BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                           Senator Gloria Romero, Chair              S
                             2007-2008 Regular Session               B

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          SB 1162 (Maldonado)                                        2
          As Introduced February 6, 2008 
          Hearing date:  March 25, 2008
          Penal Code
          SM:mc

                                    METAL KNUCKLES
                                           
                                       HISTORY

          Source:  Author

          Prior Legislation: SB 1689 (Margett) - Chapter 208, Stats. of  
          2002

          Support: California District Attorneys Association

          Opposition:California Public Defenders Association


                                            
                                         KEY ISSUE
           
          SHOULD THE MISDEMEANOR CRIME OF COMMERCIAL MANUFACTURE OR COMMERCIAL  
          SALE OF PLASTIC KNUCKLES BE DELETED AND THE EXISTING ALTERNATE  
          FELONY/MISDEMEANOR CRIME OF POSSESSION, MANUFACTURE, IMPORTATION OR  
          SALE OF "METAL KNUCKLES" BE EXPANDED TO INCLUDE SIMILAR DEVICES MADE  
          OF PLASTIC, WOOD, COMPOSITE OR PAPER PRODUCTS?
          
          

                                       PURPOSE





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                                                        SB 1162 (Maldonado)
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          The purpose of this bill is to delete the misdemeanor crime of  
          commercial manufacture or commercial sale of plastic knuckles  
          and to amend the existing alternate felony/misdemeanor crime of  
          possession, manufacture, importation or sale of "metal knuckles"  
          to include similar devices made of plastic, wood, composite or  
          paper products.

           Under existing law  , any person who manufactures, imports, offers  
          or exposes for sale, or possesses a variety of items, such as a  
          cane gun, short-barreled shotgun, or "any metal knuckles," is  
          guilty of a crime punishable by imprisonment in the county jail  
          not exceeding one year, or imprisonment in the state prison (16  
          months, 2, or 3 years).  (Penal Code  12020.)
           
          Existing law  defines "metal knuckles" to mean any device or  
          instrument made wholly or partially of metal which is worn for  
          purposes of offense or defense in or on the hand and which  
          either protects the wearer's hand while striking a blow or  
          increases the force of impact from the blow or injury to the  
          individual receiving the blow.  The metal contained in the  
          device may help support the hand or fist, provide a shield to  
          protect it, or consist of projections or studs which would  
          contact the individual receiving a blow.  (Penal Code   
          12029(c)(7).)

           Existing law  provides that any person in this state who  
          commercially manufactures or causes to be commercially  
          manufactured, or who knowingly imports into the state for  
          commercial sale, keeps for commercial sale, or offers or exposes  
          for commercial sale, any hard plastic knuckles is guilty of a  
          misdemeanor.  (Penal Code  12020.1.)

           Existing law  defines "hard plastic knuckles" as any device or  
          instrument made wholly or partially of plastic that is not a  
          metal knuckle, as defined, that is worn for purposes of offense  
          or defense in or on the hand, and that either protects the  
          wearer's hand while striking a blow or increases the force of  
          impact from the blow or injury to the individual receiving the  
          blow.  The plastic contained in the device may help support the  
          hand or fist, provide a shield to protect it, or consist of  




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          projections or studs that would contact the individual receiving  
          a blow.  (Penal Code  12020.1.)

           Existing law  provides that any person who commercially  
          manufactures or causes to be commercially manufactured, or who  
          knowingly imports into the state for commercial sale, keeps for  
          commercial sale, or offers or exposes for commercial sale, any  
          undetectable knife is guilty of a misdemeanor.  (Penal Code   
          12001.1.)

           This bill  deletes the misdemeanor crime of commercial  
          manufacture or sale of hard plastic knuckles.

           This bill  would make it an alternate felony/misdemeanor to  
          manufacture or cause to be manufactured, to import into the  
          state, keep for sale, or offer or expose for sale, or give,  
          lend, or possess, any device or instrument made wholly or  
          partially of plastic, wood, composite, or paper products, which  
          is worn for purposes of offense or defense in or on the hand and  
          which either protects the wearer's hand while striking a blow or  
          increases the force of impact from the blow or injury to the  
          individual receiving the blow.

              RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
          
          California continues to face an extraordinary and severe prison  
          and jail overcrowding crisis.  California's prison capacity  
          remains nearly exhausted as prisons today continue to be  
          operated with a significant level of overcrowding.<1>  A year  
          ago, the Legislative Analyst's office summarized the trajectory  
          of California's inmate population over the last two decades:

              During the past 20 years, jail and prison  
              populations have increased significantly.  County  
              jail populations have increased by about 66  
              percent over that period, an amount that has been  
              limited by court-ordered population caps.  The  
              --------------------
          <1>  Analysis of the 2007-08 Budget Bill:  Judicial and Criminal  
          Justice, Legislative Analyst's Office (February 21, 2007); see  
          also, court orders, infra.



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              prison population has grown even more dramatically  
              during that period, tripling since the  
              mid-1980s.<2>

          The level of overcrowding, and the impact of the population  
          crisis on the day-to-day prison operations, is staggering:

              As of December 31, 2006, the California Department  
              of Corrections and Rehabilitation (CDCR) was  
              estimated to have 173,100 inmates in the state  
              prison system, based on CDCR's fall 2006  
              population projections.  However, . . . the  
              department only operates or contracts for a total  
              of 156,500 permanent bed capacity (not including  
              out-of-state beds, . . . ), resulting in a  
              shortfall of about 16,600 prison beds relative to  
              the inmate population.  The most significant bed  
              shortfalls are for Level I, II, and IV inmates, as  
              well as at reception centers.  As a result of the  
              bed deficits, CDCR houses about 10 percent of the  
              inmate population in temporary beds, such as in  
              dayrooms and gyms.  In addition, many inmates are  
              housed in facilities designed for different  
              security levels.  For example, there are currently  
              about 6,000 high security (Level IV) inmates  
              housed in beds designed for Level III inmates.

              . . .  (S)ignificant overcrowding has both  
              operational and fiscal consequences.  Overcrowding  
              and the use of temporary beds create security  
              concerns, particularly for medium- and  
              high-security inmates.  Gyms and dayrooms are not  
              designed to provide security coverage as well as  
              in permanent housing units, and overcrowding can  
              contribute to inmate unrest, disturbances, and  
              assaults.  This can result in additional state  
              costs for medical treatment, workers'  
              compensation, and staff overtime.  In addition,  

              --------------------
          <2>  California's Criminal Justice System:  A Primer.   
          Legislative Analyst's Office (January 2007).



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              overcrowding can limit the ability of prisons to  
              provide rehabilitative, health care, and other  
              types of programs because prisons were not  
              designed with sufficient space to provide these  
              services to the increased population.  The  
              difficulty in providing inmate programs and  
              services is exacerbated by the use of program  
              space to house inmates.  Also, to the extent that  
              inmate unrest is caused by overcrowding,  
              rehabilitation programs and other services can be  
              disrupted by the resulting lockdowns.<3>

          As a result of numerous lawsuits, the state has entered into  
          several consent decrees agreeing to improve conditions in the  
          state's prisons.  As these cases have continued over the past  
          several years, prison conditions nonetheless have failed to  
          improve and, over the last year, the scrutiny of the federal  
          courts over California's prisons has intensified.

          The federal court has appointed a receiver to take over the  
          direct management and operation of the prison medical health  
          care delivery system from the state.  The crisis has continued  
          to escalate and, in July of last year, the federal court  
          established a three-judge panel to consider placing a cap on the  
          number of prisoners allowable in California prisons.  It is  
          anticipated that the court will reach its decision this year.

          In his order establishing the judicial panel, Judge Thelton  
          Henderson stated in part:

            It is clear to the Court that the crowded conditions  
            of California's prisons, which are now packed well  
            beyond their intended capacity, are having - and in  
            the absence of any intervening remedial action, will  
            continue to have - a serious impact on the Receiver's  
            ability to complete the job for which he was  
            appointed:  namely, to eliminate the unconstitutional  
            conditions surrounding delivery of inmate medical  
            health care.


            ----------------------
          <3>  Analysis 2007-08 Budget Bill, supra, fn. 1.



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            . . .  (T)his case is also somewhat unique in that even  
            Defendants acknowledge the seriousness of the  
            overcrowding problem, which led the Governor to declare  
            a state of emergency in California's prisons in October  
            2006.  While there remains dispute over whether crowded  
            conditions are the primary cause of the constitutional  
            problems with the medical health care system in  
            California prisons, or whether any relief other than a  
            prisoner release order will remedy the constitutional  
            deprivations in this case, there can be no dispute that  
            overcrowding is at least part of the problem.  . . .   
            The record is equally clear that the Receiver will be  
            unable to eliminate the constitutional deficiencies at  
            issue in this case in a reasonable amount of time  
            unless something is done to address the crowded  
            conditions in California's prisons.  This Court  
            therefore believes that a three-judge court should  
            consider whether a prisoner release order is warranted  
            . . . .  (Hon. Thelton Henderson, Order dated July 23,  
            2007 in Plata v. Schwarzenegger (N.D. Cal) No. C01-1351  
            TEH (citations omitted).)

          Similarly, Judge Lawrence Karlton stated:

            There is no dispute that prisons in California are  
            seriously and dangerously overcrowded.  ()  The  
            record suggests there will be no appreciable change  
            in the prison population in the next two years.   
            (Hon. Lawrence K. Karlton, Senior Judge, United  
            States District Court, Order dated July 23, 2007 in  
            Coleman v. Schwarzenegger (E.D. Cal.) No. S90-0520  
            LKK JFM P (citations omitted).)

           This bill  would aggravate the prison overcrowding crisis.


                                      COMMENTS

          1.   Need for This Bill  




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          According to the author:

               Under current law, possession of brass knuckles is  
               punishable by imprisonment in a county jail not to  
               exceed one year or in state prison.  At the same time,  
               selling and/or manufacturing plastic knuckles is a  
               misdemeanor.  However, there are currently no  
               restrictions on the possession of these deadly  
               weapons. 

               Plastic knuckles have become a weapon of choice for  
               criminals in California and across the nation.  These  
               knuckles, often made from Lexan plastic, are equally  
               as deadly as traditional brass knuckles.  They do not  
               set off magnetometers at courthouses, jails, and  
               airports.  Passengers are not allowed to carry brass  
               knuckles on airplanes, but plastic knuckles are not  
               included on the TSA's list of restricted items  
               published on their website. 

               SB 1162 will close the loophole to make selling,  
               purchasing or possessing plastic knuckles punishable  
               by imprisonment in a county jail not to exceed one  
               year or in state prison.

          2.   Effect of the Bill  

          Currently, to possess or sell  metal  knuckles is punishable as a  
          felony or misdemeanor.  (Penal Code  12020(a)(1).)  In 2002, SB  
          1689 (Margett) (Chapter 208, Stats. of 2002) was enacted, which  
          imposed misdemeanor penalties for commercial sales or  
          importation of hard plastic knuckles.  (Penal Code  12020.1.)   
          This bill would delete the Penal Code provisions enacted by SB  
          1689.  Instead, this bill would make it an alternate  
          felony/misdemeanor to manufacture, import, offer or expose for  
          sale, give, lend, or possess, any device made of plastic, wood,  
          composite, or paper products, which is worn for purposes of  
          offense or defense in or on the hand and which either protects  
          the wearer's hand while striking a blow or increases the force  




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          of impact from the blow or injury to the individual receiving  
          the blow.

          In other words, this bill would delete the existing misdemeanor  
          crime of commercial manufacture or commercial sale of plastic  
          knuckles and expand the existing alternate felony/misdemeanor  
          crime of possession, transfer of any kind, manufacture,  
          importation or sale of "metal knuckles" to include similar  
          devices made of plastic, wood, composite or paper products.

          Existing law with respect to hard plastic knuckles reflects an  
          approach the Legislature has taken with items that were legal up  
          to a certain date and then made illegal for some purposes in  
          California.  This is the same approach the Legislature has taken  
          with respect to undetectable knives.  (Penal Code  12001.1.)   
          That is, by outlawing the commercial manufacture, importation or  
          sale the law aims at preventing future widespread commercial  
          sale of such items.  At the same time, to avoid making criminals  
          of otherwise law-abiding citizens who lawfully possessed the  
          items prior to law's passage or who subsequently bought such an  
          item at a garage sale or other non-commercial sale, the  
          prohibition does not extend to the non-commercial sale or mere  
          possession of such items.  Of course, if any such item is used  
          in a crime, such as battery or robbery, such use would still  
          result in the offender being guilty of a crime.  

          The existing statute prohibits possession of not only metal  
          knuckles but "? any device or instrument made wholly or  
          partially of metal which is worn for purposes of offense or  
          defense in or on the hand and which either protects the wearer's  
          hand while striking a blow or increases the force of impact from  
          the blow or injury to the individual receiving the blow."  An  
          example of a device which appears to be prohibited for  
          commercial sale in California but legal to possess, which this  
          bill would make a potential felony to possess, is a device known  
          as a "Kubotan."  Many self-defense instructors recommend  
          carrying a Kubotan, or similar device, on a keychain, as a  
          self-defense weapon.






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               Kubotan is a registered trademark of Soke Takayuki  
               Kubota, who originally developed it as a tool for  
               police officers to restrain suspects without permanent  
               injury. Its popularity began in the mid-1970s when  
               Kubota first brought the weapon to the attention of  
               the LAPD and began schooling female officers in its  
               application.  It is often touted as extremely  
               effective in breaking the will of unruly suspects with  
               painful locks and pressure point strikes.  Because of  
               that the Kubotan is also sometimes dubbed the  
               Instrument of Attitude Adjustment.  The Kubotan  
               gradually expanded toward all law enforcement and  
               civilian self-defense applications and is now a widely  
               recognized self-defense tool.


               The Authentic Kubotan keychain (as designed and sold  
               by Takayuki Kubota) is a hard high-impact plastic rod,  
               usually made from Lexan, about 5.5 inches (14 cm) long  
               and 9/16 0.56 inch (1.5 cm) in diameter.  The body is  
               lined with six round grooves for added grip and there  
               is a screw eye with a split ring attached to one end  
               for keys.  There are many other forms and variations  
               of the original design available, ranging from  
               aluminum alloy to spiked, pointed, tapered ones to  
               more offensive looking "ninja" models that have  
               blades, spikes, hidden darts or tear gas.  Although  
               they may be marketed as Kubotans, they are not and are  
               actually classified along the lines of generic  
               Self-Defense Keychain Sticks or SDKS.


               The umbrella term pocket stick is also used sometimes  
               to classify rod-shaped hand weapons like the Kubotan.





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          (http://en.wikipedia.org/wiki/Kubotan.)

          Members might wish to consider whether amending the existing  
          misdemeanor crime of commercial manufacture or sale of hard  
          plastic knuckles to include devices made of wood, paper or  
          composite material would achieve the goals of this bill.  

          WOULD AMENDING THE EXISTING PENAL CODE SECTION THAT IMPOSES  
          MISDEMEANOR PENALTIES FOR COMMERCIAL MANUFACTURE OR SALE OF HARD  
          PLASTIC KNUCKLES TO INCLUDE WOOD, PAPER OR COMPOSITE DEVICES BE  
          APPROPRIATE TO ACHIEVE THE GOALS OF THIS BILL?

          3.   By Creating a New Felony, This Bill would Increase the Reach  
          of the Three Strikes Law  

          This bill expands the existing alternate felony-misdemeanor  
          ("wobbler") penalties currently applicable to any person who  
          possesses, manufactures or causes to be manufactured, imports  
          into the state, keeps for sale, or offers or exposes for sale,  
          or who gives or lends any metal knuckles, to include hard  
          plastic knuckles whether made of plastic, wood, paper products  
          or composite.  

          As explained below, the creation of this new felony expands the  
          reach of the Three Strikes law.  Since the enactment of the  
          Three Strikes law in 1994, a majority of the members of this  
          Committee has been reluctant to create new felonies for conduct  
          that does not involve violence.

           Three Strikes Law Summary 

          Under the Three Strikes law, a defendant with two prior serious  
          or violent felonies must receive a term of at least 25 years to  
          life in the sentence for the commission of any new felony,  
          including identity theft (an alternate felony/misdemeanor).   
          Where the defendant has a single prior serious or violent  
          felony, he or she shall receive a doubled term in the sentence  
          imposed upon conviction of any new felony.





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           Alternate Felony-Misdemeanors and Three Strikes

          Where a defendant has been convicted of an alternate felony  
          misdemeanor that has been charged and prosecuted by the  
          District Attorney as a felony, the sentencing court has the  
          discretion to deem the offense to be a misdemeanor pursuant to  
          the decision of the Court in People v. Superior Court (Alvarez)  
          (1996) 14 Cal.4th 968 and Penal Code section 17, subdivision  
          (b), unless the court's action is arbitrary and contrary to  
          substantial justice.

           Judicial Discretion to Dismiss a Strike is Strictly Limited

          Where a defendant has been convicted of a straight felony, or  
          where the court has declined to deem a wobbler to be a  
          misdemeanor, the court's ability to ameliorate the severity of  
          the Three Strikes law is much more limited.  A court has  
          discretion to dismiss one or more prior "strikes," but only  
          where the defendant's record and the current conviction  
          establish that the defendant should be treated as though he or  
          she does not fall under the terms of the Three Strikes law.   
          (People v. Superior Court (Romero) (1996) 13 Cal.4th  
          497-530-531; People v. Williams (1998) 17 Cal.4th 198.)

          DOES THIS BILL RAISE A THREE-STRIKES ISSUE THAT SHOULD BE  
          ADDRESSED?

          4.  Related Legislation  

          AB 2706 (Feuer) (2008) is substantially similar to this bill.   
          It would apply alternate felony/misdemeanor penalties to the  
          manufacture, possession or sale of "any device or instrument  
          other than a medically-prescribed prosthetic or an unweighted  
          glove which is worn for purposes of offense or defense in or on  
          the hand and which   either protects the wearer's hand while  
          striking a blow or increases the force of impact from the blow  
          or injury to the individual   receiving the blow."  
           














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