BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator John Vasconcellos, Chair A
1999-2000 Regular Session B
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AB 1989 (Dickerson) 9
As Amended May 26, 2000 VOTE ONLY
Hearing date: June 27, 2000
Penal Code
JM:mc
CONVICTION OF SPECIFIED MISDEMEANORS -
ADDITIONS TO 10-YEAR FIREARM POSSESSION BAN
HISTORY
Source: Siskiyou County Deputy District Attorney
Prior Legislation: None
Support: California District Attorneys Association; Crime
Victims United; Butte County District Attorney;
California Peace Officers' Association; California
Police Chiefs Association.
Opposition:California Attorneys for Criminal Justice
Assembly Floor Vote: Ayes 76 - Noes 0
KEY ISSUE
SHOULD DISSUADING A WITNESS AND MAKING CREDIBLE THREATS AGAINST
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ANOTHER BE ADDED TO THE NUMEROUS MISDEMEANORS FOR WHICH A CONVICTED
DEFENDANT IS BARRED FROM FIREARM POSSESSION FOR 10 YEARS?
PURPOSE
The purpose of this bill is to add two crimes - 1) dissuading a
witness, and 2) making a credible threat against another person
- to the list of misdemeanors which subject a convicted
defendant to a 10-year ban on firearm possession.
Existing law provides that any person convicted of a specified
misdemeanor who, within 10 years of the conviction, owns or
possesses a firearm, is guilty of an offense punishable by
imprisonment in the state prison for 16 months, 2 years or 3
years, or in county jail not exceeding one year, by a fine not
exceeding $1,000, or by both imprisonment and fine. (Penal Code
12020(c)(1).) These misdemeanors are:
? Threatening public officers and employees and school
officials. (Pen. Code 71.)
? Threatening judges, designated public officials, staff and
families thereof. (Pen. Code 76.)
? Possession of deadly weapon with intent to assault. (Pen. Code
12024.)
? Possession of deadly weapon with intent to intimidate a
witness. (Pen. Code 136.5.)
? Unauthorized possession/transportation of a machine gun.
(Pen. Code 12220.)
? Threatening violence against a person who has assisted law
enforcement of prosecutors. (Pen. Code 140.)
? Obstructing an officer or EMT, and removing or attempting to
take a firearm from such person. (Pen. Code 148, subd.
(d).)
? Possession of a weapon in courthouse or public meeting. (Pen.
Code 171b.)
? Possession of loaded firearm in Capitol, legislative office,
etc. (Pen. Code 171c.)
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? Possession of loaded firearm in executive residence or other
constitutional office. (Pen. Code 171d.)
? Supplying arms to street gang members. (Pen. Code 186.28.)
? Assault. (Pen. Code 240, 241.)
? Battery. (Pen. Code 242, 243.)
? Assault with stun gun. (Pen. Code 244.5.)
? Assault with deadly weapon or with force likely to produce
GBI. (Pen. Code 245.)
? Assault with deadly weapon or with force likely to produce
GBI, or with stun gun, on a school employee. (Pen. Code
245.5.)
? Shooting at an occupied house, building, vehicle, etc. (Pen.
Code 246.)
? Discharge of firearm in grossly negligent manner. (Pen. Code
246.3.)
? Shooting at unoccupied aircraft, vehicle, uninhabited
dwelling. (Pen. Code 247.)
Existing law defines the alternate felony-misdemeanors of 1)
knowingly and maliciously dissuading a witness from testifying
in any trial or proceeding, and 2) dissuading a witness or
victim from reporting a crime. These offenses are punishable by
imprisonment in the county jail for up to 1 year, or in state
prison for 16 months, 2 years, or 3 years. (Pen. Code 136.1,
subd. (a)-(b).) Where these crimes involve any of the following
factors - actual or threatened force, monetary gain, the
defendant has prior similar convictions, or where the defendant
is part of a conspiracy - the crimes are straight felonies,
punishable by imprisonment in state prison for 2, 3, or 4 years.
(Pen. Code 136.1, subds. (c).)
Existing law prohibits any person from making a threat to kill
or cause great bodily injury to another. If the threat is
reasonably believable, it need not be genuine. This offense is
an alternate felony-misdemeanor, punishable by imprisonment in
the county jail for up to 1 year, or by imprisonment in the
state prison for 16 months, 2 years, or 3 years. (Pen. Code
422.)
This bill prohibits for 10 years the possession of a firearm by
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any person who has a misdemeanor conviction for communicating to
a witness to, or a victim of, the crime for which the person was
convicted, a credible threat to use force or violence upon that
person or that person's immediate family.
This bill prohibits the possession of a firearm for 10 years by
any person who has a misdemeanor conviction for making a
credible threat to commit a crime that will result in death or
great bodily injury to another person.
COMMENTS
1. Need for this Bill
According to the author:
It is necessary to add dissuading a witness and
terrorist threat to the misdemeanors that result in a
10-year firearm possession ban because too many times
law enforcement is unable to take action until a
threat is carried out. These amendments are important
for the public's safety, as well as for the safety of
our law enforcement officers. This is another effort
to curb domestic violence and potential terrorist
activities.
Penal Code section 12021, subdivision(c), includes
numerous misdemeanor violations that restrict the
access to firearms for persons who have already been
convicted of a crime within the last 10 years. Upon
conviction of any stated misdemeanor, and the two
proposed misdemeanors, the punishment will be
imprisonment in the state prison or in a county jail
not exceeding one year, by a fine not exceeding
$1,000, or by both imprisonment and fine. There is a
10-year cap on this bill so that those who have not
had further trouble with the law after 10 years will
not be subject to the restriction of gun ownership.
2. Existing Law Prohibiting Firearm Possession for Conviction of
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Crimes Similar to Those Added by This Bill
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a. Witness Intimidation Convictions that Result in 10-Year
Firearm Possession Bans Under Existing Law
This bill adds two sections to the list of offenses that
subject a convicted defendant to a 10-year ban on the
ownership or possession of firearms. The first prohibits for
10 years the possession of a firearm by any person who has
been convicted of the misdemeanor form of dissuading a victim
or witness. (Dissuading a witness is an alternate
felony-misdemeanor.)
Under existing law, a person who has been convicted of the
felony form of dissuading a witness (or any other felony) may
not possess a firearm for life. Further, under existing law,
people who have been convicted of the most egregious
misdemeanors involving threats or retaliation against
witnesses or victims may not possess firearms for 10 years.
In particular, any person convicted of the misdemeanor form of
threatening or using force against a crime witness or victim
who has assisted law enforcement is covered by the 10-year
ban. (Pen. Code 140.) Further, defendants convicted of the
misdemeanor form of carrying a deadly weapon to prevent the
testimony of another person (a "wobbler") also may not possess
a firearm for 10-years. (Pen. Code 136.5.)
b. Felony Convictions for Making Credible Threats Against
Another Person
The second misdemeanor offense added by this bill is the
misdemeanor form of the alternate felony-misdemeanor that
prohibits any person from threatening to commit a crime that
will result in death or bodily injury to another person.
(Penal Code 422.) If the person has been convicted of a
felony under Penal Code section 422, then he or she is
prohibited from owning or possessing a firearm under existing
law. (Penal Code 12021(a)(1).)
In serious cases of making a credible threat, the prosecutor
can obtain a felony conviction against a defendant. A
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convicted felon cannot possess a firearm for life. As noted,
above, a credible threat need not be genuine. In a
misdemeanor conviction for this crime, it may be particularly
likely that the defendant was not inclined to use actual
force. Arguably, such a person should not relinquish the
right to possess a firearm for 10 years.
IN LIGHT OF THE NUMEROUS MISDEMEANORS THAT BAR A CONVICTED
DEFENDANT FROM POSSESSING A FIREARM, INCLUDING THE MOST
EGREGIOUS WITNESS INTIMIDATION MISDEMEANORS, IS THIS BILL
NECESSARY?
AS A FELONY IS AVAILABLE IN CREDIBLE THREATS CONVICTIONS, AND
BECAUSE A THREAT NEED NOT BE GENUINE, IS A 10-YEAR FIREARM
POSSESSION BAN NECESSARY FOR DEFENDANTS CONVICTED OF THE
MISDEMEANOR FORM OF MAKING A CREDIBLE THREAT AGAINST THE LIFE OR
SAFETY OF ANOTHER?
ARE THERE EXAMPLES OF PEOPLE WHO HAVE COMMITTED CRIMES WITH
FIREARMS AFTER THEY HAVE BEEN CONVICTED OF THE MISDEMEANORS
COVERED BY THIS BILL?
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