BILL ANALYSIS
AB 937
Page 1
Date of Hearing: April 14, 2009
Counsel: Nicole J. Hanson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 937 (Smyth) - As Amended: April 2, 2009
SUMMARY : Imposes registration requirements on persons
convicted of possessing, carrying, placing, selling, igniting or
attempting to ignite any destructive device. Specifically, this
bill :
1)Defines a "destructive device violation" as a violation of
specified sections relating to explosive materials.
2)Provides that for a person without a residence, "residing" is
defined as "located."
3)Mandates that persons who reside in California for 14 or more
days shall, within 14 days of entry, register as a convicted
destructive device violator, and shall reregister upon any
change of residence or location within California, as
provided. Each of these persons shall either register with
the chief of police of the city where the person is residing,
or, if residing in an unincorporated area or city that has no
police department, register with the sheriff of the county
where the person is residing. In addition, each of these
persons shall register with the chief of police of a campus of
the University of California, the California State University,
or community college where the person is residing upon the
campus or any of its facilities.
4)Requires any person who, on or after January 1, 2010, is
convicted in any court in California of a destructive device
violation shall be required to register, in accordance with
the provisions of this section, for the rest of his or her
life.
5)Provides that persons who have been adjudicated a ward of the
juvenile court, who have had a destructive device violation
sustained in a petition, and is discharged or paroled from the
Division of Juvenile Facilities (DJF), shall be required to
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register, in accordance with the provisions of this section,
until that person attains the age of 25 years or until the
person has his or her records sealed, whichever comes first.
6)Necessitates any person to register pursuant to this section
who is discharged or paroled from a jail, prison, school, road
camp, or other penal institution, or from the Department of
Corrections and Rehabilitation (CDCR), DJF, where he or she
was confined because of a destructive device violation, shall,
prior to the discharge, parole, or release, be informed of his
or her duty to register under this section by the official in
charge of the place of confinement. The official shall
require the person to read and sign the form as may be
required by the Department of Justice (DOJ), stating that the
duty of the person to register under this section has been
explained to him or her. The official in charge of the place
of confinement shall obtain the address where the person
expects to reside upon his or her discharge, parole, or
release and shall report the address to the DOJ. The official
in charge of the place of confinement shall give one copy of
the form to the person, and shall, not later than 45 days
prior to the scheduled release of the person, send one copy to
the appropriate law enforcement agency having local
jurisdiction where the person expects to reside upon his or
her discharge, parole, or release; one copy to the prosecuting
agency that prosecuted the person; one copy to the chief fire
official of a legally organized fire department or fire
protection district having local jurisdiction where the person
expects to reside upon his or her discharge, parole, or
release; and one copy to the DOJ. The official in charge of
the place of confinement shall retain one copy. All forms
shall be transmitted in time so as to be received by the local
law enforcement agency and prosecuting agency 30 days prior to
the discharge, parole, or release of the person.
7)States that all records relating specifically to the
registration in the custody of DOJ, law enforcement agencies,
and other agencies or public officials shall be destroyed when
the person required to register under this subdivision for
offenses adjudicated by a juvenile court attains the age of 25
years or has his or her records sealed, whichever event occurs
first. This subdivision shall not be construed to require the
destruction of other criminal offender or juvenile records
relating to the case that are maintained by the DOJ, law
enforcement agencies, the juvenile court, or other agencies
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and public officials unless ordered by the court.
8)Proscribes that any person who is required to register
pursuant to this section who is released on probation or
discharged upon payment of a fine shall, prior to the release
or discharge, be informed of his or her duty to register under
this section by the probation department of the county in
which he or she has been convicted, and the probation officer
shall require the person to read and sign the form as may be
required by the DOJ, stating that the duty of the person to
register under this section has been explained to him or her.
The probation officer shall obtain the address where the
person expects to reside upon his or her release or discharge
and shall report within three days the address to the DOJ.
The probation officer shall give one copy of the form to the
person, and shall send one copy to the appropriate law
enforcement agency having local jurisdiction where the person
expects to reside upon his or her discharge or release, one
copy to the prosecuting agency that prosecuted the person, one
copy to the chief fire official of a legally organized fire
department or fire protection district having local
jurisdiction where the person expects to reside upon his or
her discharge or release, and one copy to the DOJ. The
probation officer shall also retain one copy.
9)Makes registration consist of: (a) a statement in writing
signed by the person, giving the information as may be
required by the DOJ, and (b) the fingerprints and photograph
of the person. Within three days thereafter, the registering
law enforcement agency shall electronically forward the
statement, fingerprints, and photograph to the DOJ.
10)Provides that if any person required to register by this
section changes his or her residence address, he or she shall
inform, in writing within 10 days, the law enforcement agency
with whom he or she last registered of his or her new address.
The law enforcement agency shall, within three days after
receipt of the information, electronically forward it to the
DOJ. The DOJ shall forward appropriate registration data to
the law enforcement agency having local jurisdiction of the
new place of residence.
11)Declares that any person required to register under this
section who violates any of the provisions thereof is guilty
of a misdemeanor. Any person who has been convicted of a
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destructive device violation and who is required to register
under this section who willfully violates any of the
provisions thereof is guilty of a misdemeanor and shall be
sentenced to serve a term of not less than 90 days nor more
than one year in a county jail. In no event does the court
have the power to absolve a person who willfully violates this
section from the obligation of spending at least 90 days of
confinement in a county jail and of completing probation of at
least one year.
12)Necessitates that whenever a person is released on parole or
probation and is required to register under this section but
fails to do so within the time prescribed, the Board of Parole
Hearings or the DJF, or the court, as the case may be, shall
order the parole or probation of that person revoked.
13)Mandates that statements, photographs, and fingerprints
required by this section shall not be open to inspection by
the public or by any person other than a regularly employed
peace officer or other law enforcement officer.
14)States that any case in which a person who would be required
to register pursuant to this section is to be temporarily sent
outside the institution where he or she is confined on any
assignment within a city or county, including, but not limited
to, firefighting or disaster control, the local law
enforcement agency having jurisdiction over the place or
places where that assignment shall occur shall be notified
within a reasonable time prior to removal from the
institution. This subdivision shall not apply to any person
temporarily released under guard from the institution where he
or she is confined.
15)Provides that nothing in this section shall be construed to
conflict with existing law concerning termination of probation
and release from penalties and disabilities of probation.
16)Allows any person required to register under this section to
initiate a proceeding, upon obtaining a certificate of
rehabilitation, and shall be relieved of any further duty to
register under this section. This certificate shall not
relieve the petitioner of the duty to register under this
section for any offense subject to this section of which he or
she is convicted in the future.
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17)Relieves any person who is required to register under this
section due to a misdemeanor conviction if that person is
granted relief pursuant to exiting law.
EXISTING LAW :
1)Defines "destructive device" to include any of the following
weapons:
a) Any projectile containing any explosive or incendiary
material or any other chemical substance, including, but
not limited to, that which is commonly known as tracer or
incendiary ammunition, except tracer ammunition
manufactured for use in shotguns.
b) Any bomb, grenade, explosive missile, or similar device
or any launching device therefor.
c) Any weapon of a caliber greater than 0.60 caliber which
fires fixed ammunition, or any ammunition therefor, other
than a shotgun (smooth or rifled bore), shotgun ammunition
(single projectile or shot), antique rifle, or an antique
cannon. For purposes of this section, the term "antique
cannon" is defined as any cannon manufactured before
January 1, 1899, which has been rendered incapable of
firing or for which ammunition is no longer manufactured in
the United States and is not readily available in the
ordinary channels of commercial trade. The term "antique
rifle" is defined as a firearm conforming to the definition
of an "antique firearm".
d) Any rocket, rocket-propelled projectile, or similar
device of a diameter greater than 0.60 inch, or any
launching device therefor, and any rocket, rocket-propelled
projectile, or similar device containing any explosive or
incendiary material or any other chemical substance, other
than the propellant for that device, except those devices
as are designed primarily for emergency or distress
signaling purposes.
e) Any breakable container which contains a flammable
liquid with a flashpoint of 150 degrees Fahrenheit or less
and has a wick or similar device capable of being ignited,
other than a device which is commercially manufactured
primarily for the purpose of illumination.
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f) Any sealed device containing dry ice or other chemically
reactive substances assembled for the purpose of causing an
explosion by a chemical reaction. (Penal Code Section
12301.)
2)Punishes any person, firm, or corporation who, within
California, possesses any destructive device, other than fixed
ammunition of a caliber greater than .60 caliber, except as
provided by this chapter, is guilty of a public offense and
upon conviction thereof shall be punished by imprisonment in
the county jail for a term not to exceed one year or in state
prison; by a fine not to exceed $10,000; or by both such fine
and imprisonment. (Penal Code Section 12303.)
3)Provides that every person who willfully does any of the
following is guilty of a felony and is punishable by
imprisonment in the state prison for two, four, or six years:
a) Carries any explosive or destructive device on any
vessel, aircraft, car, or other vehicle that transports
passengers for hire.
b) Places or carries any explosive or destructive device,
while on board any such vessel, aircraft, car or other
vehicle, in any hand baggage, roll, or other container.
c) Places any explosive or destructive device in any
baggage which is later checked with any common carrier.
(Penal Code Section 12303.1)
4)States that every person who recklessly or maliciously has in
his or her possession any destructive device or any explosive
on a public street or highway, in or near any theater, hall,
school, college, church, hotel, other public building, or
private habitation, in, on, or near any aircraft, railway
passenger train, car, cable road or cable car, vessel engaged
in carrying passengers for hire, or other public place
ordinarily passed by human beings is guilty of a felony, and
shall be punishable by imprisonment in the state prison for a
period of two, four, or six years. (Penal Code Section
12303.2.)
5)Maintains that every person who possesses, explodes, ignites,
or attempts to explode or ignite any destructive device or any
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explosive with intent to injure, intimidate, or terrify any
person, or with intent to wrongfully injure or destroy any
property, is guilty of a felony, and shall be punished by
imprisonment in the state prison for a period of three, five,
or seven years. (Penal Code Section 12303.3.)
6)Punishes any person, firm, or corporation who, within
California, sells, offers for sale, or knowingly transports
any destructive device, other than fixed ammunition of a
caliber greater than .60 caliber, with a felony, punishable by
imprisonment in the state prison for two, three or four years.
(Penal Code Section 12303.6.)
7)Declares that every person who explodes, ignites, or attempts
to explode or ignite any destructive device or any explosive
with intent to commit murder is guilty of a felony, and shall
be punished by imprisonment in the state prison for life with
the possibility of parole. (Penal Code Section 12308.)
8)Provides that every person who willfully and maliciously
explodes or ignites any destructive device or any explosive
which causes bodily injury to any person is guilty of a
felony, and shall be punished by imprisonment in the state
prison for a period of five, seven, or nine years. (Penal
Code Section 12309.)
9)Mandates that every person who willfully and maliciously
explodes or ignites any destructive device or any explosive
which causes the death of any person is guilty of a felony,
and shall be punished by imprisonment in the state prison for
life without the possibility of parole. (Penal Code Section
12310.)
10)Proscribes that every person who willfully and maliciously
explodes or ignites any destructive device or any explosive
which causes mayhem or great bodily injury to any person is
guilty of a felony, and shall be punished by imprisonment in
the state prison for life. (Penal Code Section 12310.)
11)States that every person who possesses any substance,
material, or any combination of substances or materials, with
the intent to make any destructive device or any explosive
without first obtaining a valid permit to make such
destructive device or explosive, is guilty of a felony, and is
punishable by imprisonment in the state prison for two, three,
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or four years. (Penal Code Section 12312.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "[t]he purpose
of this legislation is to create a law that will serve to
prevent and detect recidivism among parolees currently being
supervised for criminal activity related to explosives. The
difficulty for law enforcement to effectively substantiate the
whereabouts and closely monitor the activities of an extremely
dangerous criminal subset poses serious public safety risks
and significantly endangers the communities of California to
WMD's, explosives and destructive device initiated attacks.
The potential consequences would be catastrophic in their
scope and magnitude, resulting in large-scale loss of life and
substantial infrastructure property damage. Moreover, law
enforcement's ability to maintain regional stability would be
undermined, and when coupled with the potentially disastrous
economic ramifications that such a colossal event would
produce, the very foundations of our communities and our
current way of life would be immeasurably jeopardized.
"The threat posed by a single bomber, able to easily conceal
himself and his movements amongst the population, is
frighteningly significant and poses dire consequences. The
implications posed by a successful WMD, explosive or
destructive device detonation, transcends beyond the local and
domestic front, as the political, economic and public safety
impact will undoubtedly have international repercussions as
well. Worldwide media coverage broadcasting images of the
devastation and carnage would be detrimental and embolden
terrorist groups to commit additional attacks. The ensuing
economic reverberations and political fallout will be
surpassed only by the far more daunting prospect of terrorist
groups exploiting the situation for political gain and
propaganda purposes, accelerating recruitment and material
support for their causes, and animating others to plan future
operations and attacks.
"Requiring felons convicted of detonating, possessing,
assembling or transporting WMD's, explosives, and/or
destructive devices, to register with local law enforcement
will substantially enhance the ability of law enforcement to
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prevent, deter and interdict bombings by terrorist groups and
traditional criminal networks. This will significantly
improve public safety, and California communities will be
better protected from the devastating effects of terrorism,
WMD's, bombings and bomb threats.
"If the proposed bill is enacted into law, California law
enforcement agencies will be appropriately informed and
equipped with effective prevention and intervention tools that
will improve public safety, better protect California
communities, and in particular will achieve the required
capability to accomplish the following - detect and prevent
recidivism; reduce the fear, incidence and frequency of
bombings and destructive devices; enhance analysis and
identification of emerging trends and patterns of bombings,
attempted bombings, and bomb threats; and improve the ability
to monitor, track and verify the whereabouts, movements, and
residing locations of convicted bombers, bomb makers, and
those that possess, traffic, transport and assemble such
WMD's, explosives and destructive devices."
2)Background : According to information provided by the author,
"[c]ontemporary law enforcement capabilities to prevent and
deter terrorists and criminals from detonating weapons of mass
destruction (WMD's) or explosive and/or destructive devices,
are currently severely hampered. This is due primarily to the
fact that felons convicted of criminal activity related to
WMD's and explosives are not required to register with local
law enforcement. Their whereabouts are essentially unknown
and, consequently, law enforcement's ability to protect all
California communities is severely compromised, as the
knowledge, tools and necessary information to effectively
monitor and track their whereabouts, movements and activities
is currently non-existent."
3)Sex Crimes, Narcotics, and Arson Registration Statutes :
"Registration requirements generally are based on the
assumption that persons convicted of certain offenses are more
likely to repeat the crimes and that law enforcement's ability
to prevent certain crimes and its ability to apprehend certain
types of criminals will be improved if these repeat offenders'
whereabouts are known. [3 Witkin & Epstein, Cal. Criminal Law
(2d ed. 1989) 1416, p. 1678.] Hence, the sex offender
registration statute was enacted to ensure that persons
convicted of such crimes as child molestation are readily
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available for police surveillance at all times. The
Legislature has deemed such persons likely to commit similar
offenses in the future and thus requires them to register for
life. [ Barrows v. Municipal Court (1970) 1 Cal.3d 821,
825-826.] Penal Code Section 290 provides criminal penalties
for failing to register. Any person who is required to
register based on a misdemeanor conviction who willfully
violates specified requirements is guilty of a misdemeanor,
punishable by imprisonment in the county jail not exceeding
one year. Any person required to register based on a felony
conviction, or who has a prior conviction for failing to
register, is guilty of a felony, punishable by imprisonment in
the state prison for 16 months, 2 or 3 years. If probation is
granted or the imposition or execution of sentence is
suspended, the defendant must serve at least 90 days in the
county jail.
In response to a number of high-profile arson fires in the Los
Angeles area, ABx1 8 (Hoge), Chapter 11, Statutes of 1994,
made arson registration a lifetime requirement for those
convicted of certain arson offenses. Previously, registration
was only required for certain repeat offenders, and only for a
five-year period. Existing law provides that willfully
failing to register as an arsonist is a misdemeanor,
punishable by up to one year in the county jail, with a
minimum term of not less than 90 days.
Existing law also requires persons convicted of specified
controlled substance offenses to register with law
enforcement. (Health and Safety Code Section 11590.)
4)This Bill Creates Registration Requirements for Persons
Convicted of the Possession and Use of Destructive Devices :
This bill creates a duty to register, similar to the arson
registration statute, for persons convicted of the following
destructive device offenses: possession; carrying or placing
on a passenger vessel, aircraft, car or other vehicle;
possession in or near specified places; possession with the
intent to injure or intimidate; sale or transportation;
exploding or attempting to explode with the intent to murder;
explosion resulting in bodily injury; exploding resulting in
death, mayhem, or GBI; and possession of materials.
5)Information from the DOJ regarding Destructive Devices :
Committee staff requested data from the DOJ Offender-Based
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Transaction Statistics System regarding the offenses in this
bill requiring registration as a destructive-device offender.
The data demonstrates that the total number of arrests and
convictions for those convicted of possessing, carrying,
placing, selling, igniting or attempting to ignite any
destructive device has not changed significantly:
a) In 2005: 236 arrests; 73 convictions.
b) In 2006: 212 arrests; 84 convictions.
c) In 2007: 220 arrests; 81 convictions.
The majority of arrests and convictions were for the following
offenses: possession, possession in or near specified places,
possession with the intent to injure or destroy property,
possession of materials with the intent to manufacture.
The sponsors of this bill contend that registration may assist
law enforcement in terrorism-related cases. However, it
appears from the data that the number of arrests and
convictions for placing a destructive device on a passenger
vessel, aircraft, car, or other vehicle are statistically
insignificant:
a) In 2005: 3 arrests; 0 convictions.
b) In 2006: 2 arrests; 0 convictions.
c) In 2007: 3 arrests; 0 convictions.
From 2005 to 2007, there were no arrests or convictions for
exploding or attempting to explode a destructive device with
the intent to commit murder. For the same period of time,
there were no arrests or convictions for exploding a device
that resulted in death, mayhem or great bodily injury. The
information from DOJ is attached to the analysis as an
exhibit.
6)Is There A Need for a Destructive Device Registration Statute :
Registration requirements are based on the assumption that
persons convicted of certain offenses are more likely to be
repeat offenders. An additional assumption is that the
ability of law enforcement to prevent certain crimes and to
apprehend certain types of criminals will be improved if these
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repeat offenders' whereabouts are known. As mentioned, the
Legislature has previously determined that sex crimes,
narcotics, and arson offenders are likely to repeat their
offenses and therefore must register. Can the same be said of
persons convicted of offenses involving explosives or
destructive devices?
Are the specified offenses involving destructive devices in this
bill similar in nature to the type of offenses that currently
require registration? Is a person who attempts to explode the
mail box of his estranged wife out of frustration during a
child custody dispute as likely to repeat the offense as a
person who derives sexual gratification from molesting young
children or who is addicted to a controlled substance? While
there may be instances where a person possesses explosives or
destructive devices because he or she receives gratification
from such activity, or as part of a common scheme or plan such
as the Unabomber, there may be other offenders whose
motivation is derived from a particular set of circumstances.
By requiring registration in all cases, this bill imposes a
lifetime obligation without regard to the likelihood of the
offender repeating the offense.
7)Arguments in Opposition : According to the American Civil
Liberties Union , "We have consistently opposed registration
laws because they impose penalties for which individuals have
already been penalized by the criminal justice system. We do
not perceive a sufficient rationale to justify creating a new
system of registration laws for these offenders. We are aware
of little, if any, evidence that indicates that the persons
convicted of these crimes exhibit the type of compulsive
behavior that is used to justify sex offender registration
laws."
8)Prior Legislation : AB 2661 (Pavely), of the 2001-02
Legislative Session, would have created registration
requirements for persons convicted of offenses involving
destructive devices. AB 2661 was placed in the Assembly
Appropriations Committee's Suspense File.
REGISTERED SUPPORT / OPPOSITION :
Support
None
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Opposition
American Civil Liberties Union
Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
319-3744