BILL NUMBER: AB 1084 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Melendez
(Coauthors: Assembly Members Achadjian, Bigelow, Conway, Beth
Gaines, Gorell, Hagman, Harkey, Linder, and Morrell)
(Coauthor: Senator Gaines)
FEBRUARY 22, 2013
An act to amend Sections 626.9, 626.95, 3000.08, 3451, 25400,
25850, 27590, 29800, 29805, 29900, and 29905 of the Penal Code, and
to amend Sections 8100, 8101, 8103, and 8104 of the Welfare and
Institutions Code, relating to firearms.
LEGISLATIVE COUNSEL'S DIGEST
AB 1084, as introduced, Melendez. Firearms: punishment.
(1) Existing law prohibits a person from possessing a firearm in a
place that the person knows, or reasonably should know, is a school
zone, unless it is with the written permission of the school district
superintendent. Under existing law, any person who violates this
provision by possessing a firearm in, or on the grounds of, a public
or private school providing instruction in kindergarten or grades 1
to 12, inclusive, is punishable by imprisonment in a county jail for
2, 3, or 4 years. Under existing law, any person who violates this
provision by possessing a firearm within a distance of 1,000 feet
from the grounds of a public or private school providing instruction
in kindergarten or grades 1 to 12, inclusive, is punishable by
imprisonment in a county jail for 2, 3, or 4 years.
This bill would make a violation of the above provisions
punishable in the state prison. If the person is within a class of
persons prohibited from possessing a firearm, the bill would require
the person to be punished in the state prison for 4, 5, or 6 years if
the violation was on the school grounds, and by imprisonment in the
state prison for 3, 4, or 5 years if the violation was within 1,000
feet from the school grounds. In the case of a person who is within a
class of persons prohibited from possessing a firearm, the bill
would also require a mandatory 9-month term of incarceration in a
county jail as a condition of probation. By increasing the punishment
for certain crimes, this bill would impose a state-mandated local
program.
(2) Existing law makes it unlawful for any person, with reckless
disregard for the safety of another, to discharge, or attempt to
discharge, a firearm in a school zone, punishable by imprisonment in
a county jail for 3, 5, or 7 years.
This bill would make this crime punishable in the state prison.
(3) Existing law makes it a crime to bring or possess a firearm,
or a loaded firearm, upon the grounds of a campus of a public or
private university. Under existing law the crime is punishable by
imprisonment in a county jail for 1, 2, or 3 years if the firearm was
unloaded, and 2, 3, or 4 years if loaded.
This bill would make these crimes punishable in a state prison,
and in the case of an unloaded firearm, would increase the minimum
term from 1 year to 16 months. In the case of a person who is within
a class of persons prohibited from possessing a firearm, the bill
would impose a state prison sentence of 3, 4, or 5 years, and a
mandatory 6-month jail term as a condition of probation, if probation
is granted, for a loaded firearm, and a state prison sentence of 2,
3, or 4 years, and a mandatory 3-month jail term as a condition of
probation, if probation is granted, for an unloaded firearm. By
increasing the punishment for a crime, and by creating new crimes,
this bill would impose a state-mandated local program.
(4) Under existing law it is a crime for any person to brandish a
firearm, unlawfully carry a concealed firearm, or carry a loaded
firearm, upon the grounds of or within a playground, or a public or
private youth center during operating hours, punishable by
imprisonment in a county jail for 1, 2, or 3 years.
This bill would make a felony violation of this crime punishable
in the state prison and would increase the minimum term from 1 year
to 16 months. In the case of a person who is within a class of
persons prohibited from possessing a firearm, the bill would impose a
prison sentence of 2, 3, or 4 years, and a mandatory 6-month jail
term as a condition of probation, if probation is granted. By
increasing the punishment for a crime, this bill would impose a
state-mandated local program.
(5) Existing law requires that all persons released from prison on
and after October 1, 2011, after serving a prison term for a felony
be subject to postrelease community supervision provided by a county
agency for a period of 3 years immediately following release, except
for persons released after serving a term for a serious felony, a
violent felony, an offense for which the person was sentenced
pursuant to the 3 strikes law, a crime where the person is classified
as a High Risk Sex Offender, or a crime where the person is required
to undergo treatment by the State Department of State Hospitals
because the person has a severe mental disorder. Existing law
requires these persons to be subject to parole supervision by the
Department of Corrections and Rehabilitation following release from
state prison.
This bill would additionally require that specified persons
released from state prison on or after January 1, 2014, be subject to
parole supervision by the Department of Corrections and
Rehabilitation, including persons who have a current or prior felony
conviction for any offense involving deadly weapons, any person who
commits assault upon a person with a deadly weapon, a firearm, a
machinegun, or a semiautomatic firearm, or who commits assault on a
peace officer, any person who has a prior conviction for a serious or
violent felony involving the use of a deadly or dangerous weapon or
firearm, any person who has a current or prior conviction for any
homicide or attempted homicide offense, any person who receives a
sentence enhancement for carrying a firearm in the commission of any
street gang crimes, who was armed with a firearm in the commission of
a felony, or who had in his or her immediate possession ammunition
designed primarily to penetrate metal armor or who wore a body vest
in the commission of a felony or violent offense, and any person who
has a current or prior conviction of a crime involving bringing
firearms in a school zone or playground.
(6) Existing law generally prohibits the carrying of a concealed
firearm. If a person has previously been convicted of any felony, or
certain other specified crimes, existing law makes a violation of the
law against carrying a concealed weapon a felony, punishable by
imprisonment in the state prison for 16 months, or 2 or 3 years, and
imposes a mandatory 3-month jail term as a condition of probation, if
probation is granted.
This bill would instead make this crime punishable by imprisonment
in the state prison for 2, 3, or 4 years, and would increase the
mandatory jail term imposed as a condition of probation to 6 months.
If the person has been previously convicted of certain specified
violent felonies, the bill would require imprisonment in the state
prison for 3, 4, or 5 years, and would impose a mandatory jail term
of 9 months as a condition of probation, if probation is granted. By
increasing the punishment for a crime, this bill would impose a state
mandated local program.
(7) Under existing law, a person is guilty of carrying a loaded
firearm when the person carries a loaded firearm on the 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 unicorporated territory. Under existing law, a
violation of this provision where the person has been convicted of
any felony, or of certain specified crimes, is punishable by
imprisonment in the state prison for 16 months, or 2 or 3 years.
This bill would instead make this crime punishable by imprisonment
in the state prison for 2, 3, or 4 years, and would impose a
mandatory jail term of 6 months as a condition of probation, if
probation is granted. If the person has previously been convicted of
certain specified felonies, the bill would require imprisonment in
the state prison for 3, 4, or 5 years, and would impose a mandatory
jail term of 9 months as a condition of probation, if probation is
granted. By increasing the punishment for a crime, this bill would
impose a state-mandated local program.
(8) Existing law makes it a misdemeanor to furnish a firearm to
certain specified classes of people who are prohibited from having a
firearm. If the violation involves knowingly providing a firearm to
persons specified as having been convicted of violating certain laws,
existing law makes a violation punishable by imprisonment in a
county jail for 2, 3, or 4 years. If the firearm is provided where
the person furnishing the firearm has cause to believe the recipient
is within the prohibited class, or is within a class of people
prohibited for reasons of mental illness, existing law makes a
violation punishable by imprisonment in a county jail for 16 months,
or 2 or 3 years.
This bill would make a violation of the above provisions
punishable in the state prison for 2, 3, or 4 years, and would impose
a mandatory jail term of 6 months as a condition of probation, if
probation is granted. The bill would also impose this mandatory jail
term as a condition of probation if the violation involved furnishing
a firearm to a person who actively participates in a criminal street
gang.
(9) Existing law makes it a crime to furnish a firearm to anyone
the person knows is not the actual purchaser. Under existing law no
dealer may acquire a firearm with the intent to violate provisions of
law prohibiting the furnishing of a handgun to any person who is
under 21 years of age, or any other firearm to a person under 18
years of age, or with the intent to violate the provisions of law
requiring a 10-day waiting period. Under existing law no person may
acquire a firearm with the intent to avoid completing a firearms
transaction through a licensed dealer. Existing law makes these
crimes punishable in a county jail for 16 months, or 2 or 3 years, or
by a fine not to exceed $1,000, or by both that fine and
imprisonment.
This bill would instead make these provisions punishable in the
state prison for 16 months, or 2 or 3 years.
(10) Existing law makes it a felony for any person who has been
convicted of a felony or certain other specified crimes, or who is
addicted to the use of any narcotic drug, to possess a firearm.
Existing law makes it a felony for any person who has been convicted
of a felony or certain other specified crimes, when the conviction
resulted from a certification by the juvenile court for prosecution
as an adult, to possess a firearm. Under existing law these crimes
are punishable by imprisonment in the state prison for 16 months, or
2 or 3 years.
This bill would make these crimes punishable by imprisonment in
the state prison for 2, 3, or 4, years, and would impose a mandatory
jail term of 6 months as a condition of probation, if probation is
granted. By increasing the punishment for a crime, this bill would
impose a state-mandated local program.
(11) Existing law prohibits any person who has been convicted of
specified misdemeanors from having a firearm. A violation of this
provision is punishable by imprisonment in a county jail not
exceeding one year or in the state prison for 16 months, or 2 or 3
years.
This bill would make a felony conviction under these provisions
punishable by imprisonment in the state prison for 2, 3, or 4 years,
and would impose a mandatory jail term of 3 months as a condition of
probation, if probation is granted. By increasing the punishment for
a crime, this bill would impose a state-mandated local program.
(12) Under existing law, any person who has been convicted of
certain enumerated violent offenses, or who has been convicted of
certain enumerated violent offenses resulting from a certification by
the juvenile court for prosecution as an adult, who possesses a
firearm, is guilty of a felony, punishable by imprisonment in the
state prison for 16 months, or 2 or 3 years. Existing law imposes a
9-month mandatory jail term as a condition of probation for a
violation of these provisions.
This bill would instead make a violation of these provisions
punishable in the state prison for 3, 4, or 5 years and would
increase the mandatory jail term imposed as a condition of probation
to 9 months. By increasing the punishment for a crime, this bill
would impose a state-mandated local program.
(13) Under existing law, any person who has been convicted of
certain crimes enumerated as violent offenses, who possesses a
firearm, is guilty of a felony.
This bill would add additional crimes to the list of enumerated
violent offenses, as provided. By creating new crimes, this bill
would impose a state mandated local program.
(14) Existing law prohibits a person from possessing a firearm or
deadly weapon if the person has been admitted to a facility and is
receiving inpatient treatment and the attending health professional
is of the opinion that the person is a danger to self or others.
Under existing a law a violation of this provision is punishable by
imprisonment in a county jail for 16 months, or 2 or 3 years, or by
imprisonment in a county jail for not more than one year, by a fine
not exceeding $1,000, or by both that imprisonment and fine. Under
existing law it is a crime to furnish a person described by these
provisions with a firearm, punishable by imprisonment in a county
jail for 16 months, or 2 or 3 years.
This bill would instead punish a violation of these provisions for
possession by imprisonment in the state prison for 2, 3, or 4 years.
The bill would punish a violation of the provisions for furnishing a
firearm to a person prohibited from having a firearm pursuant to
these provisions by imprisonment in the state prison for 2, 3, or 4
years, and would impose a mandatory jail term of 6 months as a
condition of probation, if probation is granted. The bill would also
provide that furnishing a deadly weapon to a person described in the
above provisions would be punishable in the state prison instead of a
county jail. By increasing the punishment of a crime, this bill
would impose a state-mandated local program.
(15) Existing law prohibits a person from possessing a firearm or
deadly weapon for a period of 6 months when the person has
communicated a serious threat of physical violence to a licensed
psychotherapist, unless a court finds that the person is likely to
use firearms or other deadly weapons in a safe and lawful manner.
Under existing law a felony violation of these provisions is
punishable in a county jail for 16 months, or 2 or 3 years, by a fine
not exceeding $1,000, or by both that fine and imprisonment.
Existing law prohibits a person who has been adjudicated a danger to
others as a result of a mental disorder, who has been adjudicated a
mentally disordered sex offender, who has been found not guilty by
reason of insanity, who has been found mentally incompetent to stand
trial, who has been placed under a conservatorship by a court because
the person is gravely disabled as a result of a mental disorder or
impairment of chronic alcoholism, who has been taken into custody
because he or she is a danger or self to others, or who has been
certified for intensive treatment, from possessing a firearm or
deadly weapon. Under existing law a felony violation of these
provisions is punishable by imprisonment in a county jail for 16
months, or 2 or 3 years. Existing law also makes it a crime to
provide a firearm to these individuals, a felony violation of which
is punishable in a county jail for 2, 3, or 4 years.
This bill would instead punish a violation of these provisions for
possession by imprisonment in the state prison for 2, 3, or 4 years.
The bill would punish a violation of the provisions for furnishing a
firearm to a person prohibited from having a firearm pursuant to
these provisions by imprisonment in the state prison for 2, 3, or 4
years, and would impose a mandatory jail term of 6 months as a
condition of probation , if probation is granted. The bill would also
provide that furnishing of a deadly weapon to a person described in
the above provisions would be punishable the state prison instead of
a county jail. By increasing the punishment of a crime, this bill
would impose a state-mandated local program.
(16) Existing law requires the State Department of State Hospitals
to maintain the records it has in its possession that are necessary
to identify persons who are prohibited from having weapons. Existing
law requires the State Department of State Hospitals to make these
records available to the Department of Justice upon request.
This bill would require the State Department of State Hospitals to
make these records immediately available to the Department of
Justice.
(17) 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 626.9 of the Penal Code is amended to read:
626.9. (a) This section shall be known, and may be cited, as the
Gun-Free School Zone Act of 1995.
(b) Any person who possesses a firearm in a place that the person
knows, or reasonably should know, is a school zone, as defined in
paragraph (1) of subdivision (e), unless it is with the written
permission of the school district superintendent, his or her
designee, or equivalent school authority, shall be punished as
specified in subdivision (f).
(c) Subdivision (b) does not apply to the possession of a firearm
under any of the following circumstances:
(1) Within a place of residence or place of business or on private
property, if the place of residence, place of business, or private
property is not part of the school grounds and the possession of the
firearm is otherwise lawful.
(2) When the firearm is an unloaded pistol, revolver, or other
firearm capable of being concealed on the person and is in a locked
container or within the locked trunk of a motor vehicle.
This section does not prohibit or limit the otherwise lawful
transportation of any other firearm, other than a pistol, revolver,
or other firearm capable of being concealed on the person, in
accordance with state law.
(3) When the person possessing the 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 subdivision 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. Upon a trial for violating subdivision (b), the trier of a
fact shall determine whether the defendant was acting out of a
reasonable belief that he or she was in grave danger.
(4) When the person is exempt from the prohibition against
carrying a concealed firearm pursuant to Section 25615, 25625, 25630,
or 25645.
(d) Except as provided in subdivision (b), it shall be unlawful
for any person, with reckless disregard for the safety of another, to
discharge, or attempt to discharge, a firearm in a school zone, as
defined in paragraph (1) of subdivision (e).
The prohibition contained in this subdivision does not apply to
the discharge of a firearm to the extent that the conditions of
paragraph (1) of subdivision (c) are satisfied.
(e) As used in this section, the following definitions shall
apply:
(1) "School zone" means an area in, or on the grounds of, a public
or private school providing instruction in kindergarten or grades 1
to 12, inclusive, or within a distance of 1,000 feet from the grounds
of the public or private school.
(2) "Firearm" has the same meaning as that term is given in
subdivisions (a) to (d), inclusive, of Section 16520.
(3) "Locked container" has the same meaning as that term is given
in Section 16850.
(4) "Concealed firearm" has the same meaning as that term is given
in Sections 25400 and 25610.
(f) (1) Any
(f) (1) (A)
Except as provided in subparagraph (B), any
person who violates subdivision (b) by possessing a firearm in, or on
the grounds of, a public or private school providing instruction in
kindergarten or grades 1 to 12, inclusive, shall be punished by
imprisonment pursuant to subdivision (h) of Section 1170
in the state prison for two, three, or five
years.
(B) Any person who violates subdivision (b) by possessing a
firearm in, or on the grounds of, a public or private school
providing instruction in kindergarten or grades 1 to 12, inclusive,
if the person is within a class of persons prohibited from possessing
or acquiring a firearm pursuant to Chapter 2 (commencing with
Section 29800) or Chapter 3 (commencing with Section 29900) of
Division 9 of Title 4 of Part 6 of this code or Section 8100 or 8103
of the Welfare and Institutions Code, shall be punished by
imprisonment in the state prison for four, five, or six years.
(2) Any person who violates subdivision (b) by possessing a
firearm within a distance of 1,000 feet from the grounds of a public
or private school providing instruction in kindergarten or grades 1
to 12, inclusive, shall be punished as follows:
(A) By imprisonment pursuant to subdivision (h) of
Section 1170 in the state prison for two, three,
or five years, if any of the following circumstances apply:
(i) If the person previously has been convicted of any felony, or
of any crime made punishable by any provision listed in Section
16580.
(ii) If the person is within a class of persons prohibited from
possessing or acquiring a firearm pursuant to Chapter 2 (commencing
with Section 29800) or Chapter 3 (commencing with Section 29900) of
Division 9 of Title 4 of Part 6 of this code or Section 8100 or 8103
of the Welfare and Institutions Code.
(iii)
(ii) If the firearm is any pistol, revolver, or other
firearm capable of being concealed upon the person and the offense is
punished as a felony pursuant to Section 25400.
(B) By imprisonment in the state prison for three, four, or five
years, if the person is within a class of persons prohibited from
possessing or acquiring a firearm pursuant to Chapter 2 (commencing
with Section 29800) or Chapter 3 (commencing with Section 29900) of
Division 9 of Title 4 of Part 6 of this code or Section 8100 or 8103
of the Welfare and Institutions Code.
(B)
(C) By imprisonment in a county jail for not more than
one year or by imprisonment pursuant to subdivision (h) of
Section 1170 in the state prison for two, three,
or five years, in all cases other than those specified in
subparagraph (A).
(3) Any person who violates subdivision (d) shall be punished by
imprisonment pursuant to subdivision (h) of Section 1170
in the state prison for three, five, or seven
years.
(g) (1) Every person convicted under this section for a
misdemeanor violation of subdivision (b) who has been convicted
previously of a misdemeanor offense enumerated in Section 23515 shall
be punished by imprisonment in a county jail for not less than three
months, or if probation is granted or if the execution or imposition
of sentence is suspended, it shall be a condition thereof that he or
she be imprisoned in a county jail for not less than three months.
(2) Every person convicted under this section of a felony
violation of subdivision (b) or (d) who has been convicted previously
of a misdemeanor offense enumerated in Section 23515, if probation
is granted or if the execution of sentence is suspended, it shall be
a condition thereof that he or she be imprisoned in a county jail for
not less than three months.
(3) Every person convicted under this section for a felony
violation of subdivision (b) or (d) who has been convicted previously
of any felony, or of any crime made punishable by any provision
listed in Section 16580, if probation is granted or if the execution
or imposition of sentence is suspended, it shall be a condition
thereof that he or she be imprisoned in a county jail for not less
than three months.
(4) The court shall apply the three-month minimum sentence
specified in this subdivision, except in unusual cases where the
interests of justice would best be served by granting probation or
suspending the execution or imposition of sentence without the
minimum imprisonment required in this subdivision or by granting
probation or suspending the execution or imposition 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 this disposition.
(h) Notwithstanding
(h) (1)
Notwithstanding Section 25605, any person who brings or
possesses a loaded firearm upon the grounds of a campus of, or
buildings owned or operated for student housing, teaching, research,
or administration by, a public or private university or college, that
are contiguous or are clearly marked university property, unless it
is with the written permission of the university or college
president, his or her designee, or equivalent university or college
authority, shall be punished by imprisonment pursuant to
subdivision (h) of Section 1170 in the state prison
for two, three, or four years. Notwithstanding subdivision (k),
a university or college shall post a prominent notice at primary
entrances on noncontiguous property stating that firearms are
prohibited on that property pursuant to this subdivision.
(2) Notwithstanding Section 25605, any person who brings or
possesses a loaded firearm upon the grounds of a campus of, or
buildings owned or operated for student housing, teaching, research,
or administration by, a public or private university or college, that
are contiguous or are clearly marked university property, unless it
is with the written permission of the university or college
president, his or her designee, or equivalent university or college
authority, if the person is within a class of persons prohibited from
possessing or acquiring a firearm pursuant to Chapter 2 (commencing
with Section 29800) or Chapter 3 (commencing with Section 29900) of
Division 9 of Title 4 of Part 6 of this code or Section 8100 or 8103
of the Welfare and Institutions Code, shall be punished by
imprisonment in the state prison for three, four, or five years.
(i) Notwithstanding
(i) (1)
Notwithstanding Section 25605, any person who brings or
possesses a firearm upon the grounds of a campus of, or buildings
owned or operated for student housing, teaching, research, or
administration by, a public or private university or college, that
are contiguous or are clearly marked university property, unless it
is with the written permission of the university or college
president, his or her designee, or equivalent university or college
authority, shall be punished by imprisonment pursuant to
subdivision (h) of Section 1170 for one, in the state
prison for 16 months or, two , or three
years. Notwithstanding subdivision (k), a university or college shall
post a prominent notice at primary entrances on noncontiguous
property stating that firearms are prohibited on that property
pursuant to this subdivision.
(2) Notwithstanding Section 25605, any person who brings or
possesses a firearm upon the grounds of a campus of, or buildings
owned or operated for student housing, teaching, research, or
administration by, a public or private university or college, that
are contiguous or are clearly marked university property, unless it
is with the written permission of the university or college
president, his or her designee, or equivalent university or college
authority, if the person is within a class of persons prohibited from
possessing or acquiring a firearm pursuant to Chapter 2 (commencing
with Section 29800) or Chapter 3 (commencing with Section 29900) of
Division 9 of Title 4 of Part 6 of this code or Section 8100 or 8103
of the Welfare and Institutions Code, shall be punished by
imprisonment in the state prison for two, three, or four years.
(j) For purposes of this section, a firearm shall be deemed to be
loaded 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. 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 in the
barrel or cylinder.
(k) This section does not require that notice be posted regarding
the proscribed conduct.
(l) This section does not apply to a duly appointed peace officer
as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of
Part 2, a full-time paid peace officer of another state or the
federal government who is carrying out official duties while in
California, any person summoned by any of these officers to assist in
making arrests or preserving the peace while he or she is actually
engaged in assisting the officer, a member of the military forces of
this state or of the United States who is engaged in the performance
of his or her duties, a person holding a valid license to carry the
firearm pursuant to Chapter 4 (commencing with Section 26150) of
Division 5 of Title 4 of Part 6, or an armored vehicle guard, engaged
in the performance of his or her duties, as defined in subdivision
(e) of Section 7521 of the Business and Professions Code.
(m) This section does not apply to a security guard authorized to
carry a loaded firearm pursuant to Article 4 (commencing with Section
26000) of Chapter 3 of Division 5 of Title 4 of Part 6.
(n) This section does not apply to an existing shooting range at a
public or private school or university or college campus.
(o) This section does not apply to an honorably retired peace
officer authorized to carry a concealed or loaded firearm pursuant to
any of the following:
(1) Article 2 (commencing with Section 25450) of Chapter 2 of
Division 5 of Title 4 of Part 6.
(2) Section 25650.
(3) Sections 25900 to 25910, inclusive.
(4) Section 26020.
(p) (1) Every person convicted pursuant to subparagraph (B) of
paragraph (1) of subdivision (f), and every person convicted under
subparagraph (B) of paragraph (2) of subdivision (f), if probation is
granted or the execution or imposition of sentence is suspended,
shall be required, as a condition thereof, to be imprisoned in a
county jail for not less than nine months.
(2) The court shall apply the nine-month minimum sentence
specified in this subdivision, except in unusual cases where the
interests of justice would best be served by granting probation or
suspending the execution or imposition of sentence without imposing
the minimum imprisonment required in this subdivision or by granting
probation or suspending the execution or imposition of sentence with
different conditions, 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 this
disposition.
(q) (1) Every person convicted pursuant to paragraph (2) of
subdivision (h), if probation is granted or the execution or
imposition of sentence is suspended, shall be required, as a
condition thereof, to be imprisoned in a county jail for not less
than six months.
(2) The court shall apply the six-month minimum sentence specified
in this subdivision, except in unusual cases where the interests of
justice would best be served by granting probation or suspending the
execution or imposition of sentence without the minimum imprisonment
required in this subdivision or by granting probation or suspending
the execution or imposition of sentence with different conditions, 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 this disposition.
(r) (1) Every person convicted pursuant to paragraph (2) of
subdivision (i), if probation is granted or if the execution or
imposition of sentence is suspended, shall be required, as a
condition thereof, to be imprisoned in a county jail for not less
than three months.
(2) The court shall apply the three-month minimum sentence
specified in this subdivision, except in unusual cases where the
interests of justice would best be served by granting probation or
suspending the execution or imposition of sentence without the
minimum imprisonment required in this subdivision or by granting
probation or suspending the execution or imposition of sentence with
different conditions, 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 this
disposition.
SEC. 2. Section 626.95 of the Penal Code is amended to read:
626.95. (a) Any
(a) (1) Any
person who is in violation of paragraph (2) of subdivision (a), or
subdivision (b), of Section 417, or 25400 or 25850, upon the grounds
of or within a playground, or a public or private youth center during
hours in which the facility is open for business, classes, or
school-related programs, or at any time when minors are using the
facility, knowing that he or she is on or within those grounds, shall
be punished by imprisonment pursuant to subdivision (h) of
Section 1170 for one, in the state prison for 16
months or, two , or three years, or in a
county jail not exceeding one year.
(2) Any person who is in violation of paragraph (2) of subdivision
(a), or subdivision (b), of Section 417, or Section 25400 or 25850,
upon the grounds of or within a playground, or a public or private
youth center during hours in which the facility is open for business,
classes, or school-related programs, or at any time when minors are
using the facility, knowing that he or she is on or within those
grounds, if the person is within a class of persons prohibited from
possessing or acquiring a firearm pursuant to Chapter 2 (commencing
with Section 29800) or Chapter 3 (commencing with Section 29900) of
Division 9 of Title 4 of Part 6 of this code or Section 8100 or 8103
of the Welfare and Institutions Code, shall be punished by
imprisonment in the state prison for two, three, or four years.
(b) State and local authorities are encouraged to cause signs to
be posted around playgrounds and youth centers giving warning of
prohibition of the possession of firearms upon the grounds of or
within playgrounds or youth centers.
(c) For purposes of this section, the following definitions shall
apply:
(1) "Playground" means any park or recreational area specifically
designed to be used by children that has play equipment installed,
including public grounds designed for athletic activities such as
baseball, football, soccer, or basketball, or any similar facility
located on public or private school grounds, or on city or county
parks.
(2) "Youth center" means any public or private facility that is
used to host recreational or social activities for minors while
minors are present.
(d) It is the Legislature's intent that only an actual conviction
of a felony of one of the offenses specified in this section would
subject the person to firearms disabilities under the federal Gun
Control Act of 1968 (P.L. 90-618; 18 U.S.C. Sec. 921).
(e) (1) Every person convicted pursuant to paragraph (2) of
subdivision (a), if probation is granted or the execution or
imposition of sentence is suspended, shall be required, as a
condition thereof, to be imprisoned in a county jail for not less
than six months.
(2) The court shall apply the six-month minimum sentence specified
in this subdivision, except in unusual cases where the interests of
justice would best be served by granting probation or suspending the
execution or imposition of sentence without the minimum imprisonment
required in this subdivision or by granting probation or suspending
the execution or imposition of sentence with different conditions, 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 this disposition.
SEC. 3. Section 3000.08 of the Penal Code, as amended by Section
35 of Chapter 43 of the Statutes of 2012, is amended to read:
3000.08. (a) Persons A person
released from state prison prior to , or on or after
, July 1, 2013, after serving a prison term or, whose sentence
has been deemed served pursuant to Section 2900.5, for any of the
following crimes shall be is subject to
parole supervision by the Department of Corrections and
Rehabilitation and the jurisdiction of the court in the county
where in which the parolee is released
or resides for the purpose of hearing petitions to revoke parole and
impose a term of custody:
(1) A serious felony as described in subdivision (c) of Section
1192.7.
(2) A violent felony as described in subdivision (c) of Section
667.5.
(3) A crime for which the person was sentenced pursuant to
paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of
subdivision (c) of Section 1170.12.
(4) Any crime where for which the
person eligible for release from prison is
classified as a High Risk Sex Offender.
(5) Any crime where for which the
person is required, as a condition of parole, to undergo treatment by
the Department of Mental Health State
Department of State Hospitals pursuant to Section 2962.
(b) A person released from state prison on or after January 1,
2014, after serving a prison term, or whose sentence has been deemed
served pursuant to Section 2900.5, to which any of the following
apply, is subject to the jurisdiction of, and parole supervision by,
the Department of Corrections and Rehabilitation:
(1) The person has a current or prior felony conviction for any
offense included in Part 6 (commencing with Section 16000).
(2) The person has a current or prior conviction for a violation
of Section 245, except that this subdivision does not apply to a
violation of paragraph (4) of subdivision (a) of Section 245 as
amended by Section 1 of Chapter 183 of the Statutes of 2011.
(3) The person has a prior conviction of a serious felony
described in subdivision (c) of Section 1192.7 involving the use of a
deadly or dangerous weapon or firearm.
(4) The person has a prior conviction of a violent felony
described in subdivision (c) of Section 667.5 involving the use of a
deadly or dangerous weapon or firearm.
(5) The person has a current or prior conviction for an offense
where the person used a firearm as specified in Section 12021.5,
12022, or 12022.2.
(6) The person has a current or prior conviction for any homicide
offense, including any attempted homicide offense, defined in
Sections 187 to 191.5, inclusive.
(b)
(7) The person has a current or prior felony conviction of Section
626.9 or 626.95.
(c) Notwithstanding any other provision of
law, all other offenders released from prison shall be
placed on postrelease supervision pursuant to Title 2.05 (commencing
with Section 3450).
(c)
(d) At any time during the period of parole of a person
subject to this section, if any parole agent or peace officer has
probable cause to believe that the parolee is violating any term or
condition of his or her parole, the agent or officer may, without
warrant or other process and at any time until the final disposition
of the case, arrest the person and bring him or her before the court,
or the court may, in its discretion, issue a warrant for that person'
s arrest pursuant to Section 1203.2.
(d)
(e) Upon review of the alleged violation and a finding
of good cause that the parolee has committed a violation of law or
violated his or her conditions of parole, the supervising parole
agency may impose additional and appropriate conditions of
supervision, including rehabilitation and treatment services and
appropriate incentives for compliance, and impose immediate,
structured, and intermediate sanctions for parole violations,
including flash incarceration in a county jail. Periods of "flash
incarceration," as defined in subdivision (e) are encouraged as one
method of punishment for violations of a parolee's conditions of
parole. Nothing in this This section
is intended to does not preclude
referrals to a reentry court pursuant to Section 3015.
(e)
(f) "Flash incarceration" is a period of detention in
county jail due to a violation of a parolee's conditions of parole.
The length of the detention period can range between one and 10
consecutive days. Shorter, but if necessary more frequent, periods of
detention for violations of a parolee's conditions of parole shall
appropriately punish a parolee while preventing the disruption in a
work or home establishment that typically arises from longer periods
of detention.
(f)
(g) If the supervising parole agency has determined,
following application of its assessment processes, that intermediate
sanctions up to and including flash incarceration are not
appropriate, the supervising parole agency shall, pursuant to Section
1203.2, petition the court in the county in which the parolee is
being supervised to revoke parole. At any point during the process
initiated pursuant to this section, a parolee may waive, in writing,
his or her right to counsel, admit the parole violation, waive a
court hearing, and accept the proposed parole modification or
revocation. The petition shall include a written report that contains
additional information regarding the petition, including the
relevant terms and conditions of parole, the circumstances of the
alleged underlying violation, the history and background of the
parolee, and
any recommendations. The Judicial Council shall adopt forms and
rules of court to establish uniform statewide procedures to implement
this subdivision, including the minimum contents of supervision
agency reports. Upon a finding that the person has violated the
conditions of parole, the court shall have authority to do any of the
following:
(1) Return the person to parole supervision with modifications of
conditions, if appropriate, including a period of incarceration in
county jail.
(2) Revoke parole and order the person to confinement in the
county jail.
(3) Refer the person to a reentry court pursuant to Section 3015
or other evidence-based program in the court's discretion.
(g)
(h) Confinement pursuant to paragraphs (1) and (2) of
subdivision (f) (g) shall not exceed a
period of 180 days in the county jail.
(h)
(i) Notwithstanding any other provision of
law, in any case where if
Section 3000.1 or paragraph (4) of subdivision (b) of Section 3000
applies to a person who is on parole and the court determines that
the person has committed a violation of law or violated his or her
conditions of parole, the person on parole shall be remanded to the
custody of the Department of Corrections and Rehabilitation and the
jurisdiction of the Board of Parole Hearings for the purpose of
future parole consideration.
(i)
(j) Notwithstanding subdivision (a), any of the
following persons released from state prison shall be subject to the
jurisdiction of, and parole supervision by, the Department of
Corrections and Rehabilitation for a period of parole up to three
years or the parole term the person was subject to at the time of the
commission of the offense, whichever is greater:
(1) The person is required to register as a sex offender pursuant
to Chapter 5.5 (commencing with Section 290) of Title 9 of Part 1,
and was subject to a period of parole exceeding three years at the
time he or she committed a felony for which they were convicted and
subsequently sentenced to state prison.
(2) The person was subject to parole for life pursuant to Section
3000.1 at the time of the commission of the offense that resulted in
a conviction and state prison sentence.
(j)
(k) Parolees subject to this section who have a pending
adjudication for a parole violation on July 1, 2013, shall
be are subject to the jurisdiction of the Board
of Parole Hearings. Parole revocation proceedings conducted by the
Board of Parole Hearings prior to July 1, 2013, if reopened on or
after July 1, 2013, shall be are
subject to the jurisdiction of the Board of Parole Hearings.
(k)
(l) Except as described in subdivision (c)
(d) , any person who is convicted of a felony
that requires community supervision and who still has a period of
state parole to serve shall discharge from state parole at the time
of release to community supervision.
(l)
(m) This section shall become operative on July 1,
2013.
SEC. 4. Section 3451 of the Penal Code is amended to read:
3451. (a) Notwithstanding any other law and except for persons
serving a prison term for any crime described in subdivision (b), all
persons released from prison on and after October 1, 2011, or, whose
sentence has been deemed served pursuant to Section 2900.5 after
serving a prison term for a felony shall, upon release from prison
and for a period not exceeding three years immediately following
release, be subject to community supervision provided by a county
agency designated by each county's board of supervisors which is
consistent with evidence-based practices, including, but not limited
to, supervision policies, procedures, programs, and practices
demonstrated by scientific research to reduce recidivism among
individuals under postrelease supervision.
(b) This section shall not apply to any person released from
prison after having served a prison term for any of the following:
(1) A serious felony described in subdivision (c) of Section
1192.7.
(2) A violent felony described in subdivision (c) of Section
667.5.
(3) A crime for which the person was sentenced pursuant to
paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of
subdivision (c) of Section 1170.12.
(4) Any crime where the person eligible for release from prison is
classified as a High Risk Sex Offender.
(5) Any crime where the person is required, as a condition of
parole, to undergo treatment by the State Department of State
Hospitals pursuant to Section 2962.
(c) This section shall not apply to any person released from
prison specified in subdivision (b) of Section 3000.08.
(c)
(d) (1) Postrelease supervision under this title shall
be implemented by a county agency according to a postrelease strategy
designated by each county's board of supervisors.
(2) The Department of Corrections and Rehabilitation shall inform
every prisoner subject to the provisions of this title, upon release
from state prison, of the requirements of this title and of his or
her responsibility to report to the county agency responsible for
serving that inmate. The department shall also inform persons serving
a term of parole for a felony offense who are subject to this
section of the requirements of this title and of his or her
responsibility to report to the county agency responsible for serving
that parolee. Thirty days prior to the release of any person subject
to postrelease supervision by a county, the department shall notify
the county of all information that would otherwise be required for
parolees under subdivision (e) of Section 3003.
SEC. 5. Section 25400 of the Penal Code is amended to read:
25400. (a) A person is guilty of carrying a concealed firearm
when the person does any of the following:
(1) Carries concealed within any vehicle that is under the person'
s control or direction any pistol, revolver, or other firearm capable
of being concealed upon the person.
(2) Carries concealed upon the person any pistol, revolver, or
other firearm capable of being concealed upon the person.
(3) Causes to be carried concealed within any vehicle in which the
person is an occupant any pistol, revolver, or other firearm capable
of being concealed upon the person.
(b) A firearm carried openly in a belt holster is not concealed
within the meaning of this section.
(c) Carrying a concealed firearm in violation of this section is
punishable as follows:
(1) If the person previously has been convicted of any felony, or
of any crime made punishable by a provision listed in Section 16580,
as a felony , punishable in state prison for two, three, or four
years .
(2) If the firearm is stolen and the person knew or had reasonable
cause to believe that it was stolen, as a felony.
(3) If the person is an active participant in a criminal street
gang, as defined in subdivision (a) of Section 186.22, under the
Street Terrorism Enforcement and Prevention Act (Chapter 11
(commencing with Section 186.20) of Title 7 of Part 1), as a felony.
(4) If the person is not in lawful possession of the firearm or
the person is within a class of persons prohibited from possessing or
acquiring a firearm pursuant to Chapter 2 (commencing with Section
29800) or Chapter 3 (commencing with Section 29900) of Division 9 of
this title, or Section 8100 or 8103 of the Welfare and Institutions
Code, as a felony.
(5) If the person has been convicted of a crime against a person
or property, or of a narcotics or dangerous drug violation, by
imprisonment pursuant to subdivision (h) of Section 1170, or by
imprisonment in a county jail not to exceed one year, by a fine not
to exceed one thousand dollars ($1,000), or by both that imprisonment
and fine.
(6) If both of the following conditions are met, by imprisonment
pursuant to subdivision (h) of Section 1170, or by imprisonment in a
county jail not to exceed one year, by a fine not to exceed one
thousand dollars ($1,000), or by both that fine and imprisonment:
(A) The pistol, revolver, or other firearm capable of being
concealed upon the person is loaded, or both it and the unexpended
ammunition capable of being discharged from it are in the immediate
possession of the person or readily accessible to that person.
(B) The person is not listed with the Department of Justice
pursuant to paragraph (1) of subdivision (c) of Section 11106 as the
registered owner of that pistol, revolver, or other firearm capable
of being concealed upon the person.
(7) If the person has been convicted of any felony enumerated in
Section 29905, as a felony, punishable by imprisonment in the state
prison for three, four, or five years.
(7)
(8) In all cases other than those specified in
paragraphs (1) to (6), inclusive, by imprisonment in a county jail
not to exceed one year, by a fine not to exceed one thousand dollars
($1,000), or by both that imprisonment and fine.
(d) (1) Every person convicted under this section who previously
has been convicted of a misdemeanor offense enumerated in Section
23515 shall be punished by imprisonment in a county jail for at least
three months and not exceeding six months, or, if granted probation,
or if the execution or imposition of sentence is suspended, it shall
be a condition thereof that the person be imprisoned in a county
jail for at least three months.
(2) Every person convicted under this section who has previously
been convicted of any felony, or of any crime made punishable by a
provision listed in Section 16580, if probation is granted, or if the
execution or imposition of sentence is suspended, it shall be a
condition thereof that the person be imprisoned in a county jail for
not less than three six months.
(3) Every person convicted under this section who has previously
been convicted of any felony enumerated in Section 29905, if
probation is granted, or if the execution or imposition of sentence
is suspended, it shall be a condition thereof that the person be
imprisoned in a county jail for not less than nine months.
(e) The court shall apply the three-month
minimum sentence as specified in subdivision (d), 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 subdivision (d) or by
granting probation or suspending the imposition or execution of
sentence with conditions other than those set forth in subdivision
(d), 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.
(f) A peace officer may arrest a person for a violation of
paragraph (6) of subdivision (c) if the peace officer has probable
cause to believe that the person is not listed with the Department of
Justice pursuant to paragraph (1) of subdivision (c) of Section
11106 as the registered owner of the pistol, revolver, or other
firearm capable of being concealed upon the person, and one or more
of the conditions in subparagraph (A) of paragraph (6) of subdivision
(c) is met.
SEC. 6. Section 25850 of the Penal Code is amended to read:
25850. (a) A person is guilty of carrying a loaded firearm when
the person carries a loaded firearm on the 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.
(b) 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 the 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.
(c) Carrying a loaded firearm in violation of this section is
punishable, as follows:
(1) Where the person previously has been convicted of any felony,
or of any crime made punishable by a provision listed in Section
16580, as a felony , punishable by imprisonment in the state
prison for two, three, or four years .
(2) Where the firearm is stolen and the person knew or had
reasonable cause to believe that it was stolen, as a felony.
(3) Where the person is an active participant in a criminal street
gang, as defined in subdivision (a) of Section 186.22, under the
Street Terrorism Enforcement and Prevention Act (Chapter 11
(commencing with Section 186.20) of Title 7 of Part 1), as a felony.
(4) Where the person is not in lawful possession of the firearm,
or is within a class of persons prohibited from possessing or
acquiring a firearm pursuant to Chapter 2 (commencing with Section
29800) or Chapter 3 (commencing with Section 29900) of Division 9 of
this title, or Section 8100 or 8103 of the Welfare and Institutions
Code, as a felony.
(5) Where the person has been convicted of a crime against a
person or property, or of a narcotics or dangerous drug violation, by
imprisonment pursuant to subdivision (h) of Section 1170, or by
imprisonment in a county jail not to exceed one year, by a fine not
to exceed one thousand dollars ($1,000), or by both that imprisonment
and fine.
(6) Where the person is not listed with the Department of Justice
pursuant to Section 11106 as the registered owner of the handgun, by
imprisonment pursuant to subdivision (h) of Section 1170, or by
imprisonment in a county jail not to exceed one year, or by a fine
not to exceed one thousand dollars ($1,000), or both that fine and
imprisonment.
(7) If the person has been convicted of any felony enumerated in
Section 29905, as a felony, punishable by imprisonment in the state
prison for three, four, or five years.
(7)
(8) In all cases other than those specified in
paragraphs (1) to (6), inclusive, as a misdemeanor, punishable by
imprisonment in a county jail not to exceed one year, by a fine not
to exceed one thousand dollars ($1,000), or by both that imprisonment
and fine.
(d) (1) Every person convicted under this section who has
previously been convicted of an offense enumerated in Section 23515,
or of any crime made punishable under a provision listed in Section
16580, 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 the
person be imprisoned for a period of at least three months.
(2) Except as provided in paragraph (1), every person convicted
under this section who has previously been convicted of any felony,
if probation is granted, or if the execution or imposition of
sentence is suspended, it shall be a condition thereof that the
person be imprisoned in a county jail for not less than six months.
(3) Except as provided in paragraph (1), and notwithstanding
paragraph (2), every person convicted under this section who has
previously been convicted of any felony enumerated in Section 29905,
if probation is granted, or if the execution or imposition of
sentence is suspended, it shall be a condition thereof that the
person be imprisoned in a county jail for not less than nine months.
(2)
(4) The court shall apply the three-month
minimum sentence specified in this subdivision
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 section or by granting probation or suspending the imposition or
execution of sentence with conditions other than those set forth in
this section, 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.
(e) A violation of this section that is punished by imprisonment
in a county jail not exceeding one year shall not constitute a
conviction of a crime punishable by imprisonment for a term exceeding
one year for the purposes of determining federal firearms
eligibility under Section 922(g)(1) of Title 18 of the United States
Code.
(f) Nothing in this section, or in Article 3 (commencing with
Section 25900) or Article 4 (commencing with Section 26000), shall
preclude prosecution under Chapter 2 (commencing with Section 29800)
or Chapter 3 (commencing with Section 29900) of Division 9 of this
title, Section 8100 or 8103 of the Welfare and Institutions Code, or
any other law with a greater penalty than this section.
(g) Notwithstanding paragraphs (2) and (3) of subdivision (a) of
Section 836, a peace officer may make an arrest without a warrant:
(1) When the person arrested has violated this section, although
not in the officer's presence.
(2) Whenever the officer has reasonable cause to believe that the
person to be arrested has violated this section, whether or not this
section has, in fact, been violated.
(h) A peace officer may arrest a person for a violation of
paragraph (6) of subdivision (c), if the peace officer has probable
cause to believe that the person is carrying a handgun in violation
of this section and that person is not listed with the Department of
Justice pursuant to paragraph (1) of subdivision (c) of Section 11106
as the registered owner of that handgun.
SEC. 7. Section 27590 of the Penal Code is amended to read:
27590. (a) Except as provided in subdivision (b), (c), or (e), a
violation of this article is a misdemeanor.
(b) If any of the following circumstances apply, a violation of
this article is punishable by imprisonment pursuant to
subdivision (h) of Section 1170 in the state prison
for two, three, or four years.
(1) If the violation is of subdivision (a) of
Section 27500.
(2) If the defendant has a prior conviction of violating the
provisions, other than Section 27535, Section 27560 involving a
firearm that is not a handgun, or Section 27565 involving a firearm
that is not a handgun, of this article or former Section 12100 of
this code, as Section 12100 read at any time from when it was enacted
by Section 3 of Chapter 1386 of the Statutes of 1988 to when it was
repealed by Section 18 of Chapter 23 of the Statutes of 1994, or
Section 8101 of the Welfare and Institutions Code.
(3) If the defendant has a prior conviction of violating any
offense specified in Section 29905 or of a violation of Section 32625
or 33410, or of former Section 12560, as that section read at any
time from when it was enacted by Section 4 of Chapter 931 of the
Statutes of 1965 to when it was repealed by Section 14 of Chapter 9
of the Statutes of 1990, or of any provision listed in Section 16590.
(4) If the defendant is in a prohibited class described in Chapter
2 (commencing with Section 29800) or Chapter 3 (commencing with
Section 29900) of Division 9 of this title, or Section 8100 or 8103
of the Welfare and Institutions Code.
(5) A violation of this article by a person who actively
participates in a "criminal street gang" as defined in Section
186.22.
(6) A violation of Section 27510 involving the delivery of any
firearm to a person who the dealer knows, or should know, is a minor.
(c) If any of the following circumstances apply, a violation of
this article shall be punished by imprisonment in a county jail not
exceeding one year or pursuant to subdivision (h) of Section
1170, in the state prison for 16 months, or two
or three years, or by a fine not to exceed one thousand
dollars ($1,000), or by both that fine and imprisonment.
(1) A violation of Section 27515, 27520, or subdivision (b) of
Section 27500.
(2)
(1) A violation of Section 27505 involving the sale,
loan, or transfer of a handgun to a minor.
(3)
(2) A violation of Section 27510 involving the delivery
of a handgun.
(4)
(3) A violation of subdivision (a), (c), (d), (e), or
(f) of Section 27540 involving a handgun.
(5)
(4) A violation of Section 27545 involving a handgun.
(6)
(5) A violation of Section 27550.
(d) If both of the following circumstances apply, an additional
term of imprisonment pursuant to subdivision (h) of Section
1170 for one, in the state prison for 16 months or,
two , or three years shall be imposed in
addition and consecutive to the sentence prescribed.
(1) A violation of Section 27510 or subdivision (b) of
Section 27500.
(2) The firearm transferred in violation of Section 27510 or
subdivision (b) of Section 27500 is used in the subsequent commission
of a felony for which a conviction is obtained and the prescribed
sentence is imposed.
(e) (1) A first violation of Section 27535 is an infraction
punishable by a fine of fifty dollars ($50).
(2) A second violation of Section 27535 is an infraction
punishable by a fine of one hundred dollars ($100).
(3) A third or subsequent violation of Section 27535 is a
misdemeanor.
(4) For purposes of this subdivision each application to purchase
a handgun in violation of Section 27535 shall be deemed a separate
offense.
(f) (1) Under the circumstances specified in paragraphs (1), (4),
and (5) of subdivision (b), if probation is granted, or if the
imposition or execution of sentence is suspended, it shall be a
condition thereof that the person be imprisoned in a county jail not
less than six months.
(2) The court shall apply the minimum sentence specified in this
subdivision 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 section 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.
(g) If any of the following circumstances apply, a violation of
this article shall be punished by imprisonment in the state prison
for 16 months, or two or three years.
(1) A violation of Section 27515.
(2) A violation of Section 27520.
SEC. 8. Section 29800 of the Penal Code is amended to read:
29800. (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 23515, or who is addicted to
the use of any narcotic drug, and who owns, purchases, receives, or
has in possession or under custody or control any firearm is guilty
of a felony , punishable by imprisonment in the state prison for
two, three, or four years .
(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 possession or under 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 23515,
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 possession
or under custody or control any firearm is guilty of a felony ,
punishable by imprisonment in state prison for two, three, or four
years .
(c) 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.
(d) (1) Under the circumstances specified in paragraph (1) of
subdivision (a), and under the circumstances specified in subdivision
(b), if probation is granted, or if the imposition or execution of
sentence is suspended, it shall be a condition thereof that the
person be imprisoned in a county jail not less than six months.
(2) The court shall apply the minimum sentence specified in this
subdivision 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 section 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.
SEC. 9. Section 29805 of the Penal Code is amended to read:
29805. (a) Except as provided in Section
29855 or subdivision (a) of Section 29800, 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, paragraph (1)
of subdivision (a) of Section 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,
626.9, 646.9, or 830.95, subdivision (a) of former Section 12100, as
that section read at any time from when it was enacted by Section 3
of Chapter 1386 of the Statutes of 1988 to when it was repealed by
Section 18 of Chapter 23 of the Statutes of 1994, Section 17500,
17510, 25300, 25800, 30315, or 32625, subdivision (b) or (d) of
Section 26100, or Section 27510, 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 subdivision (c) of Section 27590, and who, within 10
years of the conviction, owns, purchases, receives, or has in
possession or under 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 for two,
three, or four years , 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 section. However, the
prohibition in this section may be reduced, eliminated, or
conditioned as provided in Section 29855 or 29860.
(b) (1) For a felony violation of this section, if probation is
granted, or if the imposition or execution of sentence is suspended,
it shall be a condition thereof that the person be imprisoned in a
county jail not less than three months.
(2) The court shall apply the minimum sentence specified in this
subdivision 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 section 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.
SEC. 10. Section 29900 of the Penal Code is amended to read:
29900. (a) (1) Notwithstanding subdivision (a) of Section 29800,
any person who has been previously convicted of any of the offenses
listed in Section 29905 and who owns or has in possession or under
custody or control any firearm is guilty of a felony ,
punishable by imprisonment in the state prison for three, four, or
five years .
(2) A dismissal of an accusatory pleading pursuant to Section
1203.4a involving an offense set forth in Section 29905 does not
affect the finding of a previous conviction.
(3) If probation is granted, or if the imposition or execution of
sentence is suspended, it shall be a condition of the probation or
suspension that the defendant serve at least six
nine months in a county jail.
(b) (1) Any person previously convicted of any of the offenses
listed in Section 29905 which conviction results from certification
by the juvenile court for prosecution as an adult in adult court
under the provisions of Section 707 of the Welfare and Institutions
Code, who owns or has in possession or under custody or control any
firearm, is guilty of a felony , punishable by imprisonment in
the state prison for three, four, or five years .
(2) If probation is granted, or if the imposition or execution of
sentence is suspended, it shall be a condition of the probation or
suspension that the defendant serve at least six
nine months in a county jail.
(c) The court shall apply the minimum sentence as specified in
subdivisions (a) and (b) 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 imprisonment
required by subdivisions (a) and (b), or by granting probation or
suspending the imposition or execution of sentence with conditions
other than those set forth in subdivisions (a) and (b), 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 the disposition.
SEC. 11. Section 29905 of the Penal Code is amended to read:
29905. (a) As used in this chapter, a violent offense includes
any of the following:
(1) Murder or voluntary manslaughter.
(2) Mayhem.
(3) Rape.
(4) Sodomy by force, violence, duress, menace, or threat of great
bodily harm.
(5) Oral copulation by force, violence, duress, menace, or threat
of great bodily harm.
(6) Lewd acts on a child under the age of 14 years.
(7) Any felony punishable by death or imprisonment in the state
prison for life.
(8) Any other felony in which the defendant inflicts great bodily
injury on any person, other than an accomplice, that has been charged
and proven, or any felony in which the defendant uses a firearm
which use has been charged and proven.
(9) Attempted murder.
(10) Assault with intent to commit rape or robbery.
(11) Assault with a deadly weapon or instrument on a peace
officer.
(12) Assault by a life prisoner on a noninmate.
(13) Assault with a deadly weapon by an inmate.
(14) Arson.
(15) Exploding a destructive device or any explosive with intent
to injure.
(16) Exploding a destructive device or any explosive causing great
bodily injury.
(17) Exploding a destructive device or any explosive with intent
to murder.
(18) Robbery.
(19) Kidnapping.
(20) Taking of a hostage by an inmate of a state prison.
(21) Attempt to commit a felony punishable by death or
imprisonment in the state prison for life.
(22) Any felony in which the defendant personally used a dangerous
or deadly weapon.
(23) Escape from a state prison by use of force or violence.
(24) Assault with a deadly weapon or force likely to produce great
bodily injury.
(25) Any felony violation of Section 186.22.
(26) Any offense enumerated in subdivision (a), (b), or (d) of
Section 23515.
(27) Carjacking.
(28) Any offense enumerated in subdivision (c) of Section 23515 if
the person has two or more convictions for violating paragraph (2)
of subdivision (a) of Section 417.
(29) Any felony violation of Section 245, other than a violation
of paragraph (4) of subdivision (a).
(30) Any felony violation of Section 626.9 or 626.95.
(31) Human trafficking, as defined in Section 236.1.
(32) Sexual penetration as defined in subdivision (a) or (j) of
Section 289.
(33) Rape, spousal rape, or sexual penetration, in concert, in
violation of Section 264.
(34) Continuous sexual abuse of a child, as defined in Section
288.5.
(35) Any felony violation of Section 136.1.
(36) Use of a deadly weapon to intimidate witnesses as defined in
Section 136.5.
(37) Holding a hostage by an inmate as defined in Section 4503.
(38) Any felony violation of Section 246.
(b) As used in this chapter, a violent offense also includes any
attempt to commit a crime listed in subdivision (a) other than an
assault.
(c) As used in this chapter, a violent offense includes any
conspiracy to commit a crime listed in subdivision (a).
SEC. 12. Section 8100 of the Welfare and Institutions Code is
amended to read:
8100. (a) A person shall not have in his or her possession or
under his or her custody or control, or purchase or receive, or
attempt to purchase or receive, any firearms whatsoever or any other
deadly weapon, if on or after January 1, 1992, he or she has been
admitted to a facility and is receiving inpatient treatment and, in
the opinion of the attending health professional who is primarily
responsible for the patient's treatment of a mental disorder, is a
danger to self or others, as specified by Section 5150, 5250, or
5300, even though the patient has consented to that treatment. A
person is not subject to this subdivision once he or she is
discharged from the facility.
(b) (1) A person shall not have in his or her possession or under
his or her custody or control, or purchase or receive, or attempt to
purchase or receive, any firearms whatsoever or any other deadly
weapon for a period of six months whenever, on or after January 1,
1992, he or she communicates to a licensed psychotherapist, as
defined in subdivisions (a) to (e), inclusive, of Section 1010 of the
Evidence Code, a serious threat of physical violence against a
reasonably identifiable victim or victims. The six-month period shall
commence from the date that the licensed psychotherapist reports to
the local law enforcement agency the identity of the person making
the communication. The prohibition provided for in this subdivision
shall not apply unless the licensed psychotherapist notifies a local
law enforcement agency of the threat by that person. The person,
however, may own, possess, have custody or control over, or receive
or purchase any firearm if a superior court, pursuant to paragraph
(3) and upon petition of the person, has found, by a preponderance of
the evidence, that the person is likely to use firearms or other
deadly weapons in a safe and lawful manner.
(2) Upon receipt of the report from the local law enforcement
agency pursuant to subdivision (c) of Section 8105, the Department of
Justice shall notify by certified mail, return receipt requested, a
person subject to this subdivision of the following:
(A) That he or she is prohibited from possessing, having custody
or control over, receiving, or purchasing any firearm or other deadly
weapon for a period of six months commencing from the date that the
licensed psychotherapist reports to the local law enforcement agency
the identity of the person making the communication. The notice shall
state the date when the prohibition commences and ends.
(B) That he or she may petition a court, as provided in this
subdivision, for an order permitting the person to own, possess,
control, receive, or purchase a firearm.
(3) Any person who is subject to paragraph (1) may petition the
superior court of his or her county of residence for an order that he
or she may own, possess, have custody or control over, receive, or
purchase firearms. At the time the petition is filed, the clerk of
the court shall set a hearing date and notify the person, the
Department of Justice, and the district attorney. The people of the
State of California shall be the respondent in the proceeding and
shall be represented by the district attorney. Upon motion of the
district attorney, or upon its own motion, the superior court may
transfer the petition to the county in which the person resided at
the time of the statements, or the county in which the person made
the statements. Within seven days after receiving notice of the
petition, the Department of Justice shall file copies of the reports
described in Section 8105 with the superior court. The reports shall
be disclosed upon request to the person and to the district attorney.
The district attorney shall be entitled to a continuance of the
hearing to a date of not less than 14 days after the district
attorney is notified of the hearing date by the clerk of the court.
The court, upon motion of the petitioner establishing that
confidential information is likely to be discussed during the hearing
that would cause harm to the person, shall conduct the hearing in
camera with only the relevant parties present, unless the court finds
that the public interest would be better served by conducting the
hearing in public. Notwithstanding any other provision of law,
declarations, police reports, including criminal history information,
and any other material and relevant evidence that is not excluded
under Section 352 of the Evidence Code, shall be admissible at the
hearing under this paragraph. If the court finds by a preponderance
of the evidence that the person would be likely to use firearms in a
safe and lawful manner, the court shall order that the person may
have custody or control over, receive, possess, or purchase firearms.
A copy of the order shall be submitted to the Department of Justice.
Upon receipt of the order, the department shall delete any reference
to the prohibition against firearms from the person's state summary
criminal history information.
(c) "Discharge," for the purposes of this section, does not
include a leave of absence from a facility.
(d) "Attending health care professional," as used in this section,
means the licensed health care professional primarily responsible
for the person's treatment who is qualified to make the decision that
the person has a mental disorder and has probable cause to believe
that the person is a danger to self or others.
(e) "Deadly weapon," as used in this section and in Sections 8101,
8102, and 8103, means any weapon, the possession or concealed
carrying of which is prohibited by any provision listed in Section
16590 of the Penal Code.
(f) "Danger to self," as used in subdivision (a), means a
voluntary person who has made a serious threat of, or attempted,
suicide with the use of a firearm or other deadly weapon.
(g) A violation of subdivision (a) of, or paragraph (1) of
subdivision (b) of, this section shall be a public offense,
punishable by imprisonment pursuant to subdivision (h) of
Section 1170 of the Penal Code, or in a county jail for not more than
one year, by a fine not exceeding one thousand dollars ($1,000), or
by both that imprisonment and fine in the state prison
for two, three, or four years .
(h) The prohibitions set forth in this section shall be in
addition to those set forth in Section 8103.
(i) Any person admitted and receiving treatment prior to January
1, 1992, shall be governed by this section, as amended by Chapter
1090 of the Statutes of 1990, until discharged from the facility.
SEC. 13. Section 8101 of the Welfare and Institutions Code is
amended to read:
8101. (a) Any person who shall knowingly supply, sell, give, or
allow possession or control of a deadly weapon to any person
described in Section 8100 or 8103 shall be punishable by imprisonment
pursuant to subdivision (h) of Section 1170 of the Penal
Code in the state prison for 16 months, or two or
three years , or in a county jail for a period of not exceeding
one year, by a fine of not exceeding one thousand dollars ($1,000),
or by both the fine and imprisonment.
(b) Any person who shall knowingly supply, sell, give, or allow
possession or control of a firearm to any person described in Section
8100 or 8103 shall be punished by imprisonment pursuant to
subdivision (h) of Section 1170 of the Penal Code in
the state prison for two, three, or four years.
(c) "Deadly weapon," as used in this section has the meaning
prescribed by Section 8100.
(d) (1) under the circumstances of subdivision (b), if probation
is granted, or if the imposition or execution of sentence is
suspended, it shall be a condition thereof that the person be
imprisoned in a county jail not less than six months.
(2) The court shall apply the minimum sentence specified in this
subdivision 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 section 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.
SEC. 14. Section 8103 of the Welfare and Institutions Code is
amended to read:
8103. (a) (1) No person who after October 1, 1955, has been
adjudicated by a court of any state to be a danger to others as a
result of a mental disorder or mental illness, or who has been
adjudicated to be a mentally disordered sex offender, shall purchase
or receive, or attempt to purchase or receive, or have in his or her
possession, custody, or control any firearm or any other deadly
weapon unless there has been issued to the person a certificate by
the court of adjudication upon release from treatment or at a later
date stating that the person may possess a firearm or any other
deadly weapon without endangering others, and the person has not,
subsequent to the issuance of the certificate, again been adjudicated
by a court to be a danger to others as a result of a mental disorder
or mental illness.
(2) The court shall immediately notify the Department of Justice
of the court order finding the individual to be a person described in
paragraph (1). The court shall also notify the Department of Justice
of any certificate issued as described in paragraph (1).
(b) (1) No person who has been found, pursuant to Section 1026 of
the Penal Code or the law of any other state or the United States,
not guilty by reason of insanity of murder, mayhem, a violation of
Section 207, 209, or 209.5 of the Penal Code in which the victim
suffers intentionally inflicted great bodily injury, carjacking or
robbery in which the victim suffers great bodily injury, a violation
of Section 451 or 452 of the Penal Code involving a trailer coach, as
defined in Section 635 of the Vehicle Code, or any dwelling house, a
violation of paragraph (1) or (2) of subdivision (a) of Section 262
or paragraph (2) or (3) of subdivision (a) of Section 261 of the
Penal Code, a violation of Section 459 of the Penal Code in the first
degree, assault with intent to commit murder, a violation of Section
220 of the Penal Code in which the victim suffers great bodily
injury, a violation of Section 18715, 18725, 18740, 18745, 18750, or
18755 of the Penal Code, or of a felony involving death, great bodily
injury, or an act which poses a serious threat of bodily harm to
another person, or a violation of the law of any other state or the
United States that includes all the elements of any of the above
felonies as defined under California law, shall purchase or receive,
or attempt to purchase or receive, or have in his or her possession
or under his or her custody or control any firearm or any other
deadly weapon.
(2) The court shall immediately notify the Department of Justice
of the court order finding the person to be a person described in
paragraph (1).
(c) (1) No person who has been found, pursuant to Section 1026 of
the Penal Code or the law of any other state or the United States,
not guilty by reason of insanity of any crime other than those
described in subdivision (b) shall purchase or receive, or attempt to
purchase or receive, or shall have in his or her possession,
custody, or control any firearm or any other deadly weapon unless the
court of commitment has found the person to have recovered sanity,
pursuant to Section 1026.2 of the Penal Code or the law of any other
state or the United States.
(2) The court shall immediately notify the Department of Justice
of the court order finding the person to be a person described in
paragraph (1). The court shall also notify the Department of Justice
when it finds that the person has recovered his or her sanity.
(d) (1) No person found by a court to be mentally incompetent to
stand trial, pursuant to Section 1370 or 1370.1 of the Penal Code or
the law of any other state or the United States, shall purchase or
receive, or attempt to purchase or receive, or shall have in his or
her possession, custody, or control, any firearm or any other deadly
weapon, unless there has been a finding with respect to the person of
restoration to competence to stand trial by the committing court,
pursuant to Section 1372 of the Penal Code or the law of any other
state or the United States.
(2) The court shall immediately notify the Department of Justice
of the court order finding the person to be mentally incompetent as
described in paragraph (1). The court shall also notify the
Department of Justice when it finds that the person has recovered his
or her competence.
(e) (1) No person who has been placed under conservatorship by a
court, pursuant to Section 5350 or the law of any other state or the
United States, because the person is gravely disabled as a result of
a mental disorder or impairment by chronic alcoholism, shall purchase
or receive, or attempt to purchase or receive, or shall have in his
or her possession, custody, or control, any firearm or any other
deadly weapon while under the conservatorship if, at the time the
conservatorship was ordered or thereafter, the court which imposed
the conservatorship found that possession of a firearm or any other
deadly weapon by the person would present a danger to the safety of
the person or to others. Upon placing any person under
conservatorship, and prohibiting firearm or any other deadly weapon
possession by the person, the court shall notify the person of this
prohibition.
(2) The court shall immediately notify the Department of Justice
of the court order placing the person under conservatorship and
prohibiting firearm or any other deadly weapon possession by the
person as described in paragraph (1). The notice shall include the
date the conservatorship was imposed and the date the conservatorship
is to be terminated. If the conservatorship is subsequently
terminated before the date listed in the notice to the Department of
Justice or the court subsequently finds that possession of a firearm
or any other deadly weapon by the person would no longer present a
danger to the safety of the person or others, the court shall
immediately notify the Department of Justice.
(3) All information provided to the Department of Justice pursuant
to paragraph (2) shall be kept confidential, separate, and apart
from all other records maintained by the Department of Justice, and
shall be used only to determine eligibility to purchase or possess
firearms or other deadly weapons. Any person who knowingly furnishes
that information for any other purpose is guilty of a misdemeanor.
All the information concerning any person shall be destroyed upon
receipt by the Department of Justice of notice of the termination of
conservatorship as to that person pursuant to paragraph (2).
(f) (1) No person who has been (A) taken into custody as provided
in Section 5150 because that person is a danger to himself, herself,
or to others, (B) assessed within the meaning of Section 5151, and
(C) admitted to a designated facility within the meaning of Sections
5151 and 5152 because that person is a danger to himself, herself, or
others, shall own, possess, control, receive, or purchase, or
attempt to own, possess, control, receive, or purchase any firearm
for a period of five years after the person is released from the
facility. A person described in the preceding sentence, however, may
own, possess, control, receive, or purchase, or attempt to own,
possess, control, receive, or purchase any firearm if the superior
court has, pursuant to paragraph (5), found that the people of the
State of California have not met their burden pursuant to paragraph
(6).
(2) (A) For each person subject to this subdivision, the facility
shall immediately, on the date of admission, submit a report to the
Department of Justice, on a form prescribed by the Department of
Justice, containing information that includes, but is not limited to,
the identity of the person and the legal grounds upon which the
person was admitted to the facility.
Any report submitted pursuant to this paragraph shall be
confidential, except for purposes of the court proceedings described
in this subdivision and for determining the eligibility of the person
to own, possess, control, receive, or purchase a firearm.
(B) Commencing July 1, 2012, facilities shall submit reports
pursuant to this paragraph exclusively by electronic means, in a
manner prescribed by the Department of Justice.
(3) Prior to, or concurrent with, the discharge, the facility
shall inform a person subject to this subdivision that he or she is
prohibited from owning, possessing, controlling, receiving, or
purchasing any firearm for a period of five years. Simultaneously,
the facility shall inform the person that he or she may request a
hearing from a court, as provided in this subdivision, for an order
permitting the person to own, possess, control, receive, or purchase
a firearm. The facility shall provide the person with a form for a
request for a hearing. The Department of Justice shall prescribe the
form. Where the person requests a hearing at the time of discharge,
the facility shall forward the form to the superior court unless the
person states that he or she will submit the form to the superior
court.
(4) The Department of Justice shall provide the form upon request
to any person described in paragraph (1). The Department of Justice
shall also provide the form to the superior court in each county. A
person described in paragraph (1) may make a single request for a
hearing at any time during the five-year period. The request for
hearing shall be made on the form prescribed by the department or in
a document that includes equivalent language.
(5) Any person who is subject to paragraph (1) who has requested a
hearing from the superior court of his or her county of residence
for an order that he or she may own, possess, control, receive, or
purchase firearms shall be given a hearing. The clerk of the court
shall set a hearing date and notify the person, the Department of
Justice, and the district attorney. The people of the State of
California shall be the plaintiff in the proceeding and shall be
represented by the district attorney. Upon motion of the district
attorney, or on its own motion, the superior court may transfer the
hearing to the county in which the person resided at the time of his
or her detention, the county in which the person was detained, or the
county in which the person was evaluated or treated. Within seven
days after the request for a hearing, the Department of Justice shall
file copies of the reports described in this section with the
superior court. The reports shall be disclosed upon request to the
person and to the district attorney. The court shall set the hearing
within 30 days of receipt of the request for a hearing. Upon showing
good cause, the district attorney shall be entitled to a continuance
not to exceed 14 days after the district attorney was notified of the
hearing date by the clerk of the court. If additional continuances
are granted, the total length of time for continuances shall not
exceed 60 days. The district attorney may notify the county mental
health director of the hearing who shall provide information about
the detention of the
person that may be relevant to the court and shall file that
information with the superior court. That information shall be
disclosed to the person and to the district attorney. The court, upon
motion of the person subject to paragraph (1) establishing that
confidential information is likely to be discussed during the hearing
that would cause harm to the person, shall conduct the hearing in
camera with only the relevant parties present, unless the court finds
that the public interest would be better served by conducting the
hearing in public. Notwithstanding any other law, declarations,
police reports, including criminal history information, and any other
material and relevant evidence that is not excluded under Section
352 of the Evidence Code shall be admissible at the hearing under
this section.
(6) The people shall bear the burden of showing by a preponderance
of the evidence that the person would not be likely to use firearms
in a safe and lawful manner.
(7) If the court finds at the hearing set forth in paragraph (5)
that the people have not met their burden as set forth in paragraph
(6), the court shall order that the person shall not be subject to
the five-year prohibition in this section on the ownership, control,
receipt, possession, or purchase of firearms. A copy of the order
shall be submitted to the Department of Justice. Upon receipt of the
order, the Department of Justice shall delete any reference to the
prohibition against firearms from the person's state mental health
firearms prohibition system information.
(8) Where the district attorney declines or fails to go forward in
the hearing, the court shall order that the person shall not be
subject to the five-year prohibition required by this subdivision on
the ownership, control, receipt, possession, or purchase of firearms.
A copy of the order shall be submitted to the Department of Justice.
Upon receipt of the order, the Department of Justice shall, within
15 days, delete any reference to the prohibition against firearms
from the person's state mental health firearms prohibition system
information.
(9) Nothing in this subdivision shall prohibit the use of reports
filed pursuant to this section to determine the eligibility of
persons to own, possess, control, receive, or purchase a firearm if
the person is the subject of a criminal investigation, a part of
which involves the ownership, possession, control, receipt, or
purchase of a firearm.
(g) (1) No person who has been certified for intensive treatment
under Section 5250, 5260, or 5270.15 shall own, possess, control,
receive, or purchase, or attempt to own, possess, control, receive,
or purchase, any firearm for a period of five years.
Any person who meets the criteria contained in subdivision (e) or
(f) who is released from intensive treatment shall nevertheless, if
applicable, remain subject to the prohibition contained in
subdivision (e) or (f).
(2) (A) For each person certified for intensive treatment under
paragraph (1), the facility shall immediately submit a report to the
Department of Justice, on a form prescribed by the department,
containing information regarding the person, including, but not
limited to, the legal identity of the person and the legal grounds
upon which the person was certified. Any report submitted pursuant to
this paragraph shall only be used for the purposes specified in
paragraph (2) of subdivision (f).
(B) Commencing July 1, 2012, facilities shall submit reports
pursuant to this paragraph exclusively by electronic means, in a
manner prescribed by the Department of Justice.
(3) Prior to, or concurrent with, the discharge of each person
certified for intensive treatment under paragraph (1), the facility
shall inform the person of that information specified in paragraph
(3) of subdivision (f).
(4) Any person who is subject to paragraph (1) may petition the
superior court of his or her county of residence for an order that he
or she may own, possess, control, receive, or purchase firearms. At
the time the petition is filed, the clerk of the court shall set a
hearing date and notify the person, the Department of Justice, and
the district attorney. The people of the State of California shall be
the respondent in the proceeding and shall be represented by the
district attorney. Upon motion of the district attorney, or on its
own motion, the superior court may transfer the petition to the
county in which the person resided at the time of his or her
detention, the county in which the person was detained, or the county
in which the person was evaluated or treated. Within seven days
after receiving notice of the petition, the Department of Justice
shall file copies of the reports described in this section with the
superior court. The reports shall be disclosed upon request to the
person and to the district attorney. The district attorney shall be
entitled to a continuance of the hearing to a date of not less than
14 days after the district attorney was notified of the hearing date
by the clerk of the court. The district attorney may notify the
county mental health director of the petition, and the county mental
health director shall provide information about the detention of the
person that may be relevant to the court and shall file that
information with the superior court. That information shall be
disclosed to the person and to the district attorney. The court, upon
motion of the person subject to paragraph (1) establishing that
confidential information is likely to be discussed during the hearing
that would cause harm to the person, shall conduct the hearing in
camera with only the relevant parties present, unless the court finds
that the public interest would be better served by conducting the
hearing in public. Notwithstanding any other provision of law, any
declaration, police reports, including criminal history information,
and any other material and relevant evidence that is not excluded
under Section 352 of the Evidence Code, shall be admissible at the
hearing under this section. If the court finds by a preponderance of
the evidence that the person would be likely to use firearms in a
safe and lawful manner, the court may order that the person may own,
control, receive, possess, or purchase firearms. A copy of the order
shall be submitted to the Department of Justice. Upon receipt of the
order, the Department of Justice shall delete any reference to the
prohibition against firearms from the person's state mental health
firearms prohibition system information.
(h) For all persons identified in subdivisions (f) and (g),
facilities shall report to the Department of Justice as specified in
those subdivisions, except facilities shall not report persons under
subdivision (g) if the same persons previously have been reported
under subdivision (f).
Additionally, all facilities shall report to the Department of
Justice upon the discharge of persons from whom reports have been
submitted pursuant to subdivision (f) or (g). However, a report shall
not be filed for persons who are discharged within 31 days after the
date of admission.
(i) Every person who owns or possesses or has under his or her
custody or control, or purchases or receives, or attempts to purchase
or receive, any firearm or any other deadly weapon in violation of
this section shall be punished by imprisonment pursuant to
subdivision (h) of Section 1170 of the Penal Code or in a county jail
for not more than one year in the state prison for
two, three, or four years .
(j) "Deadly weapon," as used in this section, has the meaning
prescribed by Section 8100.
SEC. 15. Section 8104 of the Welfare and Institutions Code is
amended to read:
8104. The State Department of State Hospitals shall maintain in a
convenient central location and shall make immediately
available to the Department of Justice those records that the State
Department of State Hospitals has in its possession that are
necessary to identify persons who come within Section 8100 or 8103.
These records shall be made available to the Department of Justice
upon request. The Department of Justice shall make these requests
only with respect to its duties with regard to applications for
permits for, or to carry, or the possession, purchase, or transfer
of, explosives as defined in Section 12000 of the Health and Safety
Code, devices defined in Section 16250, 16530, or 16640 of the Penal
Code, in subdivisions (a) to (d), inclusive, of Section 16520 of the
Penal Code, or in subdivision (a) of Section 16840 of the Penal Code,
machineguns as defined in Section 16880 of the Penal Code,
short-barreled shotguns or short-barreled rifles as defined in
Sections 17170 and 17180 of the Penal Code, assault weapons as
defined in Section 30510 of the Penal Code, and destructive devices
as defined in Section 16460 of the Penal Code, or to determine the
eligibility of a person to acquire, carry, or possess a firearm,
explosive, or destructive device by a person who is subject to a
criminal investigation, a part of which involves the acquisition,
carrying, or possession of a firearm by that person. These records
shall not be furnished or made available to any person unless the
department determines that disclosure of any information in the
records is necessary to carry out its duties with respect to
applications for permits for, or to carry, or the possession,
purchase, or transfer of, explosives, destructive devices, devices as
defined in Section 16250, 16530, or 16640 of the Penal Code, in
subdivisions (a) to (d), inclusive, of Section 16520 of the Penal
Code, or in subdivision (a) of Section 16840 of the Penal Code,
short-barreled shotguns, short-barreled rifles, assault weapons, and
machineguns, or to determine the eligibility of a person to acquire,
carry, or possess a firearm, explosive, or destructive device by a
person who is subject to a criminal investigation, a part of which
involves the acquisition, carrying, or possession of a firearm by
that person.
SEC. 16. 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.