(1)The existing Safe Neighborhoods and Schools Act, enacted as an initiative statute by Proposition 47, as approved by the electors at the November 4, 2014, statewide general election, makes the theft of property that does not exceed $950 in value petty theft, and makes that crime punishable as a misdemeanor, with certain exceptions.

The California Constitution authorizes the Legislature to amend an initiative statute by another statute that becomes effective only when approved by the electors.

This bill would amend that initiative statute by making the theft of a firearm grand theft in all cases and punishable by imprisonment in the state prison for 16 months, or 2 or 3 years.

(2)Under existing law, a person who buys or receives property that has been stolen, knowing the property to be stolen, or who conceals, sells, withholds, or aids in concealing, selling, or withholding property from the owner, 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 of an offense requiring registration as a sex offender.

This bill would amend that initiative statute by making the buying or receiving of a stolen firearm, with knowledge that the property was stolen, or the concealing, selling, withholding, or aiding in concealing, selling, or withholding of a firearm, with knowledge that the property was stolen, a misdemeanor or a felony.

(3)This bill would call a special election to be consolidated with the June 7, November 8, 2016, statewide primary general election. This bill would require the Secretary of State to submit the provisions of the bill that amend the initiative statute to the electors for their approval at the June 7, November 8, 2016, consolidated election.

This bill would declare that it is to take effect immediately as an act calling an election.

(1)The existing Safe Neighborhoods and Schools Act, enacted as an initiative statute by Proposition 47, as approved by the electors at the November 4, 2014, statewide general election, makes the theft of property that does not exceed $950 in value petty theft, and makes that crime punishable as a misdemeanor, with certain exceptions.

The California Constitution authorizes the Legislature to amend an initiative statute by another statute that becomes effective only when approved by the electors.

This bill would amend that initiative statute by making the theft of a firearm grand theft in all cases and punishable by imprisonment in the state prison for 16 months, or 2 or 3 years.

(2)Under existing law, a person who buys or receives property that has been stolen, knowing the property to be stolen, or who conceals, sells, withholds, or aids in concealing, selling, or withholding property from the owner, 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 amend that initiative statute by making the buying or receiving of a stolen firearm, with knowledge that the property was stolen, or the concealing, selling, withholding, or aiding in concealing, selling, or withholding of a firearm, with knowledge that the property was stolen, a misdemeanor or a felony.

(3)This bill would call a special election to be consolidated with the June 7, 2016, statewide primary election. This bill would require the Secretary of State to submit the provisions of the bill that amend the initiative statute to the electors for their approval at the June 7, 2016, consolidated election.

This bill would declare that it is to take effect immediately as an act calling an election.

Date of Hearing: April 19, 2016

Counsel: Sandra Uribe

ASSEMBLY COMMITTEE ON

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:

Author:() – As Ver:

SUMMARY:

Calls for a special election to amend Proposition 47 and make the theft of a firearm grand theft in all cases and punishable by a state prison term. 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 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. Calls for a special election to be held on November 8, 2016, for voter approval of these provisions.
   
4. Requires consolidation of the special election with the statewide general election to be held on that date.
   
5. Requires the consolidated election be held and conducted in all respects as if there were only one election, and only one form of ballot shall be used.
   
6. Waives specified Election Code requirements to submit these provisions to the voters on the November 8, 2016 election.
   

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, "An unintended consequence of Proposition 47 made the theft, or known illegal transfer of a firearm, with the monetary value of under $950 a misdemeanor. Handguns, shotguns, rifles and AR-15 types of weapons are easy to find for sale for under the $950 at most retail gun stores. When these guns are stolen they are often sold or traded at below market value on the street. Many times these stolen guns are found to have been used in other crimes such as robberies and shootings. AB 2854 will serve as a deterrent and apply the proper criminal consequences to those who steal and transfer any type of firearm."
   
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.
   
   Notably, 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 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.)
   
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]
   
   Last year, the California Department of Corrections and Rehabilitation (CDCR) 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.
   
   This bill, upon its approval by the Legislature, calls for a special election to approve its provisions.
   
6. Legislative Deadlines for Placing a Measure on the Ballot: This bill calls for a statewide special election to be held on November 8, 2016, for voter approval of the provisions of this bill. Additionally, this bill requires the special election to be consolidated with the statewide general election to be held on that date and requires the special election to be held and conducted in all respects as if there were only one election, and only one form of ballot shall be used.
   
   Current law requires every constitutional amendment, bond measure, or other legislative measure submitted to the people by the Legislature to appear on the ballot of the first statewide election occurring at least 131 days after the adoption of the proposal by the Legislature. The statutory deadline to place a measure on the ballot for the November 8, 2016 statewide election is June 30, 2016. The bill, however, waives specified Elections Code provisions as to ensure it can be placed on the November ballot.
   
7. Argument in Support: According to the California State Sheriffs' Association, "Proposition 47 reduced the penalty for stealing a firearm to a misdemeanor punishable by up to six months in the 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."
   
8. Argument in Opposition: According to the American Civil Liberties Union of California, "The voters made their decision after being fully apprised of the arguments now being raised in support of AB 1869. 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.'

• '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.'

• 'Reduces penalties for stealing guns.'

"In response to the arguments against Proposition 47, the Guide provided voters with the following rebuttal argument:

• '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.'

"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."

1. Related Legislation:
   
   1. AB 1869 (Melendez) is substantially identical to this bill. AB 1869 is pending in the Assembly Appropriations Committee.
      
   2. AB 2369 (Patterson) authorizes the prosecutor to charge a defendant with a felony if the person has been convicted twice or more in a 12-month period of the crimes reduced to a misdemeanor by Proposition 47. AB 2369 also makes it a felony when stolen items include a firearm. AB 2369 failed passage in this Committee.

1. Prior Legislation:
   
   1. AB 150 (Melendez) of the 2015 Legislative session was substantially similar to this bill. AB 150 was held on the Assembly Appropriation Committee's suspense file.
      
   2. 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 District Attorneys Association

California Retailers Association
California Sportsman's Lobby
California State Sheriffs' Association
National Shooting Sports Foundation, Inc.
Outdoor Sportsmen's Coalition of California
Peace Officers Research Association of California
Safari Club International

Opposition

American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association

Analysis Prepared by:

1. Under Penal Code section 654, a defendant can be punished only once for multiple convictions involving a single act or omission. (People v. Jones (2012) 54 Cal.4th 350, 358.) However, Penal Code section 654 does not bar multiple punishment for multiple violations of the same criminal statute. (People v. Correa (2012) 54 Cal.4th 331, 334.) ↑