BILL ANALYSIS
AB 789
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 789 (De Leon)
As Amended August 26, 2009
Majority vote
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|ASSEMBLY: |78-0 |(May 28, 2009) |SENATE: |26-6 |(September 1, |
| | | | | |2009) |
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Original Committee Reference: PUB. S.
SUMMARY : Expands conditions under which a judge may issue a
search warrant.
The Senate amendments:
1)Remove a reference to a California appellate court ruling.
2)Allow a search warrant may be issued when a prohibited firearm
is possessed, owned in the custody of, or controlled by a
person against whom a protective order has been lawfully
issued and the person has failed to relinquish the firearm as
required by law.
3)Add the provisions incorporated under this bill to Penal Code
Section 1524 relating to the issuance of a search warrant.
EXISTING LAW :
1)Defines a "search warrant" as an order in writing in the name
of the people, signed by a magistrate, directed to a peace
officer, commanding him or her to search for a person or
persons, a thing or things, or personal property, and in the
case of a thing or things or personal property, bring the same
before the magistrate.
2)States that a search warrant may be issued upon any of the
following grounds:
a) When the property was stolen or embezzled;
b) When the property or things were used as the means of
committing a felony;
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c) When the property or things are in the possession of any
person with the intent to use them as a means of committing
a public offense, or in the possession of another to whom
he or she may have delivered them for the purpose of
concealing them or preventing them from being discovered;
d) When the property or things to be seized consist of any
item or constitute any evidence that tends to show a felony
has been committed, or tends to show that a particular
person has committed a felony;
e) When the property or things to be seized consist of
evidence that tends to show that sexual exploitation of a
child, or possession of matter depicting sexual conduct of
a person under the age of 18 years, has occurred or is
occurring;
f) When there is a warrant to arrest a person; and,
g) When a provider of electronic communication service or
remote computing service has records or evidence, showing
that property was stolen or embezzled constituting a
misdemeanor, or that property or things are in the
possession of any person with the intent to use them as a
means of committing a misdemeanor public offense, or in the
possession of another to whom he or she may have delivered
them for the purpose of concealing them or preventing their
discovery.
3)Allows peace officers at the scene of a domestic violence
incident involving a threat to human life or a physical
assault, to take temporary custody of any firearm or other
deadly weapon in plain sight or discovered pursuant to a
consensual or other lawful search as necessary for the
protection of the peace officer or other persons present.
Upon taking custody of a firearm or other deadly weapon, the
officer shall give the owner or person who possessed the
firearm a receipt. The receipt shall describe the firearm or
other deadly weapon and list any identification or serial
number on the firearm. The receipt shall indicate where the
firearm or other deadly weapon can be recovered, the time
limit for recovery as required by this section, and the date
after which the owner or possessor can recover the firearm or
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other deadly weapon. No firearm or other deadly weapon shall
be held less than 48 hours. If a firearm or other deadly
weapon is not retained for use as evidence related to criminal
charges brought as a result of the domestic violence incident
or is not retained because it was illegally possessed, the
firearm or other deadly weapon shall be made available to the
owner or person who was in lawful possession 48 hours after
the seizure or as soon thereafter as possible, but no later
than five business days.
4)Specifies that in domestic violence cases in which a law
enforcement agency has reasonable cause to believe that the
return of a firearm or other deadly weapon would be likely to
result in endangering the victim or the person reporting the
assault or threat, the agency shall advise the owner of the
firearm or other deadly weapon, and within 60 days of the date
of seizure, initiate a petition in superior court to determine
if the firearm or other deadly weapon should be returned.
AS PASSED BY THE ASSEMBLY, this bill:
1)Authorized the issuance of a search warrant when the property
or things to be seized include a firearm that is owned by, or
in the possession of, or in the custody or control of a person
who is subject to the prohibitions regarding firearms pursuant
to protective orders issued to prevent the molesting,
attacking, striking, stalking, threatening, sexually
assaulting, battering, harassing, telephoning, destroying
personal property; contacting, either directly or indirectly,
by mail or otherwise; coming within a specified distance of,
or disturbing the peace of, the other party; and, in the
discretion of the court, on a showing of good cause, of other
named family or household members.
2)Stated that it is the intent of the Legislature to address the
holding in People v. Sweig (2008) 167 Ca. App.4th 1145 and the
court's suggestion that the Legislature "address the statutory
flaw" highlighted in that case. It is not legislative intent
to authorize the seizure of any firearms not owned by, or in
the possession of, or under the custody or control or, any
person not subject to a domestic violence restraining order,
as specified.
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FISCAL EFFECT : None
COMMENTS : According to the author, "AB 789 will protect victims
of domestic violence by strengthening California law to
authorize a search warrant for law enforcement to temporarily
seize firearms and other dangerous weapons from domestic
violence offenders."
Please see the policy committee for a full discussion of this
bill.
Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
319-3744 FN:
0002547