BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 322 (Silva)
As Introduced February 18, 2009
Hearing date: June 9, 2009
Penal Code
SM:mc
TASERS - USE OF GENERIC TERM
HISTORY
Source: Taser, International
Prior Legislation: AB 2973 (Soto) - Chap. 556, Stats. of 2008
SB 860 (Correa) - 2008, failed passage in Senate
Public Safety
SB 1336 (Cedillo) - 2006, failed passage in Senate
Public Safety
AB 157 (Levine) - 2005, not heard Assembly Public
Safety
AB 1237 (Leno) - 2005, failed passage on Assembly
floor
AB 1710 (Wyland) - 2005, failed passage in Assembly
Public Safety
AB 1908 (Bowler) - 1995, held in Senate
Appropriations suspense file
Support: Unknown
Opposition:None known
Assembly Floor Vote: Ayes 79 - Noes 0
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KEY ISSUE
SHOULD THE SPECIFIED PENAL CODE STATUTES BE AMENDED TO REPLACE THE
TERM "TASER" WITH THE TERM "ELECTRONIC CONTROL DEVICE?"
PURPOSE
The purpose of this bill is to amend several Penal Code statutes
to replace the term "taser" with the term "electronic control
device."
Existing law defines a "less lethal weapon" as any devise that
propels ammunition that is designed to immobilize, or
incapacitate, or stun a human being through the infliction of
any less than lethal impairment of physical condition, function
or senses, including physical pain or discomfort. (Penal Code
12601(a).)
Existing law defines a "stun gun" as any item, except a taser,
used or intended to be used as either an offensive or defensive
weapon capable of temporarily immobilizing a person by the
infliction of an electrical charge. (Penal Code 12650.)
Existing law provides that, any person may purchase, possess, or
use a stun gun, subject to the following requirements:
No person convicted of a felony or any crime involving
an assault under the laws of the United States, of the
State of California, or any other state, government, or
country or convicted of misuse of a stun gun under Section
244.5, shall purchase, possess, or use stun guns.
No person who is addicted to any narcotic drug shall
purchase, possess, or use a stun gun.
No person shall sell or furnish any stun gun to a minor
unless the minor is at least 16 years of age and has the
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written consent of his or her parent or legal guardian.
o Violation of this subdivision shall be a
public offense punishable by a $50 fine for the first
offense. Any subsequent violation of this subdivision
is a misdemeanor.
No minor shall possess any stun gun unless the minor is
at least 16 years of age and has the written consent of his
or her parent or legal guardian.
Except as specified, violation of these provisions is a
misdemeanor, punishable by up to six months in jail, a fine of
up to $1,000, or both. (Pen Code 12651, 12653.)
Existing law provides that any person who sells a less lethal
weapon, as defined in Section 12601, to a person under the age
of 18 years is guilty of a misdemeanor, punishable by
imprisonment in the county jail for up to six months or by a
fine of not more than one thousand dollars ($1,000), or by both
that imprisonment and fine. (Penal Code 12655.)
Existing law provides that each stun gun sold shall contain both
of the following:
the name of the manufacturer stamped on the stun gun;
and
the serial number applied by the manufacturer.
Violation of these provisions is a misdemeanor, punishable by up
to six months in jail, a fine of up to $1,000, or both. (Penal
Code 12652, 12653.)
Existing law provides that each stun gun sold in this state
shall be accompanied by an instruction booklet. Violation of
this section shall be a public offense punishable by a $50 fine
for each weapon sold without the booklet. (Penal Code 12654.)
Existing law provides that assault with a stun gun or taser is
an alternate felony/misdemeanor, punishable by up to one year in
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county jail or eighteen months, two or three years in state
prison. (Penal Code 244.5(b).)
Existing law provides that an assault with a stun gun or taser
by any person on a peace officer or firefighter who the person
knows or reasonably should know is engaged in the performance of
his or her duties, is an alternate felony/misdemeanor,
punishable by up to one year in county jail or two, three or
four years in state prison. (Penal Code 244.5(c).)
Existing law provides that Penal Code sections relating to
assault with a stun gun or taser shall not be construed to
preclude prosecution for assault with a deadly weapon or force
likely to produce great bodily injury. (Penal Code 244.5(d).)
Existing law provides that assault with a deadly weapon other
than a firearm or by force likely to produce great bodily injury
is an alternate felony/misdemeanor, punishable by two, three or
four years in state prison, or up to one year in county jail, a
fine of up to $10,000, or both the fine and imprisonment.
(Penal Code 245(a)(1).)
Existing law provides that assault with a deadly weapon other
than a firearm or by any means likely to produce great bodily
injury by any person on a peace officer or firefighter who the
person knows or reasonably should know is engaged in the
performance of his or her duties, is a felony, punishable by
three, four or five years in state prison. (Penal Code
245(c).)
Existing law provides that to bring or possess any stun gun or
taser, as defined, in any public building or K-12 school is an
alternate felony/misdemeanor, punishable by eighteen months, two
or three years in state prison, or by up to one year in county
jail. (Penal Code 171b and 626.10.)
This bill replaces the term "taser" with the term, "electronic
control device" in several specified statutes.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
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<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
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<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
According to the author:
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"Taser" is a registered trademark and brand name of a
device. The penal code repeatedly refers to these
devices by this one brand name. Other brands are not
mentioned in the penalties for misuse of these tools.
AB 322 is a modest measure that will replace a brand
name in the Penal Code with a generic term for a
product that multiple manufacturers produce. As a
matter of sound policy, this should be corrected, as a
brand name can not describe the product itself.
2. Conforming to Existing Definitions Within the Penal Code
The sponsor of this bill, Taser, International, urges that the
term "taser" is proprietary and therefore should not be used in
the Penal Code to identify a weapon made by more than one
manufacturer. Instead, this bill proposes to replace the term
"taser" with the term "electronic control device." The word
"taser" appears to have first been used in the California Penal
Code in 1986. (Penal Code section 171b, as amended by Stats.
1986, Ch. 1350, 1.) Whether the term "taser" is now
proprietary for all purposes is beyond the scope of this
analysis. Nevertheless, the Penal Code currently contains a
generic definition of this type of weapon. That definition is
contained in Penal Code section 12601, which provides, in
pertinent part:
"Less lethal weapon" means any device that is designed
to or that has been converted to expel or propel less
lethal ammunition by any action, mechanism, or process
for the purpose of incapacitating, immobilizing, or
stunning a human being through the infliction of any
less than lethal impairment of physical condition,
function, or senses, including physical pain or
discomfort. It is not necessary that a weapon leave
any lasting or permanent incapacitation, discomfort,
pain, or other injury or disability in order to
qualify as a less lethal weapon.
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If the word "taser" were replaced with "electronic control
device" in the enumerated statutes, as proposed by this bill,
the result would be that two different terms would exist within
the Penal Code to describe the same type of weapon. This
confusion would be compounded by the fact that, while the term
"less lethal weapon" is clearly defined in section 12601, the
term "electronic control device" is not defined anywhere either
in this bill or in the Penal Code.
The confusion this use of inconsistent terminology can cause is
highlighted by the fact that this bill would amend several Penal
Code sections which currently contain cross-references to
section 244.5. For example, section 11160 refers to "assault
with a stun gun or taser, in violation of section 244.5." Penal
Code sections 171b, 171.5, 626.10 refer to a "taser or stun gun,
as defined in section 244.5." This bill would replace the word
"taser" with the term "electronic control device," while
maintaining the cross-references to section 244.5. However, as
noted above, because section 244.5 no longer uses the word
"taser" but instead contains the generic term "less lethal
weapon, as defined in Section 12601" the cross-references to
section 244.5 contained in several of the statutes amended by
this bill would be inconsistent and confusing.
3. Suggested Author's Amendment
Last year the sponsor of this bill, Taser, International,
sponsored AB 2973 (Chap. 556 - Stats. of 2008), which amended
Penal Code section 244.5 to replace the term "taser" with "less
lethal weapon, as defined in Section 12601."
The author may wish to amend the bill, consistent with AB 2973,
to replace the term "electronic control device" with "less
lethal weapon" as defined in Section 12601. This would remove
the word "taser" from the specified statutes while maintaining
consistency and clarity in the Code.
SHOULD THE BILL BE SO AMENDED?
AB 322 (Silva)
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