BILL NUMBER: SB 282 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY FEBRUARY 23, 2010
AMENDED IN ASSEMBLY JUNE 24, 2009
AMENDED IN SENATE MAY 5, 2009
AMENDED IN SENATE APRIL 13, 2009
INTRODUCED BY Senator Wright
FEBRUARY 24, 2009
An act to amend Section 186.22a of the Penal Code,
relating to gangs Sections 12061 and 12077 of the
Penal Code, relating to deadly weapons transaction records .
LEGISLATIVE COUNSEL'S DIGEST
SB 282, as amended, Wright. Criminal street gangs:
injunction: petition to terminate. Deadly weapons
transaction records: firearms and ammunition.
Existing law provides that commencing February 1, 2011, a vendor
shall not sell or otherwise transfer ownership of any handgun
ammunition without, at the time of delivery, legibly recording
specified information regarding the purchaser or transferee, and
maintaining the record for a period of not less than 5 years, as
specified. Existing law provides that violation of these provisions
is a misdemeanor. Existing law also provides that the records shall
be subject to inspection by any peace officer and certain others, as
specified, for purposes of an investigation where access to those
records is or may be relevant to that investigation, when seeking
information about persons prohibited from owning a firearm or
ammunition, or when engaged in ensuring compliance with laws
pertaining to firearms or ammunition, as specified.
This bill would provide that commencing February 1, 2011, except
for investigatory and enforcement purposes described above, no
ammunition vendor shall provide the required information to any 3rd
party, or use the information for business purposes, without the
written consent of the purchaser or transferee. The bill would also
provide that any required ammunition records that are no longer
required to be maintained shall be destroyed in a manner that
protects the privacy of the purchaser or transferee who is the
subject of the record. The bill would provide that violation of these
provisions is a misdemeanor.
By expanding the scope of an existing crime, this bill would
impose a state-mandated local program.
Existing law requires certain information be collected by firearms
dealers in connection with the transfer of firearms and submitted to
the Department of Justice, as specified.
This bill would provide that no firearms dealer shall provide the
information required by those provisions to any 3rd party, or use the
information for any business purposes not required by those
provisions, without the written consent of the purchaser or
transferee.
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 provides for injunctive relief from the unlawful
activities of criminal street gangs, the duration of which is within
the court's discretion. Existing law provides for injunctive relief
from a person who engages in harassment, as specified, of a duration
of not more than 3 years, and provides that, at any time within the 3
months before the expiration of the injunction prohibiting
harassment, the plaintiff may apply for a renewal of that injunction
by filing a new petition.
This bill would provide that, in addition to any other
administrative or judicial remedies, in an action relating to an
injunction issued against an individual who is a criminal street gang
member, the individual may file a specified petition with the court
to terminate the criminal street gang injunction against the
individual. The bill would require the petition to be filed under
penalty of perjury and to certify that the individual has not
violated the injunction or been convicted of committing a new felony
or misdemeanor and that not less than 5 years have elapsed between
the application of the injunction to the individual and the filing of
the petition for termination. By expanding the scope of the crime of
perjury, the bill would impose a state-mandated local program. The
bill would require the court to grant the petition under specified
circumstances. The bill would require the Judicial Council, by
September 1, 2010, to develop, approve, and adopt forms and notices
relating to the petition for termination of a criminal street gang
injunction against an individual, as specified. The bill would
express legislative findings, declarations, and intent regarding the
enactment of its provisions.
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.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 12061 of the Penal
Code is amended to read:
12061. (a) A vendor shall comply with all of the following
conditions, requirements and prohibitions:
(1) A vendor shall not permit any employee who the vendor knows or
reasonably should know is a person described in Section 12021 or
12021.1 of this code or Section 8100 or 8103 of the Welfare and
Institutions Code to handle, sell, or deliver handgun ammunition in
the course and scope of his or her employment.
(2) A vendor shall not sell or otherwise transfer ownership of,
offer for sale or otherwise offer to transfer ownership of, or
display for sale or display for transfer of ownership of any handgun
ammunition in a manner that allows that ammunition to be accessible
to a purchaser or transferee without the assistance of the vendor or
employee thereof.
(3) Commencing February 1, 2011, a vendor shall not sell or
otherwise transfer ownership of any handgun ammunition without, at
the time of delivery, legibly recording the following information:
(A) The date of the sale or other transaction.
(B) The purchaser's or transferee's driver's license or other
identification number and the state in which it was issued.
(C) The brand, type, and amount of ammunition sold or otherwise
transferred.
(D) The purchaser's or transferee's signature.
(E) The name of the salesperson who processed the sale or other
transaction.
(F) The right thumbprint of the purchaser or transferee on the
above form.
(G) The purchaser's or transferee's full residential address and
telephone number.
(H) The purchaser's or transferee's date of birth.
(4) Commencing February 1, 2011, the records required by this
section shall be maintained on the premises of the vendor for a
period of not less than five years from the date of the recorded
transfer. Commencing February 1, 2011, except for the purposes
set forth in paragraph (5), no vendor shall provide the information
specified in paragraph (3) to any third party, or use the information
for any business purposes, without the written consent of the
purchaser or transferee. Any records required by this section that
are no longer required to be maintained shall be destroyed in a
manner that protects the privacy of the purchaser or transferee who
is the subject of the record.
(5) Commencing February 1, 2011, the records referred to in
paragraph (3) shall be subject to inspection at any time during
normal business hours by any peace officer employed by a sheriff,
city police department, or district attorney as provided in
subdivision (a) of Section 830.1, or employed by the department as
provided in subdivision (b) of Section 830.1, provided the officer is
conducting an investigation where access to those records is or may
be relevant to that investigation, is seeking information about
persons prohibited from owning a firearm or ammunition, or is engaged
in ensuring compliance with the Dangerous Weapons Control Law
(Chapter 1 (commencing with Section 12000) of Title 2 of Part 4), or
any other laws pertaining to firearms or ammunition. The records
shall also be subject to inspection at any time during normal
business hours by any other employee of the department, provided that
employee is conducting an investigation where access to those
records is or may be relevant to that investigation, is seeking
information about persons prohibited from owning a firearm or
ammunition, or is engaged in ensuring compliance with the Dangerous
Weapons Control Law (Chapter 1 (commencing with Section 12000) of
Title 2 of Part 4), or any other laws pertaining to firearms or
ammunition.
(6) Commencing February 1, 2011, the vendor shall not knowingly
make a false entry in, fail to make a required entry in, fail to
obtain the required thumbprint, or otherwise fail to maintain in the
required manner records prepared in accordance with paragraph (2). If
the right thumbprint is not available, then the vendor shall have
the purchaser or transferee use his or her left thumb, or any
available finger, and shall so indicate on the form. If the purchaser
or transferee is physically unable to provide a thumbprint or
fingerprint, the vendor shall so indicate on the form.
(7) Commencing February 1, 2011, no vendor shall refuse to permit
a person authorized under paragraph (5) to examine any record
prepared in accordance with this section during any inspection
conducted pursuant to this section, or refuse to permit the use of
any record or information by those persons.
(b) Paragraph (3) of subdivision (a) shall not apply to or affect
sales or other transfers of ownership of handgun ammunition by
handgun ammunition vendors to any of the following, if properly
identified:
(1) A person licensed pursuant to Section 12071.
(2) A handgun ammunition vendor.
(3) A person who is on the centralized list maintained by the
department pursuant to Section 12083.
(4) A target facility which holds a business or regulatory
license.
(5) Gunsmiths.
(6) Wholesalers.
(7) Manufacturers or importers of firearms licensed pursuant to
Chapter 44 (commencing with Section 921) of Title 18 of the United
States Code, and the regulations issued pursuant thereto.
(8) Sales or other transfers of ownership made to authorized law
enforcement representatives of cities, counties, cities and counties,
or state or federal governments for exclusive use by those
government agencies if, prior to the delivery, transfer, or sale of
handgun ammunition, written authorization from the head of the agency
authorizing the transaction is presented to the person from whom the
purchase, delivery, or transfer is being made. Proper written
authorization is defined as verifiable written certification from the
head of the agency by which the purchaser, transferee, or person
otherwise acquiring ownership is employed, identifying the employee
as an individual authorized to conduct the transaction, and
authorizing the transaction for the exclusive use of the agency by
which he or she is employed.
(c) (1) A violation of paragraph (3), (4), (6), or (7) of
subdivision (a) is a misdemeanor.
(2) The provisions of this subdivision are cumulative, and shall
not be construed as restricting the application of any other law.
However, an act or omission punishable in different ways by different
provisions of law shall not be punished under more than one
provision.
SEC. 2. Section 12077 of the Penal Code
is amended to read:
12077. (a) The Department of Justice shall prescribe the form of
the register and the record of electronic transfer pursuant to
Section 12074.
(b) (1) For handguns, information contained in the register or
record of electronic transfer shall be the date and time of sale,
make of firearm, peace officer exemption status pursuant to
subdivision (a) of Section 12078 and the agency name, dealer waiting
period exemption pursuant to subdivision (n) of Section 12078,
dangerous weapons permitholder waiting period exemption pursuant to
subdivision (r) of Section 12078, curio and relic waiting period
exemption pursuant to subdivision (t) of Section 12078, California
Firearms Dealer number issued pursuant to Section 12071, for
transactions occurring prior to January 1, 2003, the purchaser's
basic firearms safety certificate number issued pursuant to Sections
12805 and 12809, for transactions occurring on or after January 1,
2003, the purchaser's handgun safety certificate number issued
pursuant to Article 8 (commencing with Section 12800), manufacturer's
name if stamped on the firearm, model name or number, if stamped on
the firearm, if applicable, serial number, other number (if more than
one serial number is stamped on the firearm), any identification
number or mark assigned to the firearm pursuant to Section 12092,
caliber, type of firearm, if the firearm is new or used, barrel
length, color of the firearm, full name of purchaser, purchaser's
complete date of birth, purchaser's local address, if current address
is temporary, complete permanent address of purchaser,
identification of purchaser, purchaser's place of birth (state or
country), purchaser's complete telephone number, purchaser's
occupation, purchaser's sex, purchaser's physical description, all
legal names and aliases ever used by the purchaser, yes or no answer
to questions that prohibit purchase including, but not limited to,
conviction of a felony as described in Section 12021 or an offense
described in Section 12021.1, the purchaser's status as a person
described in Section 8100 of the Welfare and Institutions Code,
whether the purchaser is a person who has been adjudicated by a court
to be a danger to others or found not guilty by reason of insanity,
whether the purchaser is a person who has been found incompetent to
stand trial or placed under conservatorship by a court pursuant to
Section 8103 of the Welfare and Institutions Code, signature of
purchaser, signature of salesperson (as a witness to the purchaser's
signature), salesperson's certificate of eligibility number if he or
she has obtained a certificate of eligibility, name and complete
address of the dealer or firm selling the firearm as shown on the
dealer's license, the establishment number, if assigned, the dealer's
complete business telephone number, any information required by
Section 12082, any information required to determine whether or not
paragraph (6) of subdivision (c) of Section 12072 applies, and a
statement of the penalties for any person signing a fictitious name
or address or for knowingly furnishing any incorrect information or
for knowingly omitting any information required to be provided for
the register.
(2) Effective January 1, 2003, the purchaser shall provide his or
her right thumbprint on the register in a manner prescribed by the
department. No exception to this requirement shall be permitted
except by regulations adopted by the department.
(3) The firearms dealer shall record on the register or record of
electronic transfer the date that the handgun is delivered.
(c) (1) For firearms other than handguns, information contained in
the register or record of electronic transfer shall be the date and
time of sale, peace officer exemption status pursuant to subdivision
(a) of Section 12078 and the agency name, auction or event waiting
period exemption pursuant to subdivision (g) of Section 12078,
California Firearms Dealer number issued pursuant to Section 12071,
dangerous weapons permitholder waiting period exemption pursuant to
subdivision (r) of Section 12078, curio and relic waiting period
exemption pursuant to paragraph (1) of subdivision (t) of Section
12078, full name of purchaser, purchaser's complete date of birth,
purchaser's local address, if current address is temporary, complete
permanent address of purchaser, identification of purchaser,
purchaser's place of birth (state or country), purchaser's complete
telephone number, purchaser's occupation, purchaser's sex, purchaser'
s physical description, all legal names and aliases ever used by the
purchaser, yes or no answer to questions that prohibit purchase,
including, but not limited to, conviction of a felony as described in
Section 12021 or an offense described in Section 12021.1, the
purchaser's status as a person described in Section 8100 of the
Welfare and Institutions Code, whether the purchaser is a person who
has been adjudicated by a court to be a danger to others or found not
guilty by reason of insanity, whether the purchaser is a person who
has been found incompetent to stand trial or placed under
conservatorship by a court pursuant to Section 8103 of the Welfare
and Institutions Code, signature of purchaser, signature of
salesperson (as a witness to the purchaser's signature), salesperson'
s certificate of eligibility number if he or she has obtained a
certificate of eligibility, name and complete address of the dealer
or firm selling the firearm as shown on the dealer's license, the
establishment number, if assigned, the dealer's complete business
telephone number, any information required by Section 12082, and a
statement of the penalties for any person signing a fictitious name
or address or for knowingly furnishing any incorrect information or
for knowingly omitting any information required to be provided for
the register.
(2) Effective January 1, 2003, the purchaser shall provide his or
her right thumbprint on the register in a manner prescribed by the
department. No exception to this requirement shall be permitted
except by regulations adopted by the department.
(3) The firearms dealer shall record on the register or record of
electronic transfer the date that the firearm is delivered.
(d) Where the register is used, the following shall apply:
(1) Dealers shall use ink to complete each document.
(2) The dealer or salesperson making a sale shall ensure that all
information is provided legibly. The dealer and salespersons shall be
informed that incomplete or illegible information will delay sales.
(3) Each dealer shall be provided instructions regarding the
procedure for completion of the form and routing of the form. Dealers
shall comply with these instructions which shall include the
information set forth in this subdivision.
(4) One firearm transaction shall be reported on each record of
sale document. For purposes of this subdivision, a "transaction"
means a single sale, loan, or transfer of any number of firearms that
are not handguns.
(e) The dealer or salesperson making a sale shall ensure that all
required information has been obtained from the purchaser. The dealer
and all salespersons shall be informed that incomplete information
will delay sales.
(f) Effective January 1, 2003, the purchaser's name, date of
birth, and driver's license or identification number shall be
obtained electronically from the magnetic strip on the purchaser's
driver's license or identification and shall not be supplied by any
other means except as authorized by the department. This requirement
shall not apply in either of the following cases:
(1) The purchaser's identification consists of a military
identification card.
(2) Due to technical limitations, the magnetic stripe reader is
unable to obtain the required information from the purchaser's
identification. In those circumstances, the firearms dealer shall
obtain a photocopy of the identification as proof of compliance.
(3) In the event that the dealer has reported to the department
that the dealer's equipment has failed, information pursuant to this
subdivision shall be obtained by an alternative method to be
determined by the department.
(g) No dealer shall provide the information required by this
section to any third party, or use the information for any business
purposes not required by this section, without the written consent of
the purchaser or transferee.
(g)
(h) As used in this section, the following definitions
shall control:
(1) "Purchaser" means the purchaser or transferee of a firearm or
the person being loaned a firearm.
(2) "Purchase" means the purchase, loan, or transfer of a firearm.
(3) "Sale" means the sale, loan, or transfer of a firearm.
SEC. 3. 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. (a) The Legislature finds and
declares the following:
(1) Under federal law applicable to the California gang database
(28 C.F.R. 23.20(h)), there is a five-year limit on the retention of
names in the system.
(2) Under state law relating to the registration of gang offenders
(subd. (c), Sec. 186.32, Pen. C.), there is a five-year limit on the
application of registration requirements on gang offenders.
(3) Existing law does not provide a time limit on the duration of
gang injunctions as applied to an individual.
(b) It is the intent of the Legislature in enacting this bill to
provide a time limit on the duration of gang injunctions as applied
to an individual that is consistent with related state and federal
law involving gangs.
SEC. 2. Section 186.22a of the Penal Code is
amended to read:
186.22a. (a) Every building or place used by members of a
criminal street gang for the purpose of the commission of the
offenses listed in subdivision (e) of Section 186.22 or any offense
involving dangerous or deadly weapons, burglary, or rape, and every
building or place wherein or upon which that criminal conduct by gang
members takes place, is a nuisance which shall be enjoined, abated,
and prevented, and for which damages may be recovered, whether it is
a public or private nuisance.
(b) Any action for injunction or abatement filed pursuant to
subdivision (a), including an action filed by the Attorney General,
shall proceed according to the provisions of Article 3 (commencing
with Section 11570) of Chapter 10 of Division 10 of the Health and
Safety Code, except that all of the following shall apply:
(1) The court shall not assess a civil penalty against any person
unless that person knew or should have known of the unlawful acts.
(2) No order of eviction or closure may be entered.
(3) All injunctions issued shall be limited to those necessary to
protect the health and safety of the residents or the public or those
necessary to prevent further criminal activity.
(4) Suit may not be filed until 30-day notice of the unlawful use
or criminal conduct has been provided to the owner by mail, return
receipt requested, postage prepaid, to the last known address.
(5) (A) In addition to any other applicable administrative or
judicial remedies, in any action relating to an individual subject to
an injunction issued pursuant to this section or issued pursuant to
Section 3479 or 3480 of the Civil Code enjoining criminal street gang
activity as a nuisance, the individual may petition the court to
terminate the gang injunction against the individual pursuant to
these provisions.
(B) The defendant shall file the original petition to terminate an
injunction with the court that issued the injunction and shall serve
a copy of the petition on the agency that prosecuted the case.
(C) The individual shall in the petition certify, under penalty of
perjury, the following:
(i) The individual has not violated the subject injunction.
(ii) The individual has not been convicted of committing a new
felony or misdemeanor.
(iii) Not less than five years have elapsed between the
application of the injunction to the individual and the filing of
this petition.
(D) If any of the information required in subparagraph (C) is
missing from the petition, or if proof of service on the prosecuting
agency is not provided, the court shall return the petition to the
individual and advise him or her that the matter cannot be considered
without the missing information.
(E) A reply to the petition, if any, shall be filed with the court
within 60 days of the date on which the prosecuting agency is served
with the motion, unless a continuance is granted for good cause.
(F) If the court finds by a preponderance of the evidence that the
statements in the petition are true, or if no reply to the petition
is filed, the court shall grant the petition to terminate the
injunction as regards the individual.
(c) Whenever an injunction is issued pursuant to subdivision (a),
or Section 3479 of the Civil Code, to abate gang activity
constituting a nuisance, the Attorney General or any district
attorney or any prosecuting city attorney may maintain an action for
monetary damages on behalf of the community or neighborhood injured
by that nuisance. Any monetary damages awarded shall be paid by or
collected from assets of the criminal street gang or its members.
Only members of the criminal street gang who created, maintained, or
contributed to the creation or maintenance of the nuisance shall be
personally liable for the payment of the damages awarded. In a civil
action for damages brought pursuant to this subdivision, the Attorney
General, district attorney, or city attorney may use, but is not
limited to the use of, the testimony of experts to establish damages
suffered by the community or neighborhood injured by the nuisance.
The damages recovered pursuant to this subdivision shall be deposited
into a separate segregated fund for payment to the governing body of
the city or county in whose political subdivision the community or
neighborhood is located, and that governing body shall use those
assets solely for the benefit of the community or neighborhood that
has been injured by the nuisance.
(d) No nonprofit or charitable organization which is conducting
its affairs with ordinary care or skill, and no governmental entity,
shall be abated pursuant to subdivisions (a) and (b).
(e) Nothing in this chapter shall preclude any aggrieved person
from seeking any other remedy provided by law.
(f) (1) Any firearm, ammunition which may be used with the
firearm, or any deadly or dangerous weapon which is owned or
possessed by a member of a criminal street gang for the purpose of
the commission of any of the offenses listed in subdivision (e) of
Section 186.22, or the commission of any burglary or rape, may be
confiscated by any law enforcement agency or peace officer.
(2) In those cases where a law enforcement agency believes that
the return of the firearm, ammunition, or deadly weapon confiscated
pursuant to this subdivision, is or will be used in criminal street
gang activity or that the return of the item would be likely to
result in endangering the safety of others, the law enforcement
agency shall initiate a petition in the superior court to determine
if the item confiscated should be returned or declared a nuisance.
(3) No firearm, ammunition, or deadly weapon shall be sold or
destroyed unless reasonable notice is given to its lawful owner if
his or her identity and address can be reasonably ascertained. The
law enforcement agency shall inform the lawful owner, at that person'
s last known address by registered mail, that he or she has 30 days
from the date of receipt of the notice to respond to the court clerk
to confirm his or her desire for a hearing and that the failure to
respond shall result in a default order forfeiting the confiscated
firearm, ammunition, or deadly weapon as a nuisance.
(4) If the person requests a hearing, the court clerk shall set a
hearing no later than 30 days from receipt of that request. The court
clerk shall notify the person, the law enforcement agency involved,
and the district attorney of the date, time, and place of the
hearing.
(5) At the hearing, the burden of proof is upon the law
enforcement agency or peace officer to show by a preponderance of the
evidence that the seized item is or will be used in criminal street
gang activity or that return of the item would be likely to result in
endangering the safety of others. All returns of firearms shall be
subject to Section 12021.3.
(6) If the person does not request a hearing within 30 days of the
notice or the lawful owner cannot be ascertained, the law
enforcement agency may file a petition that the confiscated firearm,
ammunition, or deadly weapon be declared a nuisance. If the items are
declared to be a nuisance, the law enforcement agency shall dispose
of the items as provided in Section 12028.
SEC. 3. The Judicial Council shall, by
September 1, 2010, do both of the following:
(a) Develop, approve, and adopt a petition form that meets the
requirements of paragraph (5) of subdivision (b) of Section 186.22a
of the Penal Code. The form of the petition shall be as simple as
possible, requiring only that the petitioner fill out his or her
name, check any applicable box or boxes, and provide a signature,
under penalty of perjury. The petition shall contain a notice that if
an individual cannot afford the petition filing fee, the individual
may file for a waiver of the fee under Section 68632 of the
Government Code.
(b) Ensure that an injunction issued against an individual
pursuant to Section 186.22a of the Penal Code or issued pursuant to
Section 3479 or 3480 of the Civil Code enjoining criminal street gang
activity as a nuisance shall prominently display a notice, in bold
20-point type, that states that the individual may, after five years,
petition the court to terminate the injunction by use of the form
described in subdivision (a).
SEC. 4. 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.