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. ***************