BILL ANALYSIS                                                                                                                                                                                                    







                          SENATE COMMITTEE ON Public Safety
                             Senator John Vasconcellos, Chair   A
                                1999-2000 Regular Session       B

                                                                1
                                                                9
                                                                6
          AB 1961 (Machado)                                     1
          As Amended June 8, 2000 
          Hearing date:  June 13, 2000
          Penal Code
          SH:br


                                      MACHINEGUNS

                                STATUTORY DEFINITION  


                                       HISTORY

          Source:  Attorney General

          Prior Legislation: AB 4028 (Condit) - Chapter 1423, Statutes of  
          1986

          Support: California Shooting Sports Association

          Opposition:None known

          Assembly Floor Vote:  Ayes  54 - Noes  12



                                         KEY ISSUE
           
          SHOULD THE CALIFORNIA STATUTORY DEFINITION OF MACHINEGUNS BE REVISED  
          TO ESSENTIALLY MIRROR THE FEDERAL DEFINITION OF MACHINEGUNS, AS  
          SPECIFIED?





                                                                     (More)






                                                          AB 1961 (Machado)
                                                                     Page 2



                                       PURPOSE
          
          The purpose of this bill is to essentially mirror the Federal  
          definition of machineguns in state law.

           Existing law  provides that:

           any person, firm or corporation in the possession or  
            transportation of a machinegun is guilty of a felony and is  
            punishable by four, six or eight years in state prison or by a  
            fine not to exceed $10,000.  (Penal Code  12220(a).)

           any person, firm, or corporation who within this state  
            intentionally converts a firearm into a machinegun, or who  
            sells, or offers for sale, or knowingly manufactures a machine  
            gun, except as authorized by this chapter, is punishable by  
            imprisonment in the state prison for four, six, or eight  
            years.  (Penal Code  12220(a).)

           defines a "machinegun" as any weapon that fires more than one  
            shot automatically without manual reloading, by a single  
            function of the trigger, any part or combination of parts  
            designed and intended for use in converting, and any weapon  
            deemed by the federal Bureau of Alcohol, Tobacco, and Firearms  
            as readily convertible to a machinegun.  (Penal Code
             12200.)

           authorizes the Department of Justice (DOJ) to issue and revoke  
            permits for the possession, manufacture, transportation and  
            sale of machineguns.  (Penal Code  12230, 12233 and 12250.)

           prohibits the sale, manufacturing, distribution,  
            transportation, importation possession or lending of  
            semi-automatic assault weapons in California.  (The  
            Roberti-Roos Assault Weapons Control Act of 1989, including  
            Penal Code  12280.)

           This bill  revises the existing state definition to read, as  
          follows (primary additions are noted in bold/italics; this new  




                                                                     (More)






                                                          AB 1961 (Machado)
                                                                     Page 3


          definition deletes the existing limitation that "frame or  
          receiver" is modified by "which can only be used with that  
          weapon"; this definition essentially tracks the federal  
          definition of machinegun, although the last sentence which  
          refers to federal law is perforce not part of the federal law):

               The term "machinegun" as used in this chapter means any  
               weapon that shoots, or is designed to shoot, or can be  
               readily restored to shoot, automatically, more than one  
               shot, without manual reloading, by a single function of  
               the trigger.  The term shall also include the frame or  
               receiver of any like weapon, any part designed and  
               intended solely and exclusively, or combination of parts  
               designed and intended for use in converting a weapon into  
               a machinegun, and any combination of parts from which a  
               machinegun can be assembled if such parts are in the  
               possession or under the control of a person.  The term  
               also includes any weapon deemed by the federal Bureau of  
               Alcohol, Tobacco, and Firearms as readily convertible to  
               a machinegun under Chapter 53 (commencing with section  
               5801) of Title 26 of the United States Code.


                                      COMMENTS

          1.   Need for This Bill
           
          According to background provided by the author:

               In 1934, Congress passed the National Firearms Act,  
               which prohibits individuals from possessing machineguns  
               without a license.  In 1953, California barred  
               possessing or selling machineguns and fully automatic  
               weapons without a license.  Many of the most ardent  
               opponents of gun control concede that prohibiting the  
               ownership and sale of fully automatic weapons is good  
               public policy.

               However, in August 1999, a savvy attorney and an  
               insufficient definition in law allowed an individual to  




                                                                     (More)






                                                          AB 1961 (Machado)
                                                                     Page 4


               walk free after he sold a trigger mechanism that changes  
               a semi-automatic firearm into a fully automatic one.   
               The individual sold the converter switch to an  
               undercover agent at a gun show.  The law lacked the  
               specificity to convict the individual under the state's  
               machinegun statute.  AB 1961 closes this loophole to  
               ensure that people who sell parts that make fully  
               automatic guns out of single shot [semi-automatic]  
               weapons answer to the law.

          2.   Additional Background
           
          The Assembly Committee on Public Safety analysis of this bill  
          contains the following:

               In May and July of 1999, the DOJ's Bureau of Narcotic  
               Enforcement Violence Suppression Unit from the Los  
               Angeles Regional Office conducted an investigation into  
               weapons violation at the Great Western Gun Show held at  
               the Los Angeles County Fairgrounds.  This successful  
               undercover operation resulted in the filing of state and  
               federal firearm charges on several individuals who were  
               vendors at this event.  During the subsequent court  
               proceeding, two cases were dismissed at the preliminary  
               hearings.  The defendants were arrested for the sale of  
               a machinegun.  The defendants sold trigger mechanisms  
               that were an integral part of the machinegun that  
               allowed the weapon to fire in "full auto" mode.  This  
               part was tested and fired fully automatic when placed in  
               a sub-machinegun.

          In one of those cases, People vs. Scott William Mills, the  
          reporter's partial transcript of the preliminary hearing on  
          August 18, 1999, contains the following presentation by the  
          attorney for the defendant (In the Municipal Court of Pomona,  
          Judicial District of Los Angeles County, Case #KA044547):

               May I begin by inviting the court's attention to section  
               12200 of the Penal Code.  It contains, in my opinion,  
               four definitions of a machinegun; two of them relate to  




                                                                     (More)






                                                          AB 1961 (Machado)
                                                                     Page 5


               complete functional firearms.  I believe that neither  
               one of them applies in this case.  The remaining two are  
               the definition which includes any frame or receiver  
               which can only be used for that weapon, referring to a  
               machinegun.  Second, the term also includes any part or  
               combination of parts designed and intended for use in  
               converting a weapon into a machinegun.

               I would assert there's been quite a bit of expert testimony  
               that this in not a frame or receiver.  It doesn't have the  
               serial number.  It's not the controlled part.

               As far as designs are intended, I believe the expert  
               testimony shows that this part is not designed and  
               intended as a conversion part, but rather is designed  
               and intended as a replacement part for lawfully owned  
               machineguns, and that would be primarily for the  
               purposes of allowing law enforcement to change  
               configuration for training or tactical use.  It's a  
               vague and ambiguous statute as applied to frames and  
               receivers and to parts or combinations of parts,  
               designed and intended.

          The prosecutor responded, in part:

               In the opinion of the expert from the Department of  
               Justice this particular portion of the weapon is a  
               frame or receiver and that is based upon that it is a  
               substantial component of the weapon.  And the trigger  
               assembly group, in the opinion of this expert, is a  
               substantial portion of the weapon . . . And the intent  
               of the law is to see to it that a substantial portion  
               of this weapon is illegal to sell or transfer or  
               possess.  And we're talking about a substantial portion  
               of the weapon, a trigger assembly group which is only  
               used for a fully automatic machinegun, and it is  
               exactly the same components that Colt considers to be a  
               lower receiver.

          As indicated, the Judge granted the defendant's motion to  




                                                                     (More)






                                                          AB 1961 (Machado)
                                                                     Page 6


          dismiss, with a finding which includes:  ". . . The relevant  
          fact is that the item has to be modified.  If it has to be  
          modified, a fortiori, it was not designed for that purpose . .  
          ."

          3.   Federal Definition of "Machinegun"  

          The Federal definition is:

               Machinegun.  The term ' machinegun' means any weapon  
               which shoots, is designed to shoot, or can be readily  
               restored to shoot, automatically more than one shot,  
               without manual reloading, by a single function of the  
               trigger.  The term shall also include the frame or  
               receiver of any such weapon, any part designed and  
               intended solely and exclusively, or combination of parts  
               designed and intended, for use in converting a weapon  
               into a machinegun, and any combination of parts from  
               which a machinegun can be assembled if such parts are in  
               the possession or under the control of a person.  (26  
               USCS @ 5845(b))

          As currently amended, this bill essentially mirrors that federal  
          definition.

          In addition, this bill keeps in state law the current reference  
          in the California statute which also defines "machinegun" to  
          include "any weapon deemed by the federal Bureau of Alcohol,  
          Tobacco, and Firearms as readily convertible to a machinegun  
          under Chapter 53 (commencing with section 5801) of Title 26 of  
          the United States Code."

          4.   Requisite Knowledge Pertaining to Violations of Penal Code  
          Section 12220  

          Existing Penal Code section 12220 creates the following crimes:

               (a)  Any person, firm, or corporation, who within this  
               state possesses or knowingly transports a machinegun,  
               except as authorized by this chapter, is guilty of a  




                                                                     (More)






                                                          AB 1961 (Machado)
                                                                     Page 7


               public offense and upon conviction thereof shall be  
               punished by imprisonment in the state prison, or by a  
               fine not to exceed ten thousand dollars ($10,000), or  
               by both such fine and imprisonment.

               (b)  Any person, firm, or corporation who within this  
               state intentionally converts a firearm into a  
               machinegun, or who sells, or offers for sale, or  
               knowingly manufactures a machinegun, except as  
               authorized by this chapter, is punishable by  
               imprisonment in the state prison for four, six, or  
               eight years.

          People vs. Corkean, 152 Cal.App.3d 35 (1984), Court of Appeal of  
          California, First Appellate District (Division Four) considered  
          whether or not a defendant must have knowledge that a weapon is  
          a machinegun to find the person guilty of possession.  The court  
          concluded that:

               The Legislature's repeated selective use of the word  
               "knowingly" throughout the Dangerous Weapons'  
               Control Law thus supports the . . . conclusion that,  
               in the weapons field, the Legislature has  
               consciously distinguished between possessory and  
               other offenses requiring knowledge, and possessory  
               offenses punishable without regard to the  
               defendant's awareness of the character of the item  
               possessed.

          The Corkean court distinguishes drug possession cases and finds  
          that the defendant could be convicted of possessing a machinegun  
          without proof that he knew it was such a weapon.  Thus it would  
          appear, for example, that the possession of parts which may be  
          used to make a machinegun would be a crime whether or not the  
          possessor knew that those parts could be so used.  However, it  
          does appear that not all California courts have followed  
          Corkean.







                                                                     (More)






                                                          AB 1961 (Machado)
                                                                     Page 8



          See, for example, In re Jorge M., 66 Cal.App.4th 809 (September  
          14, 1998), Court of Appeal of California, First Appellate  
          District (Division Four), which is not citable because review  
          was granted, but which held that knowledge that a firearm was an  
          assault weapon is a requisite for conviction of illegal  
          possession of such a weapon:

               Jorge M. appeals from an order sustaining a petition  
               brought under Welfare and Institutions Code section  
               602.  The petition charged him with possession of an  
               assault weapon in violation of Penal Code section  
               12280, subdivision (b) and unlawful firearm activity  
               in violation of a condition of probation pursuant to  
               Penal Code section 12021, subdivision (d).  He argues  
               the evidence is insufficient to establish that he  
               actually possessed an assault weapon in violation of  
               section 12280 or that he knew the rifle was an  
               assault weapon.  We find no substantial evidence to  
               support the assault weapon violation, and reverse.   
               (Cites and footnotes omitted.)

          Regardless of the case note regarding "not citable because  
          review was granted" the California Supreme Court did grant  
          review on January 13, 1999 (S074270), Reported at:  1999  
          Cal. LEXIS 14.

          In a somewhat analogous case, a court held that knowledge that  
          a bullet contains an explosive agent is not an element of the  
          offense of possessing an explosive agent.  (People v. Lanham,  
          230 Cal.App.3rd 1396, 4th District, 1991)  The In re Jorge  
          court criticized the Lanham decision.

          Thus Committee staff cannot conclusively opine at this time  
          whether or not knowledge of the nature of machinegun parts, a  
          machinegun which can be readily restored, or a machinegun  
          itself, is or would be necessary for conviction under the  
          definition in this bill, which contains both existing law and  
          additional language from the federal definition.












                                                          AB 1961 (Machado)
                                                                     Page 9


          Regardless, both the state and federal definitions have been  
          extant for some time and there is no anecdotal information  
          available to Committee staff which suggests that the enforcement  
          of either law has caused any discussion of abuse.



                                   ***************