BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              S
                             2011-2012 Regular Session               B

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          SB 124 (De León)                                            
          As Introduced January 26, 2011 
          Hearing date:  April 12, 2011
          Penal Code
          SM:mc

                         DEFINITIONS OF HANDGUN AMMUNITION AND

                              ARMOR-PIERCING AMMUNITION  


                                       HISTORY

          Source:  Author

          Prior Legislation: AB 962 (De León) - Chap. 628, Stats. 2009
                       ABX1-13 - Chap. 31, Stats. 1994
                       Initiative Measure (Prop. 115) - approved June 5, 
          1990, Stats. of 1993
                       
          Support: Alameda Police Department; City of Arcadia; Association 
                   for Los Angeles Deputy Sheriffs; Berkeley Police 
                   Department; City of Beverly Hills; Brady Campaign to 
                   Prevent Gun Violence; California Chapters; Chico Police 
                   Department; City of Healdsburg; Imperial Police 
                   Department; Inglewood Police Department; Legal 
                   Community Against Violence; Los Angeles County 
                   Probation Officers Union; Los Angeles Police Protective 
                   League; Modesto Police Department; Oakland Police 
                   Department; Oxnard Police Department; Peace Officers 
                   Research Association of California; Riverside Sheriff's 
                   Association; Sacramento Police Department; San 
                   Bernardino Police Department; San Francisco Police 




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                   Department; Santa Ana Police Department; City of South 
                   Pasadena; Stockton Police Department; Vallejo Police 
                   Department

          Opposition:California Association of Firearms Retailers; 
                   California Rifle and Pistol Association; California 
                   Sportmans' Lobby, Inc.; Crossroads of the West Gun 
                   Shows; National Shooting Sports Foundation, Inc.; 
                   Outdoor Sportsmen's Coalition of California; 
                   Responsible Citizens of California; Safari Club 
                   International; Redline Ballistics; Gun Owners of 
                   California; National Rifle Association; one private 
                   citizen


                                        KEY ISSUES
           
          SHOULD HANDGUN AMMUNITION BE DEFINED AS "AMMUNITION FOR USE IN 
          PISTOLS, REVOLVERS, AND OTHER FIREARMS CAPABLE OF BEING CONCEALED 
          UPON THE PERSON, NOTWITHSTANDING THAT THE AMMUNITION MAY ALSO BE 
          USED IN SOME RIFLES," WITH SPECIFIED EXEMPTIONS?

          SHOULD THE DEFINITION OF ARMOR-PIERCING AMMUNITION BE AMENDED TO 
          READ: "'HANDGUN AMMUNITION DESIGNED TO PENETRATE METAL OR ARMOR' 
          MEANS ANY AMMUNITION, EXCEPT A SHOTGUN SHELL, THAT IS CAPABLE OF 
          PENETRATING A BODY VEST OR BODY SHIELD WHEN DISCHARGED FROM A 
          HANDGUN,"  WITH ADDITIONAL SPECIFIED CHARACTERISTICS?

          SHOULD SEVERAL STATUTES THAT REFER TO "HANDGUN AMMUNITION DESIGNED 
          PRIMARILY TO PENETRATE METAL OR ARMOR" BE CONFORMED BY DELETING THE 
          WORD "PRIMARILY"?



                                       PURPOSE

          The purpose of this bill is to (1) define handgun ammunition as 
          "ammunition for use in pistols, revolvers, and other firearms 
          capable of being concealed upon the person, notwithstanding that 
          the ammunition may also be used in some rifles, with specified 




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          exemptions; (2) amend the definition of armor-piercing 
          ammunition to read: handgun ammunition designed to penetrate 
          metal or armor' means any ammunition, except a shotgun shell, 
          that is capable of penetrating a body vest or body shield when 
          discharged from a handgun," with additional specified 
          characteristics; and (3) conform several statutes that refer to 
          "handgun ammunition designed primarily to penetrate metal or 
          armor" by deleting the word "primarily" from each of these 
          statutes. 

          Handgun Ammunition

           Current law  defines "handgun ammunition" as "ammunition 
          principally for use in pistols, revolvers, and other firearms 
          capable of being concealed upon the person, notwithstanding that 
          the ammunition may also be used in some rifles" and exempting, 
          as specified:


                 ammunition designed and intended to be used in an 
               antique firearm and,

                 blanks.  (Penal Code § 16650.)


           Current law  provides that, commencing February 1, 2011, the 
          delivery or transfer of ownership of handgun ammunition may only 
          occur in a face-to-face transaction with the deliverer or 
          transferor being provided bona fide evidence of identity from 
          the purchaser or other transferee, except as specified.  (Penal 
          Code § 30312(a).)


           Current law  imposes several requirements on handgun ammunition 
          sellers, including that they obtain and record the 
          identification of purchasers and make that information available 
          to law enforcement upon request.  (Penal Code §§ 30345, et seq.)


           Current law  provides that it is a misdemeanor, punishable by up 




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          to 6 months in county jail, a fine of up to $1,000, or by both, 
          to do any of the following:


                 Sell any ammunition or reloaded ammunition to a person 
               under 18 years of age.


                 Sell any ammunition or reloaded ammunition designed and 
               intended for use in a handgun to a person under 21 years of 
               age.  Where ammunition or reloaded ammunition may be used 
               in both a rifle and a handgun, it may be sold to a person 
               who is at least 18 years of age, but less than 21 years of 
               age, if the vendor reasonably believes that the ammunition 
               is being acquired for use in a rifle and not a handgun.


                 Supplies, delivers, or gives possession of any 
               ammunition to any minor who the person, corporation, or 
               dealer knows, or using reasonable care should know, is 
               prohibited from possessing that ammunition at that time, as 
               specified.


                 Proof that a person, corporation, or dealer, or his or 
               her agent or employee, demanded, was shown, and acted in 
               reasonable reliance upon, bona fide evidence of majority 
               and identity shall be a defense to any criminal prosecution 
               under this section.  (Penal Code § 30300.)


          Amor-Piercing Ammunition


           Current law provides that all murder which is perpetrated by 
          means of a destructive device or explosive, a weapon of mass 
          destruction, knowing use of ammunition designed primarily to 
          penetrate metal or armor, poison, lying in wait, torture, or by 
          any other kind of willful, deliberate, and premeditated killing, 
          or which is committed in the perpetration of, or attempt to 




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          perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, 
          kidnapping, train wrecking, or any act punishable under Section 
          206, 286, 288, 288a, or 289, or any murder which is perpetrated 
          by means of discharging a firearm from a motor vehicle, 
          intentionally at another person outside of the vehicle with the 
          intent to inflict death, is murder of the first degree.  All 
          other kinds of murders are of the second degree.  (Penal Code § 
          189.<1>)

           Current law  provides that the foregoing section, Penal Code 
          section 189, as amended by voter initiative (Prop. 115), "? may 
          not be amended by the Legislature except by statute passed in 
          each house by roll call vote entered in the journal, two-thirds 
          of the membership concurring, or by a statute that becomes 
          effective only when approved by the electors."  (Stats. 1990, § 
          30, p. A-256.)  

           Current law  provides that any person who, while armed with a 
          firearm in the commission or attempted commission of any felony, 
          has in his or her immediate possession ammunition for the 
          firearm designed primarily to penetrate metal or armor, shall 
          upon conviction of that felony or attempted felony, in addition 
          and consecutive to the punishment prescribed for the felony or 
          attempted felony, be punished by an additional term of 3, 4, or 
          10 years.  (Penal Code § 12022.2.)

           Current law  provides that any person, firm, or corporation who, 
          within this state knowingly possesses any handgun ammunition 
          designed primarily to penetrate metal or armor is guilty of a 
          public offense punishable by up to one year in the county jail, 
          16 months, 2, or 3 years in the state prison, a fine of up to 
          $5,000, or both.  (Penal Code § 30315.)

          ---------------------------
          <1>1  SB 1080, Chap. 711, Stats. 2010, and SB 1115, Chap. 178, 
          Stats. 2010, recast and renumbered most statutes relating to 
          deadly weapons without any substantive change to those statutes. 
           Those changes will become operative January 1, 2012.  All 
          references to affected code sections will be to the revised 
          version unless otherwise indicated.




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           Current law  provides that any person, firm, or corporation who, 
          within this state, manufactures, imports, sells, offers to sell, 
          or knowingly transports any handgun ammunition designed 
          primarily to penetrate metal or armor is guilty of a felony and 
          upon conviction thereof shall be punished by imprisonment in 
          state prison, or by a fine of up to $5,000, or both.  (Penal 
          Code § 30320.)

           Current law  defines "handgun ammunition designed primarily to 
          penetrate metal or armor" as "any ammunition, except a shotgun 
          shell or ammunition primarily designed for use in a rifle, that 
          is designed primarily to penetrate a body vest or body shield, 
          and has either of the following characteristics:

                 has projectile or projectile core constructed entirely, 
               excluding the presence of traces of other substances, from 
               one or a combination of tungsten alloys, steel, iron, 
               brass, beryllium copper, or depleted uranium, or any 
               equivalent material of similar density or hardness. 


                 is primarily manufactured or designed, by virtue of its 
               shape, cross-sectional density, or any coating applied 
               thereto, including, but not limited to, ammunition commonly 
               known as "KTW ammunition," to breach or penetrate a body 
               vest or body shield when fired from a pistol, revolver, or 
               other firearm capable of being concealed upon the person."  
               (Penal Code § 16660.)

           Current law  provides that nothing in this article shall apply to 
          or affect the possession of handgun ammunition designed 
          primarily to penetrate metal or armor by a person who found the 
          ammunition, if that person is not prohibited from possessing 
          firearms or ammunition, as specified, and the person is 
          transporting the ammunition to a law enforcement agency for 
          disposition according to law.  (Penal Code § 30325.)

           This bill  would delete the word "primarily" from the definition 
          of "handgun ammunition" so that the definition would read: 
          "handgun ammunition" is "ammunition for use in pistols, 




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          revolvers, and other firearms capable of being concealed upon 
          the person, notwithstanding that the ammunition may also be used 
          in some rifles" and exempting, as specified:


                 ammunition designed and intended to be used in an 
               antique firearm; and
                 blanks.

           This bill  would amend the definition of armor-piercing 
          ammunition to read: "'handgun ammunition designed to penetrate 
          metal or armor' means any ammunition, except a shotgun shell, 
          that is capable of penetrating a body vest or body shield when 
          discharged from a handgun, and has either of the following 
          characteristics:

          (a)  has projectile or projectile core constructed entirely, 
            excluding the presence of traces of other substances, from one 
            or a combination of tungsten alloys, steel, iron, brass, 
            beryllium copper, or depleted uranium, or any equivalent 
            material of similar density or hardness.
          (b) is primarily manufactured or designed, by virtue of its 
            shape, cross-sectional density, or any coating applied 
            thereto, including, but not limited to, ammunition commonly 
            known as "KTW ammunition," to breach or penetrate a body vest 
            or body shield when fired from a pistol, revolver, or other 
            firearm capable of being concealed upon the person.

           This bill  would conform several statutes that refer to "handgun 
          ammunition designed primarily to penetrate metal or armor" by 
          deleting the word "primarily" from each of these statutes. 


                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
          
          For the last several years, severe overcrowding in California's 
          prisons has been the focus of evolving and expensive litigation. 
           As these cases have progressed, prison conditions have 
          continued to be assailed, and the scrutiny of the federal courts 
          over California's prisons has intensified.  




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          On June 30, 2005, in a class action lawsuit filed four years 
          earlier, the United States District Court for the Northern 
          District of California established a Receivership to take 
          control of the delivery of medical services to all California 
          state prisoners confined by the California Department of 
          Corrections and Rehabilitation ("CDCR").  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 January 12, 2010, a 
          three-judge federal panel issued an order requiring California 
          to reduce its inmate population to 137.5 percent of design 
          capacity -- a reduction at that time of roughly 40,000 inmates 
          -- within two years.  The court stayed implementation of its 
          ruling pending the state's appeal to the U.S. Supreme Court.  

          On Monday, June 14, 2010, the U.S. Supreme Court agreed to hear 
          the state's appeal of this order and, on Tuesday, November 30, 
          2010, the Court heard oral arguments.  A decision is expected as 
          early as this spring.  

          In response to the unresolved prison capacity crisis, in early 
          2007 the Senate Committee on Public Safety began holding 
          legislative proposals which could further exacerbate prison 
          overcrowding through new or expanded felony prosecutions.  

           This bill  does appear to aggravate the prison overcrowding 
          crisis described above.  The author has agreed to take 
          amendments to remove the ROCA issue.  See Comment # 4, below.


                                      COMMENTS

          1.    Need for This Bill  

          According to the author:

               SB 124 amends Penal Code section 12323 (Sections 16650 
               and 16660 under the California Law Revision Commission 
               renumbering that will take effect next year) to 




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               clarify the definition of "handgun ammunition" and 
               cop-killer bullets.  The bill deletes the words 
               "principally for use" and "designed primarily" from 
               Penal Code section 12323 which the National Rifle 
               Association and court argued was unconstitutionally 
               vague.  The measure then also updates cross references 
               to that definition that were included in Proposition 
               115 (passed in 1990) that creates penalty 
               enhanceÝments] for the use of such ammunition in the 
               course of a felony or murder.

          2.  Background - AB 962 and the Ruling in Parker v. State of 
          California, et al.  

          AB 962 (De León), Chapter 628, Statutes of 2009, imposed several 
          requirements on handgun ammunition sellers, including the 
          requirement that they obtain personal identification information 
          from buyers and retain that information for inspection by law 
          enforcement upon request.  (Penal Code §§ 30345, et seq.)  On 
          January 31, 2011, a Superior Court in Fresno ruled that the 
          definition of "handgun ammunition" contained in sections 
          12060(b) and 12318(b)(2) (now renumbered as section 16650) was 
          unconstitutionally vague, rendering invalid the provisions of 
          sections 12060, 12061 (now renumbered as sections 30345, et 
          seq.) and 12318.  Each of these sections were enacted pursuant 
          to AB 962.<2>  As a result of this finding, the Court enjoined 
          the State Attorney General from enforcing those statutes.  
          (Order Denying Plaintiff's Motion for Summary Judgment and 
          Granting In Part and Denying In Part Defendant's Motion for 
          Summary Adjudication, Fresno County Superior Court, Case No. 10 
          CECG 02116, pages 4, 11-17.)



          The Court stated:

               Because the language of the definition of "handgun 
               ----------------------
          <2> Old Penal Code section 12318 defines "handgun ammunition by 
          cross-reference to old section 12323(a), now renumbered section 
          16650.  



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               ammunition" fundamentally requires each law 
               enforcement officer to make a subjective determination 
               as to whether or not the ammunition at issue is 
               ammunition "principally for use" in a handgun and then 
               subjectively apply their own definition to the 
               situation before them, the definition of "handgun 
               ammunition" established in section 12060(b) and 
               12318(b)(2) gives unlimited discretion to each 
               individual law enforcement officer to determine 
               arbitrarily if the ammunition at issue is "handgun 
               ammunition" and to apply their particular 
               classification of "handgun ammunition" or not to the 
               specific issue before them.  (Id at pages 14-15.)

          3.  Vagueness Issues  

          This bill is intended to address the vagueness issue in the 
          handgun ammunition statutes as well as to modify the definitions 
          in certain statutes involving armor-piercing ammunition to 
          address any potential claim of vagueness which might be made in 
          relation to those statutes.  A vague term is unconstitutional 
          because it fails to give adequate notice to a defendant of what 
          behavior is prohibited.  

               That the terms of a penal statute creating a new 
               offense must be sufficiently explicit to inform those 
               who are subject to it what conduct on their part will 
               render them liable to its penalties, is a 
               well-recognized requirement, consonant alike with 
               ordinary notions of fair play and the settled rules of 
               law.  And a statute which either forbids or requires 
               the doing of an act in terms so vague that men of 
               common intelligence must necessarily guess at its 
               meaning and differ as to its application, violates the 
               first essential of due process of law.  (Connally v. 
               General Constr. Co., 269 U.S. 385, 391 (U.S. 1926), 
               citations omitted.)  

               The basic premise of the void-for-vagueness doctrine 
               is that "Ýn]o one may be required at peril of life, 




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               liberty or property to speculate as to the meaning of 
               penal statutes." (Lanzetta v. New Jersey (1939) 306 
               U.S. 451, 453 Ý59 S. Ct. 618, 619, 83 L. Ed. 888].)  
               (People v. McKay, 27 Cal. 4th 601, 634 (2002), opinion 
               of Brown, J., concurring and dissenting.)

          Penal Code section 16650 defines "handgun ammunition" as 
          "ammunition principally for use in pistols, revolvers, and other 
          firearms capable of being concealed upon the person, 
          notwithstanding that the ammunition may also be used in some 
          rifles" and exempting, as specified:

                 ammunition designed and intended to be used in an 
               antique firearm; and
                 blanks.

          This bill would delete the word "principally" from this 
          definition.  However, it is not clear that this would resolve 
          the vagueness issue.  Defining handgun ammunition as "ammunition 
          for use in pistols, revolvers, and other firearms capable of 
          being concealed upon the person, notwithstanding that the 
          ammunition may also be used in some rifles" would still appear 
          to contain an element of subjectivity in determining whether a 
          specific type of ammunition is or is not "for use" in a handgun 
          or a long gun.  Does "for use" mean intended for use in a 
          handgun by the manufacturer?  Or does it mean intended for use 
          in a handgun by the buyer?  Do manufacturers of ammunition 
          capable of use in both handguns and long guns intend that it be 
          used only in one or the other?  How would that be determined?

          DOES THIS DEFINITION GIVE ADEQUATE NOTICE OF WHAT CONSTITUTES 
          "HANDGUN AMMUNITION"?

          4.  Suggested Amendment  

          To address this issue, the author has agreed to amend the bill 
          to contain the following definition of handgun ammunition:

               Penal Code section 16650 (a) As used in this part, "handgun 
               ammunition" means ammunition   capable of being used in 




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               pistols, revolvers, and other firearms capable of being 
               concealed upon the person, notwithstanding that the 
               ammunition may also be used in some rifles. 


               (b) As used in Section 30312 and in Article 3 (commencing 
               with Section 30345) of Chapter 1 of Division 10 of Title 4, 
               "handgun ammunition" does not include either of the 
                                                  following:



                    (1) Ammunition designed and intended to be used in an 
               antique firearm.



                    (2) Blanks.


          This definition creates an objective standard to determine 
          whether a given type of ammunition is to be considered "handgun 
          ammunition" for purposes of these statutes, i.e., can the 
          ammunition be used in a handgun?  

          SHOULD THIS AMENDMENT BE TAKEN?

          5.  Armor-Piercing Bullet Statutes; Author's Amendment  

          Current law generally prohibits the possession and sale of 
          handgun ammunition designed to penetrate metal or armor.  This 
          bill amends the definition of this kind of ammunition, and in 
          particular attempts to address the use of the term "designed 
          primarily to penetrate metal or armor."  As currently drafted, 
          the bill's language employs both "designed to penetrate" and 
          "capable of penetrating" metal or armor, and in this way would 
          appear to expand the scope of several existing felonies.  To 
          address this concern (expansion of the scope of existing 
          felonies) and clarify the definition, the author has agreed to 
          replace the bill's existing language (section 4 of the bill now 




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          in print) with the following:
           
               As used in this part, "handgun ammunition designed   to 
               penetrate metal or armor" means any ammunition, except a 
               shotgun shell that is designed to penetrate a body vest or 
               body shield when discharged from a handgun, and has either 
               of the following characteristics: 

               (a) Has projectile or projectile core constructed entirely, 
               excluding the presence of traces of other substances, from 
               one or a combination of tungsten alloys, steel, iron, 
               brass, beryllium copper, or depleted uranium, or any 
               equivalent material of similar density or hardness.


               (b) Is   manufactured or designed, by virtue of its shape, 
               cross-sectional density, or any coating applied thereto, 
               including, but not limited to, ammunition commonly known as 
               "KTW ammunition," to breach or penetrate a body vest or 
               body shield when fired from a pistol, revolver, or other 
               firearm capable of being concealed upon the person.

          SHOULD THIS AMENDMENT BE TAKEN?





















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          6.  Argument in Support  

          The Los Angeles Police Protective League states:

               The bill Ý ] responds to a ruling brought on by an NRA 
               lawsuit.  SB 124 clarifies the definition of "handgun 
               ammunition" and cop-killer bullets for the Penal Code 
               to make certain that court decisions like the one in 
               Fresno or any future gun lobby lawsuit cannot 
               invalidate California's ban on cop-killer bullets - 
               the ones which can pierce armor, and penetrate 
               protective vests worn by law enforcement officers.  
               Officers face danger every day and deserve protection 
               from bullets that are primarily designed and 
               deliberately used to bring about devastating 
               penetration damage to their target.

          7.  Argument in Opposition  

          The California Association of Firearms Retailers states:

               SB 124 would attempt to remove unconstitutional 
               vagueness by taking the terms "principally" and 
               "primarily" out of existing law as these terms relate 
               to the definition of handgun ammunition.  The logic 
               appears to be that, if "principally" and "primarily" 
               are deleted from relevant code sections, AB 962 will 
               become constitutionally viable.

               A problem with simply removing "principally" and 
               "primarily" without making other defining changes is 
               that the remaining language would greatly expand what 
               is handgun ammunition, and new areas of vagueness 
               would surface as a result.

               The bill would expand the definition of armor piercing 
               handgun ammunition to mean any ammunition that can be 
               fired in a handgun that is "capable" of penetrating a 
               body vest or shield and which possesses any one of 




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               specified design characteristics, including listed 
               metallurgy, cross-sectional density and shape of 
               coating that could facilitate the penetration of such 
               vest or shield.  It would specifically eliminate the 
               existing statutory exemption for rifle ammunition.

               Body vests and shields commonly used by law 
               enforcement are designed to impede penetration by 
               traditional handgun ammunition, not centerfire rifle 
               ammunition.

               This bill would sweep in many popular centerfire rifle 
               cartridges used in specialty handguns for hunting, 
               competition and other lawful purposes.

               Most handguns that can discharge centerfire rifle 
               ammunition are single shot pistols that, for a variety 
               of reasons, are not commonly used as crime guns.  
               Eliminating the current exclusion for rifle ammunition 
               that can be fired in them would not be of significance 
               as a crime deterrent.

               SB 124 would further make mere possession of any of 
               the above described rifle ammunition a new felony.

               It could make many, if not all, popular centerfire 
               rifle cartridges illegal to possess.  It could, in 
               effect bring an end to all hunting, competition and 
               other lawful shooting activities with rifles and with 
               pistols that can fire rifle ammunition!


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