MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session February 21, 1995 The Committee on Judiciary was called to order at 8:07 a.m., on Tuesday, February 21, 1995, Chairman Humke presiding in Room 332 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Mr. Bernie Anderson, Chairman Mr. David E. Humke, Chairman Ms. Barbara E. Buckley, Vice Chairman Mr. Brian Sandoval, Vice Chairman Mr. Thomas Batten Mr. John C. Carpenter Mr. David Goldwater Mr. Mark Manendo Mrs. Jan Monaghan Ms. Genie Ohrenschall Mr. Richard Perkins Mr. Michael A. (Mike) Schneider Ms. Dianne Steel Ms. Jeannine Stroth STAFF MEMBERS PRESENT: Dennis Neilander, Research Analyst Joi Davis, Committee Secretary OTHERS PRESENT: Ben Graham, Clark County District Attorney's Office Andrea Engleman, Executive Director, Nevada State Press Association Rob Calderone, Director, Juvenile Services of Washoe County Lucille Lusk, Legislative Liaison, Nevada Concerned Citizens John W. Riggs, Sr., Legislative Representative, Nevada State Rifle And Pistol Association Stan R. Olsen, Lieutenant, Las Vegas Metropolitan Police Phil Galeoto, Lieutenant, Reno Police Department David F. Sarnowski, Deputy Attorney General Chairman Humke opened the meeting by stating Mr. Williams has requested Assembly Bill 165 be withdrawn from the agenda today because of faulty notification and he has additional evidence he wishes to present so A.B. 165 will be rescheduled. ASSEMBLY BILL 149 - Removes certain felonies involving use of firearm from jurisdiction of juvenile court. ASSEMBLY BILL 150 - Makes various changes regarding jurisdiction of juvenile courts. Ms. Steel asked Chairman Humke for a clarification between A.B. 149 and A.B. 150. From her reading they appear to be the same bill. Chairman Humke stated his reading of the bills was A.B. 149 does not repeal certification downward so that would be one difference. Chairman Humke asked Mr. Ben Graham to come forward to present an overview of A.B. 149 and A.B. 150. Mr. Graham, Clark County District Attorney's office, apologized to the committee that with the number of juvenile bills being introduced this session he was uncertain whether these particular bills were requested by his office. He stated juvenile court does not have jurisdiction over murder and attempted murder crimes because the juvenile who has committed these offenses automatically falls within the jurisdiction of the adult court. A.B. 149 and A.B. 150 increases a number of penalties that eliminates jurisdiction from the juvenile courts. Also, if a firearm is used for any of those offenses listed in the bills, then it would automatically be in adult court as opposed to juvenile court jurisdiction. Unfortunately, times have changed and we are not living with what our forefathers envisioned. Basically what we are doing here is increasing the number of offenses committed with firearms be automatically placed in adult court. Mr. Neilander stated that in A.B. 150 there is a repealer that takes away the provisions that would allow certification down for those 18 to 21 year olds who commit gross misdemeanors or felonies. Existing law allows those people to be certified down to juvenile court and this repeals that provision so those people would have to be tried in adult court. Mr. Graham stated the provision of certifying someone down is not used successfully. Chairman Humke stated a few years ago he had a similar bill which he presented to the Chief Probation Officer of Washoe County Juvenile Probation and a study was conducted which showed how that law was being used. In the end, Chairman Humke was persuaded not to go forward with that bill as other things were being done and further, application of that law was quite uneven across the state as it was being used only in Washoe County, with most of the effective certifications downward in Washoe County. Chairman Humke did not believe we needed that provision in the law any longer. Mr. Graham relayed his experience of a kid 19 years old who was certified down into juvenile court. Ms. Buckley asked how many individuals would be impacted if the law was changed and do not the judges now already certify up the real bad guys? Also, would we be taking the judge's discretion away? Mr. Graham stated he did not know how many individuals would be affected by this law. With regard to the certification process, he stated that juveniles are provided a lot of leeway or "breaks" before they are treated as adults. He detailed somewhat the certification process. However, the thought behind these bills is that if you are using a gun to rob people, kidnap people, and/or assault people, the juvenile authorities are done with them if they are in that caliber of violations. Rather than having to go into a history to prove justification of certifying the juvenile up as an adult, these bills would make it automatic certification without the hearings, examinations, etc. Mr. Carpenter asked about the age being reduced from age 16 to age 15. Why since they were committing heinous crimes would the age be limited to 15 years, why not 14 years, or so on? Mr. Graham stated the age factor was entirely a policy decision. The younger we start certifying them as adults . . . some of them will go to prison so the question would be what prison do they go to? So the line needs to be drawn somewhere whether its 15 years of age or not, the line has to be drawn. Mr. Carpenter and Mr. Graham discussed this issue further. Chairman Humke reassured it is the intention of the Chairmen to hold future hearings on the bills involving juvenile court to come up with a comprehensive package. Mr. Graham stated he believed there were about 20 juvenile bills pending. Mrs. Monaghan asked in relation to A.B. 150 the "unlawful discharge of a firearm in violation of NRS . . . " or perhaps Mr. Neilander can answer that question. Mr. Neilander stated that the statute covers drive-by shootings but also relates to discharging a firearm "at or in to any structure, vehicle, aircraft, or watercraft." Basically it covers any building or vehicle. Mrs. Monaghan asked in relation to A.B. 149, page one, lines 19-20 "firearm means any weapon of a caliber of .177 inches or greater from which projectile may be propelled." Is that a BB gun? Mr. Graham stated no a BB gun would not qualify but rather it refers to a gas-propelled gun. Mr. Sandoval asked if A.B. 150 includes a net case of 12 to 13 year olds if they were to commit any of the crimes in (a) through (h) listed on the bill. Mr. Graham thought the bill addressed 15 to 18 years of old. Mr. Sandoval also inquired about the language "or a person less than 18 years of age who has been convicted of and sentenced as an adult". Is there a distinction between being convicted as an adult and then sentenced as a juvenile? Mr. Graham stated no. Mr. Sandoval felt the word "or" creates a new category. Ms. Buckley stated her interpretation of the bills was the first clause in A.B. 150 refers to cases where the juvenile judge certified someone up on a certain charge and then the second clause was the automatic certification category of say murder, where there was no discretion. So the first clause allows the judge's discretion to certify up and the second clause was an automatic certification, without the judge's discretion. Ms. Ohrenschall stated her confusion between the two bills and did not believe Ms. Buckley's interpretation was correct. She further stated the language was added in one area and then taken out somewhere else, thereby excluding offenses. Chairman Humke stated a bill drafter may be required; however, he believed Ms. Buckley's interpretation could still be correct in that the bill makes a longer laundry list of mandatory events in which certification to adulthood must take place but it still allows for another section of 62 which provides for certain types of discretionary transfers to adult court. Mr. Anderson stated the definition of "firearm" found in A.B. 149 which sets them up for the first time for later on coming up with a definition; however, in A.B. 150 he is concerned with the language in section 1, line 12, "battery with the use of a deadly weapon" because that is broader and the question of what a deadly weapon is has already been wrestled with in previous sessions. He is concerned with what constitutes a deadly weapon. Mr. Graham stated there is a case called Zgombic v. State which some veterans and others recognize, that talks about deadly weapons and there is already a definition in the statutes. There may be some things in A.B. 150 you like that you would like to put in A.B. 149 but if this committee is interested, Mr. Graham has many people that could come testify about what a deadly weapon is. Mr. Anderson relayed a story of two brothers who used to take turns shooting at each other with their BB guns which is not unusual activity but in this case a pellet broke the skin and became lodged in the child's skin. He then asked if A.B. 149 page 1, l. 20-22, where it talks about means of explosion . . . other force . . . would these kids then be charged? Mr. Graham stated no, probably not. But the definition of "firearm" has been in the books for a long time and if you start altering it now it will go throughout the entire Nevada Revised Statutes. Mr. Anderson stated that moving the age back one year was probably not that big of a deal but the charges that have been included in these bills could be a big deal when you consider the realistic aspect within home situations. Mr. Graham states two things are being accomplished with A.B. 149 and A.B. 150: the age and the inclusion of a few more violent type crimes. Chairman Humke was informed from Mr. Neilander that the fiscal notes on A.B. 149 and A.B. 150 have not been prepared. The committee will have to look to those notes and the news they derive from the prison systems which could definitely have an effect on the bills. Mr. Graham stated he will be getting some numbers and information for general circulation to the committee in relation to the bills in the near future. Andrea Engleman, Nevada Press Association, testified they were concerned with A.B. 150 more so than A.B. 149 and that was due to the age restriction. They believe what needs to be looked at is the crime itself and not necessarily the age at which the crime is committed. We do have the occasional, although rare, case of the nine year old who has murdered his parents--should that juvenile be offered all the provisions and confidentiality offered through the juvenile court system or should he be treated as an adult for committing an adult crime. The subject of prison time for these juveniles will be grappled with throughout the United States and currently is being discussed throughout the United States. The press is very interested in what Nevada is doing as Nevada is known as being a state that overprotects its juvenile delinquents. Ms. Steel stated the passing of these bills would not change the confidentiality laws. Ms. Engleman stated when a juvenile moves into the adult court system, that information becomes public. Ms. Steel stated it was alright with her the information becomes public but did not know these bills would do that. Rob Calderone, Director Juvenile Services, Washoe County, testified in his capacity as the President of Nevada Association of Chief Juvenile Probation Officers. They support A.B. 149 as opposed to A.B. 150 because they feel A.B. 150 which speaks to a deadly weapon rather than a firearm is too broad in its scope so they would prefer the language in A.B. 149 which specifically states the use of a firearm. However, they support the portion of A.B. 150 which repeals the certification downward. In effect, they support portions of both bills. Mr. Calderone also provided a handout to the committee entitled Comprehensive Strategy for Serious Violent, and Chronic Juvenile Offenders, (Exhibit C). Ms. Buckley stated the section of the bill which would require automatic certification for the discharge of a firearm, section (e) in A.B. 149, was slightly different, or could be, depending on the circumstances of the crime, than the other ones which include robbery or action directed at a victim. She sees the potential for casting a wide net for individuals shooting at cans in an empty building, and wondered what impact, if any, could occur from this. Mr. Calderone did not see there would be much of what she described. In addition, unless the person is charged, specifically charged with the use of a firearm, they would not be treated as an adult. There is still some discretionary power in terms of the district attorney charging the individual, but it takes the discretion away from the court once the person has been charged. Mr. Calderone stated Washoe County in 1994 had 78 cases where kids were convicted of crimes that involved a deadly weapon. Probably one-third of those involved a firearm. The numbers for Clark County would most likely be significantly higher. But that is 78 of the kids in Washoe County that would be treated as adults if the deadly weapon statute were passed. Mr. Carpenter asked if kids are committing these kinds of acts with say a knife or something like that, then why should they not be certified up because what is the difference between a knife and a firearm if in fact the crime is being committed. Mr. Calderone stated that "deadly weapon" for the purposes of the proposed statute includes items other than knifes. Kids are being charged with the use of a deadly weapon who have hit a kid with a rock or a baseball bat. Even if it was not a gun being used, but it happened to be a particularly vicious assault, the court will still have discretion to certify that juvenile up to adult status. What we are talking about is A.B. 149 makes certification automatic for firearms but it does not eliminate the possibility that you could be certified up if you had a knife, baseball bat, or bottle. Mr. Calderone stressed that the certification down process is used to a large extent in Washoe County, having 120 such cases last year whereas Clark County only had two or three. The position of the chief is there probably are some deserving cases of kids between the age of 18 and 21 years who have never been in trouble but did something stupid one night and maybe there is some sentiment to not have that juvenile have a criminal record for his entire adult life. Their position is there should be some language in the adult statutes which allows for treatment, deferred prosecution, or something along those lines for deserving cases as opposed to certifying them down into the juvenile system. Mr. Sandoval asked how he felt about orienting the bill more toward the offense rather than age. Mr. Calderone felt you had to take both into account. He felt Ms. Engleman's earlier testimony mainly dealt with the confidentiality issue. Further, Mr. Calderone believed there is at least one bill being introduced about eliminating confidentiality in the juvenile system. The chiefs have a position they would support that with some parameters being set. The confidentiality issue should be addressed separately. Mr. Perkins stated in regard to A.B. 150 and the use of a deadly weapon, it has been brought about that it would in fact cast a wide net. However, if that were the only portion of the laundry list changed to use of a firearm, would they feel comfortable with the rest of the list. If only the battery section was changed to use of a firearm. Mr. Perkins felt if they changed the language battery with use of a deadly weapon to battery with use of a firearm and left the remainder of the laundry list alone it would perhaps satisfy the concerns of many. Mr. Calderone stated the Chief of Juvenile Probation has never considered that possibility but he has no problem with that and it would seem to be a reasonable way to make a compromise. Chairman Humke stated the Chair's intention is to have further work on these bills and therefore Mr. Calderone would have plenty of time to check with the Chief's Association regarding Mr. Perkins' very reasonable suggestion. Lastly, Mr. Calderone commented for Judge Charles McGee, who was represented by Judge Dave Gamble when the bill was last heard. His position was that rather than make the certification up automatic he uses a term called "presumptive" in that anyone committing this offense would be presumed to be an adult and then they would face the family court judge and the judge would treat that person as an adult unless there was such extenuating circumstances that they wanted to put them down into the juvenile system, and those circumstances would be put on record. Chairman Humke stated his understanding of juvenile law was that it was inherent there be a great amount of discretion for the judge in the juvenile court and so on a case by case basis you would still need that discretion by the juvenile judge. Lucille Lusk, Legislative Liaison, Nevada Concerned Citizens, stated some of her questions have already been answered in earlier testimony so the only point she had was the legislation look at the crime and the severity of the crime rather than the instrument that the perpetrator used to commit the crime. For instance, in a kidnaping, the person could not accomplish the kidnaping if the victim was not in fear of their life or fear of serious harm. It matters little whether the weapon was a firearm or a simulated deadly weapon, but it is something the victim believed was dangerous to their life or physical person. She also questioned the language "unlawful discharge" as it appeared different from other items, does it apply to discharge in a city limit or county limit? However, their main concern is public safety. They do not think the issue is firearms but the issue is violence and would like the committee to focus on that. John W. Riggs, Sr., Legislative Representative, Nevada State Rifle and Pistol Association felt the two bills were a repetition. He felt they could take A.B. 149 and add the word, after deadly weapon, "robbery with the use of a deadly weapon or firearm" and put it in one bill. They are not against the bill but do have a concern with the interpretation of firearm as it relates to the BB gun because a BB guns fits into the category of .177 inches. He did not think a BB gun was intended to be included here as an extreme assault rifle and feels the BB guns should be excluded from the bill so you could take both bills and make it into one bill. He stated that practically all shootings that take place in the United States today take place within seven yards. David Sarnowski, Chief Criminal Division, Attorney General's Office asked that the committee carefully and consistently treat the instances of certifying a juvenile up so that the law remains consistent between those juveniles certified into the adult system and adults. His interpretation of a deadly weapon, based on Nevada Supreme Court cases, was that the deadly weapon enhancement statute is limited to those weapons that are inherently dangerous or deadly--firearms and knifes. The committee may also want to take a look at the Nevada case Zgombic v. State which now limits use enhancements to "inherently dangerous items" so if you are going to use the term "deadly weapon" which is one of these bills, they would suggest that it be defined clearly so that the Attorney General, district attorneys and public defenders do not entangle themselves in years of litigation. Mr. Carpenter asked if the Supreme Court has ruled deadly weapons are only knifes and firearms does that already take care of the situation? Mr. Sarnowski stated the Supreme Court does for the moment but the legislative body could broaden that definition or narrow the definition and they have the authority to do that as a legislative body if they so choose and the Supreme Court would have to look at their intent and history behind those definitions. Stan R. Olsen, Lieutenant, Las Vegas Metropolitan Police Department, addressed the comments made by Mr. Riggs regarding A.B. 149 wherein he asks that .177 be excluded from the bill. They disagree with that because when a victim has a gun to their head they do not have time to determine if the gun is real or .177. Mr. Olsen relayed a story of an incident occurring in 1977 involving a .177 weapon which resulted in an officer shooting an individual not knowing the gun the individual had was .177 so he would like that language to remain in the bill. Lieutenant Phil Galeoto, Reno Police Department spoke in support of A.B. 149 primarily because it helps draw the line in the sand on what is acceptable out on the street and what is not. In the last several years our youth that are carrying guns, which twenty years ago would have been an extraordinary event to find a child with a gun much less using a gun, but now they are finding 17, 16, 15 and 14 year olds using weapons in the commissions of crimes. They understand the social concerns with where to draw the line as far as the age but an age has to be drawn somewhere to make the certification automatic and also realizing that the judges still have all the discretion they currently have but the bill just draws the line a little lower and also includes crimes they know for a fact are very serious crimes. ASSEMBLY BILL 3 - Increases penalty for possession of stolen firearm. ASSEMBLY BILL 108 - Increases penalty for stealing certain firearms and for possessing certain stolen firearms. Chairman Humke announced both A.B. 3 and A.B. 108 were heard during the adjournment in Las Vegas. John W. Riggs, Sr., Nevada State Rifle and Pistol Association, stated once again these two bills were essentially the same so A.B. 3 could be eliminated. He reiterated his previous testimony from when A.B. 3 was heard before wherein they request the word "shall" contained on line 19 of A.B. 108 be changed to "may" so it is not mandatory. He asked the committee to recall his prepared testimony which illustrated the fourth man down the line who purchases a weapon not knowing it is stolen and perhaps facing jail because he is in possession of a stolen weapon. Those were the concerns of the association. Chairman Humke acknowledged retired Honorable Roy Torvenien, who was a past chairman of the Judiciary Committee, in the audience. Chairman Humke closed the hearing on the agendized items and moved the committee for bill introductions of the following Bill Draft Requests (B.D.R.): BDR 15-472 Revises punishment for involuntary manslaughter and includes within crime violation of certain traffic laws resulting in another person's death. ASSEMBLYMAN ANDERSON MOVED FOR COMMITTEE INTRODUCTION OF THE BILL DRAFT. ASSEMBLYMAN BATTEN SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT. * * * * * BDR 11-778 Revises provisions governing existence of commissioner townships for civil marriages. ASSEMBLYMAN ANDERSON MOVED FOR COMMITTEE INTRODUCTION OF THE BILL DRAFT. ASSEMBLYMAN PERKINS SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT. * * * * * BDR 1-1208 Revises provision governing amount of money to be paid to jurors for service. ASSEMBLYMAN GOLDWATER MOVED FOR COMMITTEE INTRODUCTION OF THE BILL DRAFT. ASSEMBLYMAN BUCKLEY SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT. Mr. Sarnowski informed the committee they were all invited to donuts and coffee at 7:00 a.m. tomorrow at the Attorney General's office. There being no further business to come before the committee, Chairman Humke adjourned the meeting at 9:20 a.m. RESPECTFULLY SUBMITTED: Joi Davis, Committee Secretary APPROVED BY: Assemblyman Bernie Anderson, Chairman Assemblyman David E. Humke, Chairman Assembly Committee on Judiciary February 21, 1995 Page