BILL ANALYSIS ABX1 91 Date of Hearing: April 5, 1994 Counsel: Judith M. Garvey ASSEMBLY COMMITTEE ON PUBLIC SAFETY Bob Epple, Chair ABX1 91 (Burton) - As Proposed to be Amended in Committee ISSUES: I. SHOULD THE CRIME OF CRIMINAL POSSESSION OF A FIREARM BE ENACTED WHICH PROHIBITS THE POSSESSION OF FIREARM UNDER SPECIFIED CIRCUMSTANCES? II. SHOULD PERSONS CONVICTED OF CRIMINAL POSSESSION OF A FIREARM AS CREATED BY THIS BILL BE SUBJECT TO THE 10 YEAR PROHIBITION ON POSSESSION OF FIREARMS? DIGEST Under current law: 1) A person is guilty of carrying a concealed firearm when he or she carries concealed on the person or in a vehicle, a pistol, revolver or other firearm capable of being concealed upon the person (handgun). (Penal Code sections 12025(a)(1) and (2).) 2) There are numerous and sundry exemptions from the above prohibitions. (Penal Code sections 12026, 12026.1, 12026.2, and 12027.) 3) A person is guilty of carrying a concealed firearm when he or she carries concealed on the person or in a vehicle, a pistol, revolver or other firearm capable of being concealed upon the person (handgun). (Penal Code sections 12025(a)(1) and (2).) 4) There are different penalties for carrying a concealed handgun depending if it is carried on the person or in a vehicle. (Penal Code section 12025(b).) 5) There are numerous and sundry exemptions from the above prohibitions. (Penal Code sections 12026, 12026.1, 12026.2, and 12027.) 6) With specified exceptions, carrying a loaded firearm (including a handgun) is a misdemeanor, punishable by up to six months in county jail and a fine up to $1,000. Graduated penalties exist under specified circumstances. (Penal Code section 12031 and 12031.5.) 7) The possession of firearms within public buildings, election polling places, youth facilities, and private and public schools is prohibited. (Elections Code section 29634, Penal Code sections 171b, 171c, 171d, - continued - ABX1 91 Page 1 ABX1 91 626.9, 626.95, and 626.10.) 8) It is a misdemeanor to wear any mask, false whiskers, or a disguise for the purposes of evading detection or discovery, recognition, or identification in the commission of a public offense or concealment, escape or flight after the commission of a public offense. (Penal Code section 185.) 9) It is not a specific crime to possess a firearm while hooded robed or masked to conceal one one's identity. 10) It is not a specific crime to possess a firearm while in a bar. 11) It is not a specific crime to possess a firearm while intoxicated in a public place. This bill: 1) Enacts the crime of criminal possession of a firearm which consists of one of the following: a) Possessing a firearm in a public place or on any public street while hooded, robed or masked so as to hide one's identity. b) Possessing a firearm in a public place when a person has 0.08 percent or more, by weight, of alcohol in one's blood. c) Possessing a firearm while on the premises of a business which has been issued a license to sell alcoholic beverages which are or can be consumed on the premises pursuant to the Alcoholic Beverage Control Act (Division 9 of the Business and Professions Code). 2) Provides that a violation of subdivision (a) of provision number one is punishable by imprisonment in the state prison for 16 months, two or three years or by imprisonment in the county jail up to one year. 3) Provides that any other violation of this new crime is a misdemeanor, punishable by imprisonment in the the county jail up to one year and/or a fine up to $1,000. 4) Provides several exemptions from the prohibition set forth in subdivisions (c) and (d) of provision number one. 5) Provides that a person convicted of misdemeanor violations of the offenses created by this bill is subject to the 10 year prohibition on possessing a firearm. COMMENTS 1) Purpose. According to the author: "Like my AB 2469 and AB 482 (Peace, Ch. 23/94), this bill is - continued - ABX1 91 Page 2 ABX1 91 designed to identify those situations where enhanced penalties - including wobblers - are desirable for persons who possess or carry firearms under circumstances where there is illicit intent or a unique danger to public safety without impacting otherwise law abiding citizens with an over broad proposal." 2) Comparison to Other Prohibitions. a) Situs and Under the Influence Concerns. Currently, there are no specific prohibitions on bringing firearms into bars or while intoxicated. In addition, there is no prohibition on possessing firearms while hooded, robed or masked to conceal one's identity. Last year, the Legislature enacted SB 292 (Roberti), Ch. 598/93, which essentially banned bringing firearms into public buildings not previously covered. Prior to SB 292 there were prohibitions on bringing firearms into courthouses, the capitol, meetings required to be open under the Open Meetings Act, school facilities, public playgrounds, and polling places. Unlike states such as Alaska, Illinois and Wisconsin (which just enacted such a statute this year), California provides no specific prohibitions on bringing guns into bars. In addition there is no specific prohibition on being intoxicated while in possession of a firearm. Health and Safety Code section 11550(e) makes it a wobbler to possess a loaded operable firearm while under the influence of cocaine, cocaine base, heroin, methamphetamine, or PCP. A subsequent violation is a 2-3-4 felony. Fish and Game Code section 3001 prohibits hunting while intoxicated. However, the Department of Fish and Game does not have a definition of intoxicated. b) Masks. Since 1872, the Penal Code has contained the misdemeanor prohibition referred to above. In addition, for many years this state had an "anti-mask" law which was enacted in reaction to KKK activity in the 1920's. That law, Penal Code Section 650a made it a misdemeanor to wear a mask in order to conceal identity - except as part of an entertainment event. Section 650a was struck down by the Court of Appeal in Ghafari v. Municipal Court, (1978) 87 Cal.App.3d 255 on various First Amendment grounds. Ghafari involved anti Shah demonstrators. The Legislature subsequently repealed Section 650a in 1984. The California statute struck down in had nothing to do with firearms. (In contrast, the Georgia Supreme upheld that state's anti-mask law in the recent case of State v. Miller, 398 S.E.2d 547 (Ga. 1990) using the so-called United States v. O'Brien test.) - continued - ABX1 91 Page 3 ABX1 91 Illinois has made it a felony to possess a firearm in a public place while hooded, robed or masked to conceal one's identity. (720 ILCS 5/24-1(a)(9).) While the Illinois statute has anti-KKK antecedents, its primary use appears to be against criminals who possess firearms where the conduct in question has not reached an otherwise punishable attempt. As such, it's focus is on firearms possession where there are indicia of criminal intent. (See Comment 9 as to the crime of armed criminal action.) 3) ABX1 91. a) Prohibition. This bill enacts Penal Code section 12040 to create the crime of criminal possession of a firearm. A person can commit this new offenses in one of three ways: o Possessing a firearm in a public place or on any public street while hooded, robed or masked so as to hide one's identity. o Possessing a firearm in a public place when a person who has 0.08 percent or more, by weight, of alcohol in one's blood. o Possessing a firearm while on the premises of a business which has been issued a license to sell alcoholic beverages which are to be consumed on the premises pursuant to the Alcoholic Beverage Control Act (Division 9 of the Business and Professions Code). b) Penalties. Criminal possession of a firearm is of the first degree when the person the person violates the mask provision. Every other form of violation of section 12040 is criminal possession of a firearm in the second degree. Criminal possession of a firearm is punishable as follows: the mask violation is a wobbler; all other violations are misdemeanors punishable by imprisonment in the county jail not to exceed one year. The latter penalty is consistent with concealed carry on the person violations and certain penalty increases in AB 482. 4) ABX1 91 Exemptions. a) Exemption as Defenses. This bill expressly makes applicable to new Penal Code section long-standing case law dating back to 1922 which holds that proving an exemption from weapons statutes are upon the defendant. See, e.g.,: People v. Ross, (1922) 60 Cal.App. 163 and People v. Jiminez, (1992) 8 Cal.App.4th 391. This has been committee policy for a number of years. b) Hooded and Masked/Bar Exemptions. The following exemption applies - continued - ABX1 91 Page 4 ABX1 91 to both the firearms in bars and the hooded or masked prohibitions apply to peace officers and authorized assistants. The language is similar to the exemption for peace officers carrying concealed and loaded weapons. The hooded or masked exemption takes account of SWAT teams and undercover operations. Specifically, the bill exempts: o A peace officer who is in the performance of one's š duties. o Full-time paid peace officers of other states and the federal government who are carrying out official duties while in California. o Any person summoned by any of the officers enumerated in the preceding provisions to assist in making arrests or preserving the peace while he or she is actually engaged in assisting that officer. c) Hooded and Masked Exemptions. The bill contains hunter exemptions and theatrical exemptions applies to the the hooded or masked prohibition. The hunting exemption is in recognition that many hunters wear specialized camouflage when hunting wild turkey and other upland game. The theatrical exemption is to avoid application to the entertainment industry which is not the target of this bill. The exemptions are taken from concealed carry exemptions. Specifically, the bill exempts: o The possession of an unloaded firearm by an authorized participant in a motion picture, television, or video production or entertainment event when the participant lawfully uses the firearm as part of that production or event. o The possession of a firearm that is not a pistol, revolver, or other firearm capable of being concealed upon the person by a licensed hunter while actually engaged in lawful hunting, or while going to or returning from the hunting expedition. d) Bar Exemptions. The following exemptions are "bar specific" exemptions and are taken from other states or in recognition of persons who are authorized to carry loaded firearms (specifically security type personnel) and pistol carry permit holders. These exemptions include: o An unloaded firearm which is affixed to a part of, encased in glass or plastic material or on a mantel within the premises and is secured in such a manner so as - continued - ABX1 91 Page 5 ABX1 91 to prevent unauthorized handling of the firearm by a patron of the premises. o The possession of a firearm by the proprietor of the premises or any officer, employee, or agent authorized by that proprietor to possess a firearm within the premises. o Guards or messengers of common carriers, banks, and other financial institutions while actually employed in and about the shipment, transportation, or delivery of any money, treasure, bullion, bonds, or other thing of value within this state. o Guards of contract carriers operating armored vehicles pursuant to California Highway Patrol and Public Utilities Commission authority (A) if hired prior to January 1, 1977; or (B) if hired on or after January 1, 1977, if they have completed a course in the carrying and use of firearms which meets the standards prescribed by the Department of Consumer Affairs. o Private investigators and private patrol operators who are licensed pursuant to Chapter 11.5 (commencing with Section 7512) of, and alarm company operators who are licensed pursuant to Chapter 11.6 (commencing with Section 7590) of, Division 3 of the Business and Professions Code, while acting within the course and scope of their employment. o Uniformed security guards, regularly employed and compensated in that capacity by persons engaged in any lawful business, and uniformed alarm agents employed by an alarm company operator, while actually engaged in protecting and preserving the property of their employers or on duty or en route to or from their residences or their places of employment, and security guards and alarm agents en route to or from their residences or employer-required range training. o Uniformed employees of private patrol operators and private investigators, while acting within the course and scope of their employment. o If it is not in violation of the conditions or restrictions under which the license was issued, the possession of a pistol, revolver, or other firearm capable of being concealed upon the person by a person who has a pistol carry permit. o Honorably retired state and federal peace officers who are authorized to carry firearms. 5) Firearms While Intoxicated. There are no exemptions from the - continued - ABX1 91 Page 6 ABX1 91 prohibition of possessing a gun with a "0.08". The bill uses the same driving under the influence (DUI) definitions and presumptions. Specifically, for purposes of this new section, "Percent, by weight, of alcohol in a šperson's blood" is based upon grams of alcohol per 100 milliliters of šblood or grams of alcohol per 210 liters of breath. In addition, there is a rebuttable presumption that the person had a 0.08 per cent or more weight of alcohol in one's blood at the time of possession of the firearm if the person had 0.08 percent or more, by weight, of alcohol in one's blood within three hours of possessing the firearm. 6) History of Firearms Prohibitions: a) Pre-1990 Law. Prior to January 1, 1990, state law prohibited felons, narcotics addicts, and certain misdemeanants from possessing pistols and revolvers (handguns). Penal Code section 12560 prohibited a person who was convicted of a felony in which he or she used a firearm from possessing any type of firearm. b) AB 669. Effective January 1, 1990, AB 669 (Speier, Ch. 254/89) made it illegal for felons, narcotics addicts and certain misdemeanants to possess any firearm. As a result, nonviolent felons could no longer possess long guns under state law. c) AB 497. AB 497 (Connolly, Ch. 9/90) repealed section 12560 and added a series of categories of persons to the statutory list of persons who were guilty of a crime if they owned or possessed firearms. Among persons added to this list were: o Persons who, as an express condition of probation, were š prohibited or restricted from having firearms. o Persons convicted of the specified misdemeanor offenses. š Such persons are subject to a 10-year firearms prohibition. d) AB 242 of 1991-1992. AB 242 (Ch. 955/91) allowed persons who need to possess firearms as a condition of employment to seek judicial relief from the 10-year prohibition at the time of sentencing or thereafter by reopening the case. AB 242's relief provision expired as of January 1, 1993 but was extended by AB 685 (Murray, Ch. 612/93). e) 1993-1994 Legislation. Last year, the Legislature and the Governor signed into law AB 242 (Alpert), Ch. 600/93. AB 242 added various domestic violence offenses to the list of offenses for which the ten year prohibition applies. In addition, AB 482 (Peace-Alpert-Karnette-Moore, Ch. 23/94) adds various gun trafficking offenses and the offense of armed criminal action created by AB 482 to the list of offenses for - continued - ABX1 91 Page 7 ABX1 91 which the 10 year prohibition applies. There are bills pending before this committee to add Fish and Game Code violations, and other crimes to the 10 year prohibition. f) ABX1 91. This bill adds to the existing 10 year prohibition on possession of firearms criminal possession of a firearm treated as a misdemeanor and the misdemeanor version of the crime created by this bill. This bill will be conformed to AB 482 to avoid chaptering problems. 7) Related Legislation. a) AB 482. AB 482 (Peace, Ch. 23/94) equalizes the penalty for carrying a concealed handgun in a vehicle and on the person. AB 482 also enacts new Penal Code section 12023 deals with the issue of carrying a loaded firearm with the intent to commit a felony. It was designed to create a potential felony sanction where someone carried a weapon with illicit intent but had not risen to an "attempt" without making any and all carry violations a potential felony on the first offense. This offense applies whether the person carrying the weapon legally acquired the gun or not. AB 482's new offense is taken from the Model Penal Code (Section 5.06), the statutes of other states, and the 1968 Gun Control Act (18 USC 924(a) and (b)). This crime is a long-standing one in the English common law. The elements of armed criminal action are carrying a loaded firearm with the intent to commit a felony. A firearm is deemed "loaded" if ammunition and the are in the possession of the same person. This definition of loaded is taken from possessing loaded firearms in state buildings. b) AB 2469. The author of this bill is also carrying AB 2469 which is pending in the Assembly Ways and Means Committee. AB 2469 addresses concealed handgun carry violations by conforming AB 2469 to AB 482 and making it a wobbler on the first offense for a concealed carry violation wherein the gun is not be registered to the defendant and (both the firearm and unexpended ammunition capable of being discharged from that firearm are either in the immediate possession of the person or readily accessible to the person). In addition, AB 2469 "toughens up" AB 482's penalty provisions on armed criminal action with the following provisions providing that every person who carries a firearm with intent to commit a felony is guilty of armed criminal action. Armed criminal action is of the first degree when the firearm is loaded or a handgun: two-three-four years in state prison. (Currently a wobbler in AB 482 as chaptered. All other kinds of armed criminal action are of the second degree: wobbler. SOURCE: Author - continued - ABX1 91 Page 8 ABX1 91 SUPPORT: None on File OPPOSITION: None on File - continued - ABX1 91 Page 9