BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 491| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 445-6614 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ 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 Attorney General's concealed firearm 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 AB 491 Page 2 This bill makes it a wobbler , punishable by up to one year in county jail or in state prison, a fine, or both, to carry a concealed firearm if both the firearm and the unexpended ammunition are in the immediate possession of the person or are readily accessible, or the concealable firearm is loaded, as specified, and the person is not the registered owner. It also makes it a wobbler to openly carry a concealable, loaded firearm if the person is not the registered owner. In addition, the bill changes the definition of lawful possession, as specified. It also requires, until January 1, 2005, district attorneys to report annually to the Attorney General (AG) profiles of persons charged with felonies or misdemeanors under these provisions. The AG is then required to report same to the Legislature annually. 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 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 AB 491 Page 3 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.) 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 AB 491 Page 4 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." 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, AB 491 Page 5 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 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 AB 491 Page 6 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 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 AB 491 Page 7 Local: Yes There were 61 prison admissions during 1997-98 for carrying a concealed firearm, and 32 for carrying a loaded firearm. By expanding the scope of the concealed and loaded firearms offenses there could be some persons new to state prison. For illustrative purposes, if 10% of prison admissions were impacted by the provisions of this bill, increased incarceration costs could be $210,000 annually. It would take 8 prison admissions to exceed annual costs of $150,000. The AG's office estimates increased costs of $87,000 for the first year and less than $50,000 annually in subsequent years. There are unknown, probably not substantial, mandated, potentially reimbursable, increased costs to district attorneys to comply with the reporting provisions. 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, AB 491 Page 8 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 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 AB 491 Page 9 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. "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 AB 491 Page 10 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, 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:jk 9/5/99 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END ****