(1)Existing law states that the theft of a firearm is grand theft, punishable as a felony by imprisonment in the state prison for 16 months, or 2 or 3 years. The Safe Neighborhoods and Schools Act, enacted by Proposition 47, as approved by the voters at the November 4, 2014, statewide general election, notwithstanding these provisions, instead requires the theft of property that does not exceed $950 to be considered petty theft, and makes the crime punishable as a misdemeanor, except in cases when the defendant has previously been convicted of one or more specified serious or violent felonies or an offense requiring registration as a sex offender.

This bill would make 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.

(2)Under existing law, every person who buys or receives any property that has been stolen, knowing the property to be stolen, is guilty of a misdemeanor or a felony, except that if the value of the property does not exceed $950, Proposition 47 makes the offense punishable as a misdemeanor if the defendant has not previously been convicted of one or more specified serious or violent felonies or an offense requiring registration as a sex offender.

This bill would make buying or receiving a stolen firearm a misdemeanor or a felony.

(3)The California Constitution authorizes the Legislature to amend or repeal an initiative statute by another statute that becomes effective when approved by the electors.

This bill would provide that it would become effective only upon approval of the voters, and would provide for the submission of this measure to the voters for approval at the next statewide general election.

(1)Existing law states that the theft of a firearm is grand theft, punishable as a felony by imprisonment in the state prison for 16 months, or 2 or 3 years. The Safe Neighborhoods and Schools Act, enacted by Proposition 47, as approved by the voters at the November 4, 2014, statewide general election, notwithstanding these provisions, instead requires the theft of property that does not exceed $950 to be considered petty theft, and makes the crime punishable as a misdemeanor, except in cases when the defendant has previously been convicted of one or more specified serious or violent felonies or an offense requiring registration as a sex offender.

This bill would make 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. By increasing the penalty for a crime, this bill would impose a state-mandated local program.

(2)Under existing law, every person who buys or receives any property that has been stolen, knowing the property to be stolen, is guilty of a misdemeanor or a felony, except that if the value of the property does not exceed $950, Proposition 47 makes the offense punishable as a misdemeanor if the defendant has not previously been convicted of one or more specified serious or violent felonies or an offense requiring registration as a sex offender.

This bill would make buying or receiving a stolen firearm a misdemeanor or a felony. By increasing the penalty for a crime, this bill would impose a state-mandated local program.

(3)The California Constitution authorizes the Legislature to amend or repeal an initiative statute by another statute that becomes effective when approved by the electors.

This bill would provide that it would become effective only upon approval of the voters, and would provide for the submission of this measure to the voters for approval at the next statewide general election.

(1)Existing law states that the theft of a firearm is grand theft, punishable as a felony by imprisonment in the state prison for 16 months, or 2 or 3 years. The Safe Neighborhoods and Schools Act, enacted by Proposition 47, as approved by the voters at the November 4, 2014, statewide general election, notwithstanding these provisions, instead requires the theft of property that does not exceed $950 to be considered petty theft, and makes the crime punishable as a misdemeanor, except in cases when the defendant has previously been convicted of one or more specified serious or violent felonies or an offense requiring registration as a sex offender.

This bill would make 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. By increasing the penalty for a crime, this bill would impose a state-mandated local program.

(2)Under existing law, every person who buys or receives any property that has been stolen, knowing the property to be stolen, is guilty of a misdemeanor or a felony, except that if the value of the property does not exceed $950, Proposition 47 makes the offense punishable as a misdemeanor if the defendant has not previously been convicted of one or more specified serious or violent felonies or an offense requiring registration as a sex offender.

This bill would make buying or receiving a stolen firearm a misdemeanor or a felony. By increasing the penalty for a crime, this bill would impose a state-mandated local program.

(3)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.

(4)The California Constitution authorizes the Legislature to amend or repeal an initiative statute by another statute that becomes effective when approved by the electors.

This bill would provide that it would become effective only upon approval of the voters, and would provide for the submission of this measure to the voters for approval at the next statewide general election.

Date of Hearing: April 15, 2015

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Jimmy Gomez, Chair

ABPCA Bill Id:AB 150

Author:(Melendez) – As Amended Ver:March 18, 2015

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

SUMMARY:

This bill requires an initiative statute be put before the voters to amend Proposition 47 to make the theft of a firearm, valued at $950 or less, a felony. Specifically, this bill:

1. Includes theft of a firearm, without regard to dollar value, in the definition of grand theft, and makes the crime punishable in state prison for 16 months, or two or three years.

2. States 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.

3. Provides that this bill amends Proposition 47, the Safe Neighborhoods and Schools Act, and shall become effective only when submitted to and approved by the voters.
   
   
   

FISCAL EFFECT:

1. One-time General Fund (GF) costs of at least $220,000 to include a measure on the statewide ballot. The current estimate for including a measure on the ballot is approximately $55,000 per page and this measure will require at least four pages, in the voter information guide.

2. Likely minor GF costs for increased state prison commitments for persons with a current or prior violent felony conviction who are convicted of buying or receiving a stolen firearm. The universe of these individuals is expected to be very small, there are several statutes providing for conduct related to firearm possession.

COMMENTS:

1. 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. Specifically, 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. 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 register as sex offenders.

Proposition 47 put in a blanket $950 threshold for conduct to be considered grand theft. 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. However, the drafters of Proposition 47 stated that they did not intend to reduce the penalty for the theft of a firearm. The rebuttal to the argument against Proposition 47 contained in the ballot arguments stated: "Proposition 47 maintains penalties for gun 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."

2. Purpose. This bill restores the penalties that were in place prior to the passage of Proposition 47 by making theft of a firearm a felony grand theft in all cases, and making buying or receiving a stolen firearm a felony/misdemeanor offense. However, the proposed amendments to statute do require a simple majority of the electorate at the next statewide election, after enactment of this measure.

3. Argument in Support. A co-sponsor, the California Peace Officers Association (CPOA), states, "Firearm theft does not occur for culprits to recreationally use the weapons, but further crimes such as robbery, burglary, assault, and illegal firearms dealing are most often the acts associated with firearm theft. AB 150 provides a reasonable solution to this problem, and CPOA believes it to be a solution that is common sense and bipartisan."

4. Argument in Opposition. According to the California Attorneys for Criminal Justice, "Proposition 47 opponents’ biggest and loudest argument was that Proposition 47 should not be passed because it would make theft of a firearm a misdemeanor. That message was seen on billboards, flyers, mailers and TV commercials throughout the State. In the face of this opposition Proposition 47 still passed. The people of California want to spend their tax dollars on safe neighborhoods and schools not prosecuting and incarcerating people who commit drug and low value theft crimes."

5. Related Legislation:

1. AB 46 (Lackey) would reverse provisions recently enacted by Proposition 47 related to possession for personal use of specified controlled substances.

2. AB 390 (Cooper) would require persons convicted of crimes newly categorized as misdemeanors under Proposition 47 to provide DNA samples.

3. AB 1415 (Steinorth) 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 Proposition 47, to control any firearm.

4. SB 333 (Galgiani) is substantially similar to AB 46 (Lackey).

SB 452 (Galgiani) is substantially similar to this bill, but also addresses the crime of grand theft from the person.

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

Date of Hearing: March 24, 2015

Counsel: Sandra Uribe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Bill Quirk, Chair

ABPCA Bill Id:AB 150

Author:(Melendez) – As Amended Ver:March 18, 2015

SUMMARY:

Specifies that theft of a firearm valued at $950 dollars or less is a felony. Specifically, this bill:

1. Declares that the theft of a firearm is grand theft in all cases, punishable by imprisonment in the state prison for 16 month, or two or three years.
   
   

2. States 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.
   
   

3. Provides that this bill amends Proposition 47, the Safe Neighborhoods and Schools Act, and shall become effective only when submitted to and approved by the voters.
   
   

4. Contains legislative findings and declarations regarding the dangers to public safety posed by the theft of firearms.

EXISTING LAW:

1. Divides theft into two degrees, petty theft and grand theft. (Pen. Code, § 486.)
   
   

2. Defines grand theft as when the money, labor, or real or personal property taken is of a value exceeding $950 dollars, except as specified. (Pen. Code, § 487.)
   
   

3. States that notwithstanding any 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 $950 shall be considered petty theft and shall be punished as a misdemeanor, except in the case where a person has prior serious, violent, or sex convictions, in which case the offense is punished as a felony by imprisonment in the county jail pursuant to realignment. (Pen. Code, § 490.2, subd. (a).)
   
   

4. Prohibits carrying a concealed firearm upon the person or in a vehicle, and punishes that crime as a felony under certain circumstances, including if the person is an ex-felon or a gang member, or if the firearm was stolen. (Pen. Code, § 25400.)
   
   

5. Prohibits carrying a loaded firearm on the person or in a vehicle while in any public place or on any public street and punishes that crime as a felony under certain circumstances, including if the person is an ex-felon or a gang member, or if the firearm was stolen. (Pen. Code, § 25850.)
   
   

6. Prohibits any person previously convicted of a felony 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).)
   
   

7. Deems grand theft involving a firearm to be a serious felony. (Pen. Code, § 1192.7, subd. (c)(26).)
   
   

8. States that a felony is a crime that is punishable with death, imprisonment in the state prison, or in the county jail under the provisions of Penal Code section 1170, subdivision (h). All other crimes are misdemeanors, except those classified as infractions. (Pen. Code, § 17, subd. (a).)
   
   

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "The vast majority of handguns, rifles, and shotguns are valued under $950. By reducing penalties, this would make current law ineffective in curtailing gun theft and gun trafficking. This change in the law has put the safety of our constituents at risk. Not only will it be harder to prosecute gun theft, we are essentially giving criminals the green light by lessening the penalty. A criminal doesn't steal a gun to go duck hunting, they steal a gun to commit crimes.
   
   "It is important that California continues to enforce a strong stance against the illegal acquisition and use of firearms."
   
   

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. Proposition 47 As it Relates to the Theft of a Gun: 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. 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 trumps 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, another provision of law deems this conduct to be a felony.
   
   Penal Code section 1192.7, states that grand theft involving a firearm is a serious felony. Some may argue that this is a "provision of law defining grand theft" because of how it characterizes the crime. But not every description in section 1192.7 is coextensive with the statutory definition of a specific crime. The general purpose of section 1192.7 is to prohibit plea bargaining in cases arising out of the listed offenses, and to enumerate crimes for sentence enhancements under other statutory schemes.
   
   The drafters of Proposition 47 stated that they did not intend to reduce the penalty for the theft of a firearm. The rebuttal to the argument against Proposition 47 contained in the ballot arguments stated: "Proposition 47 maintains penalties for gun 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." <(http://vig.cdn.sos.ca.gov/2014/general/pdf/proposition-47-arguments-rebuttals.pdf.>) The ballot argument by itself does not mean that they did not inadvertently do so. If the proponents of Proposition 47 intended to "maintain the penalties for gun crimes," and yet the language is susceptible to that interpretation, there should be no harm in making the clarification.
   
   

4. Practical Considerations: Assuming arguendo that Proposition 47 reduced the theft of a firearm to a misdemeanor offense, the theft of a firearm or receipt or purchase of a stolen firearm will not usually happen in isolation. That single act will often involve violations of multiple criminal statutes, many of which are felonies.
   
   For example, if a firearm is stolen from a home, the defendant could be charged with residential burglary, which is a felony and a strike. (See Pen. Code, §§ 460, 461, and 1192.7, subd. (c)(18).) If a firearm is stolen from a commercial establishment, the defendant can be charged with second-degree burglary, which can be punished as a felony (second-degree burglary is an alternate felony/misdemeanor). (See Pen. Code, §§ 460 and 461, subd. (b).) If a firearm is stolen from a locked vehicle, the defendant can be charged with auto burglary, which can be punished as a felony (auto burglary is an alternate felony/misdemeanor). (See Pen. Code, §§ 459, 460, and 461, subd. (b).) If the firearm is taken from another person by force or fear, then the defendant can be charged with robbery, which is a felony and a strike. (See Pen. Code, §§ 211, 213 and 1192.7, subd. (19).) Proposition 47 did nothing to changes these laws.
   
   Moreover, one cannot steal a firearm, or receive or purchase a stolen firearm without also possessing it. There are several other statutes providing for felony punishment for conduct related to firearms possession. For example, felons, narcotic addicts, and those convicted of certain crimes of violence can be prosecuted for a new felony if they own, purchase, receive, possess or have a firearm in their custody or control. (Pen. Code, §§ 29800, subd. (a), and 29900, subd. (a).) Since an ex-felon is prohibited from possessing a firearm, presumably that person would carry it in a concealed manner, either on the person or in a vehicle, thereby committing a separate felony. (Pen. Code, § 25400.) Additionally, if the firearm was loaded and carried on the person or in a vehicle while in any public place or on any public street, that conduct would be punishable as a felony. (Pen. Code, 25850.) Thus, many of the individuals convicted of stealing a firearm, or receiving or purchasing a stolen firearm will also violate another section in the Dangerous Weapons Control Act.¹
   
   In fact, the California Department of Corrections and Rehabilitation has informed the committee that in Fiscal Year 2013/14 the numbers of new admissions with grand theft of a firearm as the principal controlling offense was 37.
   
   

5. 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.)
   
   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>.)
   
   If Proposition 47 is deemed not to have changed the punishment for the theft of a firearm, then the provisions of this bill do not amend the initiative, but rather would be consistent with the language and intent of the initiative. On the other hand, if Proposition 47 is interpreted as having reduced the punishment for the theft of a firearm valued at $950 or less, as well as the receipt or purchase of a stolen firearm with the same value, then the change will have to go before the voters for ratification. The provisions of this bill so provide.
   
   

6. Argument in Support: According to the California Peace Officers Association (CPOA), a co-sponsor of this bill, "Firearm theft does not occur for culprits to recreationally use the weapons, but further crimes such as robbery, burglary, assault, and illegal firearms dealing are most often the acts associated with firearm theft. Ab 150 provides a reasonable solution to this problem, and CPOA believes it to be a solution that is common sense and bipartisan."
   
   

7. Argument in Opposition: According to the California Attorneys for Criminal Justice, "Proposition 47 opponents’ biggest and loudest argument was that Proposition 47 should not be passed because it would make theft of a firearm a misdemeanor. That message was seen on billboards, flyers, mailers and TV commercials throughout the State. In the face of this opposition Proposition 47 still passed. The people of California want to spend their tax dollars on safe neighborhoods and schools not prosecuting and incarcerating people who commit drug and low value theft crimes.
   
   "Current law already permits felony prosecution in most firearm theft cases. This writer has practiced as a criminal defense attorney for almost ten years and worked in a public defender’s office with many experienced attorneys; Penal Code section 487(d), firearm theft, is a crime we rarely if ever see charged alone. Guns are not stolen during business hours from sporting goods stores because they are largely under lock and key. Citizens do not leave them unattended on their front porches to be taken by opportunistic passer-byers. When we see Penal Code section 487(d) charged it is almost always as a secondary charge to much more serious crimes, i.e. firearms stolen in the course of a residential burglary or home invasion robbery, all felonies.
   
   "Even with Proposition 47, prosecutors have many avenues to bring felony prosecutions against those who steal firearms. For example, possessing a concealed stolen firearm is a felony as is possessing a loaded stolen firearm. Penal Code 25400(c)(2). Any theft of a firearm from a dwelling, a closed store, locked car, or person is still a felony even after Proposition 47. And, as always, it is still a felony for certain dangerous persons such as those with prior felony convictions, certain juvenile convictions and those under the influence of controlled substances to possess a firearm."
   
   

8. Related Legislation:
   
   

   1. AB 46 (Lackey) would reverse provisions recently enacted by Proposition 47 related to possession for personal use of specified controlled substances. AB 46 is pending hearing in this 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.
      
      

   3. AB 1415 (Steinorth) 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 Proposition 47, to own, purchase, receive, or have in possession or under custody or control any firearm. AB 1415 is pending referral by the Rules Committee.
      
      

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

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

9. 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.

REGISTERED SUPPORT / OPPOSITION:

Support

California Peace Officers Association (Co-Sponsor)
California State Sheriffs' Association (Co-Sponsor)
Alpine County Sheriff and Coroner
Association for Los Angeles Deputy Sheriffs
California Association of Code Enforcement Officers
California College and University Police Chiefs Association
California Correctional Supervisors Organization
California District Attorneys Association
California Fraternal Order of Police
California Narcotic Officers Association
California Police Chiefs Association
California Sportsman's Lobby
California Statewide Law Enforcement Association
Golden State Bail Agents Association
Gun Owners of California
Long Beach Police Officers Association
Los Angeles County Professional Peace Officers Association
Los Angeles Deputy Sheriffs
Los Angeles Police Protective League
National Rifle Association
National Shooting Sports Foundation, Inc.
Outdoor Sportsmen's Coalition of California
Riverside Sheriffs Association
Sacramento County Sheriff's Department
Sacramento County Deputy Sheriffs Association
Safari Club International
San Bernardino County Sherriff's Department
San Diego County District Attorney
San Diego County Sheriff's Department
Santa Ana Police Officers Association
1015 Private Individuals

Opposition

American Civil Liberties Union of California
California Attorneys for Criminal Justice
California Public Defenders Association
Californians for Safety and Justice
Legal Services for Prisoners with Children

Analysis Prepared by:

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