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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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,
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<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.
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<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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