BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 1176| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 1176 Author: Cooper (D), et al. Amended: 6/30/16 in Senate Vote: 21 PRIOR VOTES NOT RELEVANT SENATE PUBLIC SAFETY COMMITTEE: 6-1, 5/10/16 AYES: Hancock, Anderson, Glazer, Liu, Monning, Stone NOES: Leno SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/16/16 AYES: Lara, Bates, Beall, Hill, McGuire, Mendoza, Nielsen ASSEMBLY FLOOR: Not relevant SUBJECT: Theft: firearms SOURCE: Author DIGEST: This bills: (1) clarifies that theft of a firearm is grand theft and is punishable as a felony, as specified; (2) provides that every person who buys or receives a stolen firearm is guilty of an alternate felony/misdemeanor offense, as specified; and, (3) adds the following misdemeanor theft of a firearm (Penal Code § 490.2) and receipt of stolen property to offenses for which a conviction results in a 10-year prohibition on possession of a firearm. Senate Floor Amendments of 6/30/16 add coauthors, and make a technical change. AB 1176 Page 2 ANALYSIS: Existing law: 1) Provides that every person who feloniously steals, takes, carries, leads, or drives away the personal property of another is guilty of theft, as specified. (Penal Code § 484.) 2) Defines "grand theft" as any theft where the money, labor, or real or personal property taken or when the property is taken from the person of another is of a value exceeding $950. (Penal Code §§ 487(a) and (c).) 3) Provides that grand theft is committed when the money, labor, or real or personal property taken is of a value in excess of $950, except as specified. (Penal Code § 487(a).) 4) Provides that, notwithstanding the default value of $950 to establish grand theft, grand theft is committed in any of the following cases: a) When domestic fowls, avocados, or other farm crops are taken of a value exceeding $250; b) When fish or other aqua-cultural products are taken from a commercial or research operation that is producing that product of a value exceeding $250; c) Where money, labor or property is taken by a servant or employee from his or her principal and aggregates $950 or more in any consecutive 12-month period; d) When the property is taken from the person of another; e) When the property taken is an automobile, firearm, horse, mare, gelding, bovine animal, caprine animal, mule, jack, jenny, sheep, lamb, hog, sow, boar, gilt, barrow, or pig; f) When the property is taken from the person of another; or g) When the property taken is an automobile and firearm. (Penal Code § 487(b) through (d).) 5) States that if the grand theft involves the theft of a firearm, punishable by imprisonment in the state prison for 16 months, or two or three years. (Penal Code § 489(a).) AB 1176 Page 3 6) Provides that grand theft is an alternate felony-misdemeanor, punishable by imprisonment in the county jail for up to one year, a fine of up to $1,000, or both, or by a felony jail sentence of 16 months, two years or three years pursuant to Penal Code Section 1170, subdivision (h), and a fine of up to $10,000. (Penal Code § 489(b).) 7) Provides that, notwithstanding Section 487, or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 if that person has a prior conviction for a serious or violent felony or an offense requiring registration pursuant to 290, as specified. (Penal Code § 490.2(a).) 8) Provides that any person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section 1170. However, if the value of the property does not exceed nine hundred fifty dollars ($950), the offense shall be a misdemeanor, punishable only by imprisonment in a county jail not exceeding one year, if such person has no prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290. A principal in the actual theft of the property may be convicted pursuant to this section. However, no person may be convicted both pursuant to this section and of the theft of the same property. (Penal Code § 496 (a).) 9) Requires that firearms dealers obtain certain identifying information from firearms purchasers and forward that information, via electronic transfer to Department of AB 1176 Page 4 Justice (DOJ) to perform a background check on the purchaser to determine whether he or she is prohibited from possessing a firearm. (Penal Code § 28160-28220.) 10) Requires that, upon receipt of the purchaser's information, DOJ shall examine its records, as well as those records that it is authorized to request from the State Department of Mental Health pursuant to Section 8104 of the Welfare and Institutions Code, in order to determine if the purchaser is prohibited from purchasing a firearm. (Penal Code § 28220.) 11) Prohibits anyone convicted of numerous misdemeanors involving violence or threats of violence are prohibited from owning or possessing a firearm for ten years. And, provides that a violation of these provisions is a wobbler, as specified. (Penal Code § 29805.) This bill: 1)Provides that it becomes effective only upon approval of the voters, and provides for the submission of this measure to the voters for approval at the next statewide general election. 2)Makes the theft of a firearm grand theft in all cases, punishable by imprisonment in the state prison for 16 months, or 2 or 3 years. 3)Provides that every person who buys or receives a stolen firearm is guilty of an alternate felony/misdemeanor offense punishable by imprisonment in the county jail for a period of not more than one year, or by imprisonment in the county jail pursuant to realignment, as specified. 4)Adds the following misdemeanor offenses to those for which a conviction results in a 10-year prohibition on possession of a firearm: (1) theft of a firearm (Penal Code § 490.2) and (2) receipt of stolen property, if the property is a firearm (Penal Code § 496). 5)Provides that the provisions of this legislation that amend Proposition 47 (the firearm theft and receipt of a stolen firearm penalty provisions) shall become effective only when submitted to and approved by the voters at a statewide AB 1176 Page 5 election. This bill further provides that a special election is hereby called, to be held throughout the state on November 8, 2016. The special election shall be consolidated with the statewide general election to be held on that date. The consolidated election shall be held and conducted in all respects as if there were only one election, and only one form of ballot shall be used. This bill additionally provides that the Secretary of State shall submit the specified portions of this bill to the voters for their approval at the November 8, 2016, statewide general election. 6)Calls an election within the meaning of Article IV of the Constitution and states that it goes go into effect immediately. Comments Proposition 47, also known as the Safe Neighborhoods and Schools Act, was approved by the voters in November 2014. Proposition 47 reduced the penalties for certain drug and property crimes and directed that the resulting state savings be directed to mental health and substance abuse treatment, truancy and dropout prevention, and victims' services. The initiative reduced the penalties for theft, shoplifting, receiving stolen property, writing bad checks, and check forgery valued at $950 or less from felonies to misdemeanors. The measure limited the reduced penalties to offenders who do not have prior convictions for serious or violent felonies and who are not required to registered sex offenders. (See Legislative Analyst's Office analysis of Proposition 47, http://www.lao.ca.gov/ballot/2014/prop-47-110414.pdf.) Grand Theft of a Firearm Proposition 47 added Penal Code section 490.2 which provides a new definition for grand theft: "Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor ?.." (Pen. Code, § 490.2, subd. (a), emphasis added.) In other words, Proposition 47 put in a blanket $950 threshold for conduct to be grand theft. AB 1176 Page 6 Previously, there were a number of carve-outs which made conduct grand theft based on the conduct involved or the manner in which the crime is committed or based on the value being less than $950. Because the new statute specifically states "notwithstanding Section 487," it supersedes all of Penal Code section 487, including subdivision (d)(2), which says that grand theft occurs when the property taken is a firearm. The question becomes whether, notwithstanding newly-created Penal Code section 490.2, theft of a firearm remains a felony. The drafters of Proposition 47 state that they did not intend to reduce the penalty for theft of a firearm and explain: Proposition 47 maintained California's numerous gun laws-the strictest in the country-enabling felony prosecution for any and all criminal activity related to guns. This includes gun thefts regardless of the value of the gun. Gun crimes are, by definition, serious crimes. Proposition 47 is exclusively limited to non-serious and nonviolent crimes. Additionally, dozens of felony provisions related to gun crimes are maintained by Proposition 47, including (but not limited to): possession of a concealed stolen gun or possession of a loaded stolen gun; use of a firearm to facilitate any crime (including when the gun involved is being stolen and theft is crime in question); stealing guns from residences, stores during non-business hours, or locked automobiles; taking a firearm from the person of another with force or fear; or possession of a concealed stolen weapon by a gang member or possession of a gun by a felon. (http://www.safeandjust.org/prop47faq.) A recent appellate court decision concluded otherwise in dicta. (People v. Perkins (2016) 244 Cal.App.4th 129.) In People v. Perkins, supra, the defendant was convicted of burglary, receiving stolen property, three counts of grand theft of a firearm, and several other offenses. He was sentenced to state prison. After California voters passed Proposition 47, the defendant filed a petition for resentencing to convert some of his offenses to misdemeanors. (Id. at p. 132-133.) The AB 1176 Page 7 petition was denied and he appealed. The Court of Appeal did not squarely address the issue of whether Proposition 47 reduced the theft of a firearm to a misdemeanor when its value is less than $950. Rather, what was at issue in the case was the adequacy of the petition. The defendant actually had petitioned only for resentencing on the receiving stolen property count because the form provided by the superior court excluded the option of petitioning for resentencing grand theft offenses. (Id. at p. 136.) In affirming denial of the petition without prejudice, the court noted, "Proposition 47 added a new provision, section 490.2, subdivision (a), which reclassifies felony section 487, subdivision (d)(2) grand theft violations into misdemeanors. Thus, petitioner would be entitled to resentencing on each conviction, provided he can meet his burden of showing, separately for each firearm, that its value does not exceed $950." (Id. at p. 141.) Whether Proposition 47 made theft of a firearm a misdemeanor is clearly subject to interpretation and debate. Given that the proponents contend that Proposition 47 did not change the penalties for gun theft, clarifying the intent of the proponents by stating that theft of a firearm remains a felony is seemingly innocuous. Receipt of Stolen Property: Firearm Proposition 47 amended Penal Section 496 to state: "Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section 1170. However,if the district attorney or the grand jury determines that this action would be in the interests of justice, the district attorney or the grand jury, as the case may be, may,if the value of the property does not exceed nine hundred fifty dollars ($950),specify in the accusatory pleading thatthe offense shall be a AB 1176 Page 8 misdemeanor, punishable only by imprisonment in a county jail not exceeding one year, if such person has no prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290." Unlike theft of a firearm, pre-Proposition 47 receipt of a stolen firearm was not a felony (it was a wobbler) and, thus, was not a serious felony. (See Penal Code § 1192.7.) The court explains how Proposition 47 changed the receipt of stolen property provision in the Penal Code, Receiving Stolen Property [punishment: up to one year in jail]. If the value of the property received does not exceed $950, section 496(a) specifies the crime is a misdemeanor. Previously section 496(a) gave the district attorney the discretion to charge the crime as a misdemeanor if the property did not exceed $950; now the district attorney must charge the crime as a misdemeanor if the value of the property does not exceed $950. (http://www.courts.ca.gov/documents/Prop-47-Information .pdf) This bill adds a provision to the Penal Code making receipt of a stolen firearm a wobbler. Firearms Prohibitions for Misdemeanor Offenses As detailed above, current state and federal laws prohibit persons who have been convicted of specific crimes from owning or possessing firearms. For example, anyone convicted of any felony offense is prohibited for life from firearms ownership under both federal and state law. (18 U.S.C. § 922(g); Penal Code § 29800.) California goes further and imposes a 10-year firearms prohibition on persons convicted of numerous misdemeanor offenses that involve either violence or the threat of violence. (Penal Code § 29805.) Additionally, anyone who AB 1176 Page 9 has been found to be a danger to themselves or others due to mental illness is subject to a five-year prohibition (Welfare and Institutions Code §§ 8100, 8103(f)), and people under domestic violence restraining orders are subject to a prohibition for the duration of that court order. (Penal Code § 29825.) According to a study published in the Journal of American Medical Association: Handgun purchasers with only 1 prior misdemeanor conviction and no convictions for offenses involving firearms or violence were nearly 5 times as likely as those with no prior criminal history to be charged with new offenses involving firearms or violence. (Wintemute GJ. Prior Misdemeanor Convictions as a Risk Factor for Later Violent and Firearm Related Criminal Activity Among Authorized Purchasers of Handguns. Journal of the American Medical Association 1998; 280: 2083-2087.) To this end, this bill expands the number of misdemeanor convictions resulting in a 10-year prohibition by adding theft of a firearm and receipt of a stolen firearm. FISCAL EFFECT: Appropriation: No Fiscal Com.:YesLocal: Yes According to the Senate Appropriations Committee, the fiscal impact includes: Ballot costs: One-time costs in the range of $414,000 to $552,000 (General Fund) to the Secretary of State (SOS) for printing and mailing costs to place the measure on the ballot in the next statewide election. State prisons: To the extent the voters approve the amendments to the Proposition, significant increase in state incarceration costs potentially in the millions of dollars (General Fund) annually for (1) felony convictions for theft of a firearm, (2) felony convictions for receipt of a stolen firearm for persons with a current or prior serious or violent AB 1176 Page 10 felony conviction, and (3) potential future violations of the lifetime firearms ban imposed for these felony convictions that otherwise may have been charged as misdemeanors. Separate from the initiative, potential increase in felony violations of the 10-year firearms ban under the expanded list of misdemeanor offenses. To the extent the 10-year prohibition is applied retroactively could significantly increase the potential fiscal impact to the state. Appropriations staff notes that commitments to state prison for both (1) theft of a firearm and (2) receipt of stolen property as a principal offense decreased by about 70 percent after passage of Proposition 47. To the extent some defendants continue to be committed to prison for other felony convictions, while not resulting in new commitments, this bill could result in longer prison sentences for these cases. County jails: To the extent the voters approve the amendments to the Proposition, potentially major increase in non-reimbursable local costs (Local Funds) for felony jail sentences for receipt of stolen property violations that previously would have been subject to misdemeanor penalties, offset in minor part due to fewer jail terms for petty theft of a firearm that would be subject to a state prison term. Separate from the initiative, potentially significant increases or decreases in local costs (Local Funds) resulting from violations of the 10-year firearms ban (See Staff Comments). To the extent the 10-year firearms ban is applied retroactively would significantly increase the potential fiscal impact to counties. To the extent local agencies incur a net increase in overall costs, funding could be required from the State (Proposition 30 General Fund). Reduction in Proposition 47 savings: Potential reduction in future funds allocated to the Safe Neighborhoods and Schools Fund (SNSF) to the extent raising the criminal penalties for the specified firearm offenses results in a reduction in future calculated savings under Proposition 47 by the Department of Finance. Department of Justice (DOJ): Potentially significant increase in DOJ administration and enforcement costs in the hundreds of thousands of dollars (Special Fund*) due to increases to the Armed Prohibited Persons System (APPS) list resulting from the expanded application of the firearms prohibition. It is unclear how the DOJ would determine the convictions for receipt of stolen property that are specific to firearms (should the voters choose not to approve amendments to the AB 1176 Page 11 initiative that would make the offense a wobbler), given that level of detail is not currently available with regard to arrests/convictions under existing law. *Dealers Record of Sale Special Account (DROS) - Appropriations staff notes that the DROS is structurally imbalanced, with less than a $1 million reserve balance projected by year-end FY 2016-17. As a result, an appropriation from another fund source, potentially the General Fund, may be required to support the activities resulting from this bill. SUPPORT: (Verified5/17/16) California Peace Officers' Association California State Sheriffs' Association Coalition Against Gun Violence, a Santa Barbara County Coalition Law Center to Prevent Gun Violence National Rifle Association OPPOSITION: (Verified5/17/16) American Civil Liberties Union of California California Attorneys for Criminal Justice California Public Defenders Association ARGUMENTS IN SUPPORT: The California State Sheriffs' Association states: We are pleased to support your measure, Assembly Bill 1176, which would restore the penalty provisions attached to the theft of a firearm that were in place prior to Proposition 47 by specifying that the theft of a firearm, regardless of its value, is a felony, punishable by imprisonment in the state prison for 16 months, two years, or three years. The California Penal Code generally criminalizes theft and provides different penalties and parameters based upon the item that is stolen, the item's value, and AB 1176 Page 12 whether it was taken directly from a person. Prior to the passage of Proposition 47, the theft of a firearm, regardless of its value, was classified as grand theft, punishable as a felony carrying a state prison term of 16 months, two years, or three years. Proposition 47 reduced the penalty for stealing a firearm to a misdemeanor, punishable by up to six months in county jail and/or a fine of up to $1,000, unless the firearm is valued at more than $950 or the defendant has at least one of a list of certain prior offenses. Whether because of a drafting error or an intentional change, Prop 47 drastically reduces the penalty for the serious act of stealing a firearm. We can be quite confident that stealing a gun is done to facilitate other nefarious acts, not to bolster one's firearm collection. The Legislature should remedy this significant devaluing of the criminality at issue here. We have debated and will undoubtedly continue to discuss the merits of Proposition 47. That said, it is our hope that, regardless of where one stands on the notions underlying Prop 47, the Legislature will recognize the inherent danger in drastically reducing the penalty for stealing a gun, particularly in the context of the Legislature's work in ensuring that persons who should not be armed do not have access to firearms. ARGUMENTS IN OPPOSITION: According to the American Civil Liberties Union: The American Civil Liberties Union of California regrets to inform you that we must respectfully oppose AB 1176. This bill proposes to alter the Safe Neighborhoods and Schools Act, enacted by Proposition 47, by making theft of a firearm grand theft in all cases regardless of the dollar amount of the loss, and by making buying or receiving a stolen firearm an alternate misdemeanor-felony regardless of the property value. These changes proposed by AB 1176 are both unnecessary and contrary to the will of California voters. AB 1176 Page 13 This bill states that "[i]t is not the intent of the Legislature in submitting this act to the electors to undermine the voter's [sic] decision to decrease penalties for low-level theft and receiving stolen property, only to give the voters the opportunity to decide whether firearm thefts and the receipt of stolen firearms should be subject to penalties that existed prior to the passage of the Safe Neighborhoods and Schools Act." However, California voters already had the opportunity to make a decision on this issue and on November 4, 2014, in our statewide general election, they overwhelmingly decided to approve Proposition 47. The voters' decision to support Proposition 47 was an informed one, the voters having made their choice after being fully apprised of the arguments now being raised in support of AB 1176. The Official Voter Information Guide, published by the Secretary of State and mailed to every voter in California, specifically explained the following arguments in opposition to the ballot initiative: "Stealing any handgun valued at less than $950 will no longer be a felony." [Footnote omitted.] "Prop. 47 would eliminate automatic felony prosecution for stealing a gun. Under current law, stealing a gun is a felony, period. Prop. 47 would redefine grand theft in such a way that theft of a firearm could only be considered a felony if the value of the gun is greater than $950. Almost all handguns (which are the most stolen kind of firearm) retail for well below $950. People don't steal guns just so they can add to their gun collection. They steal guns to commit another crime. People stealing guns are protected under Proposition 47." [Footnote omitted.] "Reduces penalties for stealing guns." [Footnote omitted.] In response to the arguments against Proposition 47, the Guide provided voters with the following rebuttal argument: "Proposition 47 maintains penalties for gun AB 1176 Page 14 crimes. Under Prop. 47, possessing a stolen concealed gun remains a felony. Additional felony penalties to prevent felons and gang members from obtaining guns also apply." [Footnote omitted.] After reviewing the arguments both in favor and against the ballot initiative, the majority of California voters chose to approve Proposition 47. The arguments in favor of the initiative were true in 2014 and remain true today: there are already numerous state and federal laws that impose felony penalties on those who steal guns or use stolen guns to commit crimes. Proposition 47 did nothing to change those laws. California voters understood the decision they made when they approved Proposition 47, and there is no justification for nullifying their decision. Prepared by:Jessica Devencenzi / PUB. S. / 6/30/16 10:18:31 **** END ****