BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 491|
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THIRD READING
Bill No: AB 491
Author: Scott (D), et al
Amended: 9/2/99 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 4-1, 6/29/99
AYES: Burton, McPherson, Polanco, Rainey
NOES: Vasconcellos
NOT VOTING: Johnston
SENATE APPROPRIATIONS COMMITTEE : 9-3, 9/1/99
AYES: Johnston, Alpert, Bowen, Burton, Escutia, Karnette,
McPherson, Perata, Vasconcellos
NOES: Kelley, Leslie, Mountjoy
NOT VOTING: Johnson
ASSEMBLY FLOOR : 43-27, 6/1/99 - See last page for vote
SUBJECT : Concealed handguns/loaded firearms: penalties
for
unlawfully possessing in public/vehicles
SOURCE : California Police Chiefs' Association
DIGEST : This bill requires the Attorney General, at the
written request of any person listed in the registry as the
owner of a firearm through a Dealers' Record of Sale prior
to 1979, to store and keep that record electronically and
to provide the person written notice of its compliance with
the request.
CONTINUED
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This bill punishes, as a misdemeanor or a felony, carrying
a concealed firearm if both the pistol, revolver, or other
firearm capable of being concealed upon the person and the
unexpended ammunition capable of being discharged from that
firearm are in the immediate possession of the person or
are readily accessible, or the firearm is loaded, as
defined by law, where the person in possession is not the
registered owner of the firearm, as specified. This bill
allows a law enforcement officer to arrest a person for
violating this provision if the officer had probable cause
to believe the person was not the registered owner of the
firearms and the other elements of this offense exist. The
bill also redefines the term "lawful possession" to mean
one who lawfully owns or has permission of the lawful
owner. In addition, the bill requires the district
attorney of each county to submit an annual report to the
Attorney General consisting of profiles of persons charged
with felonies or misdemeanors under this concealable
firearm provision. Under the bill, the Attorney General
will be required to submit an annual report to the
Legislature compiling all of the reports submitted by the
district attorneys. By increasing the punishment for a
crime and increasing the duties of local officials, this
bill imposes a state-mandated local program.
ANALYSIS :
Existing Law as to Carrying Concealed Handguns
1. Carrying a Concealed Firearm, Defined
A. 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.
B. 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.
C. 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
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concealed handgun.
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.
2. Punishment for Carrying a Concealed Firearm
A. A violation of the prohibition against carrying a
handgun, concealed on the person or within a vehicle,
concealable firearm concealed or in a vehicle is
generally a misdemeanor, punishable by up to one year
in a county jail.
B. A violation by a person who has been convicted of
a crime against a person or property, or of a
narcotics or dangerous drug violation, is an
alternate felony/misdemeanor, punishable by up to one
year in jail or by imprisonment in state prison.
C. Specified violations are punishable as a felony:
(1) where the person has previously been convicted of
any felony, or of any crime made punishable by the
Dangerous Weapons' Control Law; (2) where the firearm
is stolen and the person knew or had reasonable cause
to believe that it was stolen; (3) where the person
is an active participant in a criminal street gang;
and (4) 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.
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. (A number of exceptions and limitations are
contained in law pertaining to this crime.)
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Violations are punishable in Penal Code section 12025, as
set out above: (1) generally as a misdemeanor (up to one
year in jail), (2) a felony in specified circumstances, and
(3) as an alternated felony/misdemeanor where the person
has been convicted of a crime against a person or property
or of narcotics or dangerous drug violations.
Existing Law - Definition of a Loaded Firearm
Penal Code section 12031 prohibits the carrying of loaded
firearms in public. Subdivision (g) of section 12301,
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, "armed criminal action" 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.
This bill effectively provides, for purposes of carrying
of a concealed firearm that loaded means that "both the
firearm and the unexpended ammunition capable of being
discharged from the firearm are in the immediate
possession of the same person."
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This bill, for purposes of the new alternate
felony/misdemeanor of openly carrying a handgun by a
person who is not the registered owner, retains the
definition of loaded currently set out in section 12031,
the statute that prohibits public carrying of loaded
firearms. That is: "A firearm [is] . . . loaded . . .
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."
Existing Law - Handgun Registration
Since about 1930, any purchase of a handgun from a dealer
was reported to the Department of Justice (DOJ)(or its
predecessor agency) for purposes of background checks on
the purchaser through the Dealer Report of Sale (DROS)
form. This may be commonly described as registration.
Since 1991, but not before that time, transactions
between private parties have been subject to DROS
registration through a licensed dealer. Registration of
such a transfer may also be done at a law enforcement
agency through a Law Enforcement Firearms Transfer (LEFT)
form. (LEFT is seldom used in practice.) Certain
exceptions, such as infrequent loans of firearms between
persons known to each other, apply.
Existing Law - Duty of Attorney General to Maintain
Records
Penal Code section 11106 requires the Attorney General to
keep and maintain all records provided to the DOJ in
compliance with handgun registration rules. This
information must be provided to law enforcement officials,
courts, designated government agencies and the registered
owner or borrower of the firearm.
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
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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:
1.A person conceals and carries, on his or her person, or
within any vehicle, a concealable firearm (handgun).
2.The gun is loaded, or ammunition for the handgun is in
the person's immediate possession or is readily
accessible.
3.The person is not listed as the registered owner or the
borrower of the handgun on DOJ records pursuant to Penal
Code section 11106.
This bill allows a law enforcement officer to arrest a
person for violating this provision of the officer had
probable cause to believe the person was not the registered
owner of the firearms.
The bill provides that if any person is listed in the
registry as the owner of a firearm through a DROS prior to
1979, and the person listed in the registry requests by
letter that the AG store and keep the record
electronically, as well as the record's existing
photographic, photostatic, or nonerasable optically stored
form, the AG shall do so within three working days of
receipt of the request. The AG shall, in writing, and as
soon as practicable, notify the person requesting
electronic storage of the record that the request has been
honored. Any person, as specified, may register a handgun
with DOJ pursuant to Penal Code 12078(1). The form
required to register the handgun is at DOJ's website and
need not go through a formal DROS.
Prior Legislation - AB 632 (Katz), Chapter 787, Statutes of
1996 - Lawful Possession
AB 632 created a felony that is committed where a person in
not in "lawful possession" of a concealed handgun or an
openly carried loaded gun. Essentially, one is in lawful
possession of a gun where he or she owns the gun or
possesses it with the permission of the owner. AB 632 also
made it a felony to carry a concealed handgun or a loaded
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gun where the possessor knew the gun was stolen, or where
he or she possessor was in a gang. The author of AB 632
argued that because one may be guilty of an alternate
felon/misdemeanor for possession of brass knuckles and the
like, knowing possession of a stolen gun or other unlawful
possession should be a felony.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 9/2/99)
California Police Chiefs' Association (source)
Attorney General
California Police Chiefs Association
City of Los Angeles
City of West Hollywood
Gray Panthers of Sacramento
Handgun Control
Legal Community Against Violence
Los Angeles County District Attorney
Los Angeles Police Department
Public Health Institute
Trauma Foundation
Women Against gun Violence
OPPOSITION : (Verified 9/2/99)
California Public Defenders Association
California Rifle and Pistol Association
California Shooting Sports Association
Gun Owners of California, Inc.
National Rifle Association
ARGUMENTS IN SUPPORT : According to the author's office,
existing law 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
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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."
This bill allows district attorneys and judges 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.
DOJ 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 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
owners 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 seeks this relief."
ARGUMENTS IN OPPOSITION : 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 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 (AB 2469) was carried . . . in 1994. [The
author] dropped the penalty increase linkage with
registration status when it became clear that DOJ's online
capabilities was deficient.
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"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:
"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."
ASSEMBLY FLOOR :
AYES: Alquist, Aroner, Bock, Calderon, Campbell, Cardenas,
Cedillo, Corbett, Correa, Cunneen, Davis, Dutra,
Firebaugh, Floyd, Gallegos, Havice, Hertzberg, Honda,
Jackson, Keeley, Knox, Kuehl, Lempert, Longville,
Lowenthal, Machado, Mazzoni, Rod Pacheco, Reyes, Romero,
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Scott, Shelley, Soto, Steinberg, Strom-Martin, Thomson,
Torlakson, Vincent, Wayne, Wesson, Wiggins, Wildman,
Villaraigosa
NOES: Aanestad, Ackerman, Ashburn, Baldwin, Battin, Baugh,
Briggs, Cardoza, Cox, Dickerson, Florez, Frusetta,
Granlund, Kaloogian, Leonard, Maldonado, Margett,
McClintock, Migden, Olberg, Robert Pacheco, Pescetti,
Runner, Strickland, Thompson, Washington, Wright
NOT VOTING: Bates, Brewer, Ducheny, House, Leach, Maddox,
Nakano, Oller, Papan, Zettel
RJG:cm 9/2/99 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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