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 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





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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







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    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







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  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,  







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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  







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  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    







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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,  







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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  







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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  







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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

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