Existing law makes it a felony for any person who has been convicted of a felony to own, purchase, receive, or have in his or her possession or under custody or control any firearm. Existing law generally prohibits a person who has been convicted of specified misdemeanors from owning, purchasing, receiving, possessing, or having under his or her custody or control a firearm within 10 years of the conviction. Existing law, the Safe Neighborhoods and Schools Act, enacted by Proposition 47, as approved by the voters at the November 4, 2014, statewide general election, reduced certain felonies to misdemeanors. Proposition 47 allows a person who is currently serving a sentence for a conviction of a felony who would have been guilty of a misdemeanor under the proposition to petition for a recall of sentence and permits the court to recall the felony sentence and resentence the petitioner to a misdemeanor, as specified. Proposition 47 also allows a court to designate a felony conviction of a person who has completed his or her sentence as a misdemeanor upon application.

This bill would make it a public offense for a person who has had his or her felony conviction recalled and has been resentenced to a misdemeanor, or who has had a felony designated as a misdemeanor, pursuant to the above provisions, to, within 10 years of the recall and resentencing or designation, own, purchase, receive, or have in possession or under custody or control any firearm. The bill would make a violation of this provision punishable by imprisonment in a county jail not exceeding one year or in the state prison, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine.

By creating a new crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law makes it a felony for any person who has been convicted of a felony to own, purchase, receive, or have in his or her possession or under custody or control any firearm. Existing law, the Safe Neighborhoods and Schools Act, enacted by Proposition 47, as approved by the voters at the November 4, 2014, statewide general election, reduced certain felonies to misdemeanors. Proposition 47 allows a person who is currently serving a sentence for a conviction of a felony who would have been guilty of a misdemeanor under the proposition to petition for a recall of sentence and permits the court to recall the felony sentence and resentence the petitioner to a misdemeanor, as specified. Proposition 47 also allows a court to designate a felony conviction of a person who has completed his or her sentence as a misdemeanor upon application.

This bill would make it a felony public offense for a person who has had his or her felony conviction recalled and has been resentenced to a misdemeanor, or who has had a felony designated as a misdemeanor, pursuant to the above provisions, to to, within 10 years of the recall and resentencing or designation, own, purchase, receive, or have in possession or under custody or control any firearm. The bill would make a violation of this provision punishable by imprisonment in a county jail not exceeding one year or in the state prison, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine.

By creating a new crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law makes it a felony for any person who has been convicted of a felony to own, purchase, receive, or have in his or her possession or under custody or control any firearm. Existing law, the Safe Neighborhoods and Schools Act, enacted by Proposition 47, as approved by the voters at the November 4, 2014, statewide general election, reduced certain felonies to misdemeanors. Proposition 47 allows a person who is currently serving a sentence for a conviction of a felony who would have been guilty of a misdemeanor under the proposition to petition for a recall of sentence and permits the court to recall the felony sentence and resentence the petitioner to a misdemeanor, as specified. Proposition 47 also allows a court to designate a felony conviction of a person who has completed his or her sentence as a misdemeanor upon application.

This bill would make it a felony for a person who has had his or her felony conviction recalled and has been resentenced to a misdemeanor, or who has had a felony designated as a misdemeanor, pursuant to the above provisions, to own, purchase, receive, or have in possession or under custody or control any firearm.

By creating a new crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Date of Hearing: May 6, 2015

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Jimmy Gomez, Chair

ABPCA Bill Id:AB 1415

Author:(Steinorth) – As Amended Ver:April 29, 2015

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill criminalizes for 10 years the ownership or possession of a firearm by a person who has, under Proposition 47, had a felony conviction recalled and has been resentenced to a misdemeanor, or who has had a felony designated as a misdemeanor after the completion of the sentence. The punishment for a violation is imprisonment in a county jail not exceeding one year or in the state prison, and/or by a fine not exceeding one thousand dollars ($1,000).

FISCAL EFFECT:

To date, approximately 3,340 individuals have had their felony conviction recalled or resentenced to a misdemeanor since the passage of Proposition 47. If 2% of these individuals (62) violate the provisions of this bill in one year and 10% of these individuals (6) are admitted to state prison, and the cost for an admission in state prison $29,000 per year, the cost to the California Department of Corrections and Rehabilitation (CDCR) will exceed $170,000 (GF).

COMMENTS:

1. Purpose. According to the author, "AB 1415 corrects an oversight of Proposition 47, which stated that those serving or who have served sentences for felonies may be re-sentenced with misdemeanors, but that they still maintain their prohibition against firearm possession. While this was passed in Proposition 47, statutory changes to the Penal code are necessary to follow through with this policy and fulfill the intent of Proposition 47. AB 1415 will make those statutory changes.
   
   "This policy only applies to persons re-sentenced or re-classified, not those who are or have been convicted with misdemeanors after the passage of Proposition 47. Further, this legislation does not alter Proposition 47, and thus does not need to return to the voters for approval."

2. Background. 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. Specifically, the initiative reduced the penalties for possession for personal use of most illegal drugs to misdemeanors. The initiative also reduced the penalties for theft, shoplifting, receiving stolen property, writing bad checks, and check forgery valued at $950 or less from felonies to misdemeanors. However, 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.

Under Proposition 47, any felony conviction that is recalled and resentenced … or designated as a misdemeanor is to be be considered a misdemeanor for all purposes; however, the law states: "except that such resentencing shall not permit that person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction…" The language intended that those people who had originally been convicted of a felony be prohibited from owning a firearm.

This bill makes a conforming cross-reference to the statute which makes it a crime for some misdemeanants to own or possess firearms in order to reflect that limitation. It criminalizes the ownership or possession of a firearm by a person who successfully has had his or her prior felony reduced to a misdemeanor under the provisions of Proposition 47.

3. Argument in Support. The California District Attorneys Association, a co-sponsor of this bill, states, "The drafters of Proposition 47, and the voters who passed it, very clearly intended existing prohibitions against firearm possession to apply to individuals who are resentenced or reclassified under PC 1170.18. However, the initiative did not make the necessary amendments to include those individuals in PC 29800, the section that actually contains the prohibition language.
   
   "AB 1415 corrects this oversight, and in doing so, furthers the intent of Proposition 47 by making sure that individuals who benefit from reduced or reclassified sentences do not have access to firearms."

4. Argument in Opposition: According to the California Public Defenders Association, "Proposition 47, by its own terms does not allow persons who have their convictions reduced per Penal Code section 1170.18 to own firearms. This bill is unnecessary."
   
   

Analysis Prepared by: Pedro R. Reyes / APPR. / (916) 319-2081

Date of Hearing: April 21, 2015

Counsel: Sandra Uribe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Bill Quirk, Chair

ABPCA Bill Id:AB 1415

Author:(Steinorth) – As Introduced Ver:February 27, 2015

As Proposed to be Amended in Committee

SUMMARY:

Criminalizes for 10 years the ownership or possession of a firearm by a person who has, under Proposition 47, had a felony conviction recalled and has been resentenced to a misdemeanor, or who has had a felony designated as a misdemeanor after the completion of the sentence. Specifically, this bill:

1. Provides that a person who was either previously convicted of a felony and had his or her sentence recalled and was resentenced to a misdemeanor, as specified, or who had his or her felony conviction designated as a misdemeanor, as specified, after completing his or her sentence, and who within 10 years of the recall and resentencing or designation, owns, purchases, receives, or has in possession or under custody or control a firearm, is guilty of a public offense.
   
   

2. Punishes that offense by imprisonment in a county jail not exceeding one year or in the state prison, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine.

EXISTING LAW:

1. Prohibits any person previously convicted of a felony, or any person who is a narcotics addict, from owning, purchasing, receiving, possessing, or having in his or her custody a firearm, and punishes that offense as a felony. (Pen. Code, § 29800, subd. (a)(1).)
   
   

2. Prohibits any person convicted of numerous misdemeanors involving violence or threats of violence from owning or possessing a firearm within 10 years of the conviction, and punishes that offense as an alternate felony/misdemeanor. (Pen. Code, § 29805.)
   
   

3. Allows specified persons to petition for recall of a sentence and resentencing for a crime that was previously a felony but amended to be misdemeanor under Proposition 47. (Pen. Code, § 1170.18, subd. (a).)
   
   

4. Requires the court to deny resentencing if the petitioner has a prior disqualifying conviction, is required to register as a sex offender under section, or if the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety. (Pen. Code, § 1170.18, subd. (b).)

5. Allows a person who has completed his or her sentence for a conviction of a felony who would have been guilty of a misdemeanor under the provisions of Proposition 47 if it would have in effect at the time of the offense, to apply to have the felony conviction designated as a misdemeanor. (Pen. Code, § 1170.18, subd. (f).)
   
   

6. Provides that any felony conviction that is recalled and resentenced or designated as a misdemeanor shall be considered a misdemeanor for all purposes, except for the right to own or possess firearms. (Pen. Code, § 1170.18, subd. (k).)
   
   
   

7. Provides that when the trial court reduces an offense from a felony to a misdemeanor, it is "a misdemeanor for all purposes." (Pen. Code, § 17, subd. (b).)
   
   
   

8. Provides a procedure for some felons and misdemeanants granted formal probation, with the exception of those convicted of certain crimes, to have a conviction expunged. This includes those who successfully complete formal probation, as well as any other case in which a court, in its discretion and in the interests of justice, determines the relief is warranted. However, the expungement does not permit the person to own or possess a firearm, or prevent him or her from being convicted of the offense of being an ex-felon in possession of a firearm. (Pen. Code, § 1203.4, subd. (a).)
   
   

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "AB 1415 corrects an oversight of Proposition 47, which stated that those serving or who have served sentences for felonies may be re-sentenced with misdemeanors, but that they still maintain their prohibition against firearm possession. While this was passed in Proposition 47, statutory changes to the Penal code are necessary to follow through with this policy and fulfill the intent of Proposition 47. AB 1415 will make those statutory changes.
   
   "This policy only applies to persons re-sentenced or re-classified, not those who are or have been convicted with misdemeanors after the passage of Proposition 47. Further, this legislation does not alter Proposition 47, and thus does not need to return to the voters for approval."
   
   

2. Proposition 47: 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. Specifically, the initiative reduced the penalties for possession for personal use of most illegal drugs to misdemeanors. The initiative also reduced the penalties for theft, shoplifting, receiving stolen property, writing bad checks, and check forgery valued at $950 or less from felonies to misdemeanors. However, 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>.)
   
   

3. Recall and Resentencing Provisions of Proposition 47: Proposition 47 added Penal Code section 1170.18 which provides that a "person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing…." (Pen. Code, § 1170.18, subd. (a).) For individuals who have completed their sentences, Penal Code section 1170.18 provides that a "person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors." (Pen. Code, § 1170.18, subd. (f).)
   
   Significantly, as to these procedures, the same statute also provides, "Any felony conviction that is recalled and resentenced … or designated as a misdemeanor … shall be considered a misdemeanor for all purposes, except that such resentencing shall not permit that person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6." (Pen. Code, § 1170.18, subd. (k), emphasis added.) The language intended that those people who had originally been convicted of a felony be prohibited from owning a firearm.
   
   This bill makes a conforming cross-reference to the statute which makes it a crime for some misdemeanants to own or possess firearms in order to reflect that limitation. It criminalizes the ownership or possession of a firearm by a person who successfully has had his or her prior felony reduced to a misdemeanor under the provisions of Proposition 47.
   
   

4. Prohibitions on Firearms Access: Current California law provides that certain people are prohibited from owning or possessing a firearm. The length of the prohibition depends on the nature of the crime.
   
   A lifetime ban applies to anyone convicted of a felony; anyone addicted to a narcotic drug; any juvenile convicted of a violent crime with a gun and tried in adult court; any person convicted of a federal crime that would be a felony in California and sentenced to more than 30 days in prison, or a fine of more than $1,000; and anyone convicted of certain violent misdemeanors, e.g., assault with a firearm or brandishing a firearm in the presence of a police officer. (Pen. Code, §§ 29800 & 23515.) A violation of these provisions is a felony. (Id.)
   
   A ten-year ban is enforced against a person convicted of numerous misdemeanors involving violence or threats of violence, including: threatening a public official, unauthorized possession of a weapon in a state building, assault, battery, and assault with a deadly weapon or by force likely to produce great bodily injury. (Pen. Code, § 29805.) A violation of this provision is an alternate felony/misdemeanor. (Id.) There are also five-year bans and temporary bans that are not relevant for purposes of this bill.
   
   As introduced, the bill would have specified a life-time ban for individuals who benefited from Proposition 47 by having their felony convictions declared to be misdemeanors. However, as noted above, very few misdemeanors are subject to a lifetime ban. Most misdemeanants who are prohibited from possessing a firearm are subject to a 10-year ban. Because the firearm prohibition at issue in this bill would apply to non-serious, non-violent misdemeanors, the proposed amendments apply to a 10-year ban from the date of the resentencing or re-classification of the crime, rather than a life-time ban.
   
   

5. Equal Protection: The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution is essentially a direction that all persons similarly situated should be treated alike. (Lawrence v. Texas (2003) 539 U.S. 558, 579 (conc. opn. of O'Connor J., citations and quote marks omitted.) Under current law, a person can by punished more severely for transporting marijuana for personal use than for transporting methamphetamine or cocaine. That they are treated differently raises equal protection concerns.
   
   "The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner." (In re Eric J. (1979) 25 Cal.3d 522, 530; Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) Under the equal protection clause, a court does not inquire "whether persons are similarly situated for all purposes, but 'whether they are similarly situated for purposes of the law challenged.'" (Cooley v. Superior Court, supra, 29 Cal.4th at p. 253, quoting People v. Gibson (1988) 204 Cal.App.3d 1425, 1438.) "The 'similarly situated' prerequisite simply means that an equal protection claim cannot succeed, and does not require further analysis, unless there is some showing that the two groups are sufficiently similar with respect to the purpose of the law in question that some level of scrutiny is required in order to determine whether the distinction is justified. (People v. Nguyen (1997) 54 Cal.App.4th 705, 714.)
   
   With respect to this bill and the application of Proposition 47, as noted by the author, "This policy only applies to persons re-sentenced or re-classified, not those who are or have been convicted with misdemeanors after the passage of Proposition 47." Thus, two people convicted of the same offense may or may not be able to possess a firearm depending simply on the date of conviction. These people would be similarly situated for purpose of the challenged law.
   
   If it is found that that the groups are similarly situated, in the second prong of an equal protection analysis, the court will apply different levels of scrutiny to different types of classifications. "In the absence of a classification that is inherently invidious or that impinges upon fundamental rights, a state statute is to be upheld against equal protection attack if it is rationally related to the achievement of legitimate governmental ends." (Gates v. Superior Court (1995) 32 Cal.App.4th 481, 514.)
   
   Defendants who have their prior felonies reduced under the reclassification procedures established by Proposition 47 and are subject to the lifetime ban will argue that there is no rational basis to treat them any differently than a person convicted for the same crime after the effective date of Proposition 47.
   
   Therefore, while the provisions of this bill are consistent with the language and intent of Proposition 47, there still remains an arguable equal protection challenge. It should be noted, however, that whether or not this bill passes, the equal protection challenge remains under Proposition 47.
   
   

6. California Constitutional Limitations on Amending a Voter Initiative: Because Proposition 47 was a voter initiative, the Legislature may not amend the statute without subsequent voter approval unless the initiative permits such amendment, and then only upon whatever conditions the voters attached to the Legislature's amendatory powers. (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 568; see also Cal. Const., art. II, § 10, subd. (c).) The California Constitution states, "The Legislature may amend or repeal referendum statutes. It may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval." (Cal. Const., art. II, § 10, subd. (c).) Therefore, unless the initiative expressly authorizes the Legislature to amend, only the voters may alter statutes created by initiative.
   
   The purpose of California's constitutional limitation on the Legislature's power to amend initiative statutes is to protect the people's initiative powers by precluding the Legislature from undoing what the people have done, without the electorate's consent. Courts have a duty to jealously guard the people's initiative power and, hence, to apply a liberal construction to this power wherever it is challenged in order that the right to resort to the initiative process is not improperly annulled by a legislative body. (Proposition 103 Enforcement Project v. Quackenbush (1998) 64 Cal.App.4th 1473.) Yet, despite the strict bar on the Legislature's authority to amend initiative statutes, judicial decisions have recognized that the Legislature is not thereby precluded from enacting laws addressing the general subject matter of an initiative.  The Legislature remains free to address a "related but distinct area" or a matter that an initiative measure "does not specifically authorize or prohibit." (People v. Kelly (2010) 47 Cal.4th 1008, 1025-1026.)
   
   As to the Legislature's authority to amend the initiative, Proposition 47 states: "This act shall be broadly construed to accomplish its purposes. The provisions of this measure may be amended by a two‑thirds vote of the members of each house of the Legislature and signed by the Governor so long as the amendments are consistent with and further the intent of this act. The Legislature may by majority vote amend, add, or repeal provisions to further reduce the penalties for any of the offenses addressed by this act." (<http://vig.cdn.sos.ca.gov/2014/general/pdf/text-of-proposed-laws1.pdf#prop47>.)
   
   Because Proposition 47 specifically did not restore gun ownership rights to individuals who successfully petitioned to have their felony sentences recalled and reduced to misdemeanors, the provisions of this bill do not amend the initiative; but rather are consistent with its language and intent.
   
   

7. Argument in Support: The California District Attorneys Association, a co-sponsor of this bill, states, "As you know, Proposition 47 (2014) established a process through which individuals currently serving, or who have previous served, sentences for felonies that were reduced to misdemeanors by Proposition 47 can petition the court for resentencing or reclassification as a misdemeanor. The language in Penal Code section 1170.18(k), as added by Proposition 47, also maintains existing gun possession prohibitions, stating that:
   
   "'Any felony conviction that is recalled and resentenced under subdivision (b) or designated as a misdemeanor under subdivision (g) shall be considered a misdemeanor for all purposes, except that such resentencing shall not permit the person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6.'
   
   "The drafters of Proposition 47, and the voters who passed it, very clearly intended existing prohibitions against firearm possession to apply to individuals who are resentenced or reclassified under PC 1170.18. However, the initiative did not make the necessary amendments to include those individuals in PC 29800, the section that actually contains the prohibition language.
   
   "AB 1415 corrects this oversight, and in doing so, furthers the intent of Proposition 47 by making sure that individuals who benefit from reduced or reclassified sentences do not have access to firearms."
   
   

8. Argument in Opposition: According to the California Public Defenders Association, "Proposition 47, by its own terms does not allow persons who have their convictions reduced per Penal Code section 1170.18 are not permitted to own firearms. This bill is unnecessary."
   
   

9. Related Legislation:
   
   

   1. AB 150 (Melendez) specifies that theft of a firearm valued at $950 dollars or less is a felony. AB 150 is pending hearing in the Assembly Appropriations Committee.
      
      

   2. AB 390 (Cooper) would require persons convicted of crimes newly categorized as misdemeanors under Proposition 47, approved by the voters on Nov. 4, 2014, to provide DNA samples. AB 390 is pending hearing in this Committee today.
      
      

   3. AB 1104 (Rodriguez) authorizes the issuance of a search warrant on the grounds that the property or things to be seized consist of an item or constitute evidence that tends to show a violation of a crime affected by Proposition 47. AB 1104 is pending hearing in this Committee today.
      
      

   4. SB 333 (Galgiani) is substantially similar to AB 46 (Lackey). SB 333 is pending hearing in the Senate Public Safety Committee.
      
      

   5. SB 347 (Jackson) adds specifies misdemeanor offenses to those for which a conviction results in a 10-year prohibition on possession of a firearm. SB 347 is pending hearing in the Senate Appropriations Committee.
      
      

   6. SB 452 (Galgiani) is substantially similar to AB 150 (Melendez), but also addresses the crime of grand theft from the person. SB 452 is pending hearing in the Senate Public Safety Committee.
      
      

10. Prior Legislation: Proposition 47 of the November 2014 general election, the Safe Neighborhoods and Schools Act, reduced the penalties for certain drug and property crimes from felonies to misdemeanors.

REGISTERED SUPPORT / OPPOSITION:

Support

California District Attorneys Association (Co-Sponsor)
San Diego County District Attorney (Co-Sponsor)
California State Lodge, Fraternal Order of Police
California State Sheriffs' Association
Long Beach Police Officers Association
Los Angeles County Professional Peace Officers Association
Peace Officers Research Association of California
Sacramento County Deputy Sheriffs' Association
San Bernardino County District Attorney
San Bernardino County Sheriff's Department
San Diego County Sheriff's Department
Santa Ana Police Officer's Association

Opposition

California Attorneys for Criminal Justice
California Public Defenders Association
Legal Services for Prisoners with Children

Analysis Prepared by:

Sandy Uribe / PUB. S. / (916) 319-3744