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