BILL ANALYSIS
AB 1363
Page 1
Date of Hearing: April 21, 2009
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 1363 (Davis) - As Amended: April 13, 2009
SUMMARY : Clarifies existing provisions of law relating to
concealed firearms by stating that concealed firearm permits
only apply in the county of issuance. Specifically, this bill :
1)Revises the exception to permit the carrying of handguns by
persons as authorized pursuant to provisions relating to
licenses to carry concealed firearms.
2)Deletes language pertaining to reports to be filed by the
Attorney General.
3)Makes other technical, non-substantive changes such as
substituting the term "handgun" for "pistols, revolvers, or
other firearms capable of being concealed upon the person."
4)Specifies that when a sheriff of a county, or the chief or
other head of a municipal police department authorize a person
to carry a concealed firearm, subject to specified criteria
being met, and where the population of the county is less than
200,000 persons according to the most recent federal decennial
census, that the permit is only applicable and enforceable in
the county for which it has been issued.
EXISTING LAW :
1)Permits the sheriff of a county, upon proof that the person
applying is of good moral character, that good cause exists
for the issuance, and that the person applying satisfies any
one of the specified conditions and has completed a course of
training, as specified, may issue to that person a license to
carry a pistol, revolver, or other firearm capable of being
concealed upon the person in either one of the following
formats [Penal Code Section 12050(a)(1)(A)]:
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a) A license to carry concealed a pistol, revolver, or
other firearm capable of being concealed upon the person.
b) Where the population of the county is less than 200,000
persons according to the most recent federal decennial
census, a license to carry loaded and exposed in that
county a pistol, revolver, or other firearm capable of
being concealed upon the person.
c) The following additional conditions must also be met
[Penal Code Section 12050(a)(1)(D)]:
i) Must be a resident of the county or a city within
the county.
ii) Must spend a substantial period of time in the
applicant's principal place of employment or business in
the county or a city within the county.
2)States that the chief or other head of a municipal police
department of any city or city and county, upon proof that the
person applying is of good moral character, that good cause
exists for the issuance, and that the person applying is a
resident of that city and has completed a course of training,
may issue to that person a license to carry a pistol,
revolver, or other firearm capable of being concealed upon the
person in either one of the following formats [Penal Code
Section 12050(a)(1)(B)]:
a) A license to carry concealed a pistol, revolver, or
other firearm capable of being concealed upon the person.
b) Where the population of the county in which the city is
located is less than 200,000 persons according to the most
recent federal decennial census, a license to carry loaded
and exposed in that county a pistol, revolver, or other
firearm capable of being concealed upon the person.
3)States that the sheriff of a county or the chief or other head
of a municipal police department of any city or city and
county, upon proof that the person applying is of good moral
character, that good cause exists for the issuance, and that
the person applying is a person who has been deputized or
appointed as a peace officer by that sheriff or that chief of
police or other head of a municipal police department, may
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issue to that person a license to carry concealed a pistol,
revolver, or other firearm capable of being concealed upon the
person. Direct or indirect fees for the issuance of a license
pursuant to this subparagraph may be waived. The fact that an
applicant for a license to carry a pistol, revolver, or other
firearm capable of being concealed upon the person has been
deputized or appointed as a peace officer shall be considered
only for the purpose of issuing a license pursuant to this
subparagraph, and shall not be considered for the purpose of
issuing a license. [Penal Code Section 12050(a)(1)(C).]
4)States that for new license applicants, the course of training
may be any course acceptable to the licensing authority, shall
not exceed 16 hours, and shall include instruction on at least
firearm safety and the law regarding the permissible use of a
firearm. Notwithstanding this clause, the licensing authority
may require a community college course certified by the
Commission on Peace Officer Standards and Training, up to a
maximum of 24 hours, but only if required uniformly of all
license applicants without exception. [Penal Code Section
12050(a)(1)(E)(i).]
5)Provides for license renewal applicants, the course of
training may be any course acceptable to the licensing
authority, shall be no less than four hours, and shall include
instruction on at least firearm safety and the law regarding
the permissible use of a firearm. No course of training shall
be required for any person certified by the licensing
authority as a trainer for purposes of this subparagraph, in
order for that person to renew a license issued pursuant to
this section. [Penal Code Section 12050(a)(1)(E)(ii).]
6)Provides a person is guilty of carrying a loaded firearm when
he or she carries a loaded firearm on his or her person or in
a vehicle while in any public place or on any public street in
an incorporated city or in any public place or on any public
street in a prohibited area of unincorporated territory.
[Penal Code Section 12031(a)(1).]
7)States that carrying a loaded firearm in violation of this
section is punishable, as follows [Penal Code Section
12031(a)(2)]:
a) Where the person previously has been convicted of any
felony, or of any crime made punishable by this chapter, as
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a felony.
b) Where the firearm is stolen and the person knew or had
reasonable cause to believe that it was stolen, as a
felony.
c) Where the person is an active participant in a criminal
street gang, as a felony.
d) Where the person is not in lawful possession of the
firearm, as defined in this section, or is within a class
of persons prohibited from possessing or acquiring a
firearm pursuant to the Penal Code Section 12021 or 12021.1
or the Welfare and Institutions Code Section 8100 or 8103
as a felony.
e) Where the person has been convicted of a crime against a
person or property, or of a narcotics or dangerous drug
violation, by imprisonment in the state prison, or by
imprisonment in a county jail not to exceed one year, by a
fine not to exceed $1,000, or by both that imprisonment and
fine.
f) Where the person is not listed with the Department of
Justice, as specified, as the registered owner of the
pistol, revolver, or other firearm capable of being
concealed upon the person, by imprisonment in the state
prison, or by imprisonment in a county jail not to exceed
one year, or by a fine not to exceed $1,000, or both that
fine and imprisonment.
g) In all cases other than those specified, as a
misdemeanor, punishable by imprisonment in a county jail
not to exceed one year, by a fine not to exceed $1,000, or
by both that imprisonment and fine.
8)Specifies for purposes of this section, "lawful possession of
the firearm" means that the person who has possession or
custody of the firearm either lawfully acquired and lawfully
owns the firearm or has the permission of the lawful owner or
person who otherwise has apparent authority to possess or have
custody of the firearm. A person who takes a firearm without
the permission of the lawful owner or without the permission
of a person who has lawful custody of the firearm does not
have lawful possession of the firearm. [Penal Code Section
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12031(a)(3).]
9)Provides that every person convicted under this section who
has previously been convicted of an offense enumerated, as
specified, or of any crime made punishable under this chapter,
shall serve a term of at least three months in a county jail,
or, if granted probation or if the execution or imposition of
sentence is suspended, it shall be a condition thereof that he
or she be imprisoned for a period of at least three months.
[Penal Code Section 12031(a)(6)(A).]
10)States that the court shall apply the three-month minimum
sentence except in unusual cases where the interests of
justice would best be served by granting probation or
suspending the imposition or execution of sentence without the
minimum imprisonment required in this subdivision or by
granting probation or suspending the imposition or execution
of sentence with conditions other than those set forth in this
subdivision, in which case, the court shall specify on the
record and shall enter on the minutes the circumstances
indicating that the interests of justice would best be served
by that disposition. [Penal Code Section 12031(a)(6)(B).]
11)States that in order to determine whether or not a firearm is
loaded for the purpose of enforcing this section, peace
officers are authorized to examine any firearm carried by
anyone on his or her person or in a vehicle while in any
public place or on any public street in an incorporated city
or prohibited area of an unincorporated territory. Refusal to
allow a peace officer to inspect a firearm pursuant to this
section constitutes probable cause for arrest for violation of
this section. [Penal Code Section 12031(e).]
12)Specifies that as used in this section, "prohibited area"
means any place where it is unlawful to discharge a weapon.
[Penal Code Section 12031(f).]
13)States a firearm shall be deemed to be loaded for the
purposes of this section when there is an unexpended cartridge
or shell, consisting of a case that holds a charge of powder
and a bullet or shot, in, or attached in any manner to, the
firearm, including, but not limited to, in the firing chamber,
magazine, or clip thereof attached to the firearm; except that
a muzzle-loader firearm shall be deemed to be loaded when it
is capped or primed and has a powder charge and ball or shot
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in the barrel or cylinder. [Penal Code Section 12031(g).]
14)Provides nothing in this section shall prevent any person
engaged in any lawful business, including a nonprofit
organization, or any officer, employee, or agent authorized by
that person for lawful purposes connected with that business,
from having a loaded firearm within the person's place of
business, or any person in lawful possession of private
property from having a loaded firearm on that property.
[Penal Code Section 12031(h).]
15)States that nothing in this section shall prevent any person
from carrying a loaded firearm in an area within an
incorporated city while engaged in hunting, provided that the
hunting at that place and time is not prohibited by the city
council. [Penal Code Section 12031(i).]
16)Provides that nothing in this section is intended to preclude
the carrying of any loaded firearm, under circumstances where
it would otherwise be lawful, by a person who reasonably
believes that the person or property of himself or herself or
of another is in immediate, grave danger and that the carrying
of the weapon is necessary for the preservation of that person
or property. As used in this subdivision, "immediate" means
the brief interval before and after the local law enforcement
agency, when reasonably possible, has been notified of the
danger and before the arrival of its assistance. [Penal Code
Section 12031(j)(1).]
17)States that a violation of this section is justifiable when a
person who possesses a firearm reasonably believes that he or
she is in grave danger because of circumstances forming the
basis of a current restraining order issued by a court against
another person or persons who has or have been found to pose a
threat to his or her life or safety. This paragraph may not
apply when the circumstances involve a mutual restraining
order issued pursuant to Division 10 (commencing with Section
6200) of the Family Code absent a factual finding of a
specific threat to the person's life or safety. It is not the
intent of the Legislature to limit, restrict, or narrow the
application of current statutory or judicial authority to
apply this or other justifications to defendants charged with
violating Section 12025 or of committing other similar
offenses. Upon trial for violating this section, the trier of
fact shall determine whether the defendant was acting out of a
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reasonable belief that he or she was in grave danger. [Penal
Code Section 12031(j)(2).]
18)Specifies that nothing in this section is intended to
preclude the carrying of a loaded firearm by any person while
engaged in the act of making or attempting to make a lawful
arrest. [Penal Code Section 12031(k).]
19)States that nothing in this section shall prevent any person
from having a loaded weapon, if it is otherwise lawful, at his
or her place of residence, including any temporary residence
or campsite. [Penal Code Section 12031(l).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Because of this
oversight and unclear language, there has been confusion. We
want to clarify the law to fulfill the legislative intent of
these sections."
2)Background : According to the background provided by the
author, "Section 12050 of the California Penal Code allows the
sheriff of the county or a chief of police to issue a
concealed weapons permit (also known as a 'CCW permit') to
applicants they deem acceptable according to prescriptions by
law. If approved, the applicant can carry a concealed and
loaded gun. This section also allows both sheriffs and police
chiefs in a county with a population of less than 200,000 to
allow an applicant to carry a loaded and exposed weapon, but
only in that county with a population of less than 200,000.
"Some of these people that have been authorized to carry a
loaded and exposed weapon have been going to other counties,
with a population of over 200,000, with the load and exposed
weapon, which is a violation of their CCW authorization.
Currently in law, Section 12031 of the California Penal Code,
which is the law making it illegal to carry a loaded firearm
in public, provides for an exception to an individual who has
a CCW permit. However, the exception does not appropriately
address the two different CCW authorizations. By making a
simple language change to the exception, Section 12031 will
properly address the two different CCW authorizations and
provide a penalty for individuals who abuse their CCW
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privileges."
3)History of Concealed Weapons License Statute : Since at least
1953 when the current Penal Code Section 12050 was first
enacted, sheriffs and police chiefs have been authorized to
issue licenses to carry concealed weapons (board of police
commissioners and city and town marshal were once given such
authority as well, but were eliminated in 1969). The existing
limitation to issue such licenses to "a resident of the
county" was added in 1969. In 1997, the section was amended
to permit a sheriff to issue a CCW license to any county
resident, and further provided that a city police chief may
issue a CCW license only to city residents. This amendment
limited the authority of a chief or other head of a municipal
police department of any city to issue a CCW license to an
applicant who is a resident of that city.
4)Clarification as to the Applicability and Locality : This bill
clarifies that the position that sheriffs or chiefs of police
may issue "a license to carry loaded and exposed in that
county" means "only that county." A review of relevant case
law finds no legal opinions on the interpretation of this
language. The language was added in the 1997 amendment to
this section. A review of the legislative analyses finds that
the language was intended to only permit the law enforcement
officials to permit the authorization in the county of
issuance. Additionally, the sheriff and chiefs of police only
have jurisdiction over the municipalities and counties in
which they are elected.
5)Argument in Support : According to the Los Angeles County
Sheriff's Department , "Last year, members of my Department's
Field Operations Support Services Unit (in consultation with
the Los Angeles County District Attorney's Office) discovered
an inconsistency in current law as it pertains to the
concealed weapons permit laws.
"Section 12050 of the California Penal Code allows the sheriff
of the county or a chief of police to issue a concealed
weapons permit (also known as a CCW permit) to applicant they
deem acceptable according to prescriptions by law. If
approved, the applicant can carry a concealed and loaded gun.
This section also allows both sheriffs and police chiefs in a
county with a population of less than 200,000 to allow an
applicant to carry a loaded and exposed weapon, but only in
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that county with a population of less than 200,000.
"Some of these people that have been authorized to carry a
loaded and exposed weapon have been going to other counties,
with a population of more than 2000,000, with the loaded and
exposed weapon, which is a violation of their CCW
authorization. Currently in law, Section 1031 of the
California Penal Code, which is the law making it illegal to
carry a loaded firearm in public, provides an exception for an
individual who has a CCW permit. However, the exception does
not appropriately address the two different CCW
authorizations. By making a simple language change to the
exception, Section 1031 will properly address the two
different CCW authorizations and provide a penalty for
individuals who abuse their CCW privileges.
"Additionally, by making the amendment to CCW Section 12050, it
will clarify that an individual can only exercise their
ability to carry a firearm open and loaded, only in the county
in which it was authorized."
6)Prior Legislation : SB 146 (Johnson), Statutes of 1997,
Chapter 408, provided that a sheriff may issue a CCW license
to any county resident, and further provided that a city
police chief may issue a CCW license only to city residents.
REGISTERED SUPPORT / OPPOSITION :
Support
Los Angeles County Sheriff's Department (Sponsor)
California Chapters of the Brady Campaign
Legal Community Against Violence
Opposition
None
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744