BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator John Vasconcellos, Chair A
1999-2000 Regular Session B
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AB 2523 (Thomson) 3
As Amended April 12, 2000
Hearing date: June 6, 2000
Penal Code
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BRANDISHING A HANDGUN IN PUBLIC
HISTORY
Source: Author
Prior Legislation: AB 491 (Scott) - Chapter 571, Stats. 1999
SB 377 (Thompson) - Chapter 1202, Stats. 1991
Support: California Child, Youth and Family Coalition
Opposition:California Attorneys for Criminal Justice
Assembly Floor Vote: Ayes 61 - Noes 9
KEY ISSUE
SHOULD THE PUNISHMENT FOR THE MISDEMEANOR OF BRANDISHING A
FIREARM - CURRENTLY A COUNTY JAIL TERM OF BETWEEN 3 AND 6 MONTHS
IN JAIL - BE CHANGED TO A MAXIMUM OF 1 YEAR IN COUNTY JAIL, IF
THE OFFENSE OCCURRED IN A PUBLIC PLACE AND THE WEAPON USED WAS A
HANDGUN?
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PURPOSE
The purpose of this bill is to increase the maximum county jail
term for brandishing a handgun in a public place from 6 months
(with a minimum 3-months' term) to a maximum of 1 year in county
jail.
Existing law provides that every person who draws or exhibits<1>
any deadly weapon in a rude, angry, or threatening manner, or
who uses such a weapon in any fight or quarrel, is guilty of a
misdemeanor. Unless otherwise specified, the punishment for the
offense is 6 months in the county jail with a minimum sentence
of not less than 30 days. (Pen. Code 417, subd. (a)(1).)
Existing law provides that every person who draws or exhibits
any firearm, whether loaded or unloaded, in a rude, angry, or
threatening manner, or who uses a firearm in any fight or
quarrel, is guilty of a misdemeanor. Unless otherwise
specified, the punishment for the offense is 6 months in the
county jail with a minimum sentence of not less than 3 months.
(Pen. Code 417, subd. (a)(2).)
Existing law provides that every person who draws or exhibits
any firearm, whether loaded or unloaded, in a rude, angry, or
threatening manner, or who uses a firearm in any fight or
quarrel, upon the grounds of a day care or youth center during
normal hours of operation, is guilty of an alternate
felony-misdemeanor. The punishment for the offense is up to 1
year in the county jail, with a minimum sentence of 3 months, or
1, 2, or 3 years in state prison. (Pen. Code 417, subd.
(b).)
Existing law provides that any person who, while on the grounds
of a playground or youth center while children are present,
illegally possesses a loaded firearm or a concealed handgun, or
who draws or exhibits a firearm in violation of Penal Code
section 417, subdivision (a)(2) - the standard brandishing
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<1> Drawing or exhibiting a weapon is generally described by
practitioners of criminal law as "brandishing." The Comments
in this analysis will use the term brandishing.
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offense - is guilty of an alternate felony-misdemeanor,
punishable by up to 1 year in the county jail, or in the state
prison for 1, 2, or 3 years. (Pen. Code 626.95.)
Existing law provides that every person who, in the presence of
another, draws or exhibits any firearm, whether loaded or
unloaded, in a rude, angry, or threatening manner, and who knows
or should know that the other person is a peace officer engaged
in his or her duties, is guilty of an alternate
felony-misdemeanor, punishable by imprisonment from 9 months to
1 year in the county jail, or 16 months, 2, or 3 years in state
prison. (Pen. Code 417, subd. (c).)
Existing law provides that any person who draws or exhibits any
firearm, whether loaded or unloaded, or a deadly weapon, with
the intent to resist an arrest or detention by a peace officer,
is guilty of a felony, punishable by 2, 3, or 4 years in state
prison. (Pen. Code 417.8.)
Existing law provides that any person who, during the commission
of the offense of brandishing a deadly weapon or firearm,
intentionally inflicts great bodily injury (GBI) is guilty of an
alternate felony-misdemeanor, punishable by up to 1 year in the
county jail, or 16 months, 2, or 3 years in state prison. (Pen.
Code 417.6.)
Existing law provides that any person convicted of specified
misdemeanors, including sections 417 and 417.6, is prohibited
from owning, possessing, or controlling any firearm for ten
years after the misdemeanor conviction; violations are
punishable as an alternate felony-misdemeanor, punishable by up
to 1 year in the county jail, or 16 months, 2, or 3 years in
state prison. (Penal Code section 12021(c)(1))
This bill provides that every person who, in a public place,
draws or exhibits a handgun, whether loaded or not, in a rude or
threatening manner, or who uses a handgun in any fight or
quarrel, is guilty of a misdemeanor, punishable by imprisonment
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in the county jail up to one year and/or by a fine not to exceed
$1,000. (Antique firearms are exempted from the amended
penalties.)
This bill defines "public place" as any of the following: a
public place in an incorporated city, a public street in an
incorporated city, or a public street in an unincorporated area.
COMMENTS
1. Need for this Bill
According to the author:
AB 2523 is designed to encourage responsible gun
ownership by applying stiffer penalties to those who
brandish a handgun in a public place. This bill
provides greater uniformity by modifying the
existing penalty to be more consistent with other
more aggravated forms of displaying a weapon, such
as brandishing any weapon upon the grounds of a
youth or day care center during business hours, or
brandishing a weapon in the presence of a peace
officer.
2. This Bill Would Provide a Wider Range of Sanctions for Public
Brandishing of a Handgun, With a longer Maximum Term, but no
Mandatory Minimum
In most cases arising under current law, where the
defendant brandished a firearm in public, the sentencing
court has an available sentencing range of from 3 to 6
months. The court must incarcerate a defendant convicted
of public brandishing of a handgun for at least 3 months,
regardless of the circumstances of the offense. Where the
court finds that the crime was mitigated, the court must
either completely strike the mandatory punishment or impose
a sentence that could, for example, cause the defendant to
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lose his or her job. On the other hand, if the defendant
truly poses a danger to others, the court may not impose
any jail sentence any longer than 6 months.
For public brandishing of a handgun, this bill would
provide the court significantly more sentencing discretion
than under current law. The court could incarcerate a
defendant whose conduct was truly dangerous for a full
year. However, where a defendant's offense was mitigated,
the court could impose a sentence of, for example, 30 or 45
days in custody. Such a sentence could be served in a
work-release facility so that the defendant could keep his
or her job. Probation, with some period of incarceration
and mandatory counseling, could also be granted by the
court.
This bill, however, raises the issue of whether a mandatory
minimum term of 3 months should be imposed for the non-public
brandishing of a handgun, or for the brandishing of a rifle,
that does not involve a day care center or a peace officer? In
relatively mitigated cases where the court may be reluctant to
impose a mandatory minimum term, it may be argued that this bill
imposes a more severe punishment for brandishing of a rifle, or
brandishing a firearm in a private place, than for brandishing a
handgun in public.
SHOULD MANDATORY MINIMUM TERMS, WHICH GREATLY LIMIT THE
SENTENCING AUTHORITY OF THE COURT, APPLY TO SOME CONVICTIONS FOR
BRANDISHING A FIREARM, BUT NOT TO OTHERS?
3. Vagueness and Possible Unauthorized Sentence in Day Care
Provisions in Current Law
a.Vagueness Issue - Elements of Brandishing a Loaded Gun at a
Day Care or Recreation Facility
Current law includes a higher penalty for brandishing or using
a loaded firearm in a day care center - a prison triad of 1, 2
or 3 years, or a misdemeanor county jail term of 3 months to 1
year - than for similar crimes in other places. The language
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of this provision, Penal Code section 417, subdivision (b), is
not particularly clear. It can be read as applying an
alternate felony-misdemeanor penalty to any brandishing of a
loaded firearm, or the quarrelsome use of a loaded gun at a
day care or youth recreation center.
The legislative history of the bill that created the higher
penalties for day care brandishing (SB 377 (Thompson) - Ch.
1202, Stats. 1991) indicates that the intent of the
Legislature was to require that the brandishing have occurred
in a day care center before the more serious crime could be
proved.
b. Possible Unauthorized Sentence - Unusual Prison Triad
for Brandishing or Illegally Possessing a Firearm at a
Playground of a Day Care Center in Current Law.
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The prison triad of 1, 2, or 3 years for brandishing a loaded
gun at a day care center is unusual, and likely unauthorized
under governing law. (Pen. Code 417, subd. (b).) A similar
penalty applies for illegally possessing a firearm at a
playground or youth center. (Pen. Code 626.95.) The
standard prison triad - the term imposed unless the crime
specifies a different punishment - is 16 months, 2 years, or 3
years. (Pen. Code 18.) A felony may be generally defined
as a crime for which a defendant may serve a term of
imprisonment for more than 1 year, as the maximum
incarceration for a misdemeanor is for not more than 1 year.
Any sentence of more than 1 year must be served in prison, not
jail. (Pen. Code 17-19.2.) Technically, it can thus be
argued that the 1 year term defines a misdemeanor, not a
felony, and that a felony sentence must be at least 1 year and
1 day. The proper low-term penalty should likely be 16
months, not 1 year. (Note: A defendant placed in state
prison for 1 year would actually serve 6 months with
sentencing credits. A defendant sentenced to a 16-month term
would serve 8 months.)
These provisions in existing law should perhaps be clarified.
SHOULD THE PROVISIONS OF CURRENT LAW AS TO BRANDISHING A LOADED
GUN AT A DAY CARE CENTER BE CLARIFIED?
SHOULD THE PRISON TRIAD FOR BRANDISHING A LOADED GUN AT A DAY
CARE CENTER (1, 2, OR 3 YEARS) BE MADE CONSISTENT WITH THE
STANDARD PRISON TRIAD IN CALIFORNIA (16 MONTHS, 2 OR 3 YEARS)?
4. Additional Penalties May Apply
Regardless of the application of the penalties addressed by this
bill, a plethora of other penalties may be applicable to the
possession a firearm by any person. For example, any person
carrying a handgun concealed on the person or in a vehicle -
without a permit allowing that carrying - is subject to a
misdemeanor penalty if the person is listed with the DOJ as the
registered owner of the handgun; in other circumstances, the
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penalty is either a felony or misdemeanor/felony penalty, as
specified. (Penal Code 12025.) Similar penalties apply if
the firearm is carried loaded in either a vehicle or in public,
as specified. (Penal Code 12031.) If the person is
prohibited from possessing a firearm, the penalty is a felony.
(Penal Code 12021.) Additional penalties may apply depending
on the firearm, for example, carrying of an "assault weapon."
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