person will not be likely to use firearms in a safe and lawful manner. This bill would satisfy the constitutional requirement outline by the Dayacamos court case while at the same time ensuring the safety of the public. 2. Increased Penalties Proposed in This Bill for Loaded Handguns - Concealed and Openly Carried a) Concealed Handguns This bill proposes to increase the penalty from a misdemeanor to an alternate felony/misdemeanor for a person who carries a loaded, concealed handgun under Penal Code section 12025 where he or she is not the registered owner of the gun. (Other elements, most notably a prior felony conviction, would make such conduct a felony under current law.) Under current law - Penal Code section 12025 - a person may receive no more than a misdemeanor for carrying a concealed, loaded handgun where he or she is in "lawful possession"<1> of the firearm, not otherwise be prohibited from possessing the firearm, not otherwise violating a law or committing a crime, not a member of a street gang, and not otherwise subject to a felony ----------------------------- <1> Penal Code sections 12025, subdivision (f), and 12031, subd. (a)(2)(G), define lawful possession thus: "For purposes of this section, 'lawful possession' means that the 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. A person who takes a firearm without the permission of the owner or without the permission of a person who has custody of the firearm does not have lawful possession of the firearm." (More) AB 491 (Scott) Page 10 penalty. b) Loaded, Openly Carried Handguns This bill proposes to increase the penalty from a misdemeanor to an alternate felony/misdemeanor for a person who openly carries a loaded handgun under Penal Code section 12031 where he or she is not the registered owner of the gun. (Other elements, most notably a prior felony conviction, would make such conduct a felony under current law.) Under current law - Penal Code section 12031 - a person may receive no more than a misdemeanor for carrying a loaded handgun where he or she is in "lawful possession"<2> of the firearm, not otherwise be prohibited from possessing the firearm, not otherwise violating a law or committing a crime, not a member of a street gang, and not otherwise subject to a felony penalty. Thus, the critical issue raised by this bill is whether or not handgun registration should be the determining factor in the penalty for possession of a concealed handgun (apart from prior felony convictions etc, that render possession of any firearm a felony). Determination of this issue likely turns on what is accomplished by gun registration and the process necessary to registers a gun. ----------------------------- <2> Penal Code sections 12025, subdivision (f), and 12031, subd. (a)(2)(G), define lawful possession thus: "For purposes of this section, 'lawful possession' means that the 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. A person who takes a firearm without the permission of the owner or without the permission of a person who has custody of the firearm does not have lawful possession of the firearm." (More) AB 491 (Scott) Page 11 3. Possible Ambiguity in Section 12025 Created by Definition in This Bill of a Loaded Firearm a) The Dangerous Weapons' Control Law Contains at Least Two Definitions of a "Loaded" Firearm Penal Code section 12031, subdivision (g), states: A firearm shall be deemed to be loaded for the purposes of this section when there is an unexpended cartridge or shell, consisting of a case which holds a charge of powder and a bullet or shot, in, or attached in any manner to, the firearm, including, but not limited to, in the firing chamber, magazine, or clip thereof attached to the firearm; except that a muzzle-loader firearm shall be deemed to be loaded when it is capped or primed and has a powder charge and ball or shot in the barrel or cylinder. Penal Code section 12031 prohibits the carrying of any loaded firearm. Penal Code section 12035, which contains penalties for the "criminal storage" of a loaded firearm, provides: "'Loaded firearm' has the same meaning as set forth in subdivision (g) of Section 12031." Penal Code section 12023 makes it a crime to carry a loaded firearm with the intent to commit a felony. Penal Code section 12001, subdivision (j). provides that for purposes of section 12023, a firearm shall be deemed to be "loaded" whenever both the firearm and the unexpended ammunition capable of being discharged from the firearm are in the immediate possession of the same person. (More) AB 491 (Scott) Page 12 b) This Bill May Include Only One Definition of a Loaded Firearm for Purposes of Section 12025 The amendments to section 12031 in this bill most closely follow the definition of a loaded firearm set out in Penal Code section 12001, subdivision (j). Arguably, this bill covers only defendants who possess handguns with readily available ammunition, not those who possess a weapon that is loaded under the definition of Penal Code section 12001, subdivision (g). This argument would be made under the rule of statutory construction, "expressio unius est exclusio alterius" - the expression of one thing is the exclusion of the other. That is, because this bill specifically employs the definition of a loaded firearm in section 12001, subdivision (j), the definition in section 12001, subdivision (g), is excluded. c) Possible Claims that only Misdemeanor may be Charged for Possession of Concealed and Actually Loaded Handgun A rule of statutory construction holds that where a person can be charged under a general criminal law and a law that more specifically describes the defendant's conduct, the more specific law shall apply. This is particularly likely where the laws governing a subject are comprehensive and inter-related. (People v. De La Cruz (193) 20 Cal.App.4th 955.) The language of this bill may be interpreted to only impose a felony for possession of a concealed handgun where the possessor of the gun has ready ammunition, not where the gun is actually loaded. 4. Registration of Firearm as Defense to Felony, Possible Equal Protection and Due Process Arguments This bill provides that possession of a loaded handgun is a misdemeanor - in the absence of other elements such as (More) AB 491 (Scott) Page 13 prior felony conviction, stolen gun etc. - where the possessor of the handgun is the registered owner. This raises issues as to how a person establishes this defense. It appears from discussions among interested parties that the DOJ computer database includes registrations only back to 1979. Earlier registrations are on microfiche. Where the owner of a firearm is arrested for being in possession of a loaded handgun that was registered prior to 1979, the information will not be in the computer system. Thus, the arresting officer will likely arrest the person for felony possession of a handgun. The arrested person will then likely be charged with a felony until he or she can establish that he or she is the registered owner of the handgun. This may take some time and effort. It may be argued that the bill denies equal protection and due process under the 14th Amendment to the United States Constitution for persons who registered handguns prior to 1979. This is the argument of the NRA and the California Rifle and Pistol Association. A felony conviction in such circumstances would turn on the vagaries of the registration records. In contrast, the Attorney General notes that any person who carries a concealed handgun has necessarily committed a crime - the existing misdemeanor - even where he or she is the lawful possessor or registered owner of the gun. Essentially, the Attorney General argues that it is not unreasonable to place the burden of registration on a person who intentionally commits a crime. Where the handgun is registered, the defendant will avoid a felony. 5. Arguments in Support of the New Wobbler The California Department of Justice argues: AB 491 addresses a longstanding anomaly in the law whereby an individual found in possession of a dirk dagger or club can be found guilty of a felony while an individual carrying a loaded and concealed handgun may be (More) AB 491 (Scott) Page 14 subjected to a misdemeanor. AB 491 provides individuals who may choose to violate Penal Code section 12025 with relief from the felony should they demonstrate that they are the lawful owner of the firearm. This can be easily accomplished by merely voluntarily registering the handgun prior to choosing to violate section 12025. Individuals unlawfully possessing handguns will not seek this relief. 6. Arguments in Opposition - New Concealed Handgun/Ready Ammunition Wobbler The National Rifle Association argues: Assemblyman Scott proposes that the penalty for illegally carrying a concealed weapon be increased to a misdemeanor/felony (wobbler) if the firearm is not registered in the Department of Justice (DOJ) database. In spite of legislative direction in SB 1308 (Peace) in 1994, online DOJ handgun registration information is only available to law enforcement from 1979 on. Without this online registration information, unwarranted felony arrests would result. A similar bill was carried by then Assemblyman Burton (AB 2469) in 1994. He dropped the penalty increase linkage with registration status when it became clear that DOJ's online capabilities were deficient. It is unclear why DOJ has been unwilling or unable to bring their records up to date. However it is clear that there can be no "quick fix." The policy contained in AB 491 could not be implemented fairly until DOJ's handgun registration databases are fully accessible to patrol officers. The California Rifle and Pistol Association argues: (More) AB 491 (Scott) Page 15 The California Rifle and Pistol Association is opposed to AB 491 which would make the first offense of carrying a concealed handgun without a permit an alternate felony/misdemeanor, instead of the current misdemeanor where the person carrying the firearm is in lawful possession of the gun, although not the registered owner. This provision was considered by the Legislature in recent years but not adopted. Instead, the Legislature passed AB 632 (Katz) in 1996 which added Penal Code section 12025, subdivision (b)(4), that took effect on January 1, 1997. AB 632 addressed the primary problem of persons who carry . . . stolen handguns. Most gang members and other criminals carry stolen handguns. They are the real threat to society, not the person who carries his or her own handgun concealed because they are afraid of death or great bodily injury at the hands of another but could not obtain a permit to carry a handgun concealed because their local issuing agency has a policy of not granting permits, regardless of need. AB 632 has not been in effect long enough to assess its effectiveness. In the meantime, it would be inappropriate to increase penalties as proposed in AB 491. This is especially true since there is no documented problem of otherwise lawful individuals carrying handguns without permits . . . that would justify the enactment of this bill. SHOULD ONE'S PENALTY FOR CARRYING A LOADED, CONCEALED HANDGUN BE LIMITED TO A MISDEMEANOR, NOT AN ALTERNATE FELONY/MISDEMEANOR, WHERE HE OR SHE HAS REGISTERED THE GUN? DOES THE DEPARTMENT OF JUSTICE DATABASE ACCURATELY REFLECT THOSE WHO HAVE REGISTERED HANDGUNS, I.E., EITHER PURCHASED A HANDGUN SINCE PURCHASE INFORMATION HAS BEEN MAINTAINED - AND PRIVATE TRANSACTIONS HAVE BEEN REQUIRED TO BE MADE (More) AB 491 (Scott) Page 16 THROUGH A DEALER - OR OTHERWISE HAVE "REGISTERED" A HANDGUN WITH THE DEPARTMENT? HAS PRE-1979 DATA BEEN MAINTAINED IN THE CURRENT ACCESSIBLE DEPARTMENT OF JUSTICE SYSTEM? SHOULD PERSONS IN LAWFUL POSSESSION OF HANDGUNS BE TREATED DIFFERENTLY BASED ON WHETHER OR NOT THE FIREARM WAS "REGISTERED" PRIOR TO 1979? SHOULD PERSONS IN LAWFUL POSSESSION OF A HANDGUN BY VIRTUE OF PERMISSION OF THE OWNER BE EXCLUDED FROM THE LIMITED MISDEMEANOR PENALTY ONLY, AS UNDER CURRENT LAW? 7. Three-Strikes Impact of This Bill (More) AB 491 (Scott) Page 17 This bill would add a felony penalty option to the existing misdemeanor penalty pertaining to possession of a concealed firearm. However, any person subject to this new felony could not have had any felony convictions in the past--serious, violent, or not--since the new felonies proposed by this bill would only apply to persons without such a record. Thus, the new felony penalty options proposed by this bill are unaffected by the "three-strikes" law. (Any person who has a prior felony conviction is currently subject to a straight felony penalty in sections 12025 and 12031.) 8. The Dayacamos Decision The Dayacamos case, a decision of the Sacramento County Superior Court, concerned the 5-year prohibition on possession of a firearm by a person who has been subject to a 72-hour psychiatric hold under section 5150 of the Welfare and Institutions Code, the most widely known provision of the Lanterman-Petris-Short (LPS) Act. Welfare and Institutions Code section 8130, subdivision (f), allows a person who had been held pursuant to a 72-hour 5150 hold to obtain a hearing to obtain a judicial order relieving him or her of the firearm possession bar. (Section 8103, subdivision (g) concerns an equivalent bar for those who have been held for additional 14-day periods beyond the 72-hour hold.) The court in Dayacamos held that section 8130 denied due process in barring former LPS detainees (those subject to 72-hour holds) from possessing a firearm without a "meaningful hearing" prior to the imposition of the prohibition. In particular, the court found that requiring a former LPS detainee to carry the burden of demonstrating that he or she can safely own a firearm denied due process. The court did not attempt to limit section 8103, subdivision (f), to constitutionally acceptable applications, but found the entire subdivision to be void. The court further ordered the Department of Justice to AB 491 (Scott) Page 18 "purge its databases or other records of all commitments that occurred under Welfare and Institutions Code section 5150." (Order - Writ of Mandate and Prohibition, Sac. No. 96 CS 01471, p. 3) 9. Proposed Amendment to Clarify Dayacamos Burden of Proof Language The bill as currently drafted provides that the state bears the burden of proving that a person who has been subject to a 72-hour "5150" hold could not safely possess a firearm. The language describing the findings the court must make after the hearing appears to be somewhat awkward. The bill currently reads: "If the court fails to find that the people have met their burden . . . the court shall order that the person may own . . . firearms." (Sic.) It is suggested that the provision would be better phrased: "If the court finds . . . that the People have not met their burden . . . the court shall order that the person may own . . . firearms." WILL THE 5-YEAR PROHIBITION ON FIREARM POSSESSION FOR A PERSON WHO HAS BEEN SUBJECTED TO A 72-HOUR PSYCHIATRIC HOLD PURSUANT TO WELFARE & INSTITUTIONS CODE SECTION 5150 BE MADE CONSTITUTIONAL WHERE THE HELD PERSON CAN DEMAND A HEARING TO DETERMINE WHETHER HE OR SHE CAN SAFELY POSSESS A FIREARM AND WHERE THE STATE HAS THE BURDEN OF PROOF IN THE HEARING? SHOULD SUCH PROVISIONS BE ENACTED? ***************