BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Gloria Romero, Chair S 2007-2008 Regular Session B 1 1 6 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 (More) SB 1162 (Maldonado) PageB 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 (More) SB 1162 (Maldonado) PageC 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. (More) SB 1162 (Maldonado) PageD 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). (More) SB 1162 (Maldonado) PageE 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. (More) SB 1162 (Maldonado) PageF . . . (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 (More) SB 1162 (Maldonado) PageG 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 (More) SB 1162 (Maldonado) PageH 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. (More) SB 1162 (Maldonado) PageI 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. (More) SB 1162 (Maldonado) PageJ (More) (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. (More) SB 1162 (Maldonado) PageL 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 whicheither protects the wearer's hand while striking a blow or increases the force of impact from the blow or injury to the individualreceiving the blow."SB 1162 (Maldonado) PageM ***************