BILL NUMBER: AB 1498 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 2, 2009
INTRODUCED BY Assembly Member De Leon
FEBRUARY 27, 2009
An act to amend Section 13826.1 of the Penal Code,
relating to crime prevention. An act to amend Section
12021 of the Penal Code, relating to firearms.
LEGISLATIVE COUNSEL'S DIGEST
AB 1498, as amended, De Leon. Crime prevention: gang
violence. Firearms: possession.
Existing law provides that a person convicted of specified
misdemeanor crimes who, within 10 years of the conviction, owns,
purchases, receives, or has in his or her possession or under his or
her custody or control any firearm is guilty of a public offense,
which shall be punished as specified.
This bill would additionally include within this provision
specified misdemeanor crimes relating to burglary, weapons, and
criminal street gang activity. Because this bill would change the
punishment of a crime, it would impose a state-mandated local
program.
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.
Existing law establishes the Gang Violence Suppression Program to
provide financial and technical assistance for district attorneys'
offices, school districts, and other local agencies and
organizations. Existing law provides guidelines, procedures, and
reporting requirements for the program. Existing law establishes
criteria for funding this program and requires that gang violence
prosecution units receiving funds under this program concentrate
enhanced prosecution efforts and resources upon specified
gang-related cases.
This bill would authorize school districts to enter into memoranda
of understanding with local city attorney and district attorney
offices to ensure the safety of their students pursuant to the
program.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 12021 of the Penal
Code is amended to read:
12021. (a) (1) Any person who has been convicted of a felony
under the laws of the United States, the State of California, or any
other state, government, or country or of an offense enumerated in
subdivision (a), (b), or (d) of Section 12001.6, or who is addicted
to the use of any narcotic drug, and who owns, purchases, receives,
or has in his or her possession or under his or her custody or
control any firearm is guilty of a felony.
(2) Any person who has two or more convictions for violating
paragraph (2) of subdivision (a) of Section 417 and who owns,
purchases, receives, or has in his or her possession or under his or
her custody or control any firearm is guilty of a felony.
(b) Notwithstanding subdivision (a), any person who has been
convicted of a felony or of an offense enumerated in Section 12001.6,
when that conviction results from certification by the juvenile
court for prosecution as an adult in an adult court under Section 707
of the Welfare and Institutions Code, and who owns or has in his or
her possession or under his or her custody or control any firearm is
guilty of a felony.
(c) (1) Except as provided in subdivision (a) or paragraph (2) of
this subdivision, any person who has been convicted of a misdemeanor
violation of Section 71, 76, 136.1, 136.5, or 140, subdivision (d) of
Section 148, Section 171b, 171c, 171d, 186.28, 240, 241, 242, 243,
243.4, 244.5, 245, 245.5, 246.3, 247, 273.5, 273.6, 417, 417.6, 422,
459, 626.9, 646.9, 12023, or 12024, subdivision (a)
of Section 12025, subdivision (b) or (d) of Section 12034,
Section 12040, subdivision (b) of Section 12072, subdivision (a) of
former Section 12100, Section 12220, subdivision (b) of Section
12280, Section 12320, or Section 12590 of this
code , or Section 8100, 8101, or 8103 of the Welfare and
Institutions Code, any firearm-related offense pursuant to Sections
871.5 and 1001.5 of the Welfare and Institutions Code, or of the
conduct punished in paragraph (3) of subdivision (g) of Section
12072, or of any misdemeanor for which the defendant was
punished pursuant to subdivision (d) of Section 186.22,
and who, within 10 years of the conviction, owns, purchases,
receives, or has in his or her possession or under his or her custody
or control, any firearm is guilty of a public offense, which shall
be punishable by imprisonment in a county jail not exceeding one year
or in the state prison, by a fine not exceeding one thousand dollars
($1,000), or by both that imprisonment and fine. The court, on forms
prescribed by the Department of Justice, shall notify the department
of persons subject to this subdivision. However, the prohibition in
this paragraph may be reduced, eliminated, or conditioned as provided
in paragraph (2) or (3).
(2) Any person employed as a peace officer described in Section
830.1, 830.2, 830.31, 830.32, 830.33, or 830.5 whose employment or
livelihood is dependent on the ability to legally possess a firearm,
who is subject to the prohibition imposed by this subdivision because
of a conviction under Section 273.5, 273.6, or 646.9, may petition
the court only once for relief from this prohibition. The petition
shall be filed with the court in which the petitioner was sentenced.
If possible, the matter shall be heard before the same judge who
sentenced the petitioner. Upon filing the petition, the clerk of the
court shall set the hearing date and shall notify the petitioner and
the prosecuting attorney of the date of the hearing. Upon making each
of the following findings, the court may reduce or eliminate the
prohibition, impose conditions on reduction or elimination of the
prohibition, or otherwise grant relief from the prohibition as the
court deems appropriate:
(A) Finds by a preponderance of the evidence that the petitioner
is likely to use a firearm in a safe and lawful manner.
(B) Finds that the petitioner is not within a prohibited class as
specified in subdivision (a), (b), (d), (e), or (g) or Section
12021.1, and the court is not presented with any credible evidence
that the petitioner is a person described in Section 8100 or 8103 of
the Welfare and Institutions Code.
(C) (i) Finds that the petitioner does not have a previous
conviction under this subdivision no matter when the prior conviction
occurred.
(ii) In making its decision, the court shall consider the
petitioner's continued employment, the interest of justice, any
relevant evidence, and the totality of the circumstances. The court
shall require, as a condition of granting relief from the prohibition
under this section, that the petitioner agree to participate in
counseling as deemed appropriate by the court. Relief from the
prohibition shall not relieve any other person or entity from any
liability that might otherwise be imposed. It is the intent of the
Legislature that courts exercise broad discretion in fashioning
appropriate relief under this paragraph in cases in which relief is
warranted. However, nothing in this paragraph shall be construed to
require courts to grant relief to any particular petitioner. It is
the intent of the Legislature to permit persons who were convicted of
an offense specified in Section 273.5, 273.6, or 646.9 to seek
relief from the prohibition imposed by this subdivision.
(3) Any person who is subject to the prohibition imposed by this
subdivision because of a conviction of an offense prior to that
offense being added to paragraph (1) may petition the court only once
for relief from this prohibition. The petition shall be filed with
the court in which the petitioner was sentenced. If possible, the
matter shall be heard before the same judge that sentenced the
petitioner. Upon filing the petition, the clerk of the court shall
set the hearing date and notify the petitioner and the prosecuting
attorney of the date of the hearing. Upon making each of the
following findings, the court may reduce or eliminate the
prohibition, impose conditions on reduction or elimination of the
prohibition, or otherwise grant relief from the prohibition as the
court deems appropriate:
(A) Finds by a preponderance of the evidence that the petitioner
is likely to use a firearm in a safe and lawful manner.
(B) Finds that the petitioner is not within a prohibited class as
specified in subdivision (a), (b), (d), (e), or (g) or Section
12021.1, and the court is not presented with any credible evidence
that the petitioner is a person described in Section 8100 or 8103 of
the Welfare and Institutions Code.
(C) (i) Finds that the petitioner does not have a previous
conviction under this subdivision, no matter when the prior
conviction occurred.
(ii) In making its decision, the court may consider the interest
of justice, any relevant evidence, and the totality of the
circumstances. It is the intent of the Legislature that courts
exercise broad discretion in fashioning appropriate relief under this
paragraph in cases in which relief is warranted. However, nothing in
this paragraph shall be construed to require courts to grant relief
to any particular petitioner.
(4) Law enforcement officials who enforce the prohibition
specified in this subdivision against a person who has been granted
relief pursuant to paragraph (2) or (3) shall be immune from any
liability for false arrest arising from the enforcement of this
subdivision unless the person has in his or her possession a
certified copy of the court order that granted the person relief from
the prohibition. This immunity from liability shall not relieve any
person or entity from any other liability that might otherwise be
imposed.
(d) (1) Any person who, as an express condition of probation, is
prohibited or restricted from owning, possessing, controlling,
receiving, or purchasing a firearm and who owns, purchases, receives,
or has in his or her possession or under his or her custody or
control, any firearm but who is not subject to subdivision (a) or (c)
is guilty of a public offense, which shall be punishable by
imprisonment in a county jail not exceeding one year or in the state
prison, by a fine not exceeding one thousand dollars ($1,000), or by
both that imprisonment and fine. The court, on forms provided by the
Department of Justice, shall notify the department of persons subject
to this subdivision. The notice shall include a copy of the order of
probation and a copy of any minute order or abstract reflecting the
order and conditions of probation.
(2) For any person who is subject to subdivision (a), (b), or (c),
the court shall, at the time judgment is imposed, provide on a form
supplied by the Department of Justice, a notice to the defendant
prohibited by this section from owning, purchasing, receiving,
possessing or having under his or her custody or control, any
firearm. The notice shall inform the defendant of the prohibition
regarding firearms and include a form to facilitate the transfer of
firearms. Failure to provide the notice shall not be a defense to a
violation of this section.
(e) Any person who (1) is alleged to have committed an offense
listed in subdivision (b) of Section 707 of the Welfare and
Institutions Code, an offense described in subdivision (b) of Section
1203.073, any offense enumerated in paragraph (1) of subdivision
(c), or any offense described in subdivision (a) of Section 12025,
subdivision (a) of Section 12031, or subdivision (a) of Section
12034, and (2) is subsequently adjudged a ward of the juvenile court
within the meaning of Section 602 of the Welfare and Institutions
Code because the person committed an offense listed in subdivision
(b) of Section 707 of the Welfare and Institutions Code, an offense
described in subdivision (b) of Section 1203.073, any offense
enumerated in paragraph (1) of subdivision (c), or any offense
described in subdivision (a) of Section 12025, subdivision (a) of
Section 12031, or subdivision (a) of Section 12034, shall not own, or
have in his or her possession or under his or her custody or
control, any firearm until the age of 30 years. A violation of this
subdivision shall be punishable by imprisonment in a county jail not
exceeding one year or in the state prison, by a fine not exceeding
one thousand dollars ($1,000), or by both that imprisonment and fine.
The juvenile court, on forms prescribed by the Department of
Justice, shall notify the department of persons subject to this
subdivision. Notwithstanding any other law, the forms required to be
submitted to the department pursuant to this subdivision may be used
to determine eligibility to acquire a firearm.
(f) Subdivision (a) shall not apply to a person who has been
convicted of a felony under the laws of the United States unless
either of the following criteria is satisfied:
(1) Conviction of a like offense under California law can only
result in imposition of felony punishment.
(2) The defendant was sentenced to a federal correctional facility
for more than 30 days, or received a fine of more than one thousand
dollars ($1,000), or received both punishments.
(g) (1) Every person who purchases or receives, or attempts to
purchase or receive, a firearm knowing that he or she is prohibited
from doing so by a temporary restraining order or injunction issued
pursuant to Section 527.6 or 527.8 of the Code of Civil Procedure, a
protective order as defined in Section 6218 of the Family Code, a
protective order issued pursuant to Section 136.2 or 646.91 of this
code, or a protective order issued pursuant to Section 15657.03 of
the Welfare and Institutions Code, is guilty of a public offense,
which shall be punishable by imprisonment in a county jail not
exceeding one year or in the state prison, by a fine not exceeding
one thousand dollars ($1,000), or by both that imprisonment and fine.
(2) Every person who owns or possesses a firearm knowing that he
or she is prohibited from doing so by a temporary restraining order
or injunction issued pursuant to Section 527.6 or 527.8 of the Code
of Civil Procedure, a protective order as defined in Section 6218 of
the Family Code, a protective order issued pursuant to Section 136.2
or 646.91 of this code, or a protective order issued pursuant to
Section 15657.03 of the Welfare and Institutions Code, is guilty of a
public offense, which shall be punishable by imprisonment in a
county jail not exceeding one year, by a fine not exceeding one
thousand dollars ($1,000), or by both that imprisonment and fine.
(3) The Judicial Council shall provide notice on all protective
orders that the respondent is prohibited from owning, possessing,
purchasing, receiving, or attempting to purchase or receive a firearm
while the protective order is in effect. The order shall also state
that the firearm shall be relinquished to the local law enforcement
agency for that jurisdiction or sold to a licensed gun dealer, and
that proof of surrender or sale shall be filed within a specified
time of receipt of the order. The order shall state the penalties for
a violation of the prohibition. The order shall also state on its
face the expiration date for relinquishment.
(4) If probation is granted upon conviction of a violation of this
subdivision, the court shall impose probation consistent with
Section 1203.097.
(h) (1) A violation of subdivision (a), (b), (c), (d), or (e) is
justifiable where all of the following conditions are met:
(A) The person found the firearm or took the firearm from a person
who was committing a crime against him or her.
(B) The person possessed the firearm no longer than was necessary
to deliver or transport the firearm to a law enforcement agency for
that agency's disposition according to law.
(C) If the firearm was transported to a law enforcement agency, it
was transported in accordance with paragraph (18) of subdivision (a)
of Section 12026.2.
(D) If the firearm is being transported to a law enforcement
agency, the person transporting the firearm has given prior notice to
the law enforcement agency that he or she is transporting the
firearm to the law enforcement agency for disposition according to
law.
(2) Upon the trial for violating subdivision (a), (b), (c), (d),
or (e), the trier of fact shall determine whether the defendant was
acting within the provisions of the exemption created by this
subdivision.
(3) The defendant has the burden of proving by a preponderance of
the evidence that he or she comes within the provisions of the
exemption created by this subdivision.
(i) Subject to available funding, the Attorney General, working
with the Judicial Council, the California Alliance Against Domestic
Violence, prosecutors, and law enforcement, probation, and parole
officers, shall develop a protocol for the implementation of the
provisions of this section. The protocol shall be designed to
facilitate the enforcement of restrictions on firearm ownership,
including provisions for giving notice to defendants who are
restricted, provisions for informing those defendants of the
procedures by which defendants shall dispose of firearms when
required to do so, provisions explaining how defendants shall provide
proof of the lawful disposition of firearms, and provisions
explaining how defendants may obtain possession of seized firearms
when legally permitted to do so pursuant to this section or any other
provision of law. The protocol shall be completed on or before
January 1, 2005.
SEC. 2. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.
SECTION 1. Section 13826.1 of the Penal Code is
amended to read:
13826.1. (a) There is hereby established in the agency or
agencies designated by the Director of Finance pursuant to Section
13820, the Gang Violence Suppression Program, a program of financial
and technical assistance for district attorneys' offices, local law
enforcement agencies, county probation departments, school districts,
county offices of education, or any consortium thereof, and
community-based organizations which are primarily engaged in the
suppression of gang violence. All funds appropriated to the agency or
agencies designated by the Director of Finance pursuant to Section
13820 for the purposes of this chapter shall be administered and
disbursed by the executive director of the agency or agencies
designated by the Director of Finance pursuant to Section 13820 in
consultation with the California Council on Criminal Justice, and
shall to the greatest extent feasible be coordinated or consolidated
with federal funds that may be made available for these purposes.
(b) The executive director is authorized to allocate and award
funds to cities, counties, school districts, county offices of
education, or any consortium thereof, and community-based
organizations in which gang violence suppression programs are
established in substantial compliance with the policies and criteria
set forth in this chapter.
(c) The allocation and award of funds shall be made on the
application of the district attorney, chief law enforcement officer,
or chief probation officer of the applicant unit of government and
approved by the legislative body, on the application of school
districts, county offices of education, or any consortium thereof, or
on the application of the chief executive of a community-based
organization. All programs funded pursuant to this chapter shall work
cooperatively to ensure the highest quality provision of services
and to reduce unnecessary duplication. Funds disbursed under this
chapter shall not supplant local funds that would, in the absence of
the Gang Violence Suppression Program, be made available to support
the activities set forth in this chapter. Funds awarded under this
program as local assistance grants shall not be subject to review as
specified in Section 10295 of the Public Contract Code.
(d) The executive director shall prepare and issue written program
and administrative guidelines and procedures for the Gang Violence
Suppression Program, consistent with this chapter. These guidelines
shall set forth the terms and conditions upon which the agency or
agencies designated by the Director of Finance pursuant to Section
13820 is prepared to offer grants of funds pursuant to statutory
authority. The guidelines do not constitute rules, regulations,
orders, or standards of general application.
(e) Annually, commencing November 1, 1984, the executive director
shall prepare a report to the Legislature describing in detail the
operation of the statewide program and the results obtained by
district attorneys' offices, local law enforcement agencies, county
probation departments, school districts, county offices of education,
or any consortium thereof, and community-based organizations
receiving funds under this chapter and under comparable federally
financed awards.
(f) Criteria for selection of district attorneys' offices, local
law enforcement agencies, county probation departments, school
districts, county offices of education, or any consortium thereof,
and community-based organizations to receive gang violence
suppression funding shall be developed in consultation with the Gang
Violence Suppression Advisory Committee whose members shall be
appointed by the Executive Director of the agency or agencies
designated by the Director of Finance pursuant to Section 13820,
unless otherwise designated.
(g) The Gang Violence Suppression Advisory Committee shall be
composed of five district attorneys; two chief probation officers;
two representatives of community-based organizations; three attorneys
primarily engaged in the practice of juvenile criminal defense;
three law enforcement officials with expertise in gang-related
investigations; one member from the California Youth Authority Gang
Task Force nominated by the Director of the California Youth
Authority; one member of the Department of Corrections Law
Enforcement Liaison Unit nominated by the Director of the Department
of Corrections; one member from the Department of Justice nominated
by the Attorney General; the Superintendent of Public Instruction, or
his or her designee; one member of the California School Boards
Association; and one representative of a school program specializing
in the education of the target population identified in this chapter.
Five members of the Gang Violence Suppression Advisory Committee
appointed by the Executive Director of the agency or agencies
designated by the Director of Finance pursuant to Section 13820 shall
be from rural or predominately suburban counties and shall be
designated by the Executive Director as comprising the Rural Gang
Task Force Subcommittee.
The Rural Gang Task Force Subcommittee, in coordination with the
Gang Violence Suppression Advisory Committee and the agency or
agencies designated by the Director of Finance pursuant to Section
13820, shall review the Gang Violence Suppression Program
participation requirements and recommend changes in the requirements
which recognize the unique conditions and constraints that exist in
small rural jurisdictions and enhance the ability of small rural
jurisdictions to participate in the Gang Violence Suppression
Program.
(h) The Director of the agency or agencies designated by the
Director of Finance pursuant to Section 13820 shall designate a staff
member in the Gang Violence Suppression Program to act as the Rural
Gang Prevention Coordinator and to provide technical assistance and
outreach to rural jurisdictions with emerging gang activities. It is
the intent of the Legislature that compliance with this subdivision
not necessitate an additional staff person.
(i) This section shall be operative January 1, 1994.
(j) Local school districts may enter into memoranda of
understanding with local city attorney and district attorney offices
to ensure the safety of their students pursuant to this chapter.